United States Court of Appeals
For the First Circuit
Nos. 20-1373, 20-1379
MELODY CUNNINGHAM, individually and on behalf of all others
similarly situated; FRUNWI MANCHO, individually and on behalf of
all others similarly situated,
Plaintiffs, Appellees/Cross-Appellants,
MARTIN EL KOUSSA, individually and on behalf of all others
similarly situated; VLADIMIR LEONIDAS, individually and on
behalf of all others similarly situated,
Plaintiffs,
v.
LYFT, INC.; LOGAN GREEN; JOHN ZIMMER,
Defendants, Appellants/Cross-Appellees.
Nos. 20-1544, 20-1549, 20-1567
MELODY CUNNINGHAM, individually and on behalf of all others
similarly situated; FRUNWI MANCHO, individually and on behalf of
all others similarly situated; MARTIN EL KOUSSA,
individually and on behalf of all others similarly
situated; VLADIMIR LEONIDAS, individually and on behalf
of all others similarly situated,
Plaintiffs, Appellees/Cross-Appellants,
v.
LYFT, INC.; LOGAN GREEN; JOHN ZIMMER,
Defendants, Appellants/Cross-Appellees.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Indira Talwani, U.S. District Judge]
Before
Lynch and Kayatta, Circuit Judges,
and McElroy,* District Judge.
Elaine J. Goldenberg, with whom Jeffrey Y. Wu, Benjamin G.
Barokh, Donald B. Verrilli, Jr., Rachel G. Miller-Ziegler, Rohit
K. Singla, Justin P. Raphael, Adele M. El-Khouri, Munger, Tolles
& Olson LLP, James D. Smeallie, David J. Santeusanio, Andrew E.
Silvia, Michael T. Maroney, and Holland & Knight LLP were on brief
for appellants.
Ben Robbins and Martin J. Newhouse on brief for New England
Legal Foundation, amicus curiae.
Steven P. Lehotsky, U.S. Chamber Litigation Center, Inc.,
Archis A. Parasharami, and Mayer Brown LLP on brief for Chamber of
Commerce of the United States of America, amicus curiae.
Shannon Liss-Riordan, with whom Anastasia Doherty, Adelaide
H. Pagano, Anne R. Kramer, and Lichten & Liss-Riordan, P.C. were
on brief for appellees.
Hugh Baran on brief for National Employment Law Project,
Massachusetts Coalition for Occupational Safety and Health,
Justice at Work, and New York Taxi Workers Alliance, amici curiae.
November 5, 2021
* Of the District of Rhode Island, sitting by designation.
KAYATTA, Circuit Judge. Plaintiffs are Massachusetts-
based rideshare drivers who use the Lyft application and platform
to find passengers. Plaintiffs claim that Lyft misclassifies them
as independent contractors, rather than employees. They seek
relief on their own behalf and on behalf of other drivers who
worked for Lyft in Massachusetts, although a class has not been
certified.
The parties joined issue in a flurry of motions leading
to rulings concerning plaintiffs' requests for preliminary
injunctive relief and Lyft's request to compel arbitration. Lyft
now presses an interlocutory appeal from the denial of its motion
to compel arbitration, while plaintiffs press interlocutory cross-
appeals from the denial of requests for preliminary injunctive
relief, including a so-called "public injunction."1 For the
following reasons, we reverse the order denying Lyft's motion to
compel arbitration, and affirm the denials of preliminary
injunctive relief.
I.
Lyft, Inc., a ridesharing company, uses a smartphone
application to allow customers to hail drivers. Cunningham v.
Lyft, 450 F. Supp. 3d 37, 39 (D. Mass. 2020). In order to work
1Lyft also appealed the order denying the "public injunction"
request, to preserve the argument that the order should be vacated
for lack of jurisdiction due to the pendency of Lyft's earlier
appeal.
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for Lyft as a driver, "an individual must register, download the
application, and agree to Lyft's Terms of Service." Id. The Terms
of Service spell out how a driver qualifies to use the platform to
connect with riders and how fares are set, collected, and
apportioned. See Cunningham v. Lyft, No. 1:19-cv-11974-IT, 2020
WL 2616302, at *6 (D. Mass. May 22, 2020).
Lyft considers its drivers "independent contractors" and
does not provide them with sick leave benefits. Id. Although
drivers may drive as much or as little as they want, and may also
reject ride requests, Lyft retains the right to deactivate drivers
who violate the Terms of Service or fall below Lyft's "star rating
or cancellation threshold." Id.
In 2018, Lyft updated its Terms of Service. Drivers
could not continue using Lyft to pick up riders until they signaled
their acceptance of the updated Terms of Service by clicking the
"I accept" button. Cunningham, 450 F. Supp. 3d at 39. Those
revised terms stated, in relevant part, that "[t]hese provisions
will, with limited exception, require you to submit claims you
have against Lyft to binding and final arbitration on an individual
basis, not as a plaintiff or class member . . . As a driver or
driver applicant, you have an opportunity to opt out of arbitration
with respect to certain claims." Id. at 39–40 (capitalization
altered). Drivers could also follow a hyperlink directly to the
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section in the updated Terms of Service containing the arbitration
provision. That section states in relevant part:
YOU AND LYFT MUTUALLY AGREE TO WAIVE OUR
RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN
A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO
RESOLVE ANY DISPUTE BY ARBITRATION, as set
forth below. This agreement to arbitrate
("Arbitration Agreement") is governed by the
Federal Arbitration Act . . . ANY ARBITRATION
UNDER THIS AGREEMENT WILL TAKE PLACE ON AN
INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS
ACTIONS ARE NOT PERMITTED. Except as
expressly provided below, this Arbitration
Agreement applies to all claims (defined
below) between you and Lyft, including our
affiliates, subsidiaries, parents,
successors, and assigns, and each of our
respective officers, directors, employees,
agents, or shareholders . . . . Except as
expressly provided below, ALL DISPUTES AND
CLAIMS BETWEEN US . . . SHALL BE EXCLUSIVELY
RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN
YOU AND LYFT. These claims include but are
not limited to any dispute, claim, or
controversy, whether based on past, present,
or future events, arising out of or relating
to: this Agreement and prior versions
thereof . . . the Lyft Platform, the Services,
any other goods or services made available
through the Lyft Platform, your relationship
with Lyft . . . state or federal wage-hour
law . . . .
Id. at 40 (alterations in original). The agreement also includes
a "Prohibition of Class Actions and Non-Individualized Relief."
Id.2 Finally, the agreement provides that "disputes regarding the
2 This prohibition reads:
YOU UNDERSTAND AND AGREE THAT YOU AND LYFT MAY
EACH BRING CLAIMS IN ARBITRATION AGAINST THE
OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT
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scope, applicability[,] enforceability, revocability or validity
of the Class Action Waiver may be resolved only by a civil court
of competent jurisdiction and not by an arbitrator." Id. at 40–
41.
Plaintiff Melody Cunningham has been driving for Lyft
since June 2013. Plaintiff Frunwi Mancho has been driving for
Lyft since January 2016. Both clicked the "I accept" button on
the updated Terms of Service in 2018 and neither opted out of the
arbitration agreement. Id. at 41. Both Mancho and Cunningham
used the Lyft platform to pick up passengers, some of whom were
traveling to or from Logan Airport in Boston, Massachusetts. Id.
ON A CLASS, COLLECTIVE ACTION, OR
REPRESENTATIVE BASIS ("CLASS ACTION WAIVER").
YOU UNDERSTAND AND AGREE THAT YOU AND LYFT
BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE
A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS
MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR
REPRESENTATIVE PROCEEDING ...
The arbitrator shall have no authority to
consider or resolve any Claim or issue any
relief on any basis other than an individual
basis. The arbitrator shall have no authority
to consider or resolve any Claim or issue any
relief on a class, collective, or
representative basis. The arbitrator may
award declaratory or injunctive relief only in
favor of the individual party seeking relief
and only to the extent necessary to provide
relief warranted by that party's individual
claims.
Cunningham, 450 F. Supp. 3d at 40 (alteration in
original).
- 6 -
at 41. Mancho also occasionally drove passengers across state
lines, including from Haverhill, Massachusetts to Salem, New
Hampshire, and from Logan Airport to Portsmouth, New Hampshire.
Cunningham did not drive any passengers across state lines. Id.
Lyft contends that nation-wide, "approximately 98% of
rides provided by drivers using Lyft and similar ridesharing
platforms take place entirely within the boundaries of a single
state." From September 17, 2016 to April 7, 2020, "fewer than 2%
of all [rides given by drivers for Lyft] in the United States
crossed state lines. And during that same period, fewer than 0.5%
of rides on the Lyft platform that began in Massachusetts crossed
state lines. Instead, those rides were short and localized." In
2018, for example, "on average, drivers using rideshare platforms
in Massachusetts gave rides that lasted under 16 minutes and
traveled fewer than 5 miles." Interstate travel by drivers who
use the competing Uber platform is similarly rare, as "only 2.5%
of all trips fulfilled using the Uber Rides marketplace in the
United States between 2015 and 2019 . . . started and ended in
different states." Capriole v. Uber Techs., Inc., 7 F.4th 854,
864 (9th Cir. 2021)(internal quotation marks omitted).
Plaintiffs do not quibble with Lyft's numbers. Instead,
they train their focus primarily on a different set of numbers,
based on trips to and from Logan Airport. Plaintiffs assert that
Lyft and Uber "represent about 40% of the traffic at Logan Airport
- 7 -
during peak times" and "provide literally millions of rides to and
from Logan airport every year." Plaintiffs add that "[a] whopping
62% of Massachusetts Lyft riders have used Lyft to get to the
airport."
II.
We first address the issue of compulsory arbitration.
The parties agree that the Federal Arbitration Act (FAA) applies
unless plaintiffs fit within an exemption for "a class of workers
engaged in foreign or interstate commerce." Our review of this
issue is de novo. Barbosa v. Midland Credit Mgmt., Inc., 981 F.3d
82, 86 (1st Cir. 2020).
A.
The FAA was enacted in 1925 "in response to a perception
that courts were unduly hostile to arbitration." Epic Sys. Corp.
v. Lewis, 138 S. Ct. 1612, 1621 (2018). The FAA establishes "a
liberal federal policy favoring arbitration" and reflects "the
fundamental principle that arbitration is a matter of contract."
AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (internal
quotation marks and citations omitted). It also requires courts
to "place arbitration agreements on an equal footing with other
contracts" and "enforce them according to their terms." Id.
Central to this appeal is section 1 of the FAA.
Section 1 "exempts employment contracts of certain categories of
workers from the Act's coverage." Waithaka v. Amazon.com, Inc.,
- 8 -
966 F.3d 10, 16 (1st Cir. 2020), cert. denied, 141 S. Ct. 2794
(2021), reh'g denied, 141 S. Ct. 2886 (2021). Specifically,
section 1 provides that "nothing herein contained shall apply to
contracts of employment of seamen, railroad employees, or any other
class of workers engaged in foreign or interstate commerce." 9
U.S.C. § 1. The Court has referred to the phrase "any other class
of workers engaged in . . . commerce" as a "residual phrase."
Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 114 (2001).
In Circuit City, the Court rejected the contention that
the residual phrase covered all employees arguably involved in
commerce. Instead, it read the residual phrase as covering only
"transportation" workers. Id. at 119 ("Section 1 exempts from the
FAA only contracts of employment of transportation workers.")
No party to this case contends that the contracts at
issue here are not "contracts of employment of transportation
workers."3 Pointing to the fact that the Supreme Court in Circuit
City referred to the movement of goods, Lyft does contend that
because Lyft drivers generally transport persons, not goods, the
residual phrase does not encompass them. But see Waithaka, 966
3 The Supreme Court has held that section 1 applies to
"agreements to perform work," including those of independent
contractors. New Prime Inc. v. Oliveira, 139 S. Ct. 532, 544
(2019). Accordingly, the distinction between employees and
independent contractors matters not for the threshold question of
the FAA's applicability, regardless of its centrality to the
underlying dispute. See Waithaka, 966 F.3d at 17.
- 9 -
F.3d at 13 (workers "who transport goods or people"); see also
Saxon v. Sw. Airlines Co., 993 F.3d 492, 497 (7th Cir.
2021)(accepting that "the movement of goods accompanying people,
just as much as the movement of goods alone," constituted
interstate commerce for § 1, where the defendant had abandoned the
contrary argument on appeal); Singh v. Uber Techs Inc., 939 F.3d
210, 226 (3d Cir. 2019) (holding that § 1 exempts employment
contracts for "all classes of transportation workers" engaged in
interstate commerce). As it turns out, we need not address this
contention. Rather, we turn our attention to Lyft's principal
contention that these transportation workers are not among a class
of transportation workers who are "engaged in . . . interstate
commerce" within the meaning of section 1. Plaintiffs do not
challenge the premise that they must be among such a class of
transportation workers in order to claim the benefit of the
exemption. Instead, they claim that members of the class of
transportation workers to which they belong are engaged in
interstate commerce for two reasons: (1) Because they take
passengers to and from Logan Airport for trips to and from other
states and countries; and (2) Because some Lyft drivers sometimes
take fares across state lines. We address each argument in turn.
1.
Plaintiffs' argument based on their transportation of
some passengers to and from Logan Airport runs headlong into the
- 10 -
instruction supplied by United States v. Yellow Cab Co., 332 U.S.
218 (1947), overruled on other grounds by Copperweld Corp. v.
Indep. Tube Corp., 467 U.S. 752, 759–60, 777 (1984). The Supreme
Court in Yellow Cab considered whether interstate commerce
sufficient to bring the Sherman Antitrust Act into play was present
in two different scenarios involving taxi service.
The first scenario involved the transfer of passengers
and their luggage between rail stations in Chicago. Id. at 228.
At the time, most passengers traveling interstate by rail through
Chicago were required to disembark from a train at one station and
travel up to two miles to board another train at another station
to continue their interstate journey. Id. The railroads often
agreed with their passengers to provide transit between the two
stations. Id. The railroads then contracted with cab companies
to supply the vehicles and drivers for this connecting transit.
Id. at 229.
The second scenario involved taxi cabs in the course of
their normal local taxi service throughout Chicago arranging with
passengers to drive them to or from various locations, including
the rail stations at the beginning or end of their rail journeys.
Id. at 230.
The Supreme Court held that the transfer by motor
vehicles in the first scenario sufficiently implicated interstate
commerce as to make the Sherman Act applicable. Id. at 229. This
- 11 -
made common sense: The typical passenger undoubtedly viewed his
or her trip as one interstate journey, with the mid journey
transfer smack within the flow of that trip. Accord Waithaka, 966
F.3d at 22 (finding that transportation workers responsible for
only an intrastate leg of an integrated, interstate journey were
nonetheless understood to be "engaged in interstate commerce" when
the FAA was passed in 1925).
As to the second scenario, however, the Court held that
"when local taxicabs merely convey interstate train passengers
between their homes and the railroad station in the normal course
of their independent local service, that service is not an integral
part of interstate transportation." Yellow Cab, 966 F.3d at 233.
Rather, the interstate journey begins when the passenger "boards
the train at the station and ends when he disembarks at the station
in the city of destination." Id. at 231. "To the taxicab driver,
it is just another local fare." Id. at 232.
The trips by Lyft drivers to and from Logan fit well the
second Yellow Cab scenario. The Lyft driver contracts with the
passenger as part of the driver's normal local service to take the
passenger to the start (or from the finish) of the passenger's
interstate journey. See Capriole, 7 F.4th at 863–64 (finding that
rideshare drivers who take fares to an airport "are less like the
exclusive provider of 'between-station transportation' described
- 12 -
in Yellow Cab and more like a 'local taxicab service.'" (quoting
332 U.S. at 228, 233)).
Conversely, the trips by Lyft drivers to and from Logan
fit poorly the first Yellow Cab scenario. The airlines do not
agree to provide the relevant ground transit, and based on the
record before us, neither Lyft nor Lyft drivers contract with the
airlines to help the airlines perform such an undertaking.
We are confident that a scenario not affecting
"interstate commerce" under the Sherman Act would also not qualify
as a scenario in which taxicabs would be "engaged in . . .
interstate commerce" under section 1 of the FAA. The Sherman Act
bars "unreasonable restraints on interstate commerce, regardless
of the amount of commerce affected." Yellow Cab, 332 U.S. at 225.
The Act is broadly construed, see id. at 226, whereas the FAA
exception at issue here is narrowly construed, Circuit City, 532
U.S. at 118. Hence, conduct that does not affect interstate
commerce under the Sherman Act (e.g., local cab rides to the
station) would seem a fortiori not to be conduct "engaged in
interstate commerce" under the FAA's section 1 exception.
Plaintiffs seek to distinguish Yellow Cab by pointing
out that the dropping off and picking up of passengers at Logan is
regulated by the Massachusetts Port Authority, rather than a purely
local entity. But nothing in Yellow Cab even hints that the
- 13 -
presence or source of traffic regulation at the point of drop-off
or pick-up bears on the interstate inquiry.
Drawing a line between the interstate transportation
provided by the airlines and the local intrastate transportation
provided by Lyft drivers makes sense when defining the nature of
activity in which plaintiffs are engaged. One would not reasonably
say that plaintiffs are engaged in interstate trucking merely
because they sometimes give truck drivers rides to and from their
garages. Similarly, we do not think that plaintiffs are engaged
in interstate travel merely because they bring passengers to and
from an airport.
Our decision in Waithaka is not to the contrary. There
Amazon (like the railroads in Yellow Cab) agreed with Amazon
customers to transport goods interstate from their point of origin
to the customer's home. See 966 F.3d at 13–14. The local delivery
drivers (like the taxi companies in the first scenario of Yellow
Cab) then agreed with Amazon to carry the goods for a portion of
that single interstate journey ("the so-called 'last mile'"). Id.
Here, by contrast, there is no evidence of any such agreements
between Lyft and the airlines.
Plaintiffs' only other argument for distinguishing the
local taxicab scenario in Yellow Cab from the Logan trips taken by
Lyft drivers rests on an assertion that "Lyft has formed
partnerships with airlines in which airlines promote its service
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and sometimes even issue credits toward a Lyft ride." But no
evidence of any such partnerships nor any argument to this effect
was presented in the district court. See United States v. Muriel-
Cruz, 412 F.3d 9, 12 (1st Cir. 2005) (limiting appellate review to
the "record extant at the time the district court rendered its
decision."). Nor for that matter do plaintiffs even attempt to
show how these partnerships are analogous to the exclusive
arrangements made between railroads and taxi companies in Yellow
Cab.4
2.
We turn next to plaintiffs' alternative argument that
they fit within the section 1 exemption because some of them
occasionally transport passengers across state lines. We need not
decide how to treat a lawsuit arising out of one of these rare
interstate trips. Nor need we decide whether any particular Lyft
driver engages in interstate commerce. Rather, our task under the
FAA is to decide whether relatively rare (but nevertheless
The Ninth Circuit recently addressed a similar argument
4
"raised for the first time on appeal," concerning airline marketing
promotions and ride credits for Uber's ridesharing service. See
Capriole, 7 F.4th at 865. Plaintiffs here have acknowledged the
nature of the Uber promotions presented in that case and that
"[t]he same is true here with Lyft." But the Capriole court found
that "nothing about the submitted [airline advertisements]
indicates the type of commercial relationship described in Yellow
Cab." Id. While we do not have any such materials in the record
here, Capriole makes plain, at the least, that such agreements
would not necessarily be dispositive.
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numerically many) interstate trips make Lyft rideshare drivers a
"class of workers engaged in . . . interstate commerce." 9 U.S.C.
§ 1. Yellow Cab does not directly answer this question because
the taxicab drivers in that case never claimed to cross state
lines. 332 U.S. at 230–31.
Lyft contends that plaintiffs are not a class of workers
engaged in interstate commerce under section 1 because not all of
them ever cross state lines and those who do only do so relatively
infrequently. One of the four named plaintiffs in this very case,
who are all said to be typical of the putative class members, never
took a fare across state lines in five years of driving for Lyft,
and fewer than 2% of Lyft rides nationwide cross state lines. So
the question posed is this: Does a class of workers qualify under
section 1 if many but not all of the workers cross states lines on
a very small percentage of their trips?
The two circuits who have considered this question
reached opposite results. In International Brotherhood Of
Teamsters Local Union No. 50 v. Kienstra Precast, Inc., 702 F.3d
954, 958 (7th Cir. 2012), the Seventh Circuit held that cement
truck drivers whose local trips took them across state lines on
roughly two percent of their delivery trips were within the ambit
of the section 1 exemption. Reasoned the court, "there is no basis
in the text of § 1 for drawing a line between workers who do a lot
of interstate transportation work and those who cross state lines
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only rarely; both sorts of workers are 'engaged in foreign or
interstate commerce.'" Id. Conversely, the Ninth Circuit recently
concluded that Uber drivers are not among a class of workers who
engaged in interstate commerce notwithstanding that 2.5% of Uber
rides cross state lines. Capriole, 7 F.4th at 863. The court
reasoned that driving passengers interstate was not a "central
part of the job description," and that "someone whose occupation
is not defined by its engagement in interstate commerce does not
qualify for the exemption just because she occasionally performs
that kind of work." Id. at 865 (quoting Wallace v. Grubhub
Holdings, Inc., 970 F.3d 798, 800, 803 (7th Cir. 2020)).
As an abstract matter, one might argue that a person
whose job primarily involves intrastate transportation but also,
albeit infrequently, requires interstate transportation might be
engaged in both types of transportation. Nonetheless, for several
reasons we conclude that Lyft drivers are not a class of workers
engaged in interstate commerce.
First, not all Lyft drivers engage in any interstate
transportation. The lead plaintiff, Ms. Cunningham, has in five
years of working as a Lyft driver never taken a passenger across
state lines. So the "class of workers" as a whole is not engaged
in interstate commerce at all. That being said, we also expect
that some workers on passenger railroads may handle only within-
state trips. So we do not rely on this fact alone.
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More significantly, Circuit City instructs that the "§ 1
exclusion provision [must] be afforded a narrow construction," 532
U.S. at 118, and that we must construe the general language of the
residual phrase "to embrace only objects similar in nature to those
objects enumerated by the preceding specific words," id. at 115.
In section 1, those enumerated objects are "seamen" and "railroad
employees," two classes of transportation workers primarily
devoted to the movement of goods and people beyond state
boundaries. The same cannot even arguably be said of Lyft drivers.
Third, in Waithaka, we noted that "[t]he nature of the
business for which a class of workers perform their activities
must inform [our] assessment" of "whether a class of workers is
'engaged in . . . interstate commerce.'" Waithaka, 966 F.3d at 22
(quoting 9 U.S.C. § 1). Lyft is clearly primarily in the business
of facilitating local, intrastate trips.5
For all of these reasons, collectively, we conclude that
Lyft drivers are not among a class of transportation workers
engaged in interstate commerce within the meaning of section 1 as
narrowly construed. They are among a class of workers engaged
primarily in local intrastate transportation, some of whom
5 Given the similarity between the numbers Lyft cites for
Massachusetts and national Lyft drivers, we need not decide at
this juncture whether we are considering only Lyft drivers in
Massachusetts or whether we are considering all Lyft drivers across
the country. Regardless of the sample population, the percentage
of interstate trips is miniscule.
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infrequently find themselves crossing state lines, and are thus
fundamentally unlike seamen and railroad employees when it comes
to their engagement in interstate commerce.
B.
Because we find that the FAA applies, we need not examine
the role of the Massachusetts Uniform Arbitration Act. See Smith
Barney, Inc. v. Critical Health Sys. of N.C., Inc. of Raleigh,
N.C., 212 F.3d 858, 860–61 (4th Cir. 2000) ("Once a dispute is
covered by the [FAA], federal law applies to all questions of
interpretation, construction, validity, revocability, and
enforceability." (alteration in original) (quoting In re Salomon
Inc. S'holders' Derivative Litig., 68 F.3d 554, 559 (2d Cir.
1995))).
III.
Thinking that this case would remain in the district
court rather than be rerouted to arbitration, the district court
entertained and denied plaintiffs' requests for a preliminary
injunction. Now that we have determined that the FAA applies, it
is clear that the dispute between these parties will be for the
arbitrator to decide. In normal course, that would be the end of
it, and we would not need to consider the merits of plaintiffs'
appeal from the denial of their injunctive requests. See Next
Step Med. Co., Inc. v. Johnson & Johnson Int'l, 619 F.3d 67, 70
(1st Cir. 2010) (holding that the decision to arbitrate the entire
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case typically supersedes the need to decide on injunctive relief).
Next Step, however, acknowledged limited qualifications to this
general rule, including that a district court may issue "an interim
preliminary injunction" to address a "short-term emergency" in the
period before "the arbitrator is set up and able to offer interim
relief itself." 619 F.3d at 70 (emphasis in original). Later the
same year, our court reiterated that "[a] preliminary injunction
pending arbitration is ordinarily temporary emergency relief that
extends only until the arbitrator itself can decide whether to
award relief." Braintree Labs., Inc. v. Citigroup Glob. Mkts.,
Inc., 622 F.3d 36, 40 n.4 (1st Cir. 2010).
Assuming (incorrectly) that arbitration was not
required, the district court nevertheless denied plaintiffs'
requested injunction, for failure to establish any immediate
threat of irreparable injury. Cunningham, 2020 WL 2616302, at *1,
*13–14; Cunningham v. Lyft, No. 1:19-cv-11974-IT, 2020 WL 1323103,
at *3 (D. Mass. Mar. 20, 2020). Reviewing that denial for legal
error or abuse of discretion, Russomano v. Novo Nordisk Inc., 960
F.3d 48, 53 (1st Cir. 2020), we have little to add to that cogent
analysis. Plaintiffs offer no actual evidence of any harm to
themselves that is of a type considered irreparable by an award of
damages. They devote their argument instead to a claim that the
public interest calls for an injunction so as to provide higher
payments to other Lyft drivers, whose behavior in the absence of
- 20 -
such payments may harm the public. While the public interest is
certainly a factor to be considered in connection with a motion
for injunctive relief, see, e.g., Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7, 20 (2008), we can hardly say
that the denial of such a motion in the absence of a showing of
irreparable harm is either legal error or an abuse of discretion.
Moreover, plaintiffs have not even moved to certify a class, and
they can point to no Massachusetts statute that gives them standing
to sue on behalf of other persons not within a certified class.
See Brown v. Trs. of Boston Univ., 891 F.2d 337, 361 (1st Cir.
1989) ("Ordinarily, classwide relief . . . is appropriate only
where there is a properly certified class.").6
6 Plaintiffs point to a California Supreme Court case holding
that a California consumer-protection statute provided for "public
injunctive relief," a remedy whose "primary purpose and effect" is
to "prohibit[] unlawful acts that threaten future injury to the
general public." McGill v. Citibank, N.A., 393 P.3d 85, 86 (Cal.
2017). While plaintiffs' argument would require us, among other
things, to read such a right into the Massachusetts Wage Act for
the first time, we need not reach any such issues, because McGill
also clarified that even under California law "[r]elief that has
the primary purpose or effect of redressing or preventing injury
to an individual plaintiff -- or to a group of individuals
similarly situated to the plaintiff -- does not constitute public
injunctive relief." Id. at 90 (emphasis added). This forecloses
plaintiffs' remedy under even their argued-for standard, because
it is indisputable that the relief sought here is primarily for
the proposed class of Lyft rideshare drivers. Any theory of remedy
for plaintiffs' purported public harms requires that the class
first receive its direct benefits, with only ancillary benefits to
the public that may even require the drivers to exercise discretion
for the public good (i.e., choosing to utilize paid sick time to
reduce the spread of an illness).
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Finally, plaintiffs also contend that the district court
ought to have accorded less weight to the irreparable harm prong,
under the theory that harm should be measured on "a sliding scale,
working in conjunction with a moving party's likelihood of success
on the merits." See Vaquería Tres Monjitas, Inc. v. Irizarry, 587
F.3d 464, 485 (1st Cir. 2009). However, plaintiffs direct us to
no authority suggesting that this would permit an injunction on a
showing of no irreparable harm at all. See Pub. Serv. Co. of N.H.
v. Town of W. Newbury, 835 F.2d 380, 383 (1st Cir. 1987) ("Because
of our analysis [finding no] irreparable harm, we need not reach
the question of likelihood on the merits."). Further, in arguing
that a court could properly issue a preliminary injunction in this
rare context, plaintiffs themselves point out that "preventing
irreparable harm is the animating purpose of interim relief
provided pending arbitration." Plaintiffs cannot have it both
ways, arguing in one context for a reduced emphasis on irreparable
harm while acknowledging that this prong is the "animating purpose"
of the very remedy they seek.
IV.
For the forgoing reasons, the district court's
decision denying defendants' motion to compel arbitration is
reversed, and the decisions denying plaintiffs' motions for a
preliminary injunction are affirmed.
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