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Mutual manifestation of assent is the touchstone of contract. Specht, 306 F.3d at 29. Moreover, arbitration agreements are no exception to the requirement of manifestation of assent, and clarity and conspicuousness of arbitration terms are important in securing informed assent.
Plaintiff Spencer Meyer filed suit against defendant Travis Kalanick, alleging that Kalanick had orchestrated and participated in an antitrust conspiracy arising from the algorithm that co-defendant Uber Technologies, Inc. ("Uber") used to set ride prices. Kalanick filed a motion to dismiss plaintiff's First Amended Complaint, which was denied by the trial court. Subsequently, Kalanick moved to join Uber as a defendant in the case, which the trial court granted. Uber had also moved to intervene, which motion was denied as moot. However, attached to Uber’s motion to intervene was a motion to compel arbitration. According to Uber, plaintiff was required to arbitrate his claims pursuant to a contract formed when he signed up to use Uber. Kalanick also moved to compel arbitration, claiming that even though he was not a signatory to the contract that plaintiff had formed with Uber, he could enforce the arbitration provision of that contract against plaintiff. Plaintiff opposed the motions to compel arbitration filed by defendants, denying that an arbitration agreement was ever formed. Plaintiff argued that when he registered to use Uber, he did not have adequate notice of the existence of an arbitration agreement.
Under the circumstances, should defendants’ motions to compel arbitration be granted?
In analyzing the instant case, the Court applied the standard provided in Specht v. Netscape Commc'ns Corp., 306 F.3d 17 (2d Cir. 2002), and determined whether plaintiff had reasonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms. Here, the Court found that plaintiff did not have reasonably conspicuous notice of Uber's User Agreement, including its arbitration clause, or evince unambiguous manifestation of assent to those terms. Most importantly, the Court noted that the Uber registration screen did not adequately call users' attention to the existence of Terms of Service, let alone to the fact that, by registering to use Uber, a user was agreeing to them. Consequently, defendant Uber may not enforce the arbitration clause against plaintiff.