FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHAN NAMISNAK; FRANCIS No. 18-15860
FALLS,
Plaintiffs-Appellees, D.C. No.
3:17-cv-06124-
v. RS
UBER TECHNOLOGIES, INC.; RASIER,
LLC, OPINION
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Argued and Submitted May 14, 2020
San Francisco, California
Filed August 24, 2020
Before: J. Clifford Wallace and Ryan D. Nelson, Circuit
Judges, and Frederic Block, * District Judge.
Opinion by Judge R. Nelson
*
The Honorable Frederic Block, United States District Judge for the
Eastern District of New York, sitting by designation.
2 NAMISNAK V. UBER TECHNOLOGIES
SUMMARY **
Arbitration
The panel affirmed the district court’s order denying in
part the motion of defendant Uber Technologies, Inc., to
compel arbitration of claims brought under the Americans
with Disabilities Act.
Plaintiffs sued Uber for not providing a wheelchair-
accessible ride-sharing option, known as “uberWAV,” in
their hometown of New Orleans. Two plaintiffs never
downloaded the Uber App and therefore did not sign Uber’s
arbitration agreement, included in its Terms and Conditions,
before filing suit.
The panel held that plaintiffs plausibly alleged sufficient
facts to establish Article III standing. The panel held that
plaintiffs sufficiently alleged injury in fact pursuant to the
“deterrent effect doctrine,” which recognizes that when a
plaintiff who is disabled has actual knowledge of illegal
barriers at a public accommodation to which he or she
desires access, the plaintiff need not engage in the “futile
gesture” of attempting to gain access. The panel
distinguished a Seventh Circuit case in which uberWAV was
available to the plaintiff, who therefore lacked standing. The
panel held that plaintiffs also plausibly alleged the causation
and redressability elements of standing because their alleged
injury was directly traceable to Uber’s refusal to offer
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
NAMISNAK V. UBER TECHNOLOGIES 3
uberWAV in New Orleans, and an injunction would redress
that injury by requiring Uber to offer access to its services.
The panel further held that, under California law,
plaintiffs were not equitably estopped from avoiding
arbitration because their ADA claims did not rely on Uber’s
Terms and Conditions.
COUNSEL
Bryan Killian (argued) and Stephanie Schuster, Morgan
Lewis & Bockius LLP, Washington, D.C.; Anne Marie
Estevez, Morgan Lewis & Bockius LLP, Miami, Florida; for
Defendants-Appellants.
Karla Gilbride (argued), Public Justice P.C., Washington,
D.C.; Garret DeReus, Bizer & Dereus LLC, New Orleans,
Louisiana; William Most, Aqua Terra Aeris Law Group,
Albany, California; for Plaintiffs-Appellees.
OPINION
R. NELSON, Circuit Judge:
Plaintiffs Stephen Namisnak and Francis Falls
(“Plaintiffs”) sued Uber Technologies, Inc. (“Uber”) under
the Americans with Disabilities Act (“ADA”) for not
providing a wheelchair-accessible ride-sharing option in
their hometown of New Orleans. But they never
downloaded the Uber App—and therefore did not sign
Uber’s arbitration agreement—before filing suit. According
to Uber, because Plaintiffs do not have the Uber App and
therefore do not use Uber, they cannot satisfy the injury-in-
4 NAMISNAK V. UBER TECHNOLOGIES
fact prong of the Article III standing analysis. And even if
they can, Uber argues, they should be equitably estopped
from avoiding Uber’s arbitration agreement because they
consciously avoided downloading the Uber App and signing
the Terms and Conditions. The district court disagreed. So
do we. We therefore affirm.
I
Uber is a technology company that creates smartphone
applications. One of those applications is called the Uber
App, which connects those looking for a ride with drivers
looking to provide rides. To take advantage of this service,
riders must download the Uber App on their smartphones.
Before using the Uber App, they must also agree to Uber’s
Terms and Conditions, which includes an arbitration
agreement.
Signing the arbitration agreement allows riders access to
the Uber App and the ability to hail drivers to give them rides
to their desired location. Depending on the location, various
types of rides are available. Many riders use “UberX,”
which is a ride in a sedan. Others choose “Uber Black,”
which is a ride in a luxury sedan. Still others elect to use
“UberXL,” which provides rides for larger groups, including
families. Finally, in at least San Francisco, Portland, and
Washington D.C., riders can use uberWAV, which provides
rides to those in need of wheelchair-accessible vehicles, or
WAVs.
Plaintiffs Namisnak and Falls would like to use the
uberWAV option due to their disabilities. Namisnak has
muscular dystrophy. Falls is paraplegic following a spinal
cord injury. But neither Plaintiff can use the uberWAV
service because it is not available in New Orleans, where
they live. So they never downloaded the Uber App or tried
NAMISNAK V. UBER TECHNOLOGIES 5
to hail an uberWAV ride. Instead, they filed suit under the
ADA, alleging that Uber discriminated against them by not
providing uberWAV in New Orleans. As relief, they sought
an injunction requiring Uber to provide uberWAV in New
Orleans.
In the operative complaint, Plaintiffs alleged that they
could not “successfully use Uber’s services because Uber
does not offer a button, option, or icon in the Uber App for
the New Orleans market which would allow a wheelchair
user to summon a van-equipped vehicle.” They further
alleged that they were “presently aware that if they tried to
install and use the Uber Application that they would
experience serious difficulty” due to Uber’s failure to
provide an accommodating service. Finally, they alleged
that they “plan to and will attempt to use the Uber
Application and Uber’s programs, services, and
accommodations in the future as patrons should those
programs, services, and accommodations become
wheelchair-accessible.”
Uber moved to compel Plaintiffs—as well as a third
plaintiff who had downloaded the Uber App and signed
Uber’s arbitration agreement—to arbitrate their claims. The
district court granted the motion in part and denied it in part.
According to the district court, the third plaintiff was
required to arbitrate his claims because he signed Uber’s
Terms and Conditions—including the arbitration
agreement—when he downloaded the Uber App. But the
same was not true for Falls and Namisnak. They had not
downloaded the Uber App or signed the arbitration
agreement, so they could not be bound by it. Nor could they,
according to the district court, be equitably estopped from
avoiding arbitration because their claims were not
intertwined with or reliant on Uber’s Terms and Conditions
6 NAMISNAK V. UBER TECHNOLOGIES
as required under California law. Uber now appeals that
decision. We have jurisdiction under 9 U.S.C. § 16(a)(1)(B).
II
Uber argues for the first time on appeal that Plaintiffs
have not plausibly alleged sufficient facts to establish each
element of the standing inquiry. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). “To establish standing, a plaintiff must
demonstrate (1) a concrete and particularized injury that is
actual or imminent, not conjectural or hypothetical; (2) a
causal connection between the injury and the defendant’s
challenged conduct; and (3) a likelihood that a favorable
decision will redress that injury.” Nat’l Family Farm
Coalition v. EPA, — F.3d —, 2020 WL 4197528, at *6 (9th
Cir. 2020) (quoting Pyramid Lake Paiute Tribe of Indians v.
Nev., Dep’t of Wildlife, 724 F.3d 1181, 1187 (9th Cir.
2013)). “For purposes of ruling on a motion to dismiss for
want of standing, both trial and reviewing courts must accept
as true all material allegations of the complaint and must
construe the complaint in favor of the complaining party.”
Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011)
(quoting Warth v. Seldin, 422 U.S. 490, 501 (1975)). In
applying this standard, we must determine whether the
plaintiffs have “clearly allege[d] facts demonstrating each
element” of standing. Spokeo v. Robins, 136 S. Ct. 1540,
1547 (2016) (internal quotation marks and alterations
omitted). Plaintiffs have met that standard here.
A
The first element of the Article III standing analysis—
injury in fact—can be satisfied in ADA cases by showing
that the plaintiff was deterred from attempting to visit a
location or use a service because of alleged ADA
noncompliance. Civil Rights Educ. and Enforcement Ctr. v.
NAMISNAK V. UBER TECHNOLOGIES 7
Hospitality Props. Tr., 867 F.3d 1093, 1098–99 (9th Cir.
2017). This “deterrent effect doctrine” recognizes that
“[w]hen a plaintiff who is disabled within the meaning of the
ADA has actual knowledge of illegal barriers at a public
accommodation to which he or she desires access, that
plaintiff need not engage in the ‘futile gesture’ of attempting
to gain access in order to show actual injury.” Id. (quoting
Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1135
(9th Cir. 2002)). This doctrine was first set out in Teamsters
v. United States, 431 U.S. 324 (1977), in which the Supreme
Court held that an employment-discrimination plaintiff need
not take “futile gesture[s]”—like applying for a job he
knows he will not get due to the employer’s
discrimination—that would merely subject him to the
“humiliation of explicit and certain rejection.” Id. at 365–
66.
We have since applied this doctrine in several cases. In
Civil Rights Education, for example, wheelchair-bound
hotel patrons who did not visit the hotels they were suing
nonetheless satisfied injury-in-fact under the “deterrent
effect doctrine” because they knew that the hotels did not
provide a “shuttle service for mobility-impaired people” and
intended “to visit the relevant hotels” once the hotels’ ADA
“non-compliance [was] cured.” 867 F.3d at 1097, 1099.
Similarly, in Pickern, a wheelchair-bound shopper had
standing to sue a grocery store whose “architectural barriers”
made it difficult to gain access to the store because he alleged
that “he ha[d] actual knowledge of the barriers to access at
that store” and “would shop at [the store] if it were
accessible” to him. 293 F.3d at 1135–36, 1138; see also
Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1040–41 (9th Cir.
2008) (finding deterrent-effect standing).
8 NAMISNAK V. UBER TECHNOLOGIES
This case is no different. 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’s arguments to the contrary are unpersuasive. First,
Uber argues that downloading the Uber App and creating an
account is not “humiliating” and therefore cannot meet what
it calls the “humiliating-yet-futile” standard. No such
standard exists in our caselaw. In our Circuit, the proper
question is whether Plaintiffs have actual knowledge of and
are deterred by allegedly illegal barriers to access. See Civil
Rights Educ., 867 F.3d at 1098; Pickern, 293 F.3d at 1137–
38. Plaintiffs have satisfied that standard here.
Second, Uber argues Plaintiffs have not plausibly
alleged injury in fact because there may be other reasons
they were deterred. For example, Uber says, Plaintiffs may
not have smartphones, credit cards, access to the App Store
or Google Play Store, or a desire to assent to the Terms and
Conditions of the Uber App. But our caselaw does not
require Plaintiffs to specifically allege that they possess
means to visit the accommodation. In Pickern, for example,
we did not require the plaintiff to allege he had a car or other
means of transportation to visit the allegedly discriminatory
grocery store, even though the plaintiff lived seventy miles
NAMISNAK V. UBER TECHNOLOGIES 9
from it. Pickern, 293 F.3d at 1135. Instead, we held “in
stating that he is currently deterred from attempting to gain
access . . . [the plaintiff] has stated sufficient facts to show
concrete, particularized injury.” Id. at 1137. So too here.
Finally, Uber argues that we should follow Access Living
v. Uber Technologies, Inc., 958 F.3d 604 (7th Cir. 2020), in
which the Seventh Circuit held that a plaintiff who had not
downloaded the Uber App or created an account lacked
standing to sue Uber over alleged ADA violations in
Chicago. Id. at 614. We decline to do so because that case
was critically different from this one. Uber offers uberWAV
in Chicago. So the Access Living plaintiff was suing, not
because Uber refused to offer uberWAV as a categorical
matter, but because Uber allegedly did not offer wheelchair-
accessible vehicle service on equivalent terms with its
standard rideshare offerings. Id. And the Seventh Circuit
explicitly acknowledged that the outcome may have been
different if uberWAV was not offered in Chicago. Id.
We agree with the Seventh Circuit that this differing
fact—that Uber does not offer uberWAV at all in New
Orleans—is a dispositive distinction in this case. 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. Such evidence could
undermine the futility analysis here. In short, in a case like
this, requiring a plaintiff to download the Uber App is
10 NAMISNAK V. UBER TECHNOLOGIES
exactly the futile gesture that need not be taken to support a
showing of injury in fact.
B
Uber also argues that Plaintiffs have not plausibly
alleged causation and redressability. Causation exists where
the alleged injury is “fairly traceable to the challenged action
of the defendant, and not the result of the independent action
of some third party not before the court.” Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992) (internal quotation marks
and alterations omitted). Redressability, by contrast, is
satisfied where it is “likely, as opposed to merely
speculative, that the injury will be redressed by a favorable
decision.” Id. (internal quotation marks omitted). Plaintiffs’
allegations meet both standards here.
Uber argues that causation is lacking because even if
Uber offered uberWAV in New Orleans, Plaintiffs’ ability
to obtain rides would depend on drivers with wheelchair-
accessible vehicles offering rides through the service. And
Plaintiffs’ alleged injury is not redressable, Uber argues, for
the same reason. Any injunction requiring Uber to provide
uberWAV in New Orleans would not guarantee Plaintiffs
access to uberWAV because drivers might elect not to
purchase wheelchair-accessible vehicles and drive them for
Uber.
In support of these arguments, Uber cites Allen v. Wright,
468 U.S. 737 (1984). In that case, parents of African-
American children sued the IRS, alleging that they were
injured because the IRS’s decision to give tax exemptions to
racially discriminatory schools meant that their children
could not receive an education in a desegregated school. Id.
at 758. But the Supreme Court held that any such injury was
not fairly traceable to the IRS’s decision to offer a tax
NAMISNAK V. UBER TECHNOLOGIES 11
exemption because the schools could continue to segregate
even if the tax exemption were no longer offered. Id.
Here, by contrast, Uber drivers cannot offer uberWAV
services without Uber first making that option available.
Uber, and Uber alone, can rectify any alleged violation of
the ADA by providing an uberWAV option. Plaintiffs’
alleged injury is therefore directly traceable to Uber’s refusal
to offer uberWAV in New Orleans. And an injunction
would redress that injury by requiring Uber to offer access
to its services. That another cause may exist for Plaintiffs’
alleged injuries—the possibility that Uber drivers will not
drive wheelchair-accessible vehicles—does not change that
conclusion. In light of our obligation to “accept as true all
material allegations of the complaint and [to] construe the
complaint in favor of the complaining party,” Maya, 658 at
1068, we 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.
III
Uber also argues that the district court erred in denying
its motion to compel arbitration, a decision we review de
novo. Bushley v. Credit Suisse First Boston, 360 F.3d 1149,
1152 (9th Cir. 2004). Uber’s only argument in favor of
reversal is that Plaintiffs should be equitably estopped from
avoiding arbitration. We disagree.
Generally, parties who have not assented to an
arbitration agreement cannot be compelled to arbitrate under
its terms. E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 293
(2002). But under California law, which applies here,
nonsignatories to an agreement with an arbitration clause can
12 NAMISNAK V. UBER TECHNOLOGIES
be compelled to arbitrate for a variety of reasons. One such
reason, and the one Uber seeks to apply here, exists when a
nonsignatory should be equitably estopped from arguing that
he cannot be bound by an arbitration clause. That exception
applies when there are “claims that are dependent upon or
inextricably intertwined with the obligations imposed by the
contract containing the arbitration clause.” JSM Tuscany,
LLC v. Superior Court, 123 Cal. Rptr. 3d 429, 445 (Ct. App.
2011).
Uber argues that Plaintiffs’ standing theory—that they
may sue without downloading the Uber App and assenting
to its Terms and Conditions because downloading the Uber
App would be futile—is inextricably intertwined with the
Terms and Conditions. That is so, according to Uber,
because Plaintiffs’ standing theory only works if they are
assumed to be like another party who downloaded the Uber
App and faced discrimination. But equitable estoppel is
“inapplicable where a plaintiff’s allegations reveal no claim
of any violation of any duty, obligation, term or condition”
imposed by the contract. In re Henson, 869 F.3d 1052, 1060
(9th Cir. 2017) (applying California law) (citations and
internal quotations omitted). That is because equitable
estoppel exists for situations in which a nonsignatory is
“relying on an agreement for one purpose while disavowing
the arbitration clause of the agreement.” Goldman v. KPMG,
LLP, 92 Cal. Rptr. 3d 534, 551 (Ct. App. 2009). So where
“allegations reveal no claim of any violation of any duty,
obligation, term or condition imposed by the operating
agreements” and there is no “claim founded in or even
tangentially related to any duty, obligation, term or condition
imposed by the operating agreements . . . the claims are fully
viable without reference to the terms of those agreements”
and equitable estoppel does not apply. Id.
NAMISNAK V. UBER TECHNOLOGIES 13
That is the case here. Plaintiffs do not rely on Uber’s
Terms and Conditions. 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.
* * *
Plaintiffs have pled sufficient facts to establish Article
III standing. And because they did not agree to Uber’s
Terms and Conditions and their claims are not inextricably
intertwined with those Terms, they are not subject to the
arbitration clause.
AFFIRMED.