Pennsylvania Court Finds Riders Not Bound by Uber’s Browsewrap Arbitration Agreement

Shannon Chilutti, who is wheelchair bound, traveled by Uber in 2019.   Her experience was not as whimsical as that recounted in Sarah Dooley’s book (right).  On the contrary, she was injured when her driver took an aggressive turn, causing her to fall out of her wheelchair, hitting her head and knocking her unconscious. 

She attempted to sue for negligence in 2020, but Uber, citing the Terms of Service (ToS) associated with its ride-sharing app, moved to compel arbitration.  The trial court granted Uber’s motion, but a panel of the Superior Court of Pennsylvania reversed.  Uber sought and was granted rehearing en banc.  In Chilutti v. Uber Technologies, Inc., the en banc court addressed whether Uber’s registration process and subsequent e-mails communicated an offer to arbitrate under Pennsylvania law. 

After some procedural preliminaries, the court addresses whether Uber communicated their intent to enter into an arbitration agreement to Ms. Chilutti and her husband and co-plaintiff on the three occasions when the plaintiffs signed up for Uber services.  In something of a throwback to the early 20th century, the court does so in the context of an inquiry into whether arbitration agreements deprive claimants of their right under the Pennsylvania constitution to a trial by jury. 

The court notes that Pennsylvania has trimmed away at the edges of the general public policy favoring arbitration.  In light of the constitutional right to trial by jury, Pennsylvania does not enforce arbitration agreements in the context of negligence claims in wrongful death actions against nursing homes.  The court next contrasts the strict formal rules attendant enforcement of confessions of judgment in the commercial context, which also implicates a waiver of the right to a jury trial, with the breezy casualness with which we allow waiver of the same right in the context of arbitration.  

Given that background, it is not surprising that the court regards Uber’s ToS with a jaundiced eye.  A person registering for Uber’s services would gain access to the ToS by clicking on a hyperlink below the “create account” button.  If one clicked on that link, one would be lead to a twelve-page agreement, with the arbitration provision beginning on page nine.  One could create an account without clicking on the link.  Stranger things have happened. 

Because there is no requirement that a registrant click on a link or click a box labeled “I agree” in connection with Uber’s ToS, the mechanism is considered browsewrap, the form of Internet contracting least likely to be enforced.  Leaning heavily on a Ninth Circuit precedent, Berman v. Freedom Fin. Network, LLC, 30 F.4th 849 (9th Cir. 2022), the court concludes that “Uber’s website and application did not provide reasonably conspicuous notice of the terms to which Appellants were bound.”  This finding turned on the font size, location, and color of the link to Uber’s ToS.  The court also considered contextual factors, like how crowded with text the page was and how many screens one had to scroll through to reach the link.  

In this case, unlike in Berman, Uber sent notices to plaintiffs that by registering they were agreeing to Uber’s ToS, and those notices may have been conspicuous.  However, given Pennsylvania’s constitutional protection of the right to a jury trial, such notices after the fact are insufficient to cure the lack of notice at the time of contract formation.  The court thus found unanimously that the district court erred in granting Uber’s motion to compel arbitration, and plaintiffs are entitled to invoke their right under the Pennsylvania constitution to a trial by jury.