Tuesday, August 25, 2020
Judge Ryan Nelson Points to ‘Deterrent Effect Doctrine,’ Says There’s No Need to Make ‘Futile Gesture’ of Attempting to Obtain Service Which Is Known to Be Unavailable
By a MetNews Staff Writer
A disabled couple has standing to sue Uber Technologies under the Americans With Disabilities Act based on it not providing wheelchair accessible transportation in their home town even though they have not downloaded the Uber App and set up an account, precluding them from using such a service even if it existed, the Ninth U.S. Circuit Court of Appeals held yesterday.
Writing for a three-judge panel, Judge Ryan D. Nelson declared that the “deterrent effect doctrine” applies.
His opinion affirms an order by District Court Judge Richard Seeborg of the Northern District of California denying Uber’s motion to compel arbitration. The San Francisco-based company—that connects persons wishing transportation with drivers offering ride-sharing—argued that the couple, residing in New Orleans, had failed to download the app that enables use of the service or signed up for the service, thereby skirting assent to the terms and conditions, which include resolving disputes through arbitration.
That means, Uber argued, that plaintiffs Stephen Namisnak, who has muscular dystrophy, and Francis Falls, a paraplegic, lack standing and, in any event, should be equitably estopped from denying that they are bound by the arbitration clause.
A third plaintiff in the case had downloaded the app and agreed to arbitration, and was ordered by Seeborg to arbitrate.
The wheelchair-accessible ride-sharing option—known as “uberWAV”—is available in San Francisco and various other cities.
‘Futile Gesture’ Unnecessary
Nelson said, with respect to standing, that under the “deterrent effect doctrine,” a disabled person with knowledge of an unlawful barrier to service at a public accommodation may sue under the ADA without making the “futile gesture” of attempting to gain service in order make a showing of actual injury. He wrote:
“Plaintiffs allege they are aware Uber does not offer uberWAV in New Orleans; that they cannot use the Uber App because of its failure to offer uberWAV; that they plan to use the Uber App if it becomes wheelchair-accessible; and that they ‘presently fear that they will encounter the mobility-related barriers which exist within Uber’s Application and services.’ Downloading the Uber App and creating an account are attempts to gain access to the services Uber provides. But Plaintiffs have actual knowledge that Uber does not provide its uberWAV service in New Orleans. That barrier to entry makes downloading the Uber App and creating an account a futile gesture, which Plaintiffs need not engage in to show injury in fact.”
Uber speculated that there might be reasons not related to the unavailability of uberWAV in New Orleans who the couple could not obtain the service they desired, such as not having credit cards or a smartphone. Nelson responded:
“But our caselaw does not require Plaintiffs to specifically allege that they possess means to visit the accommodation.”
Seventh Circuit Decision
Uber urged the Ninth Circuit panel to adhere to what it portrayed as the holding by the Seventh Circuit in its opinion this year in Access Living v. Uber Technologies, Inc. There, it was held that a plaintiff who had not downloaded the Uber app or created an account lacked standing to sue Uber in an ADA action.
The difference in that case, Nelson said, is that Uber does offer uberWAV in Chicago and said that is “a dispositive distinction,” explaining:
“Where uberWAV is offered, it makes sense that a plaintiff would be required to download the Uber App so that a proper comparison of available services may be made in support of an alleged ADA claim. But the same is not true where, as here, uberWAV is not offered at all in New Orleans. Moreover, there was no jurisdictional discovery and therefore no evidence that Plaintiffs had the opportunity to use uberWAV in a city where it is offered—such as Chicago—and failed to do so.”
Uber argued that even if it made uberWAV available in New Orleans, there would be no guarantee that drivers would opt to purchase vehicles with wheelchair access. Nelson saw that as a backward approach, commenting:
“…Uber drivers cannot offer uberWAV services without Uber first making that option available.”
“[W]e conclude that Plaintiffs’ alleged injuries would not exist absent Uber’s actions, and these injuries cannot be redressed without enjoining Uber to comply with the ADA. Plaintiffs have therefore plausibly alleged causation and redressability.”
Nelson agreed with Uber that a nonsignatory to an arbitration agreement may be bound by such an agreement where it is equitably estopped from denying assent. If the plaintiffs were relying on the terms and conditions for one purpose, he said, it would be estopped from denying enforceability of other portions.
But, he noted, the plaintiffs “do not rely on Uber’s Terms and Conditions.” He elaborated:
“None of Uber’s Terms and Conditions is mentioned in the operative complaint, and the only Terms or Conditions Uber has mentioned is the arbitration clause. Plaintiffs’ case arises entirely under the ADA. And Plaintiffs’ ADA claims are fully viable without any reference to Uber’s Terms and Conditions. So equitable estoppel does not apply. The district court was therefore correct to deny Uber’s motion to compel arbitration.”
The case is Namisnak v. Uber Technologies, 18-15860.
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