No. 16-2023

RACHEL CULLINANE, JACQUELINE NÚÑEZ, ELIZABETH SCHAUL, and ROSS MCDONAGH, on behalf of themselves and all others similarly situated,

Plaintiffs, Appellants,

v.

UBER TECHNOLOGIES, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

Torruella, Thompson, and Kayatta, Circuit Judges.

Matthew W.H. Wessler, with whom Matthew Spurlock, Gupta Wessler PLLC, John Roddy, Elizabeth Ryan, and Bailey & Glasser LLP were on brief, for appellants. S. Elaine McChesney, with whom Lawrence T. Stanley, Jr., Emma D. Hall, and Morgan, Lewis & Bockius LLP were on brief, for appellee. Jennifer D. Bennett, Public Justice, P.C., Jonathan D. Selbin, Jason L. Lichtman, Andrew R. Kaufman, Lieff Cabraser Heimann & Bernstein, LLP, Jahan Sagafi, Paul W. Mollica, Outten & Golden LLP, Stuart Rossman, and National Consumer Law Center, on brief for amicus curiae Public Justice P.C., and National Consumer Law Center in support of appellants. Ben Robbins, Martin J. Newhouse, and New England Legal Foundation, on brief for amicus curiae New England Legal Foundation in support of appellee. Andrew J. Pincus, Archis A. Parasharami, Daniel E. Jones, Karianne M. Jones, Mayer Brown LLP, Kate Comerford Todd. Warren Postman, and U.S. Chamber Litigation Center, on brief for amicus curiae the Chamber of Commerce of the United States of America in support of appellee.

June 25, 2018

-2- TORRUELLA, Circuit Judge. This case concerns the enforceability of an arbitration clause contained in an online contract. Plaintiffs-Appellants Rachel Cullinane, Jacqueline Núñez, Elizabeth Schaul, and Ross McDonagh, (collectively, "Plaintiffs"), filed this putative class action in Massachusetts Superior Court on behalf of themselves and other users of a ride- sharing service in the Boston area against Defendant-Appellee Uber Technologies, Inc. ("Uber"). In their complaint, Plaintiffs alleged that Uber violated a Massachusetts consumer-protection statute by knowingly imposing certain fictitious or inflated fees. Uber removed the case to the United States District Court for the District of Massachusetts, and filed a motion to compel arbitration and stay or dismiss the case. The district court granted Uber's motion to compel arbitration and dismissed the complaint. For the reasons explained below, we reverse and remand.

I. Background

Because Uber's motion to compel arbitration was made in connection with a motion to dismiss or stay, we draw the relevant facts from the operative complaint and the documents submitted to the district court in support of the motion to compel arbitration. Gove v. Career Sys. Dev. Corp., 689 F.3d 1, 2 (1st Cir. 2012).

-3- A. Factual Background

Uber provides a ride-sharing service that transports customers throughout some cities, including Boston, for a fee. Uber licenses the Uber mobile application (the "Uber App") to the public so that users may request transportation services from independent third party providers in the users' local area. To be able to request and pay for third party transportation services, Uber App users must first register with Uber by creating an account. At the time Plaintiffs created their accounts, prospective users could either register through the Uber App or register directly through Uber's website.

All four named Plaintiffs downloaded