DEFENDANTS’ REPLY IN SUPPORT OF MOTION TO STAY 

Case No. 3:17-cv-00939-WHA 

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MICHAEL A. JACOBS (CA SBN 111664)

MJacobs@mofo.com 

ARTURO J. GONZÁLEZ (CA SBN 121490) 

AGonzalez@mofo.com 

ERIC A. TATE (CA SBN 178719) 

ETate@mofo.com 

MORRISON & FOERSTER LLP 

425 Market Street 

San Francisco, California 94105-2482 

Tel.: 415.268.7000; Fax: 415.268.7522 

KAREN L. DUNN (Pro Hac Vice) 

kdunn@bsfllp.com 

HAMISH P.M. HUME (Pro Hac Vice) 

hhume@bsfllp.com 

BOIES SCHILLER FLEXNER LLP 

1401 New York Avenue, N.W. 

Washington DC 20005 

Tel.: 202.237.2727; Fax: 202.237.6131 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC. 

and OTTOMOTTO LLC 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

WAYMO LLC, 

Plaintiff, 

v. 

UBER TECHNOLOGIES, INC.; 

OTTOMOTTO LLC; OTTO TRUCKING LLC, 

Defendants. 

Case No. 3:17-cv-00939-WHA

DEFENDANTS UBER 

TECHNOLOGIES, INC. AND 

OTTOMOTTO LLC’S REPLY IN 

SUPPORT OF MOTION TO STAY 

PENDING RESOLUTION OF 

DEFENDANTS’ APPEAL OF 

ORDER DENYING MOTION TO 

COMPEL ARBITRATION OF, 

AND TO STAY, TRADE SECRET 

AND UCL CLAIMS 

Date: June 7, 2017 

Time: 9:00 a.m. 

Ctrm: 8, 19th Floor 

Judge: Honorable William H. Alsup 

Trial Date: October 2, 2017

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TABLE OF CONTENTS 

I. INTRODUCTION .............................................................................................................. 1

II. DEFENDANTS’ MOTION TO STAY RAISES SERIOUS ISSUES OF LAW. .............. 1

A. Waymo Attempts to Distort The Meaning of “Serious Legal Questions.” ............. 1

B. Defendants’ Agreement That Goldman and Kramer Control the Standard in 

This Case Does Not Mean That There Are No Serious Legal Questions. .............. 3

C. Waymo Misconstrues or Fails to Address Defendants’ Arguments 

Demonstrating Serious Legal Questions. ................................................................ 4

i. Appellate Review Is Required to Confirm Whether Reliance Is 

Truly Required Under Both Kramer Circumstances .................................. 5

ii. Appellate Review Is Required to Determine Whether the District 

Court’s Citation of Waymo’s Post-Hoc Disavowal of Reliance Was 

Proper. ......................................................................................................... 6

iii. Appellate Review Is Required to Define Intertwinement and 

Intimate Connectedness Under Kramer ...................................................... 8

D. This Case Raises Serious Questions Regarding the Law’s Application to 

Undisputed Facts ..................................................................................................... 8

III. DEFENDANTS WILL BE IRREPARABLY HARMED IF THE CASE 

PROCEEDS ...................................................................................................................... 10

IV. WAYMO WILL NOT BE HARMED IF THE CASE IS STAYED ................................ 11

V. DEFENDANTS HAVE SHOWN THAT A STAY WOULD BE IN THE PUBLIC 

INTEREST ........................................................................................................................ 13

VI. CONCLUSION ................................................................................................................. 14

 

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TABLE OF AUTHORITIES 

Cases

Acasio v. San Mateo Cnty., 

No. 14-CV-04689-JSC, 2015 WL 5568345 (N.D. Cal. Sept. 22, 2015) ................................... 12 

Alascom, Inc. v. ITT N. Elec. Co., 

727 F.2d 1419 (9th Cir. 1984).................................................................................................... 11 

Antonelli v. Finish Line, Inc., 

No. 5:11-CV-03874 EJD, 2012 WL 2499930 (N.D. Cal. June 27, 2012) ................................. 11 

Arthur Andersen LLP v. Carlisle, 

556 U.S. 624 (2009) ................................................................................................................... 14 

Azoulai v. BMW of N. Am. LLC, 

No. 16-CV-00589-BLF, 2017 WL 1354781 (N.D. Cal. Apr. 13, 2017) ................................... 12 

Bradberry v. T-Mobile USA, Inc.,

No. C 06 6567 CW, 2007 WL 2221076 (N.D. Cal. Aug. 2, 2007).............................................. 4 

Britton v. Co-op Banking Group, 

916 F.2d 1405 (9th Cir. 1990).............................................................................................. 11, 14 

Eberle v. Smith, 

No. 07-CV-0120 W WMC, 2008 WL 238450 (S.D. Cal. Jan. 29, 2008) .................................. 13 

Goldman v. KPMG LLP, 

173 Cal. App. 4th 209 (2009) .......................................................................................... 3, 4, 7, 9 

Gray v. Golden Gate Nat. Recreational Area, 

No. C 08-00722 EDL, 2011WL 6934433 (N.D. Cal. Dec. 29, 2011) ....................................... 11 

Guifu Li v. A Perfect Franchise, Inc., 

No. 5:10-CV-01189-LHK, 2011WL 2293221 (N.D. Cal. June 8, 2011) .................................... 2 

Harnish v. Frankly Co., 

No. 5:14-CV-02321-EJD, 2015 WL 1064442 (N.D. Cal. Mar. 11, 2015) .................................. 4 

Jones v. Deutsche Bank AG, 

No. C 04 05357 JW, 2007 WL 1456041 (N.D. Cal. May 17, 2007) ....................................... 8, 9 

Kramer v. Toyota Motor Corp., 

705 F.3d 1122 (9th Cir. 2013)............................................................................................. passim 

Lair v. Bullock, 

697 F.3d 1200 (9th Cir. 2012) ....................................................................................................... 2 

Laster v. T-Mobile USA, Inc., 

No. 05CV1167 DMS (AJB), 2008 WL 5377635 (S.D. Cal. Nov. 4, 2008) ................................ 2 

Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011) ............................................................................................. 2, 10, 11 

Metalclad Corp. v. Ventana Envtl. Organizational P'ship, 

109 Cal. App. 4th 1705 (2003) ...................................................................................... 3, 4, 5, 14 

Molnar v. NCO Fin. Sys., Inc., 

No. 13-CV-00131-BAS JLB, 2015 WL 1906346 (S.D. Cal. Apr. 20, 2015) .............................. 4 

Morse v. Servicemaster Glob. Holdings, Inc., 

No. C 08-03894, 2013 WL 123610 (N.D. Cal. Jan. 8, 2013) ...................................................... 2 

Murphy v. DirecTV, Inc., 

No. 2:07-CV-06465-FMC, 2008 WL 8608808 (C.D. Cal. July 1, 2008) ................................ 3, 4 

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Nken v. Holder, 

556 U.S. 418 (2009) ............................................................................................................ passim 

Richards v. Ernst & Young LLP, 

No. C-08-04988 RMW, 2012 WL 92738 (N.D. Cal. Jan. 11, 2012) ....................................... 3, 9 

Richards v. Ernst & Young, LLP, 

744 F.3d 1072, 1074 (9th Cir. 2013) ............................................................................................ 9 

Rodriguez v. Shen Zhen New World I LLC, 

No. CV 13-02959-RSWL, 2014 WL 908464 (C.D. Cal. Mar. 6, 2014) ...................................... 3 

Roe v. SFBSC Mgmt., LLC, 

No. 14-CV-03616-LB, 2015 WL 1798926 (N.D. Cal. Apr. 17, 2015) ...................................... 11 

Steiner v. Apple Computer, Inc., 

No. C 07-04486 SBA, 2008 WL 1925197 (N.D. Cal. Apr. 29, 2008) ......................................... 2 

Stern v. Cingular Wireless Corp., 

No. CV 05 8842 CAS, 2006 WL 2790243 (C.D. Cal. Sept. 11, 2006) ..................................... 13 

Torbit, Inc. v. Datanyze, Inc., 

No. 5:12-CV-05889-EJD, 2013 WL 572613, at *4 (N.D. Cal. Feb. 13, 2013) ..................... 3, 14 

Turtle Ridge Media Grp., Inc. v. Pac. Bell Directory, 

140 Cal. App. 4th 828 (2006) ............................................................................................ 3, 4, 10 

Wallis v. Centennial Ins. Co., 

No. CIV. 08-02558 WBS, 2012 WL 1552766 (E.D. Cal. May 1, 2012) ..................................... 4 

Ward v. Estate of Goossen, 

No. 14-CV-03510-TEH, 2014 WL (N.D. Cal. Dec. 22, 2014) .............................................. 2, 10 

Zaborowski v. MHN Gov’t Servs., Inc., 

No. C 12-05109 SI, 2013 WL 1832638 (N.D. Cal. May 1, 2013) ......................................... 2, 11 

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I. INTRODUCTION 

Defendants seek a limited stay for the purpose of appealing the Court’s ruling on its 

Motion to Compel Arbitration. They do not seek to stay enforcement of the preliminary 

injunction issued by this Court, including the additional expedited discovery ordered by this 

Court and clarified by Magistrate Judge Corley’s Order re: Paragraph Six of District Court’s PI 

Order. (Dkt. 433, 441.) 

Waymo mischaracterizes the scope of Defendants’ proposed stay and thus claims 

supposed harm that simply would not occur as a result of the stay. Waymo asserts that granting 

the requested stay would “open the door to an argument that Waymo may not seek provisional 

relief until after the appeal is resolved and the stay is lifted.” (Opp. at 12.) But Defendants have 

not requested a stay of any additional provisional relief Waymo may seek. Waymo also 

complains that the stay would prevent it from conducting “critical” third-party discovery (id.), but 

does not mention that Magistrate Judge Corley already ordered that expedited discovery–which 

Defendants do not seek to stay–can include third-party discovery. (Stein Reply Decl., Ex. 1 

(5/25/17 Hearing Transcript) at 60:8-11; see also Dkt. 441 (authorizing discovery as to Gorilla 

Circuits).) Nor have Defendants requested a stay of any powers the Court has at its disposal to 

hold the parties to their expedited discovery obligations. 

Given the limited scope of the stay sought by Defendants, and that Defendants have 

identified a likelihood of success on serious legal issues raised by its appeal to the Federal Circuit, 

the equities tip sharply in Defendants’ favor. See Nken v. Holder, 556 U.S. 418, 434 (2009). 

Defendants have thus demonstrated that their appeal of this Court’s denial of their Motion to 

Compel Arbitration merits the requested stay. 

II. DEFENDANTS’ MOTION TO STAY RAISES SERIOUS ISSUES OF LAW. 

A. Waymo Attempts to Distort The Meaning of “Serious Legal Questions.” 

Although Waymo does not dispute that a stay is warranted where an appeal raises “serious 

legal questions,” it attempts to distort the meaning of “serous legal questions” through its 

misreading and misapplication of unpublished district court decisions. According to Waymo, 

Morse v. Servicemaster Global Holdings holds that “Uber’s appeal must be one that raises 

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genuine matters of first impression within the Ninth Circuit’ or one that ‘may implicate a 

constitutional question.’” (Opp. at 3 (quoting Morse v. Servicemaster Glob. Holdings, Inc., No. C 

08-03894, 2013 WL 123610, at *3 (N.D. Cal. Jan. 8, 2013) (emphasis added by Waymo).) This 

deliberately misreads Morse, which actually states: “Often a ‘substantial case” is one that raises 

genuine matters of first impression within the Ninth Circuit. Other times, the issue on appeal may

implicate a constitutional question . . . .” Morse, 2013 WL 123610, at *3 (emphases added). In 

other words, the Morse decision simply provided nonexclusive examples of appeals that would 

raise serious legal questions.1 

In fact, in order to satisfy the “serious legal question” requirement, “the movant need only 

raise a serious legal issue, i.e., one that is not frivolous.” Laster v. T-Mobile USA, Inc., No. 

05CV1167 DMS (AJB), 2008 WL 5377635, at *2 (S.D. Cal. Nov. 4, 2008); see also Steiner v. 

Apple Computer, Inc., No. C 07-04486 SBA, 2008 WL 1925197, at *3 (N.D. Cal. Apr. 29, 2008) 

(Armstrong, J.) (crediting defendant’s argument that the question presented “was a substantial 

one, and certainly not frivolous, in essence because reasonable persons could disagree as to the 

answer”). In applying this standard, courts in this circuit have regularly found that appeals of a 

denied motion to compel arbitration present serious or substantial legal questions that merit a stay 

by the district court, even without a finding that the issue was one of “first impression.” See, e.g.,

Ward v. Estate of Goossen, No. 14-CV-03510-TEH, 2014 WL 7273911, at *3 (N.D. Cal. Dec. 22, 

2014) (Henderson, J.) (finding “substantial question” where interpretation of the potentially 

applicable arbitration provisions was “especially complicated”); Zaborowski v. MHN Gov’t 

Servs., Inc., No. C 12-05109 SI, 2013 WL 1832638, at *2 (N.D. Cal. May 1, 2013) (Illston, J.) 

(finding “substantial question” where courts were still working to determine “the exact contours” 

 

1

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LHK, 2011WL 2293221, at *3 (N.D. Cal. June 8, 2011) that “[f]or a legal question to be ‘serious,’ 

it must be a question going to the merits so serious, substantial, difficult and doubtful, as to make 

the issue ripe for litigation and deserving of more deliberate investigation.” (Opp. at 3 (emphasis 

added by Waymo).) However, this unpublished district court decision was issued before the 

Ninth Circuit’s decision in Lair v. Bullock, 697 F.3d 1200 (9th Cir. 2012), which is the 

controlling precedent. Additionally, in making this particular statement, the district court in 

Guifu relied on and quoted from a nonbinding Tenth Circuit decision. The standard articulated in 

Lair and Leiva-Perez v. Holder, 640 F.3d 962 (9th Cir. 2011), are controlling, not this alternative 

standard delineated by the Tenth Circuit. 

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of the applicable legal standard); Richards v. Ernst & Young LLP, No. C-08-04988 RMW, 2012 

WL 92738, at *2 (N.D. Cal. Jan. 11, 2012) (Whyte, J.) (finding “substantial question” where the 

court recognized the potential for the facts regarding waiver to be weighed differently). 

Here, as demonstrated in Defendants’ opening brief and discussed further below, this 

appeal concerns both (a) serious legal issues as to how the equitable estoppel doctrine should be 

applied to the undisputed facts and claims being made in this case, and (b) important issues of 

first impression regarding that doctrine. 

B. Defendants’ Agreement That Goldman and Kramer Control the Standard in 

This Case Does Not Mean That There Are No Serious Legal Questions. 

Waymo repeatedly states and implies that there is no serious legal question because 

Defendants agree with the Court that the “Goldman/Kramer standard” applies to its motion. (See 

Opp. at 4-5.) There is no dispute that the decisions in Kramer, Murphy, and Goldman adopted the 

applicable two-circumstance test to determine whether California’s equitable estoppel doctrine 

compels arbitration. See Kramer v. Toyota Motor Corp., 705 F.3d 1122 (9th Cir. 2013); Murphy 

v. DirecTV, Inc., No. 2:07-CV-06465-FMC, 2008 WL 8608808 (C.D. Cal. July 1, 2008); 

Goldman v. KPMG LLP, 173 Cal. App. 4th 209 (2009). There is, however, a dearth of appellate 

authority regarding the meaning and application of these two circumstances, including the 

differences between them (and whether the first circumstance actually consists of two 

independent circumstances, as shown by Goldman’s and Kramer’s use of an “or” in describing 

the two ways the first circumstance can be met). And there are at least four decisions that are 

factually similar to this case, and that support Uber’s motion. See Metalclad Corp. v. Ventana 

Envtl. Organizational P'ship, 109 Cal. App. 4th 1705 (2003); Turtle Ridge Media Grp., Inc. v. 

Pac. Bell Directory, 140 Cal. App. 4th 828 (2006), as modified (July 20, 2006); Torbit, Inc. v. 

Datanyze, Inc., No. 5:12-CV-05889-EJD, 2013 WL 572613, at *4 (N.D. Cal. Feb. 13, 2013) 

(Davila, J.); Rodriguez v. Shen Zhen New World I LLC, No. CV 13-02959-RSWL, 2014 WL 

908464, at *1 (C.D. Cal. Mar. 6, 2014). Although these cases are relatively few in number, they 

demonstrate that Defendants should prevail on the merits of their appeal, and their relevance to 

the appeal is made even greater by the fact that this Court’s Order failed to distinguish them. 

Further, because California state law governs the determination of equitable estoppel in this case, 

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Metalclad and Turtle Ridge are of paramount importance; determining how the holdings in those 

cases apply to the facts of this case raise serious legal issues on which Defendants have a 

substantial likelihood of success. 

Waymo also cites several cases in support of its argument that an order does not raise 

serious legal questions when the order “was based on controlling Ninth Circuit authority.”2 (Opp. 

at 5; see also Opp. at 5-6 (discussing cases).) None of these cases is analogous. In one of those 

cases, Bradberry v. T-Mobile USA, Inc., the district court found the first Nken factor met, which is 

of course of no help to Waymo. No. C 06 6567 CW, 2007 WL 2221076, at *5 (N.D. Cal. Aug. 2, 

2007) (Wilken, J.). All of the remaining cases cited by Waymo on this subject involved issues of 

statutory interpretation that the Ninth Circuit had routinely addressed in the past. In both Molnar 

and Harnish, the movants asked for a stay in order to obtain clarification from the Federal 

Communications Commission where “Ninth Circuit courts have routinely ruled on this issue of 

statutory interpretation.” Molnar v. NCO Fin. Sys., Inc., No. 13-CV-00131-BAS JLB, 2015 WL 

1906346, at *6 (S.D. Cal. Apr. 20, 2015); see also Harnish v. Frankly Co., No. 5:14-CV-02321-

EJD, 2015 WL 1064442, at *4 (N.D. Cal. Mar. 11, 2015) (“the Ninth Circuit has already stated 

that the statutory language is clear and unambiguous”); Wallis v. Centennial Ins. Co., No. CIV. 

08-02558 WBS, 2012 WL 1552766, at *3 (E.D. Cal. May 1, 2012) (noting that the Ninth Circuit 

had already “decided a substantially similar motion”). That is not the case here. There is no case 

law that dictates the result reached by the Court here, let alone a body of case law that has 

routinely done so. Moreover, there is substantial case law supporting Uber’s motion. 

Waymo’s argument is simply wrong. There is no case holding that just because two 

parties agree on the Ninth Circuit case law that governs, there is no room for a “serious legal 

question” over how that case law should be applied to the facts of a particular case. 

C. Waymo Misconstrues or Fails to Address Defendants’ Arguments 

Demonstrating Serious Legal Questions. 

In their opening brief, Defendants explained why there are several serious legal issues 

 

2

 It is worth noting that California Court of Appeal decisions, such as Goldman, Metalclad, and 

Turtle Ridge, are the controlling authority here because the equitable estoppel doctrine is an issue 

of California state law. While Kramer and Murphy are relevant authority, they simply identify 

the rule established by California courts and under California law. 

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presented in their appeal to the Federal Circuit. Waymo either misconstrues or fails to address all 

of these arguments, and has been unable to point to a single case that definitively resolves any 

serious legal question identified in Defendants’ opening brief. 

i. Appellate Review Is Required to Confirm Whether Reliance Is Truly 

Required Under Both Kramer Circumstances 

As explained in Defendants’ opening brief, this Court’s Order denying Defendants’ 

Motion to Compel Arbitration conflates Kramer by effectively reading the word “or” out of 

Kramer’s first circumstance and reading reliance into Kramer’s second circumstance. (Mot. at 3-

4 (quoting Dkt. 425 at 5, 6).) Thus, there are two serious legal questions related to this Court’s 

collapse of the entire Kramer standard into a question of reliance. (Id.) 

The first question is how to read Kramer’s description of the first circumstance in which 

equitable estoppel has been held to apply, which Kramer described as follows: “a signatory must 

rely on the terms of the written agreement in asserting its claims against the nonsignatory or the 

claims are intimately founded in and intertwined with the underlying contract,” irrespective of 

whether the signatory expressly relies on the terms of the written agreement. 705 F.3d at 1128. 

Defendants contend that the existence of an “or” in this description means that this circumstance 

is satisfied if “the claims are intimately founded in and intertwined with the underlying contract.” 

That is the plain reading of the language used in Kramer, and is supported by the California case 

law. 

Waymo responds that “this argument . . . was correctly rejected by the Court.” (Opp. at 7.) 

But that misses the point. This Court may have disagreed with Defendants, but that does not 

mean Defendants have failed to present a “serious legal question.” There is no binding authority 

rejecting Defendants’ argument. And the plain reading of Kramer supports it. 

Waymo erroneously claims that “Uber cites no case that supports” such a distinction. 

(Opp. at 7.) In addition to Kramer, Defendants cite Metalclad in their motion. (Mot. at 3-4.) 

Thus, Defendants’ argument presents the serious legal question of whether, as the Court’s 

analysis implies, “reliance” on an underlying contract is required for equitable estoppel to apply, 

or whether, following the text of Kramer, “rely on,” “intimately founded in and intertwined with,” 

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and “founded in or intimately connected with” are each separately adequate to trigger the doctrine. 

That is a substantial question for the appellate court. 

The second issue raised by Defendants is whether reliance is required to satisfy the second 

circumstance that Kramer identifies as triggering equitable estoppel, which makes absolutely no 

mention of “rely” or “reliance” but instead says the claim is based on allegations of “concerted 

misconduct” that are “founded in or intimately connected with” the obligations of the underlying 

contract. 705 F.3d at 1129. With respect to this issue, Waymo again disregards the explicit 

wording of Kramer and that the second Kramer circumstance would be duplicative of the first if 

it required reliance. Waymo concludes that “serious minds” cannot disagree as to whether the 

Ninth Circuit meant “reliance” when it instead said “founded in or intimately connected with.” 

(Opp. at 7.) Waymo’s response is simply that the Court “applied Ninth Circuit law to the facts of 

this case” in reaching its decision. (Id.) The fact that this Court applied Kramer’s two 

circumstances to this case is irrelevant to whether this Court correctly applied Kramer when it 

added a reliance requirement into the second Kramer circumstance. This issue is one of first 

impression since no binding authority condones this approach. 

ii. Appellate Review Is Required to Determine Whether the District 

Court’s Citation of Waymo’s Post-Hoc Disavowal of Reliance Was 

Proper. 

This Court’s Order relies on Waymo’s representation at oral argument that it would no 

longer make reference to its contracts with Levandowski to prove its claims, subject to certain 

important conditions. (See Dkt. 425 at 4, 5.)3

 There is a serious legal question as to whether such 

a representation should be credited in the court’s estoppel analysis. (Mot. at 4-5.) In fact, the 

extent to which the Court should have relied on Waymo’s post hoc disavowal at oral argument is 

undeniably an issue of first impression (and it would be a serious legal issue even if it were not 

one of first impression), and Waymo does not attempt to show otherwise. Waymo’s response that 

this is “just a recasting” of Defendants’ argument that “Waymo’s claims against Uber cannot 

exist absent proof that the Levandowski Agreements were breached” deliberately ignores the 

 

3

 Waymo now attempts another post hoc repudiation by suggesting that its representation at oral 

argument is “irrelevant,” (Opp. at 8), despite the fact that it was relied on by this Court’s Order. 

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legal issue raised in Defendants’ opening brief. (Opp. at 8.) Waymo cites zero cases in which a 

court permitted a party to go beyond the facts alleged in its complaint by disavowing at oral 

argument any future reliance on the contract at issue. To the contrary, the Goldman decision – 

which Waymo cites numerous times throughout its brief – observed that courts evaluating 

equitable estoppel arguments must “examine the facts alleged in the complaints.” 173 Cal. App. 

4th at 231 (emphasis added). 

Moreover, there is a serious legal question created by the fact that the Court rejected the 

arbitration motion based on Waymo’s statement that it “would not rely” on the Levandowski 

contracts given that (a) reliance does not equal “sue for breach of contract” but is a broader 

concept that includes reliance on the obligations in the agreement (at a minimum, that is an issue 

that the appellate court must resolve); (b) those contracts, in fact, do not make arbitration 

dependent on whether the claim being advanced is one for breach of contract or one that relied on 

contract obligations, (c) Waymo cannot deny that its claims are based on conduct that 

Levandowski engaged in as an employee that, if true, breaches his employment contracts with 

Google, and (d) Waymo is therefore trying to litigate this case as if there were no employment 

contracts between Google and Levandowski, when in fact there are such contracts, Google 

drafted those contracts, and those contracts require arbitration over “any dispute” arising under or 

relating to Levandowski’s employment relationship with Google. Indeed, Waymo even reserved 

the right to sue Levandowski for breach of the contracts if Defendants succeed on their motion to 

compel arbitration. (Stein Reply Decl., Ex. 2 (4/27/17 Hearing Transcript) at 11:15-12:1.) 

Waymo also gave the most carefully worded disclaimer of reliance on the contracts, stating that it 

reserved the right to rely on the contracts if Uber “open[s] the door”—a statement that is vague 

enough to allow Waymo to use the contracts opportunistically in the future under the guise of 

rebutting Defendants’ defenses. (Stein Decl., Ex. 1 (4/27/17 Hearing Transcript) at 5:20-22.) 

These attempts by Waymo to navigate “reliance” all add further strength to the serious legal 

issues present by Defendants’ appeal, and give Defendants a substantial chance of success. 

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iii. Appellate Review Is Required to Define Intertwinement and Intimate 

Connectedness Under Kramer 

In their opening brief, Defendants also identified serious legal questions related to “what 

would be sufficiently intertwined or intimate with a contract,” and how to definitively resolve the 

difference between the “founded in and intimately intertwined with the underlying contract” 

standard of the first Kramer circumstance and the “founded in or intimately connected with the 

obligations of the underlying contract” standard of the second. (Mot. at 5-6.) Instead of citing 

binding authority answering these questions and demonstrating that these are not issues of first 

impression, Waymo responds by misconstruing Kramer and again attempts to collapse the entire 

Kramer standard into a question of reliance by reading the word “or” out of Kramer. (Opp. at 9-

10.) 

D. This Case Raises Serious Questions Regarding the Law’s Application to 

Undisputed Facts

In their opening brief, Defendants argued that an appeal raises serious legal questions 

where it depends on the “‘extremely fact dependent’” analysis of the “‘degree of interrelatedness 

necessary to allow a non-signatory to compel arbitration based on equitable estoppel.’” (Mot. at 6 

(quoting Jones v. Deutsche Bank AG, No. C 04 05357 JW, 2007 WL 1456041, at *2 (N.D. Cal. 

May 17, 2007) (Ware, J.)).) Waymo does not dispute that the Order’s interrelatedness inquiry is 

dependent on the undisputed factual allegations and circumstances of this case. It tries to avoid 

the conclusion that follows (i.e., that Defendants’ appeal presents a “serious question”), but its 

arguments fail. 

First, Waymo argues, “whether a decision is fact-dependent is irrelevant for the stay 

analysis,” because the first Nken factor requires a serious legal question rather than disputed 

factual findings. (Opp. at 10.) Similarly, Waymo argues that Jones granted a stay because 

“substantial questions were found because courts were split on the applicability of equitable 

estoppel,” (id. at 11), rather than a finding of disputed facts. But Defendants never argued that 

disputed facts in this case indicate a serious legal question for the appeal. Defendants’ argument 

was that the analysis of undisputed facts makes its appeal fact-specific, and one on which serious 

legal minds can reasonably disagree about the application of those facts under Kramer’s two 

circumstances. 

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For instance, Jones noted that some courts had differed on whether to compel arbitration 

based on the doctrine of equitable estoppel when a plaintiff alleged that several tax shelter 

promoters acted in concert to defraud the plaintiff, where some of the promoters had arbitration 

agreements with plaintiff and some were non-signatories who attempted to enforce the arbitration 

clauses in those other agreements. Jones, 2007 WL 1456041, at *2. Jones noted that the 

interrelatedness inquiry was “extremely fact dependent” and that there were serious legal 

questions because the “Ninth Circuit has not yet ruled on this issue” - i.e., on the application of 

the equitable estoppel doctrine to such facts. Id. Similarly, in Richards, the district court held 

that it was appropriate to take defendant’s conduct, about which there was no factual dispute, into 

account in deciding whether defendant knowingly waived its arbitration right. Richards, 2012 

WL 92738, at *2; see also Richards v. Ernst & Young, LLP, 744 F.3d 1072, 1074 (9th Cir. 2013) 

(discussing district court decision). The district court held that the case presented a substantial 

legal question because the appellate court could hold the conduct “either irrelevant, or insufficient 

to carry the heavy burden of proving waiver.” Richards, 2012 WL 92738, at *2. Like Jones and 

Richards, in this case the Ninth Circuit has not ruled specifically as to whether a party’s repeated 

invocation of obligations set forth in contracts containing arbitration provisions in its complaint 

demonstrates sufficient interrelatedness under Kramer. That alone highlights the presence of 

serious legal questions as to the application of law to the facts in this case. 

Second, Waymo argues that Jones is irrelevant because it was decided “before Goldman 

synthesized the law in California on equitable estoppel, and before the Ninth Circuit adopted the 

Goldman standard in Kramer.” (Opp. at 11.) But Goldman and Kramer did nothing to 

undermine Jones. Both continue to instruct courts to consider the same “degree of 

interrelatedness” that Jones described as “fact dependent,” and neither definitely resolves the 

interrelatedness inquiry identified in Jones. In fact, Goldman explicitly re-stated the relevant 

point: “application of the doctrine is fact-specific.” 173 Cal. App. 4th at 235.4 Today, as in 2007, 

 

4 Goldman also directly rejects Waymo’s claim that the fact-specific nature of the inquiry reduces 

Defendants’ likelihood of success on appeal by ushering in a more deferential standard of review: 

“In California, absent conflicting evidence, we review the issue de novo as the question is 

whether the undisputed facts constitute a sufficient legal basis for the application of equitable 

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the degree of interrelatedness is a fact-bound question about which serious legal minds can 

disagree. (See Order at 7 (“Under those circumstances, equitable estoppel prevented Metalclad 

from having it both ways.”) (emphasis added); see also id. (“And unlike the allegations in Turtle 

Ridge, Waymo’s allegations here do not presuppose the existence of any ‘tripartite, on-going 

relationship’ benefitting defendants, Levandowski, and Waymo. The reasoning for applying 

equitable estoppel in Turtle Ridge is thus inapposite here.”).)5 

III. DEFENDANTS WILL BE IRREPARABLY HARMED IF THE CASE PROCEEDS

Waymo concedes that to succeed on the second Nken factor, Defendants “must show that 

an irreparable injury is the more probable or likely outcome.” (Opp. at 14; see also Mot. at 7.) In 

their opening brief, Defendants presented a series of cases in which courts in this circuit 

concluded that the risk of altogether losing the advantages of arbitration by having to litigate 

during the pendency of appeal–a risk that is amplified by the imminent trial date that has been set 

in this case–satisfied the irreparable injury requirement. (Mot. at 7-9.) 

Waymo’s opposition filing does not meaningfully address this body of case law. Instead, 

it rehashes misguided arguments about the nature of the “serious legal questions” inquiry under 

the first Nken factor by suggesting that because this Court did not find a valid arbitration 

agreement in its Order, Defendants cannot prevail on the irreparable harm analysis. (Mot. at 14.) 

In fact, post-Leiva-Perez decisions often find that the “irreparable harm” standard is satisfied by 

facts similar to those raised by Defendants in their opening brief. See, e.g., Ward, 2014 WL 

7273911, at *4 (finding “strong showing of irreparable harm” based on “[t]he contrast, in time 

and expense, between the arbitration process . . . and the process of litigation in federal court”); 

Roe v. SFBSC Mgmt., LLC, No. 14-CV-03616-LB, 2015 WL 1798926, at *3 (N.D. Cal. Apr. 17, 

 

estoppel.” 173 Cal. App. 4th at 226 n.9 (internal citation omitted). That the inquiry is factspecific does not mean that there is a dispute over the facts. 

5

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undisputed fundamental policy underlying equitable estoppel was met in this case” cuts against a 

stay. (Opp. at 10.) Waymo asserts without citation that this is relevant to the first Nken factor. 

To the extent policy arguments are relevant to this factor, the issue of whether this fundamental 

equitable policy is met in this case is not established by binding precedent and is an additional 

serious issue to be addressed in Defendants’ appeal. 

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2015) (Beeler, J.) (noting the “tilts sharply” standard and finding the second Nken factor in 

movant’s favor because “[t]he relative benefits of arbitration, ‘speed and economy,’ will largely 

be lost if this lawsuit proceeds and the Ninth Circuit then decides that the case must be sent to 

arbitration”); Antonelli v. Finish Line, Inc., No. 5:11-CV-03874 EJD, 2012 WL 2499930, at *1-2 

(N.D. Cal. June 27, 2012) (Davila, J.) (citing Leiva-Perez for “continuum” standard, finding a 

serious legal question, and holding that the second Nken factor favors movant because “the rather 

onerous burdens imposed on Defendant in preparing for dispositive motions and a subsequent 

jury trial would be avoided if the decision on appeal is favorable to Defendant”). 

In their opening brief, Defendants also argued that they face irreparable harm without a 

stay because they face “forever” losing the “‘speed and economy’” “‘advantages of arbitration.’” 

(Mot. at 7-8 (quoting Alascom, Inc. v. ITT N. Elec. Co., 727 F.2d 1419, 1422 (9th Cir. 1984), and 

citing seven in-circuit cases embracing this view of irreparable harm).) Waymo first attempts to 

avoid Alascom by distinguishing it factually, but then is forced to acknowledge that other cases 

understand Alascom to apply to the irreparable harm standard in the stay analysis. (Opp. at 14.) 

Next, Waymo argues that Alascom was overruled by Britton v. Co-op Banking Group, 916 F.2d 

1405, 1412 (9th Cir. 1990). (Opp. at 14.) But Britton simply held that the issuance of a stay is 

“the proper subject for the exercise of discretion by the trial court,” 916 F.2d at 1412 n.8, a 

proposition with which Defendants do not disagree. Waymo also attempts to distinguish 

Defendants’ use of Gray v. Golden Gate Nat. Recreational Area, No. C 08-00722 EDL, 2011WL 

6934433 (N.D. Cal. Dec. 29, 2011), by arguing that it applies to the “specific” class certification 

circumstances in that case. (Opp. at 15.) But the reasoning that “if ‘defendants are forced to 

incur the expense of litigation before their appeal is heard, the appeal will be moot, and their right 

to appeal would be meaningless,’” (Mot. at 8 (quoting Golden Gate, 2011WL 6934433, at *3)), is 

not limited to the class certification context, and courts have applied this reasoning in other 

circumstances. See, e.g., Zaborowski, 2013 WL 1832638, at *2. 

IV. WAYMO WILL NOT BE HARMED IF THE CASE IS STAYED 

In their opening brief, Defendants explain that they are seeking to stay pretrial 

proceedings and trial, but are not seeking to stay this Court’s burdensome Preliminary Injunction 

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Order, including the accounting and expedited discovery outlined in the Court’s Preliminary 

Injunction Order and clarified by Magistrate Judge Corley’s Order re: Paragraph Six of District 

Court’s PI Order. (Mot. at 1, 9 (citing Dkt. 433, 441).) This leaves Waymo with little potential 

harm to cite that could be relevant for the third Nken factor. 

Recognizing that it has already obtained provisional relief, Waymo first cites the right to 

seek further provisional relief as a form of harm that would be caused by a stay. (Opp. at 12.) 

That argument is unavailing. Because Defendants do not seek to use this stay to avoid the 

Preliminary Injunction Order, Defendants would not argue that a motion for further provisional 

relief would be barred under the stay. In other words, under the proposed stay, Waymo could 

move for additional provisional relief based on the expedited discovery allowed for under the 

Preliminary Injunction Order. 

Second, Waymo cites delay in “critical (non-expedited) third-party discovery” as 

irreparable harm that would be caused by the stay. (Opp. at 12.) But Magistrate Judge Corley 

ruled that “the expedited discovery can include third-party discovery.” (See Stein Reply Decl., 

Ex. 1 at 60:8-11.) Waymo has already availed itself of expedited discovery against a third party. 

(See Dkt. 441 (authorizing discovery as to Gorilla Circuits).) 

Third, Waymo cites the possibility of irreparable harm from lost evidence, despite the fact 

that this Court has ordered voluminous expedited discovery and the Court, Magistrate Judge, and 

Special Master all maintain close oversight of discovery in this case. Its only purported evidence 

in support of this possibility is a bare allegation in a declaration from a former employee who is 

currently suing Uber for, inter alia, damages and restitution related to his alleged wrongful 

termination. (See Opp. at 12 n.7; Request for Judicial Notice, Attachment A.)6

 The declaration is 

 

6

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https://www.documentcloud.org/documents/3227535-Spangenberg-Declaration.html. The Court 

cannot use this declaration as a basis for its decision. Waymo did not file a Request for Judicial 

Notice of this declaration. Even if it had, the Court could “only take judicial notice of the 

existence of [his] declaration, not the truth of its contents.” Azoulai v. BMW of N. Am. LLC, No. 

16-CV-00589-BLF, 2017 WL 1354781, at *4 (N.D. Cal. Apr. 13, 2017) (Freeman, J.); see also 

Acasio v. San Mateo Cnty., No. 14-CV-04689-JSC, 2015 WL 5568345, at *1 n.1 (N.D. Cal. Sept. 

22, 2015) (Corley, M.J.) (“It is well established that the Court may take judicial notice of records 

from other proceedings not to credit the truth of the allegations or facts set forth therein, but 

rather for purposes of noticing the existence of the [prior] lawsuit, the claims made in the lawsuit, 

and the fact that various documents were filed therein.”) (internal quotation marks omitted). 

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neither reliable nor relevant to this case, as there is no evidence of spoliation. To the contrary, 

Defendants have cooperated in discovery, working cooperatively with Waymo, the Court, the 

Magistrate Judge and the Special Master. Defendants have not requested a stay of any powers the 

Court has as its disposal to hold the parties to their expedited discovery obligations. 

 Finally, Waymo accuses Defendants of seeking to delay this case, even after it refused to 

stipulate to expedite the briefing schedule in the Federal Circuit. (Declaration of David A. 

Perlson ISO Opp., Ex. A.) As Waymo’s exhibit shows, Defendants met and conferred with 

Waymo, and made two proposals for an expedited briefing schedule. (Id.) Waymo rejected both 

proposals. (Id.) Waymo now accuses Defendants of failing to file their appeal brief or 

emergency motion for an expedited schedule, but fails to mention that Defendants cannot file 

these papers until their Notice of Appeal has been docketed by the Federal Circuit. Defendants 

are ready to file their Motion to Expedite as soon as this occurs. 

V. DEFENDANTS HAVE SHOWN THAT A STAY WOULD BE IN THE PUBLIC 

INTEREST 

In their Motion, Defendants argue that public policy favors a stay because a stay would 

favor the efficient allocation of resources. (Mot. at 9-10.) In response, Waymo asserts that a 

party that does not show a likelihood of success on the merits under the first Nken factor cannot 

show that public policy favors conservation of judicial resources in its case. (Opp. at 16.) But 

many cases demonstrate that Waymo is wrong. See, e.g., Stern v. Cingular Wireless Corp., No. 

CV 05 8842 CAS, 2006 WL 2790243, at *2 (C.D. Cal. Sept. 11, 2006) (finding “substantial 

question” and that public interest favors movants who argued that a stay would promote judicial 

efficiency); Eberle v. Smith, No. 07-CV-0120 W WMC, 2008 WL 238450, at *2, 4 (S.D. Cal. 

Jan. 29, 2008) (finding “serious legal issues” were raised and concluding that “[i]t is clear that 

disputes about whether or not parties must submit to arbitration take place against a backdrop of 

policies encouraging arbitration and the preservation and integrity of judicial resources. Here, 

continuing to litigate in this Court during the pendency of the appeal would undermine both 

policies because of the risk of redundant or inconsistent actions. Accordingly, the public interest 

weighs in favor of a stay.”). 

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Defendants also argue that a stay would further the public policy goal of promoting 

arbitration. (Mot. at 9-10.) Waymo argues that “[t]he liberal policy [favoring arbitration] is 

inapplicable . . . to one who is not a party to a contract and has no standing to compel arbitration.” 

(Opp. at 16 (citing Britton, 916 F.2d at 1413.).) Since Britton was decided in 1990, the Supreme 

Court and Ninth Circuit have held that nonsignatories to arbitration clauses can compel arbitration 

when equitable estoppel applies, and courts often emphasize the policy favoring arbitration in 

such cases. See, e.g., Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 632 (2009); see also 

Kramer, 705 F.3d at 1128. Waymo fails to show that a non-signatory to an arbitration contract 

cannot be favored on public policy grounds, and case law demonstrates that Waymo’s position is 

frivolous. See, e.g., Torbit, Inc., 2013 WL 572613, at *4 (“In this [equitable estoppel] context, 

where a non-signatory seeks to compel a signatory to arbitrate, the doctrine operates to protect the 

vitality of arbitration agreements and federal arbitration policy.”); Metalclad, 109 Cal. App. 4th at 

1718 (“Estoppel prevents Metalclad from avoiding arbitration by suing only the parent 

corporation in these circumstances. Otherwise, . . . the federal policy in favor of arbitration 

[would be] effectively thwarted.”) (citations and internal quotation marks omitted).

Finally, Waymo attempts without citation to add fair competition and intellectual property 

to the list of public interest concerns this Court should consider. (Opp. at 16.) However, the 

Court’s preliminary injunction that Defendants do not seek to disturb will protect any such 

interest. 

VI. CONCLUSION 

Defendants’ Motion for a Stay while its appeal is pending in the Federal Circuit should be 

granted for the reasons explained in its opening brief and for the foregoing reasons. 

Dated: May 30, 2017 Respectfully Submitted, 

MORRISON & FOERSTER LLP 

BOIES SCHILLER FLEXNER LLP 

By: /s/ Hamish P.M. Hume 

Hamish P.M. Hume 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC. and 

OTTOMOTTO LLC

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