PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

______________

No. 21-3234

______________

JASWINDER SINGH, on behalf of himself and 

all those similarly situated,

 Appellant

v.

UBER TECHNOLOGIES, INC.

______________

No. 21-3363

______________

JAMES CALABRESE; GREGORY CABANILLAS; 

MATTHEW MECHANIC,

individually and on behalf of all others similarly situated,

 Appellants

v.

UBER TECHNOLOGIES, INC.; RAISER, LLC

____________________
2

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action Nos. 3-16-cv-03044 and 3-19-cv-18371)

District Judge: Honorable Freda L. Wolfson

______________

ARGUED: November 8, 2022

Before: JORDAN, SCIRICA, and RENDELL, 

Circuit Judges.

(Filed: April 26, 2023)

Matthew D. Miller

Justin L. Swidler [ARGUED]

Swartz Swidler

9 Tanner Street, Suite 101

Haddonfield, NJ 08033

 Counsel for Appellant in No. 21-3234 

Catherine E. Anderson

Giskan Solotaroff & Anderson

90 Broad Street, 2nd Floor

New York, NY 10004

Roosevelt N. Nesmith [ARGUED]

363 Bloomfield Avenue, Suite 2-C

Montclair, NJ 07042
3

Russell S. Warren, Jr.

473 Sylvan Avenue

Englewood Cliffs, NJ 07632

 Counsel for Appellants in No. 21-3363

Samuel E. Eckman

Theane D. Evangelis [ARGUED]

Gibson Dunn & Crutcher

333 South Grand Avenue, Suite 4600

Los Angeles, CA 90071

Blaine H. Evanson

Gibson Dunn & Crutcher

3161 Michelson Drive, Suite 1200

Irvine, CA 92612

Paul C. Lantis

Littler Mendelson

1601 Cherry Street

Three Parkway, Suite 1400

Philadelphia, PA 19102

 Counsel for Appellees

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

The Federal Arbitration Act (FAA) compels federal 

courts to enforce a wide range of arbitration agreements. But it 
4

does not apply to arbitration agreements contained in the 

“contracts of employment of seamen, railroad employees, or 

any other class of workers engaged in foreign or interstate 

commerce.” 9 U.S.C. § 1. These consolidated appeals ask us to 

decide whether Uber drivers belong to such a class of workers. 

We conclude, as have our sister circuits, that they do not. The 

work of Uber drivers is centered on local transportation. Most

Uber drivers have never made a single interstate trip. When 

Uber drivers do cross state lines, they do so only incidentally, 

as part of Uber’s fundamentally local transportation business.

As a result, they are not “engaged in foreign or interstate 

commerce” for the purposes of § 1 of the FAA. The District 

Court reached this conclusion in a detailed and carefully 

reasoned opinion. We will affirm. 

I.

The FAA, enacted “in response to a perception that 

courts were unduly hostile to arbitration,” Epic Sys. Corp. v. 

Lewis, 138 S. Ct. 1612, 1621 (2018), requires courts to 

“‘rigorously enforce’ arbitration agreements according to their 

terms,” Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 

233 (2013) (citation omitted). But the FAA’s scope is not 

limitless. Expressly exempted from its coverage are arbitration 

agreements within the “contracts of employment of seamen, 

railroad employees, or any other class of workers engaged in 

foreign or interstate commerce.” 9 U.S.C. § 1; Circuit City 

Stores, Inc. v. Adams, 532 U.S. 105, 109 (2001). Our decision 

addresses the scope of that final phrase—“any other class of 

workers engaged in foreign or interstate commerce”—

otherwise known as the “residual clause.”
5

Two principles guide our analysis. First, the FAA’s 

statutory context and purpose compel us to give § 1 “a narrow 

construction.” Circuit City, 532 U.S. at 118. Second, the scope 

of the residual clause is “controlled and defined by reference 

to the enumerated categories” of seamen and railroad workers 

designated in the statute. Id. at 115.

A.

This consolidated appeal arises out of two cases filed 

against Uber by its drivers—Singh v. Uber Technologies and 

Calabrese v. Uber Technologies. In each case, Uber 

successfully moved to compel arbitration under the terms of its 

agreements with the drivers. We described the facts of Singh’s 

case in our previous decision, Singh v. Uber Technologies, 

Inc., 939 F.3d 210 (3d Cir. 2019), and briefly review them here. 

Plaintiffs are current or former Uber drivers from many 

different states—New Jersey, New York, Ohio, Pennsylvania, 

Missouri, and Nevada. At one time or another, each agreed to 

a contract Uber calls its “Technology Services Agreement” as 

a condition of using Uber’s platform. The content of the 

relevant provisions of the agreement is not in dispute. 

The agreement requires drivers to “resolve disputes 

with [Uber] on an individual basis through final and binding 

arbitration unless [the driver] choose[s] to opt out.” JA3, 168 

(emphasis omitted). This includes “every claim or dispute that 

lawfully can be arbitrated,” save a few specific exceptions. 

JA153. Under the agreement, an arbitrator—not “a court or 

judge”—is to decide any dispute “relating to interpretation or 

application” of the provision, including its “enforceability, 

revocability or validity.” JA4, JA82. Drivers who do not wish 
6

to be bound by the arbitration provisions may opt out by 

sending Uber an email or letter to that effect.

Singh’s case began six years ago as a putative class 

action in New Jersey state court. Singh, 939 F.3d at 215. Singh

alleged Uber had violated New Jersey wage and hour laws by 

misclassifying drivers as independent contractors, had failed to 

pay them the minimum wage, and had failed to reimburse them 

for business expenses. Uber removed the action and then 

successfully moved to dismiss the case and compel arbitration 

pursuant to the terms of its arbitration agreement with Singh. 

Id. At 216. The District Court held that § 1 applied only to 

transportation workers who move goods, not those who carry

passengers. Id. At 216-17. Singh appealed to this Court and we 

reversed, holding that the exception applies equally to 

“transportation workers who transport passengers, so long as 

they are engaged in interstate commerce or in work so closely 

related thereto as to be in practical effect part of it.” Id. At 214. 

We reaffirmed our longstanding view of the residual clause as 

including those classes of workers “actually engaged in the 

movement of interstate or foreign commerce or in work so 

closely related thereto as to be in practical effect part of it.” Id.

At 220 (quoting Tenney Eng’g, Inc. v. United Elec. Radio & 

Mach. Workers of Am., (U.E.) Local 437, 207 F.2d 450, 452 

(3d Cir. 1953) (en banc)).

We remanded to the District Court to determine whether 

Singh belonged to a class of transportation workers “engaged 

in interstate commerce.” Id. at 226-27. Because this question 

could not be answered from the complaint alone, we directed

that “discovery must be allowed before entertaining further 

briefing on the question.” Id. at 226. We encouraged the 

District Court to consider “various factors,” including but not 
7

limited to “the contents of the parties’ agreement(s), 

information regarding the industry in which the class of 

workers is engaged, information regarding the work performed 

by those workers, and various texts—i.e., other laws, 

dictionaries, and documents—that discuss the parties and the 

work.” Id. at 227-28.

Calabrese filed his case in the District of New Jersey in 

September 2019, just a few weeks after our decision in Singh.

The District Court consolidated the case with Singh’s and 

ordered joint discovery. Like Singh, Calabrese claimed that 

Uber had violated various labor and employment laws. He also 

sought to proceed collectively under the Fair Labor Standards 

Act.1

The District Court ordered that joint discovery before 

again ruling in Uber’s favor and compelling arbitration. The 

court defined the relevant class as Uber drivers nationwide.

Based on the record developed in discovery and the factors 

listed above, the court determined that neither the arbitration 

agreement nor the total number of cross-border trips was

dispositive. More significant, the court found, was “evidence 

that [interstate] rides constitute just 2% of all rides, resemble 

in character the other 98% of rides, and likely occur due to the 

happenstance of geography.” JA32. 

1 Several additional plaintiffs opted in to Calabrese’s case. The 

suit originally included himself (James Calabrese), Gregory 

Cabanillas, and Matthew Mechanic as plaintiffs. Several more 

plaintiffs opted-in later: Bulent Tasdemir, Salvador Delgado, 

Vernon Small, Shane Golden, Shyidah Johnson, Corey Wims, 

Denis Odom, Robin Rienerth, and Scott Tucker. We refer to all 

these plaintiffs collectively as “Calabrese.” 
8

The District Court compelled arbitration in a thorough 

and well-reasoned opinion.

B.

Two other appeals courts have concluded that rideshare 

drivers2 do not constitute a “class of workers engaged in 

foreign or interstate commerce” under § 1. In Capriole v. Uber 

Technologies, Inc., 7 F.4th 854, 865 (9th Cir. 2021), the Ninth 

Circuit found that “interstate movement” was not a “central 

part of [Uber drivers’] job description.” The court noted that 

Uber drivers primarily made “short and local” trips and crossed 

state lines “infrequently.” Id. Even these infrequent trips across 

state lines were still “inherently local in nature”—any 

interstate component was a mere “happenstance of geography” 

which did not alter Uber drivers’ fundamentally “intrastate 

transportation function.” Id. at 864 (emphasis added) (citations 

omitted). 

The First Circuit charted a similar course in 

Cunningham v. Lyft, Inc., 17 F.4th 244 (1st Cir. 2022). The 

court pointed out that “not all Lyft drivers engage in any 

interstate transportation.” Id. at 252. The court recognized that 

the residual clause must be given a “narrow construction,” and 

that its meaning was controlled by the enumerated categories 

of “seamen” and “railroad workers,” who were “primarily 

2 By “rideshare drivers,” we mean those who use “a mobile app 

or website” in order “to collect and transport a fare-paying 

customer to a chosen destination.” Ride-Share, Oxford English 

Dictionary (3d ed. updated Mar. 2022),

https://www.oed.com/view/Entry/165647#eid179399275. 
9

devoted to the movement of goods and people beyond state 

boundaries.” Id. at 253. Lyft drivers, the court found, were not. 

Id. Lyft as a company was “primarily in the business of 

facilitating local, intrastate trips.” Id. The court concluded for 

these reasons that “Lyft drivers are not among a class of 

transportation workers engaged in interstate commerce within 

the meaning of section 1 as narrowly construed.” Id.

II.3

To decide whether Plaintiffs are members of a “class of 

workers engaged in foreign or interstate commerce,” a court 

must first define the “class of workers” at issue. We agree with 

the District Court that the class should be defined as 

nationwide Uber drivers.4 See Capriole, 7 F.4th at 862.

3 The District Court had jurisdiction over Plaintiffs’ claims 

under 28 U.S.C. §§ 1367, 1453, and 29 U.S.C. § 216. We have 

appellate jurisdiction over the final judgment of the District 

Court compelling arbitration under 28 U.S.C. § 1291. We 

review the court’s order compelling arbitration de novo. Singh, 

939 F.3d at 217. As “the party resisting arbitration,” Plaintiffs

bear the burden of showing “that the claims at issue are 

unsuitable for arbitration.” Green Tree Fin. Corp.-Ala. v. 

Randolph, 531 U.S. 79, 91-92 (2000).

4 Companies other than Uber employ rideshare drivers. The 

parties’ arguments in this case have understandably focused on 

Uber, and they have not discussed the practices of other 

companies offering similar services. The District Court defined 

the class as “Uber drivers nationwide,” JA12, but elsewhere in 

its opinion referred more generally to “rideshare drivers 

nationwide,” JA15. The parties’ arguments—and our 
10

We begin, as the Supreme Court has instructed, by 

examining the types of workers specifically mentioned in the 

FAA’s text—“seamen” and “railroad employees.” See Circuit 

City, 532 U.S. at 115. “As those terms contain ‘no geographic 

limitations,’ ‘the most natural inference is that Congress 

intended those terms to encompass all seamen and railroad 

employees nationwide.’” Capriole, 7 F.4th at 862 (quoting 

Osvatics v. Lyft, Inc., 535 F. Supp. 3d 1, 15 (D.D.C. 2021) 

(Brown Jackson, J.)). We give the residual clause the same 

national scope. The parties do not dispute this approach. 

Accordingly, the relevant “class of workers” must cover the 

whole country.

In addition, the class of workers must include all Uber

drivers.

5

In interpreting the FAA, the Supreme Court has 

repeatedly emphasized the Act’s use of the term “workers.” 

Sw. Airlines Co. v. Saxon, 142 S. Ct. 1783, 1788 (2022)

(quoting New Prime, Inc. v. Oliveira, 139 S. Ct. 532, 540-41

(2019)). This word “directs the interpreter’s attention to ‘the 

performance of work,’” and, when coupled with the word 

“engaged,” “emphasizes the actual work that the members of 

the class, as a whole, typically carry out.” Id. This work must 

be defined specifically. See Circuit City, 532 U.S. at 118 

decision—encompass those who do substantially similar work 

for different companies. The precise framing of the class as 

either Uber drivers or rideshare drivers makes no difference to 

our opinion. See Osvatics v. Lyft, Inc., 535 F. Supp. 3d 1, 16 

n.8 (D.D.C. 2021) (Brown Jackson, J.) (following the same 

practice for Lyft drivers).

5 The Calabrese Plaintiffs, for their part, do not appear to 

contest either part of this definition. 
11

(emphasizing that the § 1 exception must be given “a narrow 

construction”).6

Accordingly, we reject Singh’s proposed class of 

“motor carrier workers” as too broad to be sustained. The 

Supreme Court recently rejected a similar class of airline 

6 Singh argues that we would be wrong to construe the § 1 

exception narrowly, as the “Supreme Court has since 

abandoned the rule that statutory exemptions should be 

narrowly construed.” Singh Br. 20. But Circuit City did not 

depend on a general principle that all statutory exemptions 

should be narrowly construed. Rather, the Court determined 

that § 1 should be narrowly construed because of the FAA’s 

“statutory context” and “purpose.” 532 U.S. at 118. More 

specifically, the statute’s designation of “specific categories of 

workers” before the residual clause “undermines any attempt 

to give [the residual clause] a sweeping, open-ended 

construction.” Id. The Court also relied on the FAA’s purpose, 

which “seeks broadly to overcome judicial hostility to 

arbitration agreements.” Id. (quoting Allied-Bruce Terminix 

Cos. v. Dobson, 513 U.S. 265, 272-73 (1995)). These FAAspecific considerations, and not any general principle, drove 

the result in Circuit City. Singh’s cases, which attack only the 

latter, are therefore inapplicable. See BP P.L.C. v. Mayor & 

City Council of Balt., 141 S. Ct. 1532, 1538-39 (2021)

(rejecting a general principle of narrow construction for 

statutory exceptions). Regardless, we would be obligated to 

follow the specific holding of the Court in Circuit City even if 

its justifications were undermined by “some other line of 

decisions.” Rodriguez de Quijas v. Shearson/Am. Express, Inc., 

490 U.S. 477, 484 (1989). Fairly construed, the § 1 exception 

has a narrow scope. 
12

employees. Saxon, 142 S. Ct. at 1788-89. Like “airline 

employees,” “motor carrier workers” is too general a 

description to explain much about class members’ actual work.

See Saxon, 142 S. Ct. at 1788.7

After defining the proper scope of the class at issue, we 

next consider what it means for a class of workers to be 

“engaged in interstate commerce” for purposes of § 1.

Plaintiffs argue that rare engagement is enough. We instead 

conclude, in line with our sister circuits, that a class of workers 

comes within the exception only if “interstate movement of 

goods” or passengers is “a central part” of the job description 

of the class. Wallace v. Grubhub Holdings, Inc., 970 F.3d 798, 

803 (7th Cir. 2020) (Barrett, J.); accord Capriole, 7 F.4th at 

864 (adopting the same standard); Cunningham, 17 F.4th at 

253 (similar); see also Saxon, 142 S. Ct. at 1789-90 (explaining 

that the residual clause only applies to “transportation 

workers”—those who are “actively engaged in transportation” 

of goods or people “via the channels of foreign or interstate 

commerce”). Put another way, the class must either be 

“actually engaged in the movement of interstate or foreign 

commerce or in work so closely related thereto as to be in 

practical effect part of it.” Singh, 939 F.3d at 220 (quoting

Tenney, 207 F.2d at 452). 

We have suggested a non-exhaustive list of factors to 

structure the residual clause inquiry: “the contents of the 

parties’ agreement(s), information regarding the industry in 

which the class of works is engaged, information regarding the 

7 On remand, the District Court collected decisions from 

district courts that likewise defined the class as Uber (or Lyft) 

drivers nationwide.
13

work performed by those workers, and various texts—i.e., 

other laws, dictionaries, and documents—that discuss the 

parties and the work.” Id. at 227-28. As the District Court 

recognized, these factors are useful guides but do not change 

the core question of whether interstate commerce is central to 

the class’s job description.

Our focus on the centrality of interstate work is

compelled by the principle that the scope of the residual clause 

is “controlled and defined by reference to the enumerated 

categories” of seamen and railroad workers. Circuit City, 532 

U.S. at 115. Seamen and railroad workers are “primarily 

devoted to the movement of goods and people beyond state 

boundaries.” Cunningham, 17 F.4th at 253. Their jobs are 

“centered on the transport of goods in interstate or foreign 

commerce.” Wallace, 970 F.3d at 802. The residual clause 

must be similarly limited. 

The FAA’s text and structure lead to the same result.

Compare the language of the FAA’s operative provision, 

contained in § 2, with the language of the § 1 exception at issue 

here. Section 2 applies to any “contract evidencing a 

transaction involving commerce.” 9 U.S.C. § 2. This broad 

language “reach[es] to the limits of Congress’ Commerce 

Clause power.” Allied-Bruce Terminix Cos. v. Dobson, 513 

U.S. 265, 270 (1995). By contrast, § 1 uses the narrower 

formulation “engaged in interstate commerce.” See Circuit 

City, 532 U.S. at 118. This formulation limits the clause’s 

scope to workers employed “in the channels” of interstate 

commerce. Great W. Mortg. Corp. v. Peacock, 110 F.3d 222, 

227 (3d Cir. 1997); Wallace, 970 F.3d at 802. Accordingly, the 

clause only applies to those whose jobs are centered on 

“interstate transportation routes through which persons and 
14

goods move.” United States v. Morrison, 529 U.S. 598, 613 n.5 

(2000) (citation omitted). 

Workers “who are actually engaged in the movement of 

interstate or foreign commerce”—for example, interstate 

truckers—easily qualify under the residual clause. Singh, 939 

F.3d at 220 (quoting Tenney, 207 F.2d at 452); New Prime, 139

S. Ct. at 536, 539 (observing that interstate truck drivers are 

plainly a class of workers engaged in interstate commerce). But 

the exception is not limited to such workers. 

A class of workers that does not regularly cross state 

lines will qualify if their work is “so closely related” to 

interstate commerce “as to be in practical effect part of it.” 

Singh, 939 F.3d at 220 (quoting Tenney, 207 F.2d at 452). 

Work meets this standard if it is a “constituent part” of the 

interstate movement of goods or people rather than a “part of 

an independent and contingent intrastate transaction.” 

Immediato v. Postmates, Inc., 54 F.4th 67, 77 (1st Cir. 2022)

(citing Cunningham, 17 F.4th at 251). 

It is not always easy to tell whether work is a 

“constituent part” of the flow of interstate commerce or occurs

outside of it. See Immediato, 54 F.4th at 79 (observing that “[i]t 

may be possible that goods can change hands several times 

during transport without exiting the flow of interstate 

commerce” and that a class of workers need not be “employed 

by a company of any particular size or geographic scope”). Our 

analysis focuses on “practical, economic continuity.” Osvatics,

535 F. Supp. 3d at 18-19 (quotation marks omitted) (quoting

Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 195 (1974)).
15

Some recent decisions help clarify the line between 

classes of workers who qualify under the residual clause and 

classes of workers that do not. On one side of the line are those 

whose work occurs within the flow of interstate commerce. In 

Saxon, for example, the Supreme Court held a class of 

Southwest Airlines baggage handlers fell under § 1. As loaders 

of interstate cargo, these baggage handlers performed work 

which was part of an unbroken stream of interstate commerce.

Saxon, 142 S. Ct. at 1790. Similarly, in Waithaka v. 

Amazon.com, Inc., 966 F.3d 10, 13 (1st Cir. 2020), the First 

Circuit held that Amazon delivery drivers who “locally 

transport[ed] goods on the last legs of interstate journeys,” fell 

under § 1 because their work occurred “within the flow of 

interstate commerce.” On the other side of the line are workers 

who engage in primarily local economic activity with only 

tangential interstate connections. Food delivery drivers, for 

example, can be distinguished from Amazon delivery drivers, 

as the former deliver food only after it has left the stream of 

interstate commerce. Rittmann v. Amazon.com, Inc., 971 F.3d 

904, 916 (9th Cir. 2020); Wallace, 970 F.3d at 802-03. 

Similarly, Chicago taxi drivers provide “independent local 

service” which is “not an integral part of interstate 

transportation.” United States v. Yellow Cab Co., 332 U.S. 218, 

233 (1947), overruled on other grounds by Copperweld Corp. 

v. Indep. Tube Corp., 467 U.S. 752 (1984). 

Plaintiffs argue along various lines to reach the 

conclusion that even a trivial amount of interstate 

transportation work suffices to bring a worker within the 

exception. This conclusion must be rejected. It is contrary to

the principles described above and would contravene the basic 

policy of the FAA, which is to broadly place arbitration 

agreements on equal footing with other contracts. See Circuit 
16

City, 532 U.S. at 115, 118-19. Plaintiffs’ interpretation would 

cover even “a pizza delivery person who delivered pizza across 

state lines to a customer in a neighboring town.” Hill v. RentA-Center, Inc., 398 F.3d 1286, 1290 (11th Cir. 2005). There is 

no evidence to suggest that Congress meant to cover such 

workers. See Wallace, 970 F.3d at 802-03; Immediato, 54 F.4th 

at 77-78; Archer v. Grubhub, Inc., 190 N.E.3d 1024, 1031-33 

(Mass. 2022). Congress’ use of the enumerated categories of 

“seamen” and “railroad employees,” when coupled with the

narrow construction due the exception, convinces us that the 

residual clause includes only those workers whose jobs are 

centered on interstate commerce. 

We are unpersuaded by Singh’s argument that there is 

no way to know that the key shared characteristic of “seamen” 

and “railroad employees” is having a job centered on interstate 

commerce. Congress meant to identify engagement in 

interstate commerce as the enumerated categories’ key shared 

characteristic. The FAA’s text makes it explicit—the residual 

clause requires that a class of workers is “engaged in interstate 

commerce.” See 9 U.S.C. § 1. This text is “[t]he best evidence 

of Congress’ intent.” United States v. Schneider, 14 F.3d 876, 

879 (3d Cir. 1994).

This approach is consistent with Saxon. Singh 

emphasizes a single sentence—the Court’s statement that “any 

class of workers directly involved in transporting goods across 

state or international borders falls within § 1’s exemption.” 

Saxon, 142 S. Ct. at 1789. As the rest of the opinion makes 

clear, this does not mean that rare border crossings are enough 

to make interstate transportation central to a class of workers’ 

job description. Rather, we consider the “actual work” that 

class members “typically carry out.” Id. At 1788. Incidental 
17

border crossings are insufficient if a class of workers is not 

typically involved with the channels of interstate commerce. 

Wallace, 970 F.3d at 800 (“[S]omeone whose occupation is not 

defined by its engagement in interstate commerce does not 

qualify for the exemption just because she occasionally 

performs that kind of work.”); Waithaka, 966 F.3d at 25 

(noting that crossing state lines is not the “touchstone of the 

exemption’s test”).

8

III.

We now turn to the key question: Is engagement with 

interstate commerce central to the work of Uber drivers? The 

District Court found that it was not. We agree. As a class, Uber 

drivers are in the business of providing local rides that 

sometimes—as a happenstance of geography—cross state 

borders. Remove interstate commerce from the equation, and 

the work of Uber drivers remains fundamentally the same. 

Plaintiffs have not shown that drivers’ infrequent interstate 

8 Both Singh and Calabrese urge us to follow International 

Brotherhood of Teamsters Local Union No. 50 v. Kienstra 

Precast, LLC, 702 F.3d 954, 956 (7th Cir. 2012), which they 

read to hold that crossing a state line even once means that a 

worker is engaged in interstate commerce for purposes of § 1.

As explained above, this position is at odds with Saxon, our 

precedents, and the majority approach of our sister courts. The 

duties of seamen and railroad employees are defined by 

interstate commerce—remove interstate commerce from the 

equation, and the fundamental character of their work changes. 

So too must the work of any class of workers covered by § 1. 

See, e.g., Waithaka, 966 F.3d at 22-24. 
18

trips are, on the whole, an essential part of their job. Indeed, 

their statistics demonstrate that most Uber drivers have never 

made a single interstate trip. Neither have Plaintiffs shown that 

drivers’ intrastate duties, such as driving riders to and from 

airports, are a “constituent part” of the interstate movement of 

goods or people. Immediato, 54 F.4th at 77. As a result, we 

conclude that Uber drivers are not a class of workers engaged 

in interstate commerce and, accordingly, that they do not fall 

under the § 1 exception. 

The other appeals courts to consider this question have 

reached the same conclusion. Plaintiffs, however, encourage us 

to disregard these decisions on the grounds that those courts 

had insubstantial evidentiary records before them. See Singh, 

939 F.3d at 226-27. Without the benefit of more evidence,

Plaintiffs argue, courts have routinely placed undue emphasis 

on a single statistic: that 2.5 percent of Uber trips are interstate.

See Capriole, 17 F.4th at 252-53 (noting only 2 percent of Lyft 

trips cross state lines). Through discovery, Plaintiffs have 

developed their own statistics which they say provide a more 

accurate picture of Uber drivers’ engagement with interstate 

commerce. But the District Court considered Plaintiffs’ new

evidence and still found the 2.5 percent statistic persuasive.

The core problem with Plaintiffs’ evidence, which the District 

Court identified, is that it stresses the total volume of interstate 

trips to the exclusion of other types of evidence.

Singh focuses directly on the “141.5 million total 

interstate trips” Uber drivers made from 2010 through May 

2020. Singh Br. 30. This statistic, however, cannot shed much 

light on Uber drivers’ typical duties. A high number of 

interstate trips does not mean that a class of workers is engaged 

in interstate commerce for purposes of § 1 if a small proportion 
19

of the class is responsible for most of the trips. Rather, to be 

central to a class of workers’ job description, engagement with 

interstate commerce must be typical of the work that class 

members generally do.

Calabrese suggests a different statistic: the percentage 

of drivers who “provide 50 or more trips in a year.” Calabrese 

Br. 4. Calabrese justifies his focus on drivers who make more 

than 50 trips by arguing that the § 1 analysis must take turnover 

into account. Since a minority of Uber drivers use the Uber app 

for more than six months, he contends, an accurate picture of 

Uber drivers’ engagement with interstate commerce requires 

adjusting the raw statistics for turnover. He proposes we 

consider the 40 percent of drivers who work long enough to 

complete at least 50 trips in a year. Of this 40 percent, 35.1

percent have made at least one interstate trip. 

We need not address how, or whether, the § 1 analysis 

should take turnover into account. Calabrese’s statistics taken 

at face value undermine his point. His numbers reveal that even 

among the most active Uber drivers, a majority—nearly 65 

percent—have never made a single interstate trip. On such 

evidence, it is easy to conclude that interstate trips are not a 

typical feature of class members’ work.

We stress that this statistic is not dispositive. An

occurrence may be central to a worker’s job description even 

if it is rare. See, e.g., Islam v. Lyft, Inc., 524 F. Supp. 3d 338, 

351 (S.D.N.Y. 2021) (observing that criminal trials are central 

to the work of district court judges even though they are 

infrequent occurrences). Uber drivers’ interstate trips, 

however, are incidental—take away interstate trips, and the 

fundamental character of Uber drivers’ work remains the same. 
20

One trip may influence another tangentially, but each is 

discrete. See Cunningham, 17 F.4th at 251 (distinguishing 

engagement with the flow of interstate commerce from 

participation in independent transactions). Because it is not the 

act of crossing a state border alone that qualifies as engagement 

with interstate commerce for purposes of § 1, and drivers’ 

interstate trips are largely unrelated to one another, Plaintiffs 

cannot show that drivers’ rare trips across state lines are 

anything more than incidental to their intrastate work. 

In addition to driver and trip data, Plaintiffs offer 

evidence of Uber’s policies from the Technology Services 

Agreement. An employer’s policies can be relevant to the § 1 

analysis if they tend to show that the employer directed a 

single, unbroken stream of interstate commerce. Plaintiffs 

argue that Uber did just that. Plaintiffs’ argument has an 

intriguing implication: that millions of discrete interstate trips, 

directed by one employer, can together form an unbroken 

stream of commerce. But § 1’s focus is on a “class of workers,”

not employers. An employer’s policies are only relevant 

insofar as they illuminate something about a class of workers’ 

typical duties. 

Accordingly, Plaintiffs’ evidence of Uber’s policies 

misses the mark. Stating that interstate trips are “integral to 

Uber’s business and the fulfillment of its mission goals,”

Calabrese Br. 9, without more, does not explain much about 

drivers’ actual work. A business undeniably engaged in 

interstate commerce may employ workers who are not so 

engaged. See Saxon, 142 S. Ct. at 1789 n.1 (leaving open the 

question of whether a class of workers who only supervise 

cargo unloading would be exempt under § 1). If an individual 

worker is not personally engaged in interstate commerce, that 
21

worker must belong to a class of workers “whose occupation 

is . . . defined by its engagement in interstate commerce” in 

order to be exempt under § 1. See Wallace, 970 F.3d at 800.

Plaintiffs’ evidence that Uber organizes drivers into

multistate “territories” based on where they live and does not 

allow drivers to opt out of interstate trips shows that Uber 

anticipates at least some drivers crossing state lines. It does not 

demonstrate, however, that interstate trips are essential to 

drivers’ activities. 

When drivers sign up with Uber, they are assigned to 

either a multistate or a single-state territory, depending on 

where they live. Uber created these territories in response to 

variation in state and local regulations. Drivers assigned to 

multistate territories can pick up passengers in other states, 

while drivers assigned to single-state territories can only pick 

up passengers in that state. Drivers in a single-state territory 

will not receive ride requests while driving outside that state, 

unlike drivers in a multistate territory. All drivers must accept 

a ride request before learning the trip destination. Although 

drivers may cancel a trip, Uber may deactivate a driver’s 

account if her cancellation rate is higher than average for her 

area. Drivers may not opt out of receiving ride requests that 

require interstate travel. 

The existence of multistate territories and the lack of an 

opt-out feature could show that interstate travel is essential to 

drivers’ work if paired with evidence that these policies impact 

drivers’ actual work. Plaintiffs do not provide that extra 

evidence. It is unclear, for example, whether the day-to-day 

work of drivers in multistate territories differs from that of 

drivers in single-state territories. It is also unclear whether the 
22

lack of an opt-out feature pressures drivers into taking 

interstate trips, given that only 17 percent of all Uber drivers 

completed one or more interstate trips in 2019.

In addition to arguing that interstate transport is integral 

to Uber’s business, Plaintiffs challenge the idea that interstate 

trips can be local for § 1 purposes. Plaintiffs point to the fact 

that Uber authorizes would-be passengers to request a trip 

exceeding 100 miles. But they do not seriously contest Uber’s 

claim that the average trip is far shorter—6.1 miles for all trips 

and 13.5 miles for interstate trips. Although average trip length 

is not dispositive, a short average trip length makes it more 

likely that drivers serve local communities that may, by 

happenstance of geography, cross state lines. See Capriole, 7 

F.4th at 864 (citing Rogers v. Lyft Inc., 452 F. Supp. 3d 904, 

916 (N.D. Cal. 2020) (“Interstate trips that occur by 

happenstance of geography do not alter the intrastate 

transportation function performed by the class of workers.”)); 

Omaha & Council Bluffs St. Ry. Co. v. Interstate Com. 

Comm’n, 230 U.S. 324, 335-36 (1913) (holding that street 

railroads are not engaged in interstate commerce because they 

“are local . . . and for the use of a single community, even 

though that community be divided by state lines”).

Finally, we reject Plaintiffs’ argument that drivers who 

ferry passengers to and from airports are part of an integrated 

interstate transport effort. Plaintiffs point out that Uber has 

agreements with major airports authorizing drivers to drop off 

and pick up passengers at terminals. They also argue that 

airport trips are so closely related to interstate commerce as to 

bring rideshare drivers within the ambit of § 1. They connect 

these arguments to the Supreme Court’s decision in United 

States v. Yellow Cab Co., which found that certain station-to-
23

station taxi rides implicated interstate commerce. See 332 U.S. 

at 228-29. 

We find this analogy unconvincing. The rides in Yellow 

Cab were part of an exclusive contract between a taxi service 

and the railroad—passengers bought a single ticket which 

included both the train and taxi portions of their journey. Id. at

228 Plaintiffs have pointed to no examples of a rideshare app 

which allows passengers to buy a single ticket that includes 

both flight and rideshare. Rather, rideshare trips to airports are 

done as part of drivers’ “independent local service.” Yellow 

Cab, 332 U.S. at 232-33. Such rides are not “part of interstate 

transportation.” Id. at 233. Yellow Cab therefore seriously 

undermines Plaintiffs’ argument, as our fellow courts have 

found. See Capriole, 7 F.4th at 863-64 (citing Yellow Cab, 332 

U.S. at 228-29); Cunningham, 17 F.4th at 250-52 (same); 

Osvatics, 535 F. Supp. 3d at 19 (same); Immediato, 54 F.4th at 

79 (same). 

II.

Plaintiffs also object to the District Court’s decision to 

compel arbitration on various contractual grounds. We reject 

these arguments. 

A.

Singh argues at length that “no contract to arbitrate” was 

formed between himself and Uber. Singh Br. 41-47. Singh

could have raised this issue in his first appeal but did not. See 

Singh Br. 2, 5-6, 27, Singh, 939 F.3d 210 (No. 17-1397) (Aug. 

13, 2018). In fact, Singh told us that Uber “required” him to 

accept the agreement. Id. at 27; see also id. at 5 (“Singh had to
24

click a button that said, ‘YES, I AGREE.’”). Having explicitly 

conceded the point in his first appeal, Singh may not now 

challenge the formation of the arbitration agreement. See 

Beazer E., Inc. v. Mead Corp., 525 F.3d 255, 263 (3d Cir. 

2008) (“It is elementary that where an argument could have 

been raised on an initial appeal, it is inappropriate to consider 

that argument on a second appeal following remand.” (quoting 

Nw. Ind. Tel. Co. v. FCC, 872 F.2d 465, 470 (D.C. Cir. 1989))). 

Singh objects that Uber has failed to produce admissible 

evidence that he assented to the arbitration agreement. But 

Singh has admitted that he was presented with the agreement, 

and the court found that he accepted it. We discern no error in 

this finding, and no abuse of discretion in the court’s 

evidentiary rulings. 

B.

None of Plaintiffs’ challenges to the validity of the 

arbitration clause are cognizable in this court. The contract

says that all disputes “relating to interpretation or application 

of this Arbitration Provision, including the enforceability, 

revocability or validity of the Arbitration Provision . . . shall be 

decided by an Arbitrator and not by a court or judge.” JA182-

83. Courts call this type of provision a delegation clause—“an 

agreement to arbitrate threshold issues concerning the 

arbitration agreement.” Rent-A-Center, W., Inc. v. Jackson, 

561 U.S. 63, 68 (2010). In the presence of a delegation clause, 

we “cannot reach the question of the arbitration agreement’s 

enforceability” unless the clause itself “is not enforceable.” 

MacDonald v. CashCall, Inc, 883 F.3d 220, 226 (3d Cir. 2018). 

“A party contesting the enforceability of a delegation clause,”

as Singh does, “must ‘challenge the delegation provision 
25

specifically.’” Id. (quoting Rent-A-Center W., 561 U.S. at 70, 

72). 

Singh specifically challenges the delegation clause on 

two bases. We reject both. First, he argues the agreement has 

not made a “clear and unmistakable delegation of authority to 

the arbitrator,” as is required. Singh Br. 57. This argument is 

based on the agreement’s separate forum selection clause, 

which provides that disputes arising out of the agreement “shall 

be subject to the exclusive jurisdiction” of San Francisco’s 

courts. Singh Br. 56; JA180. The Ninth Circuit, construing 

these precise provisions, rejected this argument. Mohamed v. 

Uber Techs., 848 F.3d 1201, 1208-09 (9th Cir. 2016). So do 

we. The language in the two provisions is easily reconciled, 

and any conflict is “artificial.” Id. at 1209. “It is apparent” that 

the forum selection clause here “was intended” to identify the 

proper venue for “an action in court to enforce” the agreement, 

and “to identify the venue for any other claims that were not 

covered by the arbitration agreement.” Id. “That does not 

conflict with or undermine the agreement’s unambiguous 

statement identifying arbitrable claims and arguments.” Id. 

Second, Singh claims the delegation clause is invalid 

because it is “subject to unilateral modification” and is 

“illusory.” Singh Br. 45. The agreement, however, provides

that any modifications will be conveyed in writing to the driver

and become effective only if the driver consents by continuing 

to use the Uber app. These limitations on Uber’s right to 

modify the agreement are sufficient to save it from being 

illusory. Jaworski v. Ernst & Young U.S. LLP, 119 A.3d 939, 

947-49 (N.J. Super. Ct. App. Div. 2015) (holding that an 

employee’s continued employment after the amendment of an 

arbitration policy constituted consent to the policy); Blair v. 
26

Scott Specialty Gases, 283 F.3d 595, 604 (3d Cir. 2002)

(approving arbitration agreement as not illusory when 

employer’s right to modify was conditional on “putting the 

change in writing, providing a copy to the employees, and 

allowing the employees to accept the change by continuing 

employment”).

9

 

9 Whether or not a contractual provision is illusory—and the 

other contractual issues raised by the parties—are questions of 

state law. See Collins v. Mary Kay, Inc., 874 F.3d 176, 182 (3d 

Cir. 2017); DIRECTV, Inc. v. Imburgia, 577 U.S. 47, 54 (2015) 

(“[T]he interpretation of a contract is ordinarily a matter of 

state law . . . .”). But which state’s law applies? Singh argues 

that California law applies to the arbitration agreement. But his 

brief often makes arguments—including on this issue—based 

solely on the law of other states with no reference to California 

law. And in his previous appeal, Singh wrote to this Court that

“New Jersey law controls” this case. Letter of Jan. 28, 2019, 

Singh (17-1397). Uber argues that the applicable law is the law 

of the various states where each Plaintiff lived and worked: 

Missouri, Nevada, New York, Ohio, Pennsylvania, and New 

Jersey. 

To resolve this dispute, we apply the choice-of-law rules of 

New Jersey. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 

487, 496 (1941) (holding federal courts should apply the 

choice of law rules of the forum state). Under those rules, “the 

first step is to determine whether an actual conflict exists” 

between the potentially applicable laws. P.V. ex rel. T.V. v. 

Camp Jaycee, 962 A.2d 453, 460 (N.J. 2008). The parties have 

pointed out no relevant differences in state law with respect to

this issue. Instead, they all argue from general principles, 

typically with reference to federal and New Jersey cases. Our
27

C.

Calabrese argues that some of his fellow FLSA 

plaintiffs “opted out of arbitration with Uber” and thus cannot 

be compelled to arbitrate. True enough, three plaintiffs did 

purport to exercise their right to opt out of arbitration under 

contracts with Uber in 2019, and one plaintiff did so in 2019

and 2020. But both of those agreements made clear that 

Plaintiffs would be “bound by an existing arbitration 

agreement” with Uber if they had accepted one in the past. 

Uber Br. 9; JA357-59. All three of the opt-out plaintiffs 

previously agreed to arbitration with Uber in 2015. They 

remain bound by that agreement notwithstanding their 

subsequent opt-out. See Capriole, 7 F.4th at 859 n.2.10

own examination of the cases similarly reveals no relevant 

distinctions. See Baker v. Bristol Care, Inc., 450 S.W.3d 770, 

776-77 (Mo. 2014); Baldonado v. Wynn Las Vegas, LLC, 194 

P.3d 96, 105-06 & n.39 (Nev. 2008); Bassett v. Elec. Arts, Inc., 

93 F. Supp. 3d 95, 106-08 (E.D.N.Y. 2015) (applying New 

York law); Jones v. Carrols, LLC, 119 N.E.3d 453, 464-65 

(Ohio Ct. App. 2019); Blair v. Scott Specialty Gases, 283 F.3d 

595, 603-04 (3d Cir. 2002) (applying Pennsylvania law); 

Jaworski v. Ernst & Young U.S. LLP, 119 A.3d 939, 948-49 

(N.J. Super. Ct. App. Div. 2015). As such, we see “no choiceof-law issue to be resolved.” Camp Jaycee, 962 A.2d at 460.

10 We take no position on whether plaintiffs must arbitrate 

claims arising after they exercised their right to opt out. As 

plaintiffs are bound in some sense by the 2015 agreement, 

which delegates the question of arbitrability to the arbitrator, 

we must compel arbitration and leave the determination of 
28

The parties’ contract forecloses Calabrese’s argument. 

The agreement says that the driver can “opt out of this 

Arbitration Provision,” but may be “bound by an existing 

agreement to arbitrate disputes.” Calabrese Br. 23-24; JA450

(emphasis added). Calabrese argues that our interpretation 

makes opting out of arbitration illusory. We disagree. Plaintiffs 

had a meaningful right to opt out of every agreement that they 

were presented with. We are sympathetic to Plaintiffs’ point. 

No doubt Uber’s requirement that they opt out of each new 

agreement is “more burdensome” than a permanent opt-out 

right. Mohamed, 848 F.3d at 1211. Ultimately, though, we 

agree with the Ninth Circuit that “the contract bound Uber to 

accept opt-outs from those drivers who followed the procedure 

it set forth. There were some drivers who did opt out and whose 

opt-outs Uber recognized. Thus, the promise was not illusory.” 

Id. 

***

We will affirm the judgment of the District Court. 

whether any particular dispute is within the scope of the 

agreement to the arbitrator.