ORDER – No. 16-cv-07343-LB

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

San Francisco Division

PETE PETERSON,

Plaintiff,

v.

LYFT, INC.,

Defendant.

Case No. 16-cv-07343-LB

ORDER GRANTING MOTION TO 

COMPEL ARBITRATION AND 

DISMISSING ACTION

Re: ECF No. 39

INTRODUCTION

Plaintiff Pete Peterson brings this putative class action against the ridesharing company 

Lyft, Inc. Lyft twice denied Mr. Peterson’s applications to be a driver, based on a background 

“consumer report” that a screening company ran on Lyft’s behalf on Mr. Peterson. Mr. Peterson 

alleges that Lyft violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. §§ 1681 et seq., 

which provides that a person or entity using a consumer report for employment purposes must 

provide the subject with certain information — a copy of the report and a written description of 

the subject’s rights under the FCRA — before it can take any adverse action based on the report. 

15 U.S.C. § 1681b(b)(3)(A). Lyft moves to compel arbitration of Mr. Peterson’s FCRA claim

based on an arbitration provision contained in its Terms of Service. The court held a hearing on 

November 15, 2018.
ORDER – No. 16-cv-07343-LB 2

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The court finds that (1) the parties entered into a binding agreement that contains an arbitration 

provision, (2) the parties in their arbitration provision delegated questions about the arbitrability of 

disputes — such as whether Mr. Peterson’s FCRA claim falls within the scope of the arbitration 

provision — to the arbitrator, and (3) the arbitration provision is enforceable and not 

unconscionable. The court grants Lyft’s motion to compel arbitration and dismisses this action.

STATEMENT

1. Lyft’s Terms of Service and the Arbitration Provision

Plaintiff Pete Peterson created two Lyft accounts through the Lyft app.1In the process of 

creating these accounts, he was presented with a screen listing the Lyft “Terms of Service.”

2

Individuals confronting this screen can scroll through the text of the Terms of Service and must 

click “I accept” to complete the creation of their Lyft accounts.3 When someone presses the “I 

accept” button, a message is sent to Lyft’s server, which records the timestamp of the user’s 

clicking the button.4 Lyft’s records show (and Mr. Peterson does not deny) that Mr. Peterson 

clicked the “I accept” button in connection with his first Lyft account on December 13, 2014, and 

clicked the “I accept” button in connection with his second Lyft account on February 28, 2015.5

On December 13, 2014, the Terms of Service that were in effect, and that the Lyft app 

displayed for Mr. Peterson, were a version dated November 19, 2014.6 On February 28, 2015, the 

Terms of Service that were in effect, and that the Lyft app displayed for Mr. Peterson, were a 

version dated December 22, 2014.7 Both Terms of Service contain the following provision:

 

1 Lauzier Decl. – ECF No. 39-1 at 3 (¶ 6). Citations refer to material in the Electronic Case File 

(“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents.

2

Id. (¶ 7).

3

Id. at 4 (¶ 8).

4

Id.

5

Id. at 3 (¶ 6), 4 (¶¶ 10, 12).

6

Id. at 4 (¶ 9); see Lauzier Decl. Ex. A (November 2014 Terms of Service) – ECF No. 39-2.

7 Lauzier Decl. – ECF No. 39-1 at 4 (¶ 11); Lauzier Decl. Ex. B (December 2014 Terms of Service) –

ECF No. 39-3.
ORDER – No. 16-cv-07343-LB 3

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Agreement to Arbitrate All Disputes and Legal Claims

You and We agree that any legal disputes or claims arising out of or related to the 

Agreement (including but not limited to the use of the Lyft Platform and/or the 

Services, or the interpretation, enforceability, revocability, or validity of the 

Agreement, or the arbitrability of any dispute), that cannot be resolved informally 

shall be submitted to binding arbitration in the state in which the Agreement was 

performed. The arbitration shall be conducted by the American Arbitration 

Association under its Commercial Arbitration Rules (a copy of which can be 

obtained here), or as otherwise mutually agreed by you and we. Any judgment on 

the award rendered by the arbitrator may be entered in any court having jurisdiction 

thereof. Claims shall be brought within the time required by applicable law. You 

and we agree that any claim, action or proceeding arising out of or related to the 

Agreement must be brought in your individual capacity, and not as a plaintiff or 

class member in any purported class, collective, or representative proceeding. The 

arbitrator may not consolidate more than one person’s claims, and may not 

otherwise preside over any form of a representative, collective, or class proceeding. 

YOU ACKNOWLEDGE AND AGREE THAT YOU AND LYFT ARE EACH

WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A 

PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR 

REPRESENTATIVE PROCEEDING.8

2. Mr. Peterson’s Applications to Drive for Lyft

In December 2014, Mr. Peterson applied to drive for Lyft.9 Lyft requested a backgroundscreening report from Sterling Infosystems, Inc., one of the largest employment-backgroundscreening companies in the nation.10 In early January 2015, Sterling completed its report and 

delivered it to Lyft.11 The report adjudged Mr. Peterson ineligible for employment based on Lyft’s 

hiring criteria.12 Lyft did not provide Mr. Peterson with a copy of the Sterling report or a copy of 

his rights under the FCRA.

13

 

8 Lauzier Decl. – ECF No. 39-1 at 5 (¶ 13); Lauzier Decl. Ex. A (November 2014 Terms of Service) –

ECF No. 39-2 at 14; Lauzier Decl. Ex. B (December 2014 Terms of Service) – ECF No. 39-3 at 23.

9 First Amend. Compl. (“FAC”) – ECF No. 22 at 4 (¶ 15).

10 Id. at 3 (¶ 11), 5 (¶ 18).

11 Id. at 5 (¶ 18).

12 Id. (¶ 19).

13 Id.
ORDER – No. 16-cv-07343-LB 4

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In December 2015, Mr. Peterson communicated with Lyft, saying that his application was 

denied the previous year and asking to be reconsidered.14 A Lyft representative contacted Mr. 

Peterson and asked him to provide the telephone number or email address associated with his first 

application so that Lyft could locate his file, including his Sterling background report.15 Mr. 

Peterson provided the phone number that he used for his 2014 application.16 A Lyft representative

then contacted Mr. Peterson and told him that Lyft uses Sterling to conduct background checks 

and that Mr. Peterson should contact Sterling directly “to dispute the charges” on his profile that 

made him ineligible for employment.17 Lyft did not notify Mr. Peterson in writing that it took 

adverse action against him and did not provide Mr. Peterson with a copy of the Sterling report or a 

copy of his rights under the FCRA.18

In May 2016, Mr. Peterson was able to see the Sterling report for the first time.19 The report 

had grading for six separate categories, all of which were “Complete” or “Clear,” with the 

exception of the county-criminal-record-search category, which had a grading of “Consider.”20

ANALYSIS

“The Federal Arbitration Act (FAA) requires courts to ‘place arbitration agreements on an 

equal footing with other contracts, and enforce them according to their terms.’” Poublon v. C.H. 

Robinson Co., 846 F.3d 1251, 1259 (9th Cir. 2017) (quoting AT&T Mobility LLC v. Concepcion, 

563 U.S. 333, 339 (2011)). Lyft argues, and Mr. Peterson does not meaningfully dispute, that Mr. 

Peterson’s clicking of the “I accept” button rendered the Lyft Terms of Service a binding contract 

 

14 Id. (¶ 20).

15 Id. (¶ 23).

16 Id. (¶ 24).

17 Id. at 5–6 (¶ 25).

18 Id. at 6 (¶ 26)

19 Id. (¶ 27).

20 Id. (¶ 28).
ORDER – No. 16-cv-07343-LB 5

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between him and Lyft. Cf., e.g., In re Facebook Biometric Info. Privacy Litig., 185 F. Supp. 3d 

1155, 1166 (N.D. Cal. 2016). It thus is enforceable according to its terms.

The parties dispute two issues: (1) whether Mr. Peterson’s FCRA claim is arbitrable (as 

defined in the arbitration provision in the Terms of Service) and (2) whether the arbitration 

provision is unconscionable. For the following reasons, the court holds that (1) the parties’ 

contract delegates questions of whether Mr. Peterson’s FCRA claim is arbitrable to the arbitrator 

and (2) the arbitration provision is not unconscionable.

1. Delegation

1.1 Governing Law

“Generally, in deciding whether to compel arbitration, a court must determine two ‘gateway’ 

issues: (1) whether there is an agreement to arbitrate between the parties; and (2) whether the 

agreement covers the dispute.” Brennan v. Opus Bank, 796 F.3d 1125, 1130 (9th Cir. 2015) (citing 

Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 84 (2002)). “However, these gateway issues 

can be expressly delegated to the arbitrator where ‘the parties clearly and unmistakably provide 

otherwise.’” Id. (emphasis in original) (quoting AT & T Techs., Inc. v. Commc’ns Workers of Am., 

475 U.S. 643, 649 (1986)). “[I]f there is clear and unmistakable evidence of an intent to delegate, a 

court should inquire as to whether the assertion of arbitrability is ‘wholly groundless.’” Khraibut 

v. Chahal, No. C15-04463 CRB, 2016 WL 1070662, at *4 (N.D. Cal. Mar. 18, 2016) (citing 

Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366, 1371 (Fed. Cir. 2006)). “If a court finds that the 

assertion of arbitrability is even loosely related to the claims, ‘it should stay the action pending a 

ruling on arbitrability by the arbitrator.’” Id. at *7 (quoting Zenelaj v. Handybook Inc., 82 F. Supp. 

3d 968, 975 (N.D. Cal. 2015)).

1.2 Application

The parties’ arbitration provision here expressly provides that “legal disputes or claims arising 

out of the Agreement (including but not limited to . . . the arbitrability of any dispute), . . . shall be 

submitted to binding arbitration[.]” As another court in this district has held in connection with 

this same Lyft Terms-of-Service arbitration provision, this language “explicitly refer[ring]
ORDER – No. 16-cv-07343-LB 6

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arbitrability questions to an arbitrator is evidence that the parties clearly and unmistakably have 

referred the arbitrability question to the arbitrator.” Loewen v. Lyft, Inc., 129 F. Supp. 3d 945, 954 

(N.D. Cal. 2015) (citing Anderson v. Pitney Bowes, Inc., No. C 04-4808 SBA, 2005 WL 1048700, 

at *3 (N.D. Cal. May 4, 2005)).

Additionally, Lyft’s assertion of arbitrability here is not “wholly groundless.” Cf. Khraibut, 

2016 WL 1070662, at *4. The Terms of Service say the following:

By accepting this Agreement, a Driver agrees that We may obtain information 

about the Driver, including without limitation the Driver’s driving record, 

references and credit information. A Driver hereby authorizes Us to perform a 

background check on Driver, and further agrees to provide any necessary 

authorization to facilitate Our access to the Driver’s official driving record, 

references and credit information during the term of the Agreement.21

Mr. Peterson’s FCRA claim arises out of Lyft’s background checks, and hence the claim is at least 

loosely related to a “legal dispute[] or claim[] arising out of the Agreement” that the parties agreed 

to arbitrate. Cf. id. at *7.

Mr. Peterson argues that parties cannot delegate questions of arbitrability to an arbitrator by 

incorporating into their agreement by reference the American Arbitration Association’s (“AAA”) 

arbitration rules.

22 But the parties did not delegate questions of arbitrability to an arbitrator by 

incorporating the AAA rules. Instead, the parties’ contract expressly delegates questions of the 

arbitrability of any dispute to the arbitrator. Mr. Peterson’s cases — which involve arbitration 

provisions that did not expressly delegate questions of arbitrability to the arbitrator and instead 

relied on provisions in AAA rules about delegation — are inapposite. Cf. Loewen, 129 F. Supp. 3d 

at 966 n.4 (“Plaintiffs cite cases holding that mere reference to the Commercial Rules is 

 

21 Lauzier Decl. Ex. A (November 2014 Terms of Service) – ECF No. 39-2 at 5; Lauzier Decl. Ex. B 

(December 2014 Terms of Service) – ECF No. 39-3 at 9.

22 Pl. Opp’n – ECF No. 49 at 7–8.
ORDER – No. 16-cv-07343-LB 7

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insufficient to delegate authority in contracts of adhesion in the context of consumer disputes. 

However, in this case there is an express delegation clause in addition to reference to the AAA 

Commercial Arbitration Rules, so these cases are inapposite.”); accord Taylor v. Shutterfly, Inc., 

No. 18-cv-00266-BLF, 2018 WL 4334770, at *6 (N.D. Cal. Sept. 11, 2018) (“This Court need not 

reach that issue [of incorporation of AAA rules] because as discussed above the parties’ 

Arbitration Agreement in the Terms of Use ‘clearly and unmistakably’ delegates the gateway 

issues to the arbitrator.”); DeVries v. Experian Info. Sols., Inc., No. 16-cv-02953-WHO, 2017 WL 

733096, at *9 (N.D. Cal. Feb. 24, 2017) (finding that an arbitration provision that stated “[a]ll 

issues are for the arbitrator to decide, including the scope and enforceability of this arbitration 

provision . . ., and the arbitrator shall have exclusive authority to resolve any such dispute relating 

to the scope and enforceability of this arbitration provision . . ., including, but not limited to any 

claim that all or any part of this arbitration provision or Agreement is void or voidable,” 

“constitutes clear and unmistakable evidence that the parties agreed that the arbitrator will decide 

the questions of arbitrability”).23

Mr. Peterson also claims that the parties’ contract is unclear as to whether the AAA

Commercial Rules or Consumer Rules would apply and argues that this defeats Lyft’s argument 

that the parties agreed to delegate questions of arbitrability to the arbitrator.24 Mr. Peterson cites 

no authority to support his argument,25 and courts have rejected it. Khraibut, 2016 WL 1070662, 

at *5 (question about which AAA rules apply “does not create enough ambiguity or confusion to 

defeat a ‘clear and unmistakable’ showing” of delegating questions of arbitrability to the arbitrator 

 

23 By contrast, Ingalls v. Spotify USA, Inc., No. C 16-03533 WHA, 2016 WL 6679561, at *3 (N.D. 

Cal. Nov. 14, 2016), which Mr. Peterson cites, involved an argument that the parties had agreed to 

delegate the question of arbitrability because the agreement incorporated AAA rules (which provided 

for delegation) and not an argument that the parties’ agreement itself expressly provided for 

delegation.

24 Pl. Opp’n – ECF No. 49 at 6–7.

25 See id.
ORDER – No. 16-cv-07343-LB 8

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where the various AAA rules contained the same language regarding delegation); Galen v. Redfin 

Corp., No. 14-cv-05229-TEH, 2015 WL 7734137, at *7 (N.D. Cal. Dec. 1, 2015) (same).26

2. Unconscionability

2.1 Governing Law

The FAA provides that arbitration agreements are unenforceable “upon such grounds as exist 

at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. “[G]enerally applicable 

contract defenses, such as fraud, duress, or unconscionability, may be applied to invalidate 

arbitration agreements without contravening” federal law. Doctor’s Assoc., Inc. v. Casarotto, 517 

U.S. 681, 687 (1996). The court determines whether the putative arbitration agreement is 

enforceable under the laws of the state where the contract was formed. First Options of Chicago, 

Inc. v. Kaplan, 514 U.S. 938, 944 (1995); Ingle v. Circuit City Stores, 328 F.3d 1165, 1170 (9th 

Cir. 2003).

In California, contractual unconscionability has both procedural and substantive components. 

Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal. 4th 83, 114 (2000). “In order to 

establish such a defense, the party opposing arbitration must demonstrate that the contract as a 

whole or a specific clause in the contract is both procedurally and substantively unconscionable.” 

Poublon, 846 F.3d at 1260 (citing Sanchez v. Valencia Holding Co., LLC, 61 Cal. 4th 899, 910 

(2015)). “Procedural and substantive unconscionability ‘need not be present in the same degree.’” 

Id. (quoting Sanchez, 61 Cal. 4th at 910). “Rather, there is a sliding scale: ‘the more substantively 

oppressive the contract term, the less evidence of procedural unconscionability is required to come 

to the conclusion that the term is unenforceable, and vice versa.’” Id. (quoting Sanchez, 61 Cal. 

4th at 910). “Under California law, ‘the party opposing arbitration bears the burden of proving . . . 

 

26 The AAA’s Commercial Rules and Consumer Rules have identical provisions regarding delegation: 

both provide that “The arbitrator shall have the power to rule on his or her own jurisdiction, including 

any objections with respect to the existence, scope, or validity of the arbitration agreement or to the 

arbitrability of any claim or counterclaim.” Blavin Decl. Ex. C (AAA Commercial Rules) – ECF No. 

39-8 at 14 (R-7(a)); Blavin Decl. Ex. D (AAA Consumer Rules) – ECF No. 39-9 at 18 (R-14(a)).
ORDER – No. 16-cv-07343-LB 9

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unconscionability.’” Id. (quoting Pinnacle Museum Tower Ass’n v. Pinnacle Mkt. Dev. (US), LLC, 

55 Cal. 4th 223, 236 (2012)).

2.2 Application

As the party opposing arbitration, Mr. Peterson has the burden of proving unconscionability.

2.2.1 Procedural unconscionability

The only thing Mr. Peterson offers regarding procedural unconscionability is an argument that 

the arbitration provision is a contract of adhesion.27 At best, this presents a minimal level of 

procedural unconscionability. Cf. Loewen, 129 F. Supp. 3d at 958 (finding that this same Lyft 

Terms-of-Service agreement presented “a minimal degree of procedural unconscionability”). 

Consequently, “‘the [arbitration] agreement will be enforceable unless the degree of substantive 

unconscionability is high.’” Poublon, 846 F.3d at 1261 (quoting Serpa v. Cal. Sur. Investigations, 

Inc., 215 Cal. App. 4th 695, 704 (2013)).

2.2.2 Substantive unconscionability

Mr. Peterson first argues that the arbitration provision is substantively unconscionable because 

it provides for delegation of the question of arbitrability under the AAA Commercial Rules when, 

so he argues, Lyft itself believes the AAA Consumer Rules should apply.28 This overly simplifies 

Lyft’s argument. Lyft argues that the applicable AAA Commercial Rules themselves provide that 

disputes arising out of a consumer arbitration agreement may be administered under the AAA 

Consumer Rules.29 In any event, Mr. Peterson cites no authorities that support his argument or 

satisfy his burden of establishing unconscionability.30

 

27 Pl. Opp’n – ECF No. 49 at 11.

28 Id. at 11–12.

29 Def. Mot. – ECF No. 39 at n.14 (“[T]he Commercial Arbitration Rules explain that any ‘dispute 

arising out of a consumer arbitration agreement will be administered under the AAA’s Consumer 

Arbitration Rules.’”) (quoting Blavin Decl. Ex. C (AAA Commercial Rules) – ECF No. 39-8 at 11 

(R-1)); Def. Reply – ECF No. 50 at 12 (“[T]here is no ambiguity as to the applicable AAA Rules — it 

is clear that the Commercial Rules generally apply but that the arbitrator may nonetheless apply the 

Consumer Rules when appropriate.”).

30 See Pl. Opp’n – ECF No. 49 at 11–12.
ORDER – No. 16-cv-07343-LB 10

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Mr. Peterson next argues that the arbitration provision is substantively unconscionable because 

Lyft can unilaterally modify it.31 Mr. Peterson cites no authorities that support his argument.

32 The 

Ninth Circuit has held that a unilateral modification clause does not per se make an arbitration 

provision unconscionable, because “California courts have held that the implied covenant of good 

faith and fair dealing prevents a party from exercising its rights under a unilateral modification 

clause in a way that would make it unconscionable.” Tompkins v. 23andMe, Inc., 840 F.3d 1016, 

1033 (9th Cir. 2016) (citing cases). “Although . . . a unilateral modification provision itself may be 

unconscionable, . . . such an unconscionable provision [does not necessarily] make[] the 

arbitration provision or the contract as a whole unenforceable.” Id. (citing Ingle v. Circuit City 

Stores, Inc., 328 F.3d 1165, 1179 & n.23 (9th Cir. 2003)). Additionally, even if the unilateral 

modification were unconscionable, Mr. Peterson does not claim that Lyft acted unreasonably to 

alter the contract terms, so this at best presents mild substantive unconscionability. Cf. Loewen, 

129 F. Supp. 3d at 959–60.

Third, Mr. Peterson argues that AAA rules contain a privacy provision that is unconscionable, 

citing Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2003).

33 As the Ninth Circuit has held, subsequent 

California state-court decisions have undermined the holding in Ting. Under current California 

and Ninth Circuit law, privacy provisions like the one at issue do not render the arbitration 

provision unconscionable. Poublon, 846 F.3d at 1265–67 (citing Ting, Sanchez v. CarMax Auto 

Superstores Cal. LLC, 224 Cal. App. 4th 398, 408 (2014), and other authorities).

Finally, Mr. Peterson argues that the arbitration provision waives his statutory right to bring a 

claim under the California Private Attorney General Act (“PAGA”) and that this waiver is

unconscionable.34 This argument fails for two reasons. First, the Ninth Circuit has held that while 

a PAGA-claim waiver in an agreement is unenforceable, such a waiver does not render an 

arbitration provision in the agreement substantively unconscionable. Poublon, 846 F.3d at 1264.

 

31 Id. at 12.

32 See id.

33 Id.

34 Id. at 13–14.
ORDER – No. 16-cv-07343-LB 11

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Second, Mr. Peterson has not pleaded a PAGA claim in any event, and thus lacks standing to 

challenge a PAGA waiver provision that is not being applied to him. Gerton v. Fortiss, LLC, No. 

15-cv-04805-TEH, 2016 WL 613011, at *3 n.3 (N.D. Cal. Feb. 16, 2016) (citing Arellano v. TMobile USA, Inc., No. 10-05663 WHA, 2011 WL 1362165, at *5 (N.D. Cal. Apr. 11, 2011)).

CONCLUSION

The court finds that (1) the parties entered into a binding agreement that contains an arbitration 

provision, (2) the parties in their arbitration provision delegated questions about the arbitrability of 

disputes — such as whether Mr. Peterson’s FCRA claim falls within the scope of the arbitration 

provision — to the arbitrator, and (3) the arbitration provision is enforceable and not 

unconscionable. The court grants Lyft’s motion to compel arbitration and dismisses this action. Cf.

Loewen, 129 F. Supp. 3d at 966 (“Because the Court concludes that arbitration should be 

compelled, it has the discretion to stay the case under 9 U.S.C. § 3 or dismiss the litigation 

entirely. Neither side has presented any compelling reason to keep this case on the Court’s docket 

and the case is hereby dismissed.”) (citations omitted).

IT IS SO ORDERED.

Dated: November 19, 2018

______________________________________

LAUREL BEELER

United States Magistrate Judge