FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

STEPHAN NAMISNAK; FRANCIS 

FALLS,

Plaintiffs-Appellees,

v.

UBER TECHNOLOGIES, INC.; RASIER,

LLC,

Defendants-Appellants.

No. 18-15860

D.C. No.

3:17-cv-06124-

RS

OPINION

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 wheelchairaccessible 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 wheelchairaccessible 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 wheelchairaccessible 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 AfricanAmerican 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.