UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT DRICKEY JACKSON, individually No. 21-56107 and on behalf of all others similarly situated, D.C. No. 3:20-cv-02365- Plaintiff-Appellee, WQH-BGS

v. OPINION AMAZON.COM, INC.,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted November 17, 2022 San Jose, California

Filed April 19, 2023

Before: Mary M. Schroeder, Susan P. Graber, and Michelle T. Friedland, Circuit Judges.

Opinion by Judge Schroeder; Partial Concurrence and Partial Dissent by Judge Graber 2 JACKSON V. AMAZON.COM, INC.

SUMMARY *

Arbitration

The panel affirmed the district court’s order denying Amazon.com, Inc.’s motion to compel arbitration in a putative class action brought by Drickey Jackson, seeking to represent a class of Amazon Flex drivers, and claiming damages and injunctive relief for alleged privacy violations in violation of state and federal laws. Jackson contends that Amazon monitored and wiretapped the drivers’ conversations when they communicated during off hours in closed Facebook groups. The district court denied Amazon’s motion to compel arbitration, holding that the dispute did not fall within the scope of the applicable arbitration clause in a 2016 Terms of Service Agreement (“2016 TOS”). The panel held that there was appellate jurisdiction. The panel followed Int’l Ass’n of Machinists and Aerospace Workers, AFL-CIO v. Aloha Airlines, 776 F.2d 812, 825 (9th Cir. 1985), to conclude that the order denying arbitration in this case was immediately appealable under 28 U.S.C. § 1292(a)(1). The parties disagreed about which Amazon Flex Terms of Service Agreement applied to this case –the 2016 TOS or the 2019 TOS. The parties agree that under the 2016 TOS, the court should decide whether the dispute is arbitrable and whether Amazon’s motion to compel arbitration should be * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. JACKSON V. AMAZON.COM, INC. 3

granted. Under California law and principles of contract law, the burden is on Amazon, as the party seeking arbitration, to show that it provided notice of a new TOS and that there was mutual assent to the contractual agreement to arbitrate. The panel held that there was no evidence that the email allegedly sent to drivers adequately notified drivers of the update. The district court therefore correctly held that the arbitration provision in the 2016 TOS still governed the parties’ relationship. The panel held that this dispute fell outside the scope of the arbitration clause in the 2016 TOS. To be arbitrable, the dispute must relate to the contract. Jackson’s complaint did not allege that any provision of the Flex driver contract was violated. It alleged that Amazon essentially spied on Flex drivers while they were not working. The 2016 TOS contained a broad arbitration provision, but Jackson’s claims did not depend on any terms of his contract as a driver for Amazon Flex. Although membership in Jackson’s proposed class would require participation in the Amazon Flex program, the controversy in this case is ultimately not about the characteristics or conduct of class members, but whether Amazon is liable for wiretapping and invasion of privacy. Neither Amazon’s motive nor the violation of any provision of this contract would be an element of any of Jackson’s claims. The alleged misconduct would be wrongful even if there had been no contract. Th