Mohammed v. Uber Technologies lnc et al
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 3/7/18.Mailed notice(ca, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
UBER TECHNOLOGIES, INC., RASIER, )
LLC, TRAVIS KALANICK, and RYAN
16 C 2537
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
Plaintiff Abdul Mohammed (“Mohammed”) drove for Uber Technologies, Inc.
(“Uber”). He has since filed a twenty-one count pro se complaint against Uber,1
Uber’s wholly owned subsidiary, Rasier, LLC (“Rasier”), as well as individuals
Travis Kalanick, Garrett Camp, and Ryan Graves (collectively, “Defendants”), 2
raising claims under various state and federal laws and the U.S. Constitution.
Defendants have moved to compel arbitration of Mohammed’s claims. Having held
a trial on the formation of the parties’ arbitration agreement, the Court concludes
that an agreement was formed. The Court therefore compels arbitration and stays
Subsequent to filing his complaint, Mohammed retained counsel to represent him in
the proceedings discussed herein. At present, however, he stands on his original complaint.
Defendant Camp was dismissed on February 14, 2017, for want of personal
jurisdiction. Mohammed v. Uber Techs., Inc., 237 F. Supp. 3d 719, 735 (N.D. Ill. 2017).
Mohammed filed his complaint on February 24, 2016. See ECF No. 1. On
May 3, 2016, Defendants moved to compel arbitration of Mohammed’s claims. See
Defs.’ Mots. Compel Arbitration, ECF Nos. 14, 17. The Court denied Defendants’
motions on February 14, 2017. Mohammed v. Uber Techs., Inc., 237 F. Supp. 3d
719, 724 (N.D. Ill. 2017).
In its opinion, the Court explained that, while the Federal Arbitration Act
mandates the enforcement of valid, written arbitration agreements, a court must,
before compelling arbitration, ensure that such an agreement exists. Id. at 725.
(citing 9 U.S.C. §§ 2–4; Tinder v. Pinkerton Sec., 305 F.3d 728, 733 (7th Cir. 2002)).
The Court then analyzed the parties’ competing versions of what transpired when
Mohammed signed up to drive for Uber. Id. at *730–32. It ultimately determined
that Mohammed, who denied ever seeing or agreeing to the arbitration agreement
at issue, had raised a triable issue as to whether he had formed an arbitration
agreement with Defendants.
Id. at 732.
In so holding, the Court accepted
Mohammed’s testimony as true and construed all justifiable inferences in his favor.
Id. at 725 (quoting Tinder, 305 F.3d at 735).
Section 4 of the Federal Arbitration Act affords a party opposing arbitration a
jury trial right where the formation of an arbitration agreement is at issue.
U.S.C. § 4. Here, however, Mohammed waived his jury trial right. See Orders of
3/07/17 & 4/4/17, ECF Nos. 52, 57; Pl.’s Limited Waiver of Jury & Consent to Bench
Trial, ECF No. 59. Thus, after limited discovery related to the parties’ formation of
an arbitration agreement, the Court held a one-day bench trial on June 14, 2017.
Standard of Decision
Where an action is “tried on the facts without a jury,” Federal Rule of Civil
Procedure 52 requires the district court to “find the facts specially and state its
conclusions of law separately.” Fed. R. Civ. P. 52(a); see Khan v. Fatima, 680 F.3d
781, 785 (7th Cir. 2012). In doing so, the district court must “explain the grounds”
of its decision and provide a “reasoned, articulate adjudication.” Aprin v. United
States., 521 F.3d 769, 776 (7th Cir. 2008).
In rendering its decision in this case, the Court has considered the admissible
testimony and documentary evidence offered at trial. In so doing, the Court has
considered the weight to be given to the evidence and has assessed the credibility of
the witnesses in light of their demeanor, their ability to see, hear, and know the
matters about which they testified, and any potential for bias. Furthermore, the
Court has considered the memoranda and proposed findings of facts submitted by
the parties after the trial and the legal and factual arguments set forth therein.
Defendants called two witnesses. 3 The first was Brian Moloney, a Senior
Operations Manager at Uber Chicago. Bench Trial Tr. (“Tr.”) at 10:14–15, ECF No.
Defendants also offered the testimony of a third witness, James Hawkins. Hawkins
is a Product Operations Specialist who investigates fraud in conjunction with Uber’s
products and promotions. Id. at 113:7–21. He testified concerning conduct by which Uber
believes Mohammed created a number of fraudulent rider accounts. See generally id. at
77. Moloney began working for Uber in June 2014. Id. at 10:16–17. In October
2014, when Mohammed signed up to drive with Uber, Moloney served as an
Operations and Logistics Manager in Uber’s Chicago office. Id. at 10:16–19. In this
capacity, Moloney was responsible for, among other things, “in-person support.” Id.
This support consisted of assisting Uber drivers with inquiries
regarding the Uber application (“app”) used in conjunction with driving for Uber,
including instances in which drivers “ha[d] an issue signing up” to drive with Uber.
Id. at 11:1–7. Through his role, Moloney became familiar with the process Uber
used to sign up drivers through the app, id. at 11:15–18, which was the subject of
his testimony, see generally id. at 10:12–48:2.
The second was Shea Munion. Munion worked for Uber Chicago from late
2012 through March 2015. Id. at 49:3–8. As an Operations Coordinator, Munion’s
primary responsibilities at Uber were “providing support to the Uber driverpartners at the partner support center, which ranged from on-boarding them to
supporting them once they were actually using the system.” Id. at 49:11–16. In
this role, Munion also became familiar with the driver sign-up process.
49:17–24. He testified about his practices as part of that process, particularly with
respect to October 1, 2014, when Uber records indicate that Munion met with
Mohammed and assisted him in signing up to drive with Uber. See generally id. at
112:22–146:21. The Court determined that this evidence was not relevant to the issue of
whether Mohammed entered into an agreement with Uber to arbitrate disputes that might
arise in his role as driver. Id. at 111:20–25. Nevertheless, the Court received the evidence
on proffer. Id. at 111:2–4.
Mohammed called only himself. He began driving for Uber on October 1,
2014. Id. at 64:23–25. He gave his account of what occurred when he signed up to
serve as a driver on that day, as well as a number of other items related to his time
as a driver. See generally id. at 64:6–102:5.
Findings of Fact
Uber Technologies, Inc. provides transportation by utilizing an app to
connect riders with independent drivers. See Defs.’ Ex. 1. At all times relevant to
this dispute, Uber partnered with Rasier, LLC, which licensed the Uber app and
provided a platform for drivers to connect with riders. Id.
In October 2014, drivers’ engagement with Uber was governed in part
by the “Rasier Software Sublicense & Online Services Agreement,” or the “Rasier
Agreement.” See id.; Tr. at 16:19–17:19.
The Rasier Agreement contains an arbitration provision. Defs.’ Ex. 1,
at 11–15; Tr. at 17:8–19. The provision is governed by the Federal Arbitration Act
and mandates arbitration broadly, “without limitation, to disputes arising out of or
related to [the] Agreement and disputes arising out of related to [a driver’s]
relationship with” Rasier or Uber. Defs.’ Ex. 1, at 12–13. If a driver does not wish
to be subject to the arbitration provision, the Rasier Agreement details how the
driver may opt out. Id. at 15.
The first page of the Rasier Agreement states, in bold, capital font
beginning with “IMPORTANT,” that the Rasier Agreement contains an arbitration
provision that mandates arbitration for disputes with the company. Id. at 1. The
same paragraph explains that accepting the Rasier Agreement constitutes consent
to the arbitration provision, and notes that it is possible to opt out of the arbitration
provision by following instructions found later in the document. Id.
In October 2014, individuals seeking to drive for Uber first completed a
number of preliminary steps, including creating an account and undergoing a
background check. Tr. at 11:22–12:16. After completing these preliminary steps,
Uber employees were responsible for ensuring compliance and “activating” drivers’
accounts. Id. at 12:24–13:3. Without activation, a driver could not use the app and
drive for Uber. Id. at 13:6–13:10.
Following activation, two steps remained before a driver could begin
using the app. First, the app required assent to terms and conditions of service. Id.
at 13:15–17. Then, the app requested bank account information in order to arrange
for direct deposit. Id. at 13:23–14:1.
With respect to the first step—assent to terms and conditions—the app
provided two screens by which it twice requested assent. First, the app populated a
screen that stated, “TO GO ONLINE, YOU MUST REVIEW ALL THE
DOCUMENTS BELOW AND AGREE TO THE CONTRACTS BELOW.” Defs.’ Ex.
2; Tr. at 14:12–16. Three contracts were listed on the screen, including the Rasier
Agreement, which could be accessed by hyperlink. Defs.’ Ex. 2; Tr. at 16:5–13.
Below the contracts, this first screen explained, “[b]y clicking below, you represent
that you have reviewed all the documents above and that you agree to all the
Defs.’ Ex. 2.
Below this explanation was a green button
containing “Yes, I agree.” Id.
If the user selected the green button containing “Yes, I agree,” another
screen appeared. Tr. at 15:11–12; see Defs.’ Ex. 3. The screen stated, in bold font,
“Please confirm that you have reviewed all the documents and agree to all
the new contracts.” Defs.’ Ex. 3.
The user was then given the option of selecting “No” or “Yes, I agree”
for a second time. Id. Thus, in order to proceed with using the Uber app, the user
was required to indicate his or her agreement to the contracts as issue—including
the Rasier Agreement—two separate times. See id.; Tr. at 15:11–13.
In October 2014, when Mohammed signed up to drive for Uber, Uber
had a partner support center in Chicago. Id. at 11:3–4. Moloney and Munion each
provided partner support out of the Chicago center. See id. at 11:3–18, 35:9–19;
Munion assisted Mohammed with the process of signing up to drive for
Uber on October 1, 2014. Id. at 21:7–19; 22:9–17; 23:13–18, 51:1–13; see Defs.’ Exs.
Uber’s records reflect that the “Yes I agree” buttons were selected in
connection with Mohammed’s account, indicating assent to the Rasier Agreement,
on October 1, 2014. Id. at 19:18–21:2; Defs.’ Ex. 9.
Munion does not remember assisting Mohammed. Id. at 51:12–15. As
an Operations Coordinator, he assisted “many, many” drivers. Id. at 15:15.
In the course of assisting prospective drivers with the sign-up process,
Munion adopted a “general practice” of ensuring that only the prospective driver—
and not Munion—clicked to indicate acceptance of Uber’s terms and conditions of
service, including the Rasier Agreement. Id. at 53:20–54:24. Specifically, Munion
required the prospective driver to hold the device or phone on which the prospective
driver viewed the screens described above, informed the driver that they were
agreeing to terms and conditions with Uber, gave the driver time to read the Rasier
Agreement if the driver wished, and left the driver—and only the driver—to select
“Yes, I agree.” Id.
In finding that Munion adopted such a practice, the Court deems his
testimony to this effect credible in light of several considerations. 4 First, Munion
In his post-hearing brief, Mohammed challenges the existence of such a practice on
the basis that Defendants adduced no evidence of formal training or a written document
establishing this practice. Pl.’s Post-Trial Br. at 5, 8, ECF No. 78. Insofar as Mohammed
challenges the admissibility of Munion’s testimony for this purpose, however, his argument
is too late, because he did not object at trial. See Walker v. Groot, No. 14-2478, 2017 WL
3474048, at *4 (7th Cir. Aug. 14, 2017).
In any event, his challenge falls flat. First, whether Munion received formal
training or not, the Court finds that he adopted a personal practice of requiring prospective
drivers to assent to the Rasier Agreement. Munion assisted so many prospective drivers (as
many as thirty per day) so frequently in his role as an Operations Coordinator such that he
repeatedly and systematically ensured that they clicked acceptance to the Rasier
Tr. at 51:14–15, 53:20–54:24, 55:14–24, 56:2–17; see Simplex, Inc. v.
Diversified Energy Sys., Inc., 847 F.2d 1290, 1293–94 (7th Cir. 1988). In addition, Federal
Rule of Evidence 406 explains that there need not be any documentation of his practice in
order for it to be admissible: “Evidence of a person’s habit . . . may be admitted to prove that
on a particular occasion the person . . . acted in accordance with the habit . . . . The court
may admit this evidence regardless of whether it is corroborated or whether there was an
eyewitness.” Fed. R. Evid. 406; see Rosenburg v. Lincoln Am. Life Ins. Co., 883 F.2d 1328,
1336 (7th Cir. 1989) (holding that witnesses’ testimony was sufficient to establish the
existence of a practice).
offered a sincere reason for adopting such a practice.
He explained that he
understood that the Rasier Agreement was between a prospective driver and Uber,
and was therefore “personal[ ]” and “important . . . to the person who’s signing up.”
Tr. at 54:10–15. Second, Munion, who no longer works for Uber, see id. at 49:1–6,
has no stake in the controversy, and thus no reason to testify untruthfully. Third,
Moloney also testified that he was instructed to adopt a similar practice. Id. at
44:9–45:21. 5 The fact that another Uber employee believed that the company had
adopted such a practice lends credence to Munion’s testimony that he had adopted
such a practice.
Finally, Munion’s demeanor and temperament as a witness
reflected an intent to testify genuinely, honestly, and reliably.
Consistent with this practice, on October 1, 2014, Munion ensured that
Mohammed selected “Yes, I agree” on each screen, reflecting his assent to the
In finding that it was Mohammed (rather than Munion) who selected “Yes, I
agree” on each screen, the Court does not find Mohammed’s testimony otherwise,
see Tr. at 66:8–67:19, to be credible for several reasons. First, Mohammed testified
as to two aspects of his interaction with Munion that, according to both Munion and
Moloney, are inconsistent with Uber’s driver sign-up process as of October 1, 2014.
Mohammed objects to this fact in his post-trial brief on the basis that it is founded
on inadmissible hearsay. Pl.’s Post-Trial Br. at 5–6, 8; see generally Tr. at 46:19–47:23.
Once again, this objection is offered too late. Walker, 2017 WL 3474048, at *4. But, in any
event, the out-of-court statements on which Moloney relied are not taken here for their
truth. Rather, they are admissible to demonstrate their effect on Moloney, who testified
that he adhered to the practice during his employment at Uber, as did the other Uber
employees he observed. Tr. at 45:3–21.
According to Mohammed, he gave Munion a $100 cash deposit for a leased phone.
Id. at 66:10–12. But in October 2014, Uber did not accept cash toward the then$200 deposit on leased phones.
See id. at 18:2–19:4; 51:20–52:22.
Mohammed claimed that Munion logged him into a leased phone. Id. at 66:13–19.
But Uber, which keeps records of every log-in to a leased phone, has no record of
Munion logging Mohammed into a leased phone. Id. at 19:5–17. Mohammed makes
no effort to explain these inconsistencies. They suggest that Mohammed’s memory
as to his interaction with Munion is unreliable or otherwise incorrect.
Second, unlike Munion, Mohammed has a direct stake in the controversy,
which provides greater reason to doubt the credibility of his testimony. And, third,
several of Mohammed’s responses on cross-examination raised questions as to his
credibility. For example, his Facebook page lists that he graduated from Stanford
University, which he never attended. Id. at 67:25–69:19. 6 In addition, as part of an
effort to obtain certain signing bonuses from both Uber and Lyft, Mohammed both
(1) misrepresented to at least one of the companies that he was not yet an active
driver for the company, id. at 83:22–87:22, and (2) falsely stated to Lyft that he was
no longer driving with Uber, when he still was, id. at 85:2–86:2. 7 In addition,
Mohammed testified that he could not remember or did not know if he had created
Mohammed initially suggested that he did not know why Stanford was listed, then
said that he may have mistakenly selected it, and finally maintained that the account is not
These statements must have been false irrespective of the fact that the terms of the
promotion were not admitted into evidence, as Mohammed points out. See Pl.’s Post-Trial
Br. at 12.
certain fraudulent Uber rider accounts and driven the accounts in a circle near his
home in order to manipulate an Uber promotion. Tr. at 88:3–98:6. The Court finds
that these responses further undermine Mohammed’s credibility and increase the
likelihood that his testimony about his interaction with Munion is not accurate.
Mohammed thereafter used Uber’s app and connection to riders to
provide over 2000 rides. Id. at 90:17–18.
The Federal Arbitration Act permits a court to compel arbitration where
there is “a written agreement to arbitrate, a dispute within the scope of the
arbitration agreement, and a refusal to arbitrate.” Zurich Am. Ins. Co. v. Watts
Indus., Inc., 417 F.3d 682, 687 (7th Cir. 2005); see 9 U.S.C. §§ 3–4. Here, only the
existence of an agreement to arbitrate is at issue. And, as the parties seeking to
compel arbitration, Defendants bear the burden of proving the existence of an
agreement to arbitrate by a preponderance of the evidence. See Cwik v. First Stop
Health, LLC, No. 12 C 6238, 2016 WL 1407708, at *4–5 (N.D. Ill. Apr. 10, 2016); see
also Norcia v. Samsung Telecomms. Am., LLC, 845 F.3d 1279, 1283 (9th Cir. 2017).
The question of whether Mohammed formed an agreement to arbitrate with
Uber is governed by state law. Janiga v. Questar Capital Corp., 615 F.3d 735, 742
(7th Cir. 2010). In this case, the parties agree that Illinois law applies. Defs.’
Stmts. of Fact & Conclusions of Law ¶ 72, ECF No. 76; Pl.’s Post-Trial Br. at 6–7.
“In Illinois, an offer, an acceptance and consideration are the basic
ingredients of a contract.” Melena v. Anheuser-Busch, Inc., 847 N.E.2d 99, 109 (Ill.
2006). An offer is “the manifestation of willingness to enter into a bargain, so made
as to justify another person in understanding that his assent to that bargain is
invited and will conclude it.” Wigod v. Wells Fargo Bank, N.A., 673 F.3d 547, 561
(7th Cir. 2012) (internal quotation marks and citations omitted) (applying Illinois
law). To accept an offer, a party must objectively manifest intent to be bound to the
contract’s terms. See Sgouros v. TransUnion Corp., 817 F.3d 1029, 1034 (7th Cir.
2016) (applying Illinois law).
And consideration is “‘a bargained-for exchange,
whereby the promisor . . . receives some benefit, or the promisee . . . suffers
detriment.’” JPMorgan Chase Bank, N.A. v. Asia Pulp & Paper Co., 707 F.3d 853,
866 (7th Cir. 2013) (alteration in original) (quoting Vassilkovska v. Woodfield
Nissan, Inc., 830 N.E.2d 619, 624 (Ill. App. Ct. 2005)).
Here, the Court finds that Defendants have established, by a preponderance
of the evidence, that Uber offered the Rasier Agreement (and the arbitration
provision contained therein) to Mohammed when it presented him with the
agreement as part of the driver sign-up process. Tr. at 14:12–16, 15:11–13, 16:5–13;
Defs.’ Exs. 2–3. 8 Defendants have also proven that it is more likely than not that
Mohammed accepted the agreement by clicking “Yes, I agree” to two different
screens after being presented with a hyperlink to the agreement. See id. at 19:18–
To the extent Mohammed argues that Uber’s conduct did not constitute an offer
because Munion did not explain the terms of the arbitration provision to him, Pl.’s PostTrial Br. at 8, this argument is unavailing. See Sgouros, 817 F.3d at 1034 (“Generally, a
party who signs a written contract is presumed to have notice of all of the contract’s
terms.”); accord Janiga, 615 F.3d at 743. Moreover, the Court concurs with the conclusions
of various other courts that Uber’s sign-up process provided reasonable notice of the
arbitration provision contained in the Rasier Agreement. See Defs.’ Post-Trial Reply at 3–4,
ECF No. 80 (collecting cases).
21:2, 21:7–19; 22:9–17; 23:13–18, 51:1–13, 53:20–54:21; Defs.’ Exs. 7–9. Finally,
Defendants have shown, by a preponderance of the evidence, that Uber provided
consideration for the agreement through providing Mohammed with the benefits of
its app and connection to riders in conjunction with over 2000 rides. Id. at 90:17–
In a last-ditch effort to avoid arbitration, Mohammed spends most of his posttrial brief arguing (for the first time) that the Rasier Agreement is indefinite or
otherwise unenforceable because it contains an illusory promise. Pl.’s Post-Trial Br.
at 7–8, 10–12.
Mohammed grounds this argument in a provision of the Rasier
Agreement titled “Modifications,” which states:
The Company reserves the right to modify or supplement the terms
and conditions of this Agreement at any time, effective upon
publishing a modified version of this Agreement, or upon publishing
the supplemental terms to this Agreement, on the Software or via
email or on your online Partner Dashboard.
You hereby expressly acknowledge and agree that, by using or
receiving the Service, and downloading, installing or using the
Software, you and Company are bound by the then-current version of
this Agreement, including any modifications and supplements to this
Agreement or documents incorporated herein. Continued use of the
Service or Software after any modifications or supplements to the
Agreement shall constitute your consent to such modifications and
You are responsible for regularly reviewing this
See Defs.’ Ex. 1, at 16. Mohammed contends, in pertinent part, that “Uber—like the
proverbial hog—was overly greedy in reserving itself a right to change all terms of
its ‘contract,’ including the arbitration clause,” and thereby “rendered its
contractual consideration illusory.” Pl.’s Post-Trial Br. at 11.
This argument fails in two germane respects. First, it is impermissibly tardy.
Mohammed could have raised this argument long before the Court and the parties
went to the time and expense of conducting discovery and a trial on the parties’
formation of an agreement to arbitrate. Mohammed should have sought leave to
make such an argument at an earlier time. As such, he waived his opportunity to
bring it now.
Even on the merits, however, Mohammed is mistaken. “‘An illusory promise
appears to be a promise, but on closer examination reveals that the promisor has
not promised to do anything . . . . An illusory promise is also defined as one in
which the performance is optional.’” Regensburger v. China Adoption Consultants,
Ltd., 138 F.3d 1201, 1206–07 (7th Cir. 1998) (alteration in original) (quoting W.E.
Erickson Const., Inc. v. Chi. Title Ins. Co., 641 N.E.2d 861, 864 (Ill. App. Ct. 1994)).
Plainly, the modification provision in the Rasier Agreement does not indicate that
Uber promises nothing, or that its performance is optional. Rather, the provision
indicates only that Uber can modify the contract at a later date, to which the driver
must assent. The initial agreement, in comparison, was enforceable against Uber
upon its entry.
The authorities on which Mohammed relies do not indicate otherwise. Druco
Restaurants, Inc. v. Steak N Shake Enterprises, Inc., 765 F.3d 776 (7th Cir. 2014),
involved a contract that permitted the defendant to unilaterally impose arbitration
without assent from the plaintiff, id. at 780, 782–83, unlike the Rasier Agreement,
which binds both parties to arbitration (unless Mohammed had opted out, see Defs.’
Ex. 1, at 15) and requires both parties’ assent to any modifications. Moreover, the
very language Mohammed quotes from Gibson v. Neighborhood Health Clinics, Inc.,
121 F.3d 1126 (7th Cir. 1997)—where the agreement at issue expressly disclaimed
creation of a contract, and it was “‘quite clear that [the defendant] ha[d] committed
itself to nothing,’” Pl.’s Post-Trial Br. at 11 (quoting Gibson, 121 F.3d at 1133
(Cudahy, J., concurring))—indicates why it is inapposite. The decisions from other
circuits on which Mohammed relies, id. at 7, 11, are distinguishable for the same
reasons. Accordingly, the Court finds that Uber’s promise underlying the Rasier
Agreement was not illusory.
Conclusion of Law
Based on the evidence submitted at trial, Defendants have sustained their
burden of proving by a preponderance of the evidence that Mohammed entered into
a written agreement to arbitrate his dispute with Uber when he signed up to drive
on October 1, 2014. 9
Mohammed formed a written agreement to arbitrate his dispute against
Defendants on October 1, 2014. Pursuant to 9 U.S.C. § 3, the Court stays the case
pending arbitration. See Halim v. Great Gatsby’s Auction Gallery, Inc., 516 F.3d
557, 561 (7th Cir. 2008).
This case is placed on the Court’s suspended trial
Because the Court finds that the parties entered into an agreement to arbitrate on
this date, it need not consider Defendants’ additional argument that Mohammed assented
to the Rasier Agreement by his conduct after October 1, 2014.
calendar. The parties are instructed to inform the Court within thirty days of the
conclusion of the arbitration proceeding.
IT IS SO ORDERED.
John Z. Lee
United States District Judge
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