Drickey Jackson v. Amzn

FOR PUBLICATION

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. The panel
concluded that because Amazon’s alleged misconduct
existed independently of the contract and therefore fell
outside the scope of the arbitration provision in the 2016
TOS, the district court correctly denied Amazon’s motion to
compel arbitration.
Judge Graber concurred in part and dissented in
part. She concurred with the majority opinion that there is
4 JACKSON V. AMAZON.COM, INC.

jurisdiction and that the 2016 TOS, including the arbitration
provision, applies. However, she would hold that the 2016
TOS’s arbitration clause covered the matters alleged in the
complaint, and she would reverse and remand with an
instruction to order arbitration. Applying California’s test
for arbitrability to the allegations in the complaint, this
dispute belongs in arbitration.

COUNSEL

Michael E. Kenneally (argued), Morgan Lewis & Bockius
LLP, Washington, D.C.; Joseph Duffy, Brianna R. Howard,
and Taylor C. Day, Morgan Lewis & Bockius LLP, Los
Angeles, California; Catherine Eschbach, Morgan Lewis &
Bockius LLP, Houston, Texas; for Defendant-Appellant.
Max S. Roberts (argued) and Joshua D. Arisohn, Bursor &
Fisher PA, New York, New York; L. Timothy Fisher and
Neal J. Deckant, Bursor & Fisher PA, Walnut, Creek; for
Plaintiff-Appellee.
 JACKSON V. AMAZON.COM, INC. 5

OPINION

SCHROEDER, Circuit Judge:

Drickey Jackson seeks to represent a class of individuals,
known as Amazon Flex drivers, claiming damages and
injunctive relief for alleged privacy violations by
Amazon.com, Inc. (“Amazon”). 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”). See Jackson v. Amazon.com, Inc., 559 F.
Supp. 3d 1132, 1146 (S.D. Cal. 2021). Amazon appeals,
arguing that the district court should have applied the
broader arbitration clause in a 2019 Terms of Service
Agreement (“2019 TOS”), and that even if the arbitration
clause in the 2016 TOS applied, this dispute fell within its
scope. We reject Jackson’s threshold contention that we lack
appellate jurisdiction, hold that the 2016 TOS governs, and
affirm the denial of Amazon’s motion to compel arbitration
because this dispute falls outside the scope of the 2016
TOS’s arbitration provision.
BACKGROUND
Drickey Jackson is a driver for Amazon’s delivery
program known as Amazon Flex. Amazon engages
individuals to make deliveries in their own cars. Amazon
describes them as “delivery partners” who sign up through
the “Amazon Flex app on a smartphone” and “deliver food
and grocery orders from Whole Foods Market stores,
Amazon Fresh locations, and other local stores, as well as
6 JACKSON V. AMAZON.COM, INC.

packages and orders of goods from Amazon Delivery
Stations, using their personal vehicles.” Decl. of Prashanth
Paramanadan ¶¶ 4-5, Jackson, 559 F. Supp. 3d at 1137, ECF
No. 15-3. We are not called upon to decide any issue
regarding whether Flex drivers are independent contractors
or employees.
When Jackson signed up for the Flex program in
December 2016, he accepted the 2016 TOS. It contained an
arbitration clause that applied to disputes related to that
agreement: The clause covered “any dispute or claim . . .
arising out of or relating in any way to this Agreement,
including . . . participation in the program or . . . performance
of services.” 2016 TOS §11. The 2016 TOS also stated that
Flex participants were “responsible for reviewing this
Agreement regularly to stay informed of any modifications.”
2016 TOS §13. Although the TOS allowed the drivers to opt
out of the arbitration provision, Jackson did not do so. He
began driving for Amazon Flex and communicated with
other Flex drivers in closed, private Facebook groups.
According to a declaration Amazon filed in the district
court, Amazon emailed a new TOS to Amazon Flex drivers
in 2019. This TOS contained a broader arbitration provision
that made the issue of arbitrability itself subject to
arbitration. It is not disputed that Jackson continued in the
program after 2019 and continued participating in closed
Facebook groups of Amazon Flex drivers as he had since
2016.
In February 2021, Jackson filed a class action lawsuit
against Amazon, alleging that it wiretapped Flex drivers’
communications and invaded their privacy by monitoring
their closed Facebook groups. The complaint alleged that
during times when they were not working, the members of
 JACKSON V. AMAZON.COM, INC. 7

these groups communicated about matters of mutual interest.
These included “planned strikes or protests, pay, benefits,
deliveries, driving and warehouse conditions, unionizing
efforts, and whether workers had been approached by
researchers examining Amazon’s workforce.” Compl. at ¶
4, Jackson, 559 F. Supp. 3d at 1135, ECF No. 11. Although
Jackson believed he was communicating only with other
drivers, his complaint alleges that Amazon was unlawfully
monitoring the communications in the Facebook groups.
The complaint alleged no contractual violations. Rather,
it claimed violations of state and federal laws: the California
Invasion of Privacy Act (Cal. Penal Code §§ 631, 635);
invasion of privacy under California’s Constitution; the
Federal Wiretap Act for the interception and disclosure of
wire, oral, or electronic communications (18 U.S.C. §§ 2510,
et seq.) and for the manufacture, distribution, possession,
and advertising of wire, oral, or electronic communication
(18 U.S.C. § 2512); and the Stored Communications Act (18
U.S.C. §§ 2701, et seq.). Jackson sought to represent a class
of all Flex drivers in the United States who were members
of the closed Facebook groups and allegedly had
communications intercepted by Amazon without their
consent. He also sought to represent a subclass of members
in California. The complaint sought declaratory and
injunctive relief as well as damages.
Amazon moved to compel arbitration under California
law. The motion invoked the arbitration clause of the 2019
TOS, which Amazon claimed Jackson accepted by
continuing to make deliveries after being emailed a copy of
the new terms. Amazon asserted that the 2019 arbitration
provision applied and required the issue of arbitrability to be
decided by the arbitrator. Amazon, however, did not
produce a copy of the 2019 email notifying drivers of the
8 JACKSON V. AMAZON.COM, INC.

new TOS, nor did it provide any evidence that Jackson
received such an email.
The district court denied Amazon’s motion to compel.
The court ruled that under California law, the 2016 TOS
applied because Amazon had not shown that it provided
individualized notice to Jackson of a 2019 TOS, and such
individualized notice was necessary to establish mutual
assent to the 2019 arbitration provision. Jackson, 559 F.
Supp. 3d at 1140-41. The court further concluded that the
claims of Amazon’s unlawful conduct fell outside the scope
of the arbitration clause in the 2016 TOS because the claims
were not related to the parties’ performance under the
agreement. Id. at 1145-46. The court said that Amazon’s
alleged violative conduct “exist[ed] independently of
Plaintiff’s employment relationship with Amazon.” Id. at
1146 (internal quotation marks and citation omitted).
Amazon now appeals the order denying its motion to
compel arbitration, arguing that the 2019 TOS applies and
that Jackson’s claims must go to arbitration even if the 2016
provision applies. Jackson argues that we do not have
jurisdiction to hear Amazon’s appeal from the district court,
but maintains that the district court properly denied
arbitration under the 2016 provision.
DISCUSSION
I. This Court Has Appellate Jurisdiction
Jackson challenges our jurisdiction to hear this appeal
because Amazon’s motion to compel arbitration was not
brought under the Federal Arbitration Act (“FAA”), which
makes rulings on such motions immediately appealable. See
9 U.S.C. § 16. Jackson asserts that a denial of a motion to
compel arbitration is not otherwise appealable. Our court,
 JACKSON V. AMAZON.COM, INC. 9

however, held in 1985 that an order denying a motion to
compel arbitration is immediately appealable as tantamount
to a denial of injunctive relief under 28 U.S.C. § 1292(a)(1).
See Int’l Ass’n of Machinists and Aerospace Workers, AFL-
CIO v. Aloha Airlines, 776 F.2d 812, 815 (9th Cir. 1985).
We have never overruled that decision. And although the
decision in Aloha Airlines predated the enactment of 9
U.S.C. § 16, there is no indication that Congress intended to
repeal it in enacting that statute. See Epic Sys. Corp. v.
Lewis, 138 S. Ct. 1612, 1624 (2018) (“[R]epeals by
implication are disfavored, and . . . Congress will
specifically address preexisting law when it wishes to
suspend its normal operations in a later statute.” (citations
and internal quotation marks omitted)).
Jackson nevertheless asks us to follow the decisions of
other circuits that have held that such denials are not
immediately appealable under 28 U.S.C. § 1292(a)(1). See
Indus. Wire Prods., Inc. v. Costco Wholesale Corp., 576
F.3d 516, 520 (8th Cir. 2009); DSMC Inc. v. Convera Corp.,
349 F.3d 679, 682 (D.C. Cir. 2003), abrogated by Arthur
Andersen LLP v. Carlisle, 556 U.S. 624 (2009); Medtronic
AVE, Inc. v. Advanced Cardiovascular Sys., Inc. 247 F.3d
44, 52 (3d Cir. 2001); Cent. States, Se. and Sw. Areas
Pension Fund v. Cent. Cartage Co., 84 F.3d 988, 991-92 (7th
Cir. 1996); Jolley v. Paine Webber Jackson & Curtis, Inc.,
864 F.2d 402, 404-05 (5th Cir. 1989); Quiepo v. Prudential
Bache Sec., Inc., 867 F.2d 721, 722 (1st Cir. 1989); Admin.
Mgmt. Servs., Ltd. v. Royal Am. Managers, Inc., 854 F.2d
1272, 1278-79 (11th Cir. 1988). Those circuits followed law
that our circuit did not follow. They were relying on
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.
271 (1988), which overruled an earlier doctrine, known as
the Enelow-Ettelson rule, under which denials of motions to
10 JACKSON V. AMAZON.COM, INC.

compel arbitration were routinely immediately appealable.
See id. at 287-88. In Gulfstream, the Supreme Court stated
that it was “overturn[ing] the cases establishing the Enelow-
Ettelson rule and hold[ing] that orders granting or denying
stays of ‘legal’ proceedings on ‘equitable’ grounds are not
automatically appealable under §1292(a)(1).” Id. at 287.
Our court never followed the Enelow-Ettelson rule in the
first place. Instead, our 1985 decision in Aloha Airlines held
that denials of motions to compel arbitration are immediately
appealable because they deprive appellants “of the
opportunity to arbitrate the dispute, a decision with serious
consequences that can only be challenged by immediate
appeal.” Aloha Airlines, 776 F.2d at 814-15. We expressly
said that “[t]he Enelow-Ettelson rule does not apply” to our
holding that a denial of a motion to compel is immediately
appealable. Id. at 814.
We later held that orders compelling arbitration are not
immediately appealable, but we distinguished such orders
from orders denying arbitration. See Abernathy v. S. Cal.
Edison, 885 F.2d 525, 529 n.15 (9th Cir. 1989). We noted
that “the considerations may be different in cases in which
the court refuses to stay the judicial proceedings or to order
arbitration” as the parties “may be compelled to litigate the
merits of their dispute in a forum they agreed to avoid.” Id.
Therefore, regardless of Gulfstream, orders denying motions
to compel arbitration have always been immediately
appealable in our circuit.
Not long after Gulfstream, Congress amended the FAA
to provide for appeal of orders compelling or denying
arbitration under that statute. The question of appealability
under § 1292(a) arises only in the limited number of cases in
which the FAA is inapplicable. This is one of those cases.
 JACKSON V. AMAZON.COM, INC. 11

Here, Amazon did not seek to compel arbitration under the
FAA. Its motion to compel assumed that Flex drivers are
exempt from the FAA under our decision in Rittman v.
Amazon.com, Inc., 971 F.3d 904 (9th Cir. 2020), and
Amazon pressed only state law bases for arbitration. Section
16(a)(1) therefore cannot provide a basis for appellate
jurisdiction. We reached a similar conclusion in Kum Tat
Ltd. v. Linden Ox Pasture, LLC., 845 F.3d 979, 982-83 (9th
Cir. 2017) (“[O]ur jurisdiction turns on whether Kum Tat
‘invoked’ the FAA . . . Kum Tat cannot now morph a motion
brought under [state law] into one brought under the FAA.”
(citations and internal quotation marks omitted)). We
accordingly follow Aloha Airlines to conclude that the order
denying arbitration in this case is immediately appealable
under § 1292(a)(1). See Aloha Airlines, 776 F.2d at 814.
II. The 2016 TOS Applies
The parties disagree about which Amazon Flex Terms of
Service Agreement applies 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
granted. Amazon argues that the arbitration provision in the
2016 TOS was superseded by a 2019 TOS that it circulated
to Flex drivers. Amazon contends that by agreeing to the
2016 TOS, Flex drivers agreed to be bound by the new terms
if they continued to perform delivery services or access the
Flex app after receiving the new TOS. The arbitration
provision in the 2019 TOS is broader because it requires the
question of arbitrability itself to be determined by the
arbitrator, not the court. The question, here is whether
Jackson accepted the 2019 TOS.
12 JACKSON V. AMAZON.COM, INC.

According to the declaration that Amazon submitted in
the district court, Amazon notified the drivers of the new
TOS by email in October 2019. Amazon “distributed the
2019 TOS to existing Flex drivers . . . via email sent to the
email address each such driver agreed to keep current.”
Decl. of Prashanth Paramanadan ¶13, Jackson, 559 F. Supp.
3d at 1138, ECF No. 15-3.
Jackson contends that Amazon has not met its burden of
showing that he assented to the 2019 TOS. Amazon relies
on the provision in the 2016 TOS stating that by signing the
2016 TOS, Flex drivers agreed to be bound by future
revisions to the agreement, so long as they continued to
perform deliveries or use the Amazon Flex app after
receiving notice of the change. The pertinent section of the
2016 TOS provided:

Amazon may modify this Agreement,
including the Program Policies, at any time
by providing notice to you through the
Amazon Flex app or otherwise providing
notice to you . . . . If you continue to perform
the Services or access Licensed Materials
(including accessing the Amazon Flex app)
after the effective date of any modification to
this Agreement, you agree to be bound by
such modifications.

2016 TOS § 13.
The issue becomes whether Amazon provided notice of
the new terms because without notice, the drivers could not
assent to new contractual terms. The Supreme Court has
emphasized the necessity of consent in the arbitration
context, stating: “[P]arties cannot be coerced into arbitrating
 JACKSON V. AMAZON.COM, INC. 13

a claim, issue, or dispute absent an affirmative contractual
basis for concluding that the party agreed to do so.” Viking
River Cruises, Inc. v. Moriana, 142 S. Ct. 1906, 1923 (2022)
(emphasis omitted) (internal quotation marks and citations
omitted).
According to Amazon’s declaration, it notified drivers
via email of the 2019 TOS. Amazon did not provide the
court with a copy or description of any such notice, however.
Nor did Amazon make any showing that Jackson received
such notice. The district court therefore concluded that
Amazon failed to meet its burden to demonstrate mutual
assent to the 2019 TOS. Jackson, 559 F. Supp. 3d at 1140-
41. The district court correctly applied fundamental rules of
contract formation.
Under California law and generally applicable 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. See Victoria v. Super. Ct., 710 P.2d
833, 838 (Cal. 1985). Although we have experienced a
technological revolution in the way parties communicate,
technological innovation has not altered these fundamental
principles of contract formation. See Nguyen v. Barnes &
Noble, Inc., 763 F.3d 1171, 1175 (9th Cir. 2014).
Mutual assent requires, at a minimum, that the party
relying on the contractual provision establish that the other
party had notice and gave some indication of assent to the
contract. See RESTATEMENT (SECOND) OF CONTRACTS § 19
(AM. L. INST. 2002) (“The conduct of a party is not effective
as a manifestation of his assent unless he intends to engage
in the conduct and knows or has reason to know that the
other party may infer from his conduct that he assents.”);
14 JACKSON V. AMAZON.COM, INC.

Long v. Provide Com., Inc., 200 Cal. Rptr. 3d 117, 122 (Ct.
App. 2016). Under California law, “an offeree, regardless
of apparent manifestation of his consent, is not bound by
inconspicuous contractual provisions of which he was
unaware, contained in a document whose contractual nature
is not obvious.” Long, 200 Cal. Rptr. 3d at 122 (citation
omitted). Courts must evaluate “whether the outward
manifestations of consent would lead a reasonable person to
believe the offeree has assented to the agreement.” Knutson
v. Sirius XM Radio Inc., 771 F.3d 559, 565 (9th Cir. 2014).
Amazon contends that it satisfied its burden to show
notice by stating in a declaration that it sent an email
notifying drivers of a new TOS, such that Jackson assented
by continuing to perform deliveries. Amazon relies on two
district court cases in which the companies sent notice of
new terms via email and the courts held that plaintiffs were
notified of and assented to the new agreement: Webber v.
Uber Technologies, Inc., No. 18-cv-2941, 2018 WL
10151934 (C.D. Cal. Sept. 5, 2018), and In re Facebook
Biometric Information Privacy Litigation, 185 F. Supp. 3d
1155 (N.D. Cal. 2016). We are of course not bound by those
cases because they are district court decisions. Moreover,
they do not support Amazon in this case because the records
in those cases were quite different from the record before us.
In Webber, the email notified users of the Uber rideshare
app that Uber’s terms had been updated; provided the
content of the new terms; and stated that continued use of the
app or services constituted agreement to the updated terms.
2018 WL 10151934 at *3-4. The district court found this
communication to be sufficient to establish that plaintiffs
had reasonable notice of the new terms and assented to them
by continuing to use Uber after the terms were updated. Id.
at *4. Similarly, in In re Facebook Biometric Information
 JACKSON V. AMAZON.COM, INC. 15

Privacy Litigation, the court analyzed the email that
Facebook sent to users, which explicitly informed them of
an update: The email’s subject line read, “We’re updating
our terms and policies and introducing Privacy basics[,]” and
the email itself provided hyperlinks to the new agreement.
185 F. Supp. 3d at 1164, 1166-67. In addition, Facebook
provided notifications on each individual’s Facebook News
Feed that the terms were being updated. Id. The court
determined that given both the email and the News Feed
notification, plaintiffs had adequate individualized notice of
the updated terms and that they agreed to them by continuing
to use Facebook. Id. at 1167.
In this case, however, there is no evidence that the email
allegedly sent to drivers adequately notified drivers of the
update. The district court did not have the email, so it could
not evaluate whether the email (assuming it was received at
all) sufficed to provide individualized notice. Nor did the
court have other evidence that might allow it to assess notice,
such as a description of the email. Amazon provided only a
declaration with a vague statement that a notice of updated
terms was sent via email. Unlike in Webber, there is no
evidence that the alleged notice Amazon sent to drivers in
2019 informed them that continuing to complete deliveries
or use the app would bind drivers to the new terms.
While Amazon may not be required to produce the actual
verbatim content of the email it sent to Flex drivers notifying
them of the 2019 TOS, the evidence that it did provide was
insufficient to allow the court to determine whether the
drivers had notice of the new terms. It was Amazon’s burden
to show assent, not Jackson’s to show lack thereof. Given
Amazon’s limited proffer, the court could not determine that
there was assent. Amazon relies on a provision in the TOS
from three years earlier to establish that drivers knew they
16 JACKSON V. AMAZON.COM, INC.

would be bound by any future modifications if they
continued to perform services or use the app. Yet, if Flex
drivers did not receive notice of the revised TOS, the fact
that they continued working and using the Amazon Flex app
could not demonstrate assent. Under California law,
therefore, a reasonable person would not believe that the
Flex drivers’ conduct constituted an intent to be bound by a
new arbitration provision in the 2019 TOS. See Long, 200
Cal. Rptr. 3d at 122.
Amazon alternatively asserts that, regardless of whether
individualized notice of the 2019 change was provided via
email, drivers would nevertheless be bound by that change
on the basis of a provision in the 2016 TOS. The 2019 TOS
was accessible on the Amazon Flex app, and Amazon points
to a section in the 2016 TOS stating that by accepting the
terms of the agreement Flex drivers were “responsible for
reviewing this Agreement regularly to stay informed of any
modifications.” 2016 TOS § 13. In short, according to
Amazon, the burden was on the Flex drivers to monitor the
agreement for changes.
That assertion stands the law’s notice requirement on its
head. The burden is on the party seeking arbitration to show
notice and assent. See Knutson, 771 F.3d at 565. We have
previously observed the importance of notice in the
analogous context of electronic consumer contracts. We
stated that “the onus must be on website owners to put users
on notice of the terms to which they wish to bind consumers”
as “consumers cannot be expected to ferret out hyperlinks to
terms and conditions to which they have no reason to suspect
they will be bound.” Nguyen, 762 F.3d at 1179.
The new Restatement of the Law on Consumer Contracts
now makes clear that a consumer must receive a “reasonable
 JACKSON V. AMAZON.COM, INC. 17

notice of the proposed modified term” and a “reasonable
opportunity to reject the proposed modified term.”
RESTATEMENT OF THE LAW CONSUMER CONTRACTS § 3 (AM.
L. INST., Tentative Draft No. 2, June 2022). It is not
sufficient to provide “[a] general notice of the possibility of
future modifications.” Id. cmt. 3. Amazon puts the drivers
in just that position. And although the drivers are not in a
consumer relationship with Amazon, it is similarly
unreasonable to require an employee or independent
contractor to monitor his contract constantly for any
changes. For the drivers’ continued performance of services
to constitute assent to be bound by new 2019 terms, Amazon
needed to show that it actually provided notice of those
terms. It did not do so. The district court therefore correctly
held that the arbitration provision in the 2016 TOS still
governed the parties’ relationship.
The critical question then becomes whether this dispute
is within the scope of that provision.
III. This Dispute Falls Outside the Scope of the
Arbitration Clause in the 2016 TOS
To decide whether this dispute must be arbitrated, we
look first to the content of the arbitration clause. The
applicable 2016 provision states that it applies to “any
dispute or claim . . . arising out of or relating in any way to
this Agreement, including . . . participation in the program
or . . . performance of services.” 2016 TOS § 11. To be
arbitrable, the dispute must relate to the contract.
We then look at the nature of the dispute. In determining
if a dispute falls within the scope of an arbitration clause, we
examine the factual allegations raised in the complaint. See,
e.g., Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir.
1999). This class action lawsuit arises from claimed
18 JACKSON V. AMAZON.COM, INC.

violations of federal and state laws protecting privacy.
Jackson’s complaint does not allege any provision of the
Flex driver contract was violated. It alleges Amazon
essentially spied on Flex drivers while they were not
working, by monitoring and wiretapping private
conversations in closed Facebook groups without the
drivers’ knowledge.
We have held that even under broad arbitration clauses
like this one, factual allegations must at least “‘touch
matters’ covered by the contract containing the arbitration
clause.” Id. (quoting Mitsubishi Motors Corp. v. Soler
Chrysler-Plymouth, Inc., 473 U.S. 614, 624 n.13 (1985));
Ramos v. Super. Ct., 239 Cal. Rptr. 3d 679, 721 (Ct. App.
2018). The issue is “whether the factual allegations
underlying [the claims] are within the scope of the
arbitration clause, whatever the legal labels attached to those
allegations.” Mitsubishi Motors Corp., 473 U.S. at 622 n.9
(citation omitted).
A California appellate decision illustrates the principle
well. In Howard v. Goldbloom, the California Court of
Appeal interpreted a broad arbitration provision in an
employment contract and determined that the plaintiff’s
claims were not rooted in his employment relationship. 241
Cal. Rptr. 3d 743 (Ct. App. 2018). The plaintiff alleged that
his former employer’s CEO, members of its board of
directors, and three limited partnerships “breached their
fiduciary duty to him by wrongfully diluting his interest in
[the company’s] stock[.]” Id. at 744, 749. The plaintiff had
agreed to arbitrate claims “arising out of, [or] relating to . . .
[his] employment with the Company or the termination of
[his] employment with the Company, including any breach
of [the employment] agreement.” Id. at 747. The court
reasoned that the harm the plaintiff suffered as to his stock
 JACKSON V. AMAZON.COM, INC. 19

value was “not measured by or dependent on the terms of his
employment;” rather, it involved the defendants’ fiduciary
duties to minority shareholders, which existed independently
of any employment relationship. Id. at 749-52. Although
the plaintiff’s complaint contained allegations that took
place when he was employed at the company, including the
fact that he received stock as part of his compensation, the
court noted that these allegations were “nothing more than
historical background.” Id. at 745, 751. Any other minority
shareholder, regardless of whether he or she had been an
employee, could have brought the same claim. Id.
The 2016 TOS contains a similarly broad arbitration
provision, but here, as in Howard, Jackson’s claims do not
depend on any terms of his contract as a driver for Amazon
Flex. And the harm Jackson alleges “is not measured by or
dependent on the terms of” his work for Flex; rather, it
involves Amazon’s alleged breach of wiretapping statutes
and invasion of privacy. Id. at 751. Of course, Jackson
joined the Facebook groups because he was a Flex driver,
but if other individuals who were not Flex drivers were
permitted to join, as for example spouses, union organizers
or others interested in the subject matter of the discussions,
then those persons could likely assert the same claims
against Amazon. Jackson’s claims, like those in Howard,
are not dependent on the terms of the contract.
Amazon relies on our court’s decision in Simula, Inc.,
175 F.3d 716 (9th Cir. 1999), because it provides an
illustration of claims that are dependent on the contractual
terms and therefore arbitrable. This case is not similar.
There, we considered whether an arbitration clause covered
claimed violations of state and federal law in the course of
the performance of contracts between an inventor and a
licensee. The inventor of an automotive air bag system,
20 JACKSON V. AMAZON.COM, INC.

Simula, sued Autoliv, the licensee supplier of automotive
components, alleging antitrust claims, federal and state
trademark violations, misappropriation of trade secrets, and
breach of nondisclosure agreements. Simula, Inc., 175 F.3d
at 719. The companies had entered into contracts for the
development of the air bag system technology, and the
contracts all contained an arbitration clause that, like the
provision in this case, applied to “[a]ll disputes arising in
connection with this Agreement[.]” Id. at 720.
We concluded that the provision “reache[d] every
dispute between the parties having a significant relationship
to the contract and all disputes having their origin or genesis
in the contract.” Id. at 721. We examined the factual
allegations in the complaint to determine that all of Simula’s
claims touched on matters related to the parties’ existing
contractual agreement. Id. at 721-25. Indeed, resolution of
all the claims involved interpreting the contract terms.
Simula’s antitrust claims required “interpreting the 1995
Agreement to determine its meaning and whether the
contracts between Autoliv and Simula actually do suppress
competition as alleged.” Id. at 722. The defamation claim
alleged defamatory conduct that arose out of Autoliv’s
performance and was controlled by the contractual
agreement. Id. at 724. The claims of trademark violations,
misappropriation of trade secrets, and breach of
nondisclosure agreements were also arbitrable because
evaluating them “necessitate[d] a review of the contracts.”
Id. at 725.
In this case, the allegations underlying Jackson’s claims
involve employer misconduct wholly unrelated to the
parties’ agreement. Resolving Jackson’s claims would
involve considerations relating to the Facebook groups such
as whether the groups were in fact private and whether
 JACKSON V. AMAZON.COM, INC. 21

Amazon had been permitted to read the groups’ posts. And
although membership in Jackson’s proposed class would
require participation in the Amazon Flex program, the
controversy in this case is ultimately not about any
characteristics or conduct of class members, but whether
Amazon is indeed liable for wiretapping and invasion of
privacy. See id. at 721. This dispute therefore does not touch
on any matters related to the contract that would fall within
the arbitration clause.
Amazon was concerned about what might happen in the
future. The partial dissent maintains that because Amazon
would not have conducted its spying operations if Jackson
had not been a Flex driver, the dispute must be arbitrable. In
other words, Amazon spied on Jackson because he was a
driver, so the dispute must be related to this contract. This
confuses the motivation for Amazon’s alleged misconduct
with the nature of Jackson’s claims. 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.
This case may be most analogous to our court’s decision
in United States ex rel. Welch v. My Left Foot Children’s
Therapy, LLC, where an employee alleged her employer
committed False Claims Act violations by presenting
fraudulent Medicaid claims. 871 F.3d 791, 794 (9th Cir.
2017). The employment agreement contained three
arbitration clauses, which taken together were similar in
scope to the arbitration provision at issue in the 2016 TOS.
Id. Although the plaintiff discovered the alleged violation
during the course of her employment, we held that the claims
of unlawful conduct were not arbitrable. Id. at 799. This
was because the conduct related to the employer’s violation
22 JACKSON V. AMAZON.COM, INC.

of federal law, i.e., Medicaid fraud, and not to the
employment relationship. Id. We stated that “[E]ven if
Welch had never been employed by defendants, assuming
other conditions were met, she would still be able to bring
suit against them for presenting false claims to the
government.” Id. (internal quotation marks and citation
omitted). Here, even if Jackson had no contract with
Amazon but had been permitted to join the groups for some
other reason, he would be able to bring the same claims for
invasion of privacy.
In Welch, we looked to cases in other circuits involving
claims of employer misconduct unrelated to the performance
of job duties. See Jones v. Haliburton Co., 583 F.3d 228,
230 (5th Cir. 2009); Doe v. Princess Cruise Lines, Ltd., 657
F.3d 1204, 1208 (11th Cir. 2011). Plaintiffs’ claims in each
of those cases arose out of a sexual assault by a coworker on
the employers’ premises. Each plaintiff contended that the
employer mishandled her assault claims. The employment
contracts in each contained a broad arbitration clause that,
like the one in this case, covered claims arising out of and
related to the employment. Jones, 583 F.3d at 235; Princess
Cruise Lines, 657 F.3d at 1214-15. In each case, the
employer sought arbitration because plaintiffs were harmed
while they were employed.
The appellate court in each case denied arbitration
because the harm was not related to the employment. Jones,
583 F.3d at 241; Princess Cruise Lines, 657 F.3d at 1219.
The Fifth Circuit in Jones stated that the arbitration
provision should not be interpreted “so broadly as to
encompass any claim related to Jones’ employer, or any
incident that happened during her employment[.]” 583 F.3d
at 241 (emphasis in original). In Princess Cruise Lines, the
Eleventh Circuit described as a “limitation” the requirement
 JACKSON V. AMAZON.COM, INC. 23

that to be arbitrable, the dispute needed to “relate to, arise
from, or be connected” with the agreement. 657 F.3d at
1217-18. The limitation excluded claims where the only
connection to the job was that the alleged employer
misconduct occurred while the plaintiff was employed.
In a last ditch contention, Amazon argues that even if the
claims themselves do not relate to either the 2016 TOS
agreement, to Jackson’s work, or to his participation in the
Flex program, Amazon might look to privacy-related
provisions in the TOS for potential defenses later in the
litigation. The partial dissent specifically suggests there may
be social media clauses providing Amazon a possible
defense that might make the claims arbitrable. Arbitrability
issues, however, are to be decided on the basis of the
complaint. See, e.g., Simula, 175 F.3d at 721. What counts
is the nature of the claim. When evaluating whether a claim
is arbitrable, we do not try to predict the course of the entire
litigation. Id. (citing J.J. Ryan & Sons, Inc. v. Rhone
Poulenc Textile, S.A., 863 F.3d 315, 319 (4th Cir. 1998) (“To
decide whether an arbitration agreement encompasses a
dispute a court must determine whether the factual
allegations underlying the claims are within the scope of the
arbitration clause[.]”)). And, in any event, even if a
hypothetical contract might include a social media clause,
this contract is silent on social media.
Amazon’s position in this case, like the position of the
partial dissent, is similar to the employer positions that were
rejected in Welch, Jones, and Princess Cruise Lines.
Amazon seeks arbitration because the alleged monitoring of
drivers’ conversations took place while the drivers were
performing deliveries for Amazon under the agreement and
participating in the Flex program. But as in Welch and the
Jones and Princess Cruise Lines cases upon which Welch
24 JACKSON V. AMAZON.COM, INC.

relied, the alleged misconduct was not related to the
agreement. Nor was it related to participation in the Flex
program or the performance of services under that program.
In Welch, we determined that “both of the phrases, ‘arising
out of’ and ‘related to,’ mark a boundary by indicating some
direct relationship.” 871 F.3d at 798. There was no direct
relationship in Welch and there is none here. Amazon’s
alleged misconduct existed independently of the contract
and therefore fell outside the scope of the arbitration
provision in the 2016 TOS. The district court therefore
correctly denied Amazon’s motion to compel arbitration.
AFFIRMED.

GRABER, Circuit Judge, concurring in part and dissenting
in part:
I concur in part and respectfully dissent in part. I agree
with the majority opinion that we have jurisdiction and that
the 2016 Amazon Flex Independent Contractor Terms of
Service Contract (“2016 Contract”), including that
document’s arbitration provision, applies. I therefore concur
in those portions of the opinion. But, in my view, the 2016
Contract’s arbitration clause covers the matters alleged in the
complaint. Accordingly, I would reverse and remand with
an instruction to order arbitration.
Plaintiff had the opportunity to opt out of the arbitration
provision, but he did not. The 2016 Contract provided:
“YOU AND AMAZON AGREE TO RESOLVE
DISPUTES BETWEEN YOU AND AMAZON ON AN
INDIVIDUAL BASIS THROUGH FINAL AND
 JACKSON V. AMAZON.COM, INC. 25

BINDING ARBITRATION.” 2016 Contract at 1. The
scope of the agreement is as follows:

SUBJECT TO YOUR RIGHT TO OPT OUT
OF ARBITRATION, THE PARTIES WILL
RESOLVE BY FINAL AND BINDING
ARBITRATION, RATHER THAN IN
COURT, ANY DISPUTE OR CLAIM,
WHETHER BASED ON CONTRACT,
COMMON LAW, OR STATUTE, ARISING
OUT OF OR RELATING IN ANY WAY TO
THIS AGREEMENT, INCLUDING
TERMINATION OF THIS AGREEMENT,
TO YOUR PARTICIPATION IN THE
PROGRAM OR TO YOUR
PERFORMANCE OF SERVICES.

2016 Contract ¶ 11 (emphases added).
California law applies to this dispute. Under California
law, “[t]he decision as to whether a contractual arbitration
clause covers a particular dispute rests substantially on
whether the clause in question is ‘broad’ or ‘narrow.’”
Ramos v. Super. Ct., 239 Cal. Rptr. 3d 679, 689 (Ct. App.
2018) (internal quotation marks and citation omitted).
As the majority opinion concedes, the arbitration clause
here is broad because it encompasses all possible claims
related to the contract. See id. (noting that clauses that use a
phrase such as “arising out of or relating to” have been
construed broadly); Maj. Op. at 18. Accordingly, the
complaint’s factual allegations need only “touch matters”
covered by the 2016 Agreement to fall within the scope of
the arbitration clause. Ramos, 239 Cal. Rptr. 3d at 689–90
(quoting Simula, Inc. v. Autoliv., Inc., 175 F.3d 716, 721
26 JACKSON V. AMAZON.COM, INC.

(9th Cir. 1999)). Put differently, agreements with broad
arbitration clauses “encompass tort, statutory, and
contractual disputes that have their roots in the relationship
between the parties which was created by the contract.” Id.
at 690 (internal quotation marks and citations omitted).
Moreover, California law applies a robust presumption in
favor of arbitration, particularly when the arbitration clause
is broad. Salgado v. Carrows Rests., Inc., 244 Cal. Rptr. 3d
849, 852–53 (Ct. App. 2019); accord Wagner Constr. Co. v.
Pac. Mech. Corp., 157 P.3d 1029, 1031–32 (Cal. 2007)
(holding that, under California law, doubts concerning the
scope of arbitrable issues must be resolved in favor of
arbitration). 1
Applying California’s test for arbitrability to the
allegations in the complaint here, this dispute belongs in
arbitration. The complaint avers that Defendant acted for
only one reason: because Plaintiff was an Amazon Flex
driver who was communicating with other Amazon Flex
drivers solely about matters involving their participation in
the Amazon Flex program. Plaintiff alleges in Paragraph 9
of the operative complaint that “Amazon discourages [its]
employees from unionizing.” Paragraph 2 alleges:

Mr. Jackson is an Amazon Flex Driver. He
communicated with other Flex Drivers in
closed Facebook groups that were monitored
by Defendant. Amazon monitored these

1
In Morgan v. Sundance, Inc., 142 S. Ct. 1708, 1713 (2022), the United
States Supreme Court wrote that the Federal Arbitration Act’s (“FAA”)
longstanding policy favoring arbitration is meant simply to place
arbitration agreements on equal footing with other contracts. Here, the
parties eschew the FAA and rely solely on California law, which rests
on distinct statutory text, so Morgan is inapplicable.
 JACKSON V. AMAZON.COM, INC. 27

closed groups secretly and gathered
information about planned strikes or protests,
unionizing efforts, pay, benefits, deliveries,
warehouse conditions, driving conditions,
and whether workers had been approached by
researchers examining Amazon’s workforce.

Paragraphs 13 through 17 explain further:

13. Amazon Flex is a program by which
Amazon pays regular people to deliver
packages.
14. Amazon Flex drivers have
complained about a myriad of issues
surrounding their employment, including a
lack of job security, little to no benefits, and
low pay.
15. In order to discuss these issues with
colleagues, many Flex Drivers, including
Plaintiff, formed or joined private Facebook
groups.
16. The idea of these Facebook groups is
that they are only populated with Flex
Drivers, not other persons, and certainly not
employees or personnel of Defendant.
17. Unbeknownst to Flex Drivers,
however, Defendant has been secretly
monitoring and wiretapping these closed
Facebook groups.
28 JACKSON V. AMAZON.COM, INC.

Similarly, in Paragraphs 25 through 27, Plaintiff states:

25. Since 2016, Plaintiff has been a
member of closed Facebook groups for
Amazon Flex drivers.
26. Plaintiff communicated to other Flex
Drivers in [those groups].
27. Plaintiff communicated about such
topics as Amazon missing payments, driving
routes, checking into the warehouse five
minutes before shifts started, no breaks
during driving shifts, deliver[ies], and having
to drive after shifts ended to finish delivering
packages, which resulted in subsequent labor
disputes with Amazon.

Finally, Plaintiff alleges in Paragraphs 48 and 56 that
“Plaintiff continues to be at risk because he frequently uses
the closed Facebook groups to communicate to Flex Drivers.
Plaintiff continues to desire to use the Facebook for that
purpose . . . .”
According to the complaint, Defendant used automated
tools to intercept and collect Flex drivers’ private Facebook
posts discussing working conditions and unionization
efforts. Defendant’s “Advocacy Operations” department
then allegedly compiled the flagged posts into a report,
which was relayed to Defendant’s Corporate Department.
Paragraph 21 alleges that the report details “driving and
warehouse conditions, strikes, pay, deliveries, benefits,
unionizing, being approached by researchers examining
Amazon’s workforce, and/or protests[.]”
 JACKSON V. AMAZON.COM, INC. 29

In sum, Defendant allegedly spied on Plaintiff solely
because of Plaintiff’s independent contractor relationship
with Defendant and in order to defeat, preempt, or combat
work-related activities by Plaintiff and other Flex drivers.
Crucially, the only legitimate way to gain access to the
closed Facebook group—the source of the alleged privacy
violations—is to be an Amazon Flex driver. Viewed in that
light, the complaint clearly alleges “disputes that have their
roots in the relationship between the parties which was
created by the contract.” Ramos, 239 Cal. Rptr. 3d at 690
(internal quotation marks and citations omitted).
Accordingly, the arbitration clause applies. Id.
The majority opinion hypothesizes that, if the Facebook
groups permitted persons other than Amazon Flex drivers to
join the Facebook groups, and if Defendant chose to spy on
communications by those persons, too, then those
hypothetical Facebook users might have claims similar to
Plaintiff’s. Maj. Op. at 19–20. But that speculation is beside
the point. Plaintiff alleges that Defendant’s actual conduct
targets Flex drivers alone and does so because of their work
relationship with the company and in order to affect their
ongoing legal relationship with the company. Whether
others hypothetically may have similar claims in different
circumstances does not change the fact that Defendant’s
alleged conduct here stemmed directly and solely from the
parties’ contractual relationship.
The decisions in Howard v. Goldbloom, 241 Cal. Rptr.
3d 743 (Ct. App. 2018), and United States ex rel. Welch v.
My Left Foot Children’s Therapy, LLC, 871 F.3d 791, 799
(9th Cir. 2017), are not to the contrary. In those cases, an
unrelated plaintiff could have brought identical claims even
if not employed by the defendant. The court in Howard
noted that “[the defendants] would have owed [the plaintiff]
30 JACKSON V. AMAZON.COM, INC.

the same duty if [the plaintiff] had acquired the stock in a
completely different manner, for example by purchasing it
from a third party[.]” 241 Cal. Rptr. 3d at 751. But here,
there is only one way for a plaintiff to access the privacy
claims: be an Amazon Flex driver and join the drivers’
private Facebook group.
Similarly, in Welch, the court held that a plaintiff’s
action under the False Claims Act had no direct connection
with her employment because she could have sued even if
she were not employed by the defendant. 871 F.3d at 798–
99. There, we relied in part on Eleventh Circuit precedent
holding that, if a third party could have brought the same
claims based on “virtually the same alleged facts,” the
dispute falls outside the scope of an arbitration provision. Id.
at 799 (quoting Doe v. Princess Cruise Lines, Ltd., 657 F.3d
1204, 1220 (11th Cir. 2011). In Doe, the court held that a
cruise line’s employee who sued her employer for a sexual
assault that occurred on a cruise ship was not required to
arbitrate that claim because the alleged assault bore no
relationship to her employment contract. 657 F.3d at 1219–
20. The court reasoned that a party not employed by the
defendant, such as a passenger, could have brought the same
claim. Id. Similarly, in Welch, a party not employed by the
defendant, such as a patient, could have brought the same
healthcare fraud claims against the defendant. See Welch,
871 F.3d at 799.
But here, the same facts could not arise unless the
harmed individual has a contractual relationship with
Defendant as a Flex driver. The complaint alleges that the
only legitimate way to gain access to the closed Facebook
group—the source of the privacy violations—is to be an
Amazon Flex driver. The only intended subjects of
Defendant’s surveillance (and, so far as the complaint
 JACKSON V. AMAZON.COM, INC. 31

asserts, the only actual subjects of the surveillance) were
Amazon Flex drivers. The complaint lacks any allegation
that anyone other than current Amazon Flex drivers
participated in the closed Facebook discussions; that the
drivers discussed any matter other than their ongoing
participation in the Amazon Flex program; or that Defendant
monitored, or intercepted, or had interest in any
communication other than those relating to drivers’
participation in the Amazon Flex program. The claims arise
precisely because of Defendant’s contractual relationship
with Flex drivers. The focus of Defendant’s alleged
wrongdoing was Plaintiff’s participation in the program and
his performance of services as an Amazon Flex driver.
Moreover, the definition of the putative class members
whom Plaintiff seeks to represent reinforces this action’s
emphasis on participation in the Amazon Flex program and
on its operation. Plaintiff chose to define the class as
follows:

Plaintiff seeks to represent a class of all Flex
Drivers in the United States who were
members [of] the closed Facebook groups,
and whose electronic communications were
intercepted by Defendant (the “Class”).

First Am. Compl. ¶ 30. In short, by definition, the class
encompasses only Amazon Flex drivers. Maj. Op. at 21.
Finally, contrary to the majority opinion’s assertion,
resolving Plaintiff’s claims might, in fact, involve
interpreting the 2016 Contract. Maj. Op. at 21. Plaintiff
brings the following seven claims:
32 JACKSON V. AMAZON.COM, INC.

(1) Invasion of privacy in violation of the California
Invasion of Privacy Act, Cal. Penal Code § 631;
(2) Invasion of privacy in violation of the California
Invasion of Privacy Act, Cal. Penal Code § 635;
(3) Intrusion upon seclusion;
(4) Invasion of privacy in violation of California’s
Constitution;
(5) Violation of the Federal Wiretap Act for the
interception and disclosure of electronic
communications under 18 U.S.C. § 2510;
(6) Violation of the Federal Wiretap Act for the
possession of electronic communication interception
devices under 18 U.S.C § 2512; and
(7) Violation of the Stored Communications Act, 18
U.S.C. §§2701, et seq.

Each of those claims requires that Defendant access
information without the consent of the surveilled party. See
Cal. Penal Code § 631 (prohibiting “any person who
. . . makes any unauthorized connection . . . or who willfully
and without the consent of all parties to the communication
. . . reads, or attempts to read, or to learn the contents or
meaning of any message [that] is in transit or passing over
any wire, line, or cable . . . ”); Cal. Penal Code § 635
(prohibiting “[e]very person who . . . possesses . . . any
device which is primarily or exclusively designed . . . for the
unauthorized interception . . . of communications
between . . . cordless telephones or between a cordless
telephone and a landline”); Shulman v. Grp. W Prods., Inc.,
955 P.2d 469, 490 (Cal. 1998) (establishing that intrusion
upon seclusion has two elements: “(1) intrusion into a
 JACKSON V. AMAZON.COM, INC. 33

private place, conversation or matter, (2) in a manner highly
offensive to a reasonable person”); Hill v. Nat’l Collegiate
Athletic Ass’n, 865 P.2d 633, 654–55 (Cal. 1994)
(establishing that invasion of privacy under the California
Constitution requires (1) a legally protected privacy interest,
(2) a reasonable expectation of privacy, and (3) a serious
invasion of a privacy interest); 18 U.S.C. § 2512(1)
(prohibiting the assembly or possession of a device used for
“surreptitious interception of wire, oral, or electronic
communications”); 18 U.S.C. § 2701(a) (prohibiting
intentional access “without authorization [of] a facility
through which an electronic communication service is
provided”). It is now common for employment or
independent contractor agreements and ethical codes to
contain provisions pertaining to social media. See Patricia
Sanchez Abril, Avner Levin & Alissa Del Riego, Blurred
Boundaries: Social Media Privacy and The Twenty-First
Century Employee, 49 Am. Bus. L.J. 63, 80 (2012) (noting
that “[i]ndividuals often expressly consent [to allow
employers to access their social media information] by
accepting a written electronic communications policy or
contract clause . . .”). It is thus conceivable that, to resolve
one or more of the seven claims alleged in this dispute, one
would have to read and interpret the whole contract to
determine whether it expressly or impliedly grants
permission to Defendant to undertake the disputed activity.
The claims here—unlike a claim for diminution of stock
value, a claim of sexual assault, or an action under the False
Claims Act—might be affected by the terms of the contract.
The majority opinion’s statement that arbitrability
depends on the complaint, Maj. Op. at 23, is correct but
incomplete for three reasons.
34 JACKSON V. AMAZON.COM, INC.

First, the analysis of arbitrability requires us to examine
the relationship between the factual allegations in the
complaint and “the contract containing the arbitration
clause.” Simula, Inc., 175 F.3d at 721. Contrary to the
majority opinion’s assertion, this inquiry does not require us
to predict the course or outcome of the litigation; rather, it is
merely a threshold analysis as to where the dispute belongs.
Second the majority opinion never comes to grips with,
and indeed fails even to mention, most of the facts actually
alleged, including the limitation of the private site to
Amazon Flex drivers only, a site that is used to discuss
Amazon Flex drivers’ work-related matters only. These
factual allegations are critical to the arbitration clause
because they underscore that the “dispute or claim” is one
“relating in any way to [the parties’] agreement” or “to
[Plaintiff’s] participation in the [Flex driver] program.”
2016 TOS § 11.
Third, the majority opinion refers to social media clauses
as being only potential defenses. Instead, such clauses are
an integral part of the bargain, that is, part of “the contract
containing the arbitration clause,” Simula, Inc., 175 F.3d at
721, which must be considered in its entirety. Indeed, even
if the majority opinion’s characterization is correct, the case
it cites supports my point. See J.J. Ryan & Sons, Inc. v.
Rhone Poulenc Textile, S.A., 863 F.2d 315, 319 (4th Cir.
1988) (holding that the district court properly referred claims
for unfair trade practices, interference with contract,
conversion, abuse of process, libel, defamation, and
injurious falsehoods to arbitration after examining “whether
the factual allegations underlying the claims and defenses
were within the scope of arbitration regardless of the legal
labels given to the cause of action” (emphasis added)).
 JACKSON V. AMAZON.COM, INC. 35

In sum, California law requires Plaintiff to resolve his
claims in arbitration. My disagreement with the majority
opinion on that legal question should not be mistaken for
approval of the Defendant’s alleged actions. The alleged
conduct, if proved, is repellant and may be illegal or tortious.
But that assessment cannot alter our decision about the
parties’ chosen forum for resolving their dispute. I would
reverse and remand with an instruction to order arbitration.