United States Court of Appeals 

For the First Circuit 

No. 16-2023 

RACHEL CULLINANE, JACQUELINE NÚÑEZ, ELIZABETH SCHAUL, 

and ROSS MCDONAGH, on behalf of themselves and 

all others similarly situated, 

Plaintiffs, Appellants, 

v. 

UBER TECHNOLOGIES, INC., 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. Douglas P. Woodlock, U.S. District Judge] 

Before 

Torruella, Thompson, and Kayatta, 

 Circuit Judges. 

Matthew W.H. Wessler, with whom Matthew Spurlock, Gupta 

Wessler PLLC, John Roddy, Elizabeth Ryan, and Bailey & Glasser LLP 

were on brief, for appellants. 

S. Elaine McChesney, with whom Lawrence T. Stanley, Jr., 

Emma D. Hall, and Morgan, Lewis & Bockius LLP were on brief, for 

appellee. 

Jennifer D. Bennett, Public Justice, P.C., Jonathan D. 

Selbin, Jason L. Lichtman, Andrew R. Kaufman, Lieff Cabraser 

Heimann & Bernstein, LLP, Jahan Sagafi, Paul W. Mollica, Outten & 

Golden LLP, Stuart Rossman, and National Consumer Law Center, on 

brief for amicus curiae Public Justice P.C., and National Consumer 

Law Center in support of appellants. 

Ben Robbins, Martin J. Newhouse, and New England Legal 
Foundation, on brief for amicus curiae New England Legal Foundation 

in support of appellee. 

Andrew J. Pincus, Archis A. Parasharami, Daniel E. Jones, 

Karianne M. Jones, Mayer Brown LLP, Kate Comerford Todd. Warren 

Postman, and U.S. Chamber Litigation Center, on brief for amicus 

curiae the Chamber of Commerce of the United States of America in 

support of appellee. 

June 25, 2018 

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TORRUELLA, Circuit Judge. This case concerns the 

enforceability of an arbitration clause contained in an online 

contract. Plaintiffs-Appellants Rachel Cullinane, Jacqueline 

Núñez, Elizabeth Schaul, and Ross McDonagh, (collectively, 

"Plaintiffs"), filed this putative class action in Massachusetts 

Superior Court on behalf of themselves and other users of a ridesharing service in the Boston area against Defendant-Appellee Uber 

Technologies, Inc. ("Uber"). In their complaint, Plaintiffs 

alleged that Uber violated a Massachusetts consumer-protection 

statute by knowingly imposing certain fictitious or inflated fees. 

Uber removed the case to the United States District Court for the 

District of Massachusetts, and filed a motion to compel arbitration 

and stay or dismiss the case. The district court granted Uber's 

motion to compel arbitration and dismissed the complaint. For the 

reasons explained below, we reverse and remand. 

I. Background 

Because Uber's motion to compel arbitration was made in 

connection with a motion to dismiss or stay, we draw the relevant 

facts from the operative complaint and the documents submitted to 

the district court in support of the motion to compel arbitration. 

Gove v. Career Sys. Dev. Corp., 689 F.3d 1, 2 (1st Cir. 2012). 

 
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A. Factual Background 

Uber provides a ride-sharing service that transports 

customers throughout some cities, including Boston, for a fee. 

Uber licenses the Uber mobile application (the "Uber App") to the 

public so that users may request transportation services from 

independent third party providers in the users' local area. To 

be able to request and pay for third party transportation services, 

Uber App users must first register with Uber by creating an 

account. At the time Plaintiffs created their accounts, 

prospective users could either register through the Uber App or 

register directly through Uber's website. 

All four named Plaintiffs downloaded the Uber App on 

iPhones and used the Uber App to create Uber accounts between 

December 31, 2012 and January 10, 2014. On September 13, 2013, 

Plaintiff Jacqueline Núñez ("Núñez") used the Uber App to order 

transportation to Boston Logan International Airport ("Logan 

Airport") and was charged, in addition to the cost of the 

transportation, $8.75 for a Massport Surcharge & Toll 1 (the 

"Massport Surcharge"). Plaintiff Rachel Cullinane ("Cullinane") 

used the Uber App to request transportation from Logan Airport on 

 

1 According to the Plaintiffs, at the time Uber explained in its 

Boston website that the Massport Surcharge "cover[ed] Massport 

fees and other costs related to airport trips." 
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June 29, 2014, and was charged $5.25 for the East Boston toll2 and 

the same $8.75 Massport Surcharge. Plaintiff Elizabeth Schaul 

("Schaul") used the Uber App to obtain transportation both to and 

from Logan Airport on multiple occasions. Each time, Uber charged 

her the $8.75 Massport Surcharge. The last named Plaintiff, Ross 

McDonagh ("McDonagh") claims he used the Uber App for several trips 

-- not all of them to or from Logan Airport -- and was charged 

$5.25 for the East Boston toll and the $8.75 surcharge, even when 

he did not travel to or from Logan Airport. The Plaintiffs object 

to the Massport Surcharge and the East Boston tool because they 

maintain that Uber charged these fees unnecessarily (i.e. there 

was no requirement from the Commonwealth of Massachusetts that 

these fees be charged to Uber passengers). Now, the Plaintiffs 

seek to represent a class of Massachusetts-resident Uber 

passengers who have been charged the Massport Surcharge and East 

Boston toll, and have not received a refund for these charges.

B. Uber App Registration Process 

All prospective Uber passengers must go through Uber's 

registration process. When Plaintiffs used the Uber App to 

register, the process included three different screens that asked 

for user information. The first screen, titled "Create an 

 

2 Also according to the Plaintiffs, Uber charged an East Boston 

toll to passengers traveling through East Boston. 
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Account," asked users to enter an e-mail address, a mobile phone 

number, and a password for the account. Immediately above the 

phone's keyboard -- which occupied half of the phone screen -- 

written in dark gray against a black background, was the text: "We 

use your email and mobile number to send you ride confirmations 

and receipts." 

The second screen, entitled "Create a Profile," prompted 

the user to enter their first and last name, and to upload a 

picture. This screen also included dark gray text on a black 

background which read: "Your name and photo helps [sic] your driver 

identify you at pickup." 

The third screen varied slightly during the thirteenmonth period during which the Plaintiffs registered. The first 

two plaintiffs to register, Núñez and Schaul, saw a third screen 

titled "Link Card." The last two plaintiffs to register, 

Cullinane and McDonagh, saw a third screen titled "Link Payment." 

Irrespective of its title, the third and final screen prompted the 

user to enter the appropriate payment information for Uber's 

services. Because the design and content of both versions of the 

third screen are particularly relevant to this case, we discuss 

them in greater detail. 

 
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1. "Link Card" 

When confronted with the third screen, Núñez and Schaul 

were presented with the "Link Card" screen. This is what it looked 

like:3

As depicted in the screenshot above, the screen 

contained a thick gray bar at the top of the screen with the title 

"Link Card." To the left of the title was a "CANCEL" button and 

to the right was an inoperative and barely visible "DONE" button. 

 

3 The parties do not dispute that the screenshots attached to 

Uber's motion to compel arbitration accurately depict the content 

of the Uber App screens presented to the Plaintiffs. The 

screenshots, however, are larger than the actual size of the 

average smartphone's display. Because the Plaintiffs contend that 

the iPhones they used to register with Uber had 3.5-inch displays, 

we reproduce the screenshots found in the record as they would 

appear in a smartphone's display that is approximately 3.5 inches, 

measured diagonally. Uber does not concede that the Plaintiffs' 

iPhone displays were this size. 
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Below the thick gray title bar was a blank text field where users 

could enter their credit card information. The blank text field 

was white, contrasting with the black background, horizontally 

traversing the screen, and included some light gray numbers to 

exemplify the type of information required. In addition, at the 

beginning of the blank text field, and to the left of the light 

gray numbers, there was an icon representing a credit card. The 

"Link Card" screen automatically included a number pad, covering 

half of the screen, for users to type their credit card information 

into the blank text field. 

The screen also included text, just below the blank text 

field, that instructed users to "scan your card" and "enter promo 

code." This text was written in light gray bolded font. The 

"scan your card" text had a bright blue camera icon to its left, 

and the "enter promo code" had a bright blue bullet-shaped icon 

enclosed in a circle. The record is unclear as to whether the 

"scan your card" and "enter promo code" texts were clickable 

buttons.4

Finally, the "Link Card" screen also included dark gray 

text which read: "By creating an Uber account, you agree to the." 

 

4 A clickable button is "[a]n icon on screen that is 'pressed' by 

clicking it with the mouse or, if a touchscreen, tapping it with a 

finger." PC Mag., https://www.pcmag.com/encyclopedia/term/39092/ 

button (last visited June 15, 2018). 
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Below this text was the phrase "Terms of Service & Privacy Policy" 

in bold white text enclosed in a gray rectangle. According to 

Uber, this rectangular box indicated that this phrase was a 

"clickable button."

2. "Link Payment" 

Plaintiffs Cullinane and McDonagh confronted a third 

screen that looked like this:

 

The "Link Payment" screen was very similar to the "Link 

Card" screen, except that it provided for an additional payment 

option that altered the screen's initial presentation. Instead 

of a blank text field for credit card information and the 

aforementioned number pad, the "Link Payment" screen displayed the 

blank text field and a large blue button with the PayPal logo.5 

 

5 PayPal is "an internet service to pay for transactions online." 
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The blue PayPal button was located immediately below a centralized 

dark gray text reading "OR," indicating the existence of two 

payment options. Below the PayPal button, at the bottom of the 

screen, the texts "[b]y creating an Uber account you agree to the" 

and "Terms of Service & Privacy Policy" were presented in the same 

manner as previously described. 

If the user selected the blank text field to input his 

or her credit card information, the user would then "engage[] the 

keyboard" and the "Link Payment" screen would resemble the "Link 

Card" screen. 

Notwithstanding the differences in the third screen, the 

design and general mechanics of the Uber App interface remained 

fairly uniform. For example, all screens included a gray bar at 

the top. Within this bar the user was presented with the screen 

title written in capital letters in a dark colored font. Below 

the title, but within the gray bar, was an illustration of three 

circles connected by a green line. These circles indicated the 

user's progress through Uber's registration process. 

In addition, on all screens, the gray bar incorporated 

two buttons: one to the left and one to the right of the screen's 

title. The left button was a "CANCEL" button, written in all 

 

United States v. Frechette, 583 F.3d 374, 377 n.1 (6th Cir. 2009). 
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capital letters. This button was enabled throughout the 

registration process, even before the user interacted with the 

screen. On the first two screens the right button was a "NEXT" 

button, also written in all capital letters. The "NEXT" button 

would remain barely visible and inoperative until after the user 

had entered the required information for each screen. In both 

versions of the third screen, the "NEXT" button was replaced by a 

"DONE" button. This "DONE" button also remained inoperative and 

barely visible until the user had entered the requested payment 

information. 

C. Uber's Terms and Conditions 

Uber's Terms and Conditions (the "Agreement")6 consisted 

of an approximately ten-page document7 that was available to Uber 

App users during the registration process via hyperlink. If the 

user "clicked" on the "Terms of Service & Privacy Policy" button8

 

6 During the time relevant to this case there were two versions 

of the Agreement. One version was in effect between September 21, 

2012 and May 16, 2013 and the other was in effect from May 17, 

2013, onward. The only difference between these two documents was 

the size of the headings for each section. 

7 Plaintiffs allege that "[m]ost Uber users would have accessed 

this document on a mobile phone" converting the document to over 

thirty-five pages of text on a 4.7-inch iPhone screen. However, 

the parties dispute the actual size of Plaintiffs' iPhone displays. 

8 In this sense, Uber's "Terms of Service & Privacy Policy" button 

was a hyperlink. "[When accessed on a computer a] hyperlink is a 

'string of text or a computer graphic that a user can 'click' with 

the mouse pointer' to open a new browser page." iLOR, LLC v. 
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in either version of the third screen, he or she would be taken to 

another screen that contained two additional clickable buttons 

entitled "Terms & Conditions" and "Privacy Policy." The Agreement 

was displayed on the user's screen once the "Terms & Conditions" 

button was clicked. However, the Uber App did not require 

prospective users to "click" any of these buttons or access the 

Agreement before they could complete the registration process. 

The Agreement contained a "Dispute Resolution" section 

that provided that the user and Uber: 

[A]gree that any dispute, claim or controversy 

arising out of or relating to this Agreement or the 

breach, termination, enforcement, interpretation or 

validity thereof or the use of the Service or 

Application (collectively, "Disputes") will be 

settled by binding arbitration . . . . You acknowledge 

and agree that you and [Uber] are each waiving the 

right to a trial by jury or to participate as a 

plaintiff or class User in any purported class action 

or representative proceeding. 

(Emphasis in original). Furthermore, the Agreement 

stipulated that "[t]he arbitration [would] be administered by the 

American Arbitration Association ('AAA') in accordance with the 

Commercial Arbitration Rules and the Supplementary Procedures for 

Consumer Related Disputes (the 'AAA Rules')" and that the Federal 

 

Google, Inc., 631 F.3d 1372, 1374 (Fed. Cir. 2011) (citation 

omitted). And hyperlinks found on phone applications (like the 

Uber App) can generally be accessed with the mere touch of the 

finger. See PC Mag., supra n.4. 
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Arbitration Act ("FAA") would govern the interpretation and 

enforcement of the Agreement's arbitration. 

D. Procedural Background

In November 2014, plaintiffs filed this putative class 

action against Uber in Massachusetts Superior Court. The complaint 

was originally filed by plaintiffs Cullinane and Núñez and alleged 

five causes of action. By the end of December 2014, Uber filed a 

Notice of Removal to the United States District Court for the 

District of Massachusetts pursuant to the Class Action Fairness 

Act (CAFA), 28 U.S.C. § 1332(d). Plaintiffs first moved to remand 

to state court,9 but then filed an amended complaint adding Schaul 

and McDonagh as plaintiffs and including a new cause of action for 

unfair and deceptive practice pursuant to Massachusetts General 

Laws chapter 93A. On May 4, 2015, Uber moved to compel arbitration 

and stay proceedings or, in the alternative, to dismiss the case, 

relying on the arbitration clause of the Agreement. Plaintiffs 

then filed a second amended complaint on August 4, 2015, dropping 

all but two causes of action, the chapter 93A violation and a claim 

for common law unjust enrichment. 

 

9 This motion was denied on June 22, 2015. 
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After a hearing, the district court granted Uber's 

motion to compel arbitration and dismissed the case. This timely 

appeal followed. 

II. Standard of Review 

We review "de novo an order compelling arbitration where 

the appeal involves solely legal issues as to the enforceability 

of an arbitration clause." Pelletier v. Yellow Transp., Inc., 549 

F.3d 578, 580 (1st Cir. 2008). We, of course, "focus only on the 

threshold issue of arbitrability [and] do not rule on the merits 

of the underlying claims." Unite Here Local 217 v. Sage Hosp. 

Res., 642 F.3d 255, 259 (1st Cir. 2011). Because the facts at 

issue in this case are undisputed, the question of whether the 

parties contractually bound themselves to arbitration is a 

question of law for the court also subject to de novo review. See 

TLT Constr. Corp. v. RI, Inc., 484 F.3d 130, 135 (1st Cir. 2007) 

(citation omitted) (quoting Lambert v. Kysar, 983 F.2d 1110, 1114 

n.4 (1st Cir. 1993)). Had that not been the case, we would have 

had to review factual determinations for clear error. Id. 

III. Discussion 

Under the FAA, "[a] written provision in . . . a contract 

. . . to settle by arbitration a controversy thereafter arising 

out of such contract . . . shall be valid, irrevocable, and 

enforceable." 9 U.S.C. § 2 (2012). The Supreme Court has stated 
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that the FAA reflects "a federal liberal policy favoring 

arbitration agreements." AT&T Mobility LLC v. Concepción, 563 

U.S. 333, 346 (2011) (quoting Moses H. Cone Mem'l Hosp. v. Mercury 

Constr. Corp., 460 U.S. 1, 24 (1983)). It was Congress's intention 

to "place arbitration agreements 'upon the same footing as other 

contracts.'" Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 

(1974) (quoting H.R. Rep. No. 68-96, at 2 (1924)). Nevertheless, 

the "FAA does not require parties to arbitrate when they have not 

agreed to do so." Volt Info. Scis., Inc. v. Bd. of Trs. of Leland 

Stanford Jr. Univ., 489 U.S. 468, 478 (1989). Therefore, in 

deciding a motion to compel arbitration, a court must first 

determine "whether '. . . there exists a written agreement to 

arbitrate.'" Combined Energies v. CCI, Inc., 514 F.3d 168, 171 

(1st Cir. 2008) (quoting Bangor Hydro-Elec. Co. v. New Eng. Tel. 

& Tel. Co., 62 F. Supp. 2d 152, 155 (D. Me. 1999)). The burden 

of making that showing lies on the party seeking to compel 

arbitration. See Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 

638 F.3d 367, 375 (1st Cir. 2011) ("A party seeking to compel 

arbitration under the FAA must demonstrate 'that a valid agreement 

to arbitrate exists, that the movant is entitled to invoke the 

arbitration clause, that the other party is bound by that clause, 

and that the claim asserted comes within the clause's scope.'" 
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(quoting InterGen N.V. v. Grina, 344 F.3d 134, 142 (1st Cir. 

2003))). 

It is well settled that "arbitration is a matter of 

contract." Rent-a-Center, West, Inc. v. Jackson, 561 U.S. 63, 67 

(2010). "When deciding whether the parties agreed to arbitrate a 

certain matter (including arbitrability), courts generally . . . 

should apply ordinary state-law principles that govern the 

formation of contracts." First Options of Chi., Inc. v. Kaplan, 

514 U.S. 938, 944 (1995). The district court applied Massachusetts 

law and the parties do not challenge that decision. Cullinane v. 

Uber Techs., Inc., 2016 WL 3751652, at *5. In any event, we agree 

with the district court that Massachusetts contract law applies. 

The Massachusetts Supreme Judicial Court ("SJC") has not 

addressed the issue of contract formation for online agreements.10 

 

10 Judge Weinstein of the District Court for the Eastern District 

of New York has described the four general types of online 

contracts. These are: (1) Browsewrap; (2) Clickwrap; (3) 

Scrollwrap; and (4) Sign-in-wrap agreements. Berkson v. Gogo LLC, 

97 F. Supp. 3d 359, 394-402 (E.D.N.Y. 2015). Briefly summarized: 

Browsewrap exists where the online host dictates that 

assent is given merely by using the site. Clickwrap 

refers to the assent process by which a user must click 

"I agree," but not necessarily view the contract to which 

she is assenting. Scrollwrap requires users to 

physically scroll through an internet agreement and 

click on a separate "I agree" button in order to assent 

to the terms and conditions of the host website. Signin-wrap couples assent to the terms of a website with 

signing up for use of the site's services . . . . 
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However, in Ajemian v. Yahoo!, Inc., 987 N.E.2d 604, 611-15 (Mass. 

App. Ct. 2013), the Massachusetts Appeals Court ("Appeals Court") 

addressed the enforceability of forum selection and limitation 

clauses within an online contract and that court's decision is 

"trustworthy data for ascertaining state law." Losacco v. F.D. 

Rich Constr. Co., 992 F.2d 382, 384 (1st Cir.), cert. denied, 510 

U.S. 923 (1993); see also Candelario Del Moral v. UBS Fin. Servs. 

Inc. of P.R., 699 F.3d 93, 103 n.7 (1st Cir. 2012) (citing Fid. 

Union Trust Co. v. Field, 311 U.S. 169, 177-78 (1940)). While the 

clauses at issue in Ajemian did not include an arbitration clause, 

"the essential question presented was the same: what level of 

notice and assent is required in order for a court to enforce an 

online adhesion contract?" Cullinane, 2016 WL 3751652, at *6. 

Consequently, we apply the principles stated in Ajemian. 

In Ajemian, the Appeals Court determined that there was 

"no reason to apply different legal principles [of contract 

enforcement] simply because a forum selection clause . . . is 

contained in an online contract." 987 N.E.2d at 612. Therefore, 

 

Id. at 394–95 (emphasis omitted). Yet, our analysis regarding the 

existence of an arbitration agreement is not affected by how we 

categorize the online contract at issue here. "While new commerce 

on the Internet has exposed courts to many new situations, it has 

not fundamentally changed the principles of contract." 

Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 

2004). 
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"such clauses will be enforced provided they have been reasonably 

communicated and accepted." Id. at 611. The Appeals Court explained 

that "[r]easonably conspicuous notice of the existence of contract 

terms and unambiguous manifestation of assent to those terms by 

consumers are essential if electronic bargaining is to have 

integrity and credibility." Id. at 612. (emphasis added) (internal 

quotations marks omitted) (quoting Specht v. Netscape Commc'ns 

Corp., 306 F.3d 17, 35 (2d Cir. 2002)). With this in mind, the 

Appeals Court set forth a two-step inquiry for the enforceability 

of forum selection clauses in online agreements. The first 

inquiry is whether the contract terms were "reasonably 

communicated to the plaintiffs." Id. at 612. The second is 

whether the record shows that those terms were "accepted and, if 

so, the manner of acceptance." Id. at 613. The court further 

clarified that the burden to show that the terms were reasonably 

communicated and accepted lies on the party seeking to enforce the 

forum selection clause. See id. at 611. 

With the legal framework determined, we proceed to our 

analysis keeping in mind that our sole focus is on the 

enforceability of Uber's mandatory arbitration clause found in the 

Agreement. 
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A. Reasonable Notice

Uber makes no claim that any of the Plaintiffs actually 

saw the arbitration clause or even clicked on the "Terms of Service 

& Privacy Policy" button. Rather, it relies solely on a claim 

that its online presentation was sufficiently conspicuous as to 

bind the Plaintiffs whether or not they chose to click through the 

relevant terms. Therefore, we must determine whether the terms 

of the Agreement were "reasonably communicated" to the Plaintiffs. 

We note that "in the context of web-based contracts . . . clarity 

and conspicuousness are a function of the design and content of 

the relevant interface." Meyer v. Uber Techs., Inc., 868 F.3d 66, 

75 (2d Cir. 2017). 

Under Massachusetts law, "conspicuous" means that a 

terms is "so written, displayed or presented that a reasonable 

person against which it is to operate ought to have noticed it." 

Mass. Gen. Laws ch. 106, § 1-201(b)(10); see also Mass. Gen. Laws 

ch. 156 D, § 1.40 (defining the term "conspicuous" as "written so 

that a reasonable person against whom the writing is to operate 

should have noticed it"). Whether or not a term is conspicuous 

is for the court to decide. Mass. Gen. Laws ch. 106, § 1-

201(b)(10). Several nonexhaustive examples of general 

characteristics that make a term conspicuous include using larger 

and contrasting font, the use of headings in capitals, or somehow 
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setting off the term from the surrounding text by the use of 

symbols or other marks. Id. 

In addition, when the terms of the agreement are only 

available by following a link, the court must examine "the language 

that was used to notify users that the terms of their arrangement 

with [the service provider] could be found by following the link, 

how prominently displayed the link was, and any other information 

that would bear on the reasonableness of communicating [the 

terms]." Ajemian, 987 N.E.2d at 612. 

After reviewing the Uber App registration process, we 

find that the Plaintiffs were not reasonably notified of the terms 

of the Agreement. We note at the outset that Uber chose not to 

use a common method of conspicuously informing users of the 

existence and location of terms and conditions: requiring users to 

click a box stating that they agree to a set of terms, often 

provided by hyperlink, before continuing to the next screen. 

Instead, Uber chose to rely on simply displaying a notice of deemed 

acquiescence and a link to the terms. In order to determine 

whether that approach reasonably notified users of the Agreement, 

we begin our analysis with how this link was displayed. 

Uber contends that the gray rectangular box with the 

language "Terms of Service & Privacy Policy" was reasonably 

conspicuous, both visually and contextually, because it was 
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displayed in a larger font, in bold, contrasting in color, and 

highlighted by the box around it. Furthermore, Uber argues that 

the screen contained a total of twenty-six words, making it 

difficult for a user to miss it. 

While the language and the number of words found on the 

"Link Card" and "Link Payment" screens could be seen to favor 

Uber's position, the reading of Uber's "Terms of Service & Privacy 

Policy" hyperlink must be contextualized. That is, it may not be 

read in a vacuum. Other similarly displayed terms presented 

simultaneously to the user in both versions of the third screen 

diminished the conspicuousness of the "Terms of Service & Privacy 

Policy" hyperlink. We explain. 

First, Uber's "Terms of Service & Privacy Policy" 

hyperlink did not have the common appearance of a hyperlink. While 

not all hyperlinks need to have the same characteristics, they are 

"commonly blue and underlined." CR Assocs. L.P. v. Sparefoot, 

Inc., No. 17-10551-LTS, 2018 WL 988056, at *4 n.4 (D. Mass. 

Feb. 20, 2018); see also e.g., Meyer, 868 F.3d at 78 ("[T]he 

hyperlinks are in blue and underlined."); Adelson v. Harris, 774 

F.3d 803, 808 (2d Cir. 2014) ("[T]he hyperlinks were not hidden 

but visible in the customary manner, that is, by being embedded in 

blue, underlined text."); Fteja v. Facebook, Inc., 841 F. Supp. 2d 

829, 835 (S.D.N.Y. 2012) ("The phrase 'Terms of Service' is 
-22- 

underlined, an indication that the phrase is a hyperlink, a phrase 

that is 'usually highlighted or underlined' and 'sends users who 

click on it directly to a new location—usually an internet address 

or a program of some sort.'"). Here, the "Terms of Service & 

Privacy Policy" hyperlink was presented in a gray rectangular box 

in white bold text. Though not dispositive, the characteristics 

of the hyperlink raise concerns as to whether a reasonable user 

would have been aware that the gray rectangular box was actually 

a hyperlink. 

Next, the overall content of the "Link Card" and "Link 

Payment" screens show that the "Terms of Service & Privacy Policy" 

hyperlink was not a conspicuous term as defined by Massachusetts 

law. Again, this hyperlink was displayed in white bold font within 

a gray rectangular box. While these features may have been 

sufficient to accentuate a hyperlink found within a registration 

process interface with a plain design and limited content, that 

was not the case here. 

Along with the "Terms of Service & Privacy Policy" 

hyperlink, the "Link Card" and "Link Payment" screens contained 

other terms displayed with similar features. For example, the 

terms "scan your card" and "enter promo code" were also written in 

bold and with a similarly sized font as the hyperlink. Both 

versions of the third screen also included the words "CANCEL" and 
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"DONE," -- the latter being barely visible until the user had 

entered the required payment information -- in all capital letters 

and dark colored font. Meanwhile, the top of the screens featured 

the terms "Link Card" or "Link Payment" in large capital letters 

and dark colored font. These had the largest-sized font in both 

versions of the third screen. 

Uber's "Terms of Service & Privacy Policy" hyperlink was 

even less conspicuous on the "Link Payment" screen. The inclusion 

of the additional payment option and the placement of a large blue 

PayPal button in the middle of the screen were more attentiongrabbing and displaced the hyperlink to the bottom of the screen. 

It is thus the design and content of the "Link Card" and 

"Link Payment" screens of the Uber App interface that lead us to 

conclude that Uber's "Terms of Service & Privacy Policy" hyperlink 

was not conspicuous. Even though the hyperlink did possess some 

of the characteristics that make a term conspicuous, the presence 

of other terms on the same screen with a similar or larger size, 

typeface, and with more noticeable attributes diminished the 

hyperlink's capability to grab the user's attention. If everything 

on the screen is written with conspicuous features, then nothing 

is conspicuous. See Stevenson v. TRW Inc., 987 F.2d 288, 296 (5th 

Cir. 1993) (interpreting the Uniform Commercial Code's definition 

of the term "conspicuous" in the context of a disclaimer and 
-24- 

stating that a "disclaimer is not conspicuous . . . when it is the 

same size and typeface as the terms around it"); Boeing Airplane 

Co. v. O'Malley, 329 F.2d 585, 593 (8th Cir. 1964) (interpreting 

a state statute that contained a similar definition for the term 

"conspicuous" as the Massachusetts Uniform Commercial Code and 

finding that if a term "is merely in the same color and size of 

other type used for the other provisions," it fails to be a 

conspicuous term). 

Furthermore, when we consider the characteristics of the 

text used to notify potential users that the creation of an Uber 

account would bind them to the linked terms, we note that this 

phrase was even less conspicuous than the "Terms of Service & 

Privacy Policy" hyperlink. This notice was displayed in a dark 

gray small-sized non-bolded font against a black background. The 

notice simply did not have any distinguishable feature that would 

set it apart from all the other terms surrounding it. 

Because both the "Link Card" and "Link Payment" screens 

were filled with other very noticeable terms that diminished the 

conspicuousness of the "Terms of Service & Privacy Policy" 

hyperlink and the notice, we find that the terms of the Agreement 

were not reasonably communicated to the Plaintiffs. As such, 

Uber's motion to compel arbitration fails. 

 
-25- 

IV. Conclusion 

Because the Plaintiffs were not reasonably notified of 

the terms of the Agreement, they did not provide their unambiguous 

assent to those terms. We therefore find that Uber has failed to 

carry its burden on its motion to compel arbitration. For these 

reasons we reverse the district court's grant of Uber's motion to 

compel arbitration, and remand the case for further proceedings 

consistent with this opinion. 

Reversed and Remanded.