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

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 MOTION 

TO STAY 

Date: July 13, 2017 

Time: 8:00 a.m. 

Ctrm: 8, 19th Floor 

Judge: The Honorable William H. Alsup 

Trial Date: October 2, 2017 

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DEFENDANTS UBER TECHNOLOGIES, INC. AND OTTOMOTTO LLC’S MOTION TO STAY 

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NOTICE OF MOTION AND MOTION 

PLEASE TAKE NOTICE that on July 13, 2017, at 8:00 a.m., or as soon thereafter as the matter 

may be heard, in the United States District Court for the Northern District of California, San Francisco 

Courthouse, located at 450 Golden Gate Avenue, San Francisco, CA, in Courtroom 8 before the 

Honorable William H. Alsup, Defendants Uber Technologies, Inc. and Ottomotto LLC will, and hereby 

do, jointly move the Court for stay of all proceedings, except those outlined in the Court’s Preliminary 

Injunction Order (Dkt. 433), and clarified by Magistrate Judge Corley’s Order re: Paragraph Six of 

District Court’s PI Order (Dkt. 441), pending resolution of Defendants’ appeal of the Court’s order 

denying their motion to compel arbitration. Defendants’ motion is based on this Notice of Motion and 

Motion, the accompanying Memorandum of Points and Authorities, the concurrently filed Declaration 

of Joshua M. Stein and all exhibits thereto, all documents in the Court’s file, any matters of which this 

Court may take judicial notice, and on such other written and oral argument as may be presented to the 

Court. 

Dated: May 19, 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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TABLE OF CONTENTS 

NOTICE OF MOTION AND MOTION ................................................................................................ 1

INTRODUCTION .................................................................................................................................. 1

LEGAL STANDARD ............................................................................................................................. 1

I. DEFENDANTS’ APPEAL PRESENTS SERIOUS QUESTIONS THAT THE 

FEDERAL CIRCUIT ARE LIKELY TO RESOLVE IN THEIR FAVOR. .............................. 3

A. Several of this Court’s holdings are issues of first impression ....................................... 3

B. This Court’s determination on interrelatedness is fact-dependent .................................. 6

II. DEFENDANTS WILL SUFFER IRREPARABLE HARM ABSENT A STAY ...................... 7

III. PLAINTIFF WILL SUFFER NO HARM SHOULD THE COURT STAY 

PROCEEDINGS ......................................................................................................................... 9

IV. THE PUBLIC INTEREST FAVORS A STAY. ........................................................................ 9

CONCLUSION ..................................................................................................................................... 10

 

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TABLE OF AUTHORITIES 

CASES

A.G. Edwards & Sons, Inc. v. McCollough, 

967 F.2d 1401 (9th Cir. 1992) .............................................................................................................. 12 

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

727 F.2d 1419 (9th Cir. 1984) ...................................................................................................... 8, 9, 11 

Antonelli v. Finish Line, Inc., 

No. 5:11-CV-03874 EJD, 2012 WL 2499930 (N.D. Cal. June 27, 2012) ............................................ 10 

Britton v. Co-op Banking Grp., 

916 F.2d 1405 (9th Cir. 1990) ................................................................................................................ 3 

Cardenas v. AmeriCredit Fin. Servs. Inc., 

No. C 09-04978 SBA, 2011 WL 846070 (N.D. Cal. Mar. 8, 2011) ..................................................... 10 

Cervantes v. Pac. Bell Wireless, 

2006 U.S. Dist. LEXIS 89198 (S.D. Cal. Mar. 8, 2006) ...................................................................... 10 

Ford v. Verisign, Inc., 

No. 05 CV 0819 JM (RBB), 2006 U.S. Dist. LEXIS 88856 (S.D. Cal. Mar. 8, 2006) .......................... 9 

Golden Gate Rest. Ass’n v. City and Cty. of San Francisco, 

512 F.3d 1112 (9th Cir. 2008) ................................................................................................................ 2 

Goldman v. KPMG LLP, 

173 Cal. App. 4th 209 (2009) ................................................................................................................. 6 

Gray v. Golden Gate Nat. Recreational Area, 

No. C 08–00722, 2011 WL 6934433 (N.D. Cal. Dec. 29, 2011) ........................................................... 9 

Hawai’i v. Trump, 

No. CV 17-00050 DKW-KJM, 2017 WL 536826 (D. Haw. Feb. 9, 2017) ......................................... 11 

In re Wirecomm Wireless, Inc., 

No. 2:07-CV-02451-MCE, 2008 WL 3056491 (E.D. Cal. Aug. 1, 2008) ........................................ 4, 11 

Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Aloha Airlines, Inc., 

776 F.2d 812 (9th Cir. 1985) .................................................................................................................. 9 

Jones v. Deutsche Bank AG, 

No. C 04 05357 JW, 2007 WL 1456041 (N.D. Cal. May 17, 2007) .......................................... 4, 7, 8, 9 

Kramer v. Toyota Motor Corp., 

705 F.3d 1122 (9th Cir. 2013) .................................................................................................... 4, 5, 6, 7 

Lair v. Bullock, 

697 F.3d 1200 (9th Cir. 2012) .................................................................................................... 1, 2, 3, 8 

Leiva-Perez v. Holder, 

640 F.3d 962 (9th Cir. 2011) .................................................................................................................. 2 

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Metalclad Corp v. Ventana Environmental Organizational Partnership, 

109 Cal. App. 4th 1705 (2003) ........................................................................................................... 4, 6 

Mundi v. Union Sec. Life Ins. Co., 

No. CV-F-06-1493OWWTAG, 2007 WL 2385069 (E.D. Cal. Aug. 17, 2007) .................................. 11 

Murphy v. DirecTV, Inc., 

No. 2:07-CV-06465-FMC, 2008 WL 8608808 (C.D. Cal. July 1, 2008) ........................................... 3, 9 

Nken v. Holder, 

556 U.S. 418 (2009) ............................................................................................................................ 1, 3 

NRDC, Inc. v. Winter, 

502 F.3d 859 (9th Cir. 2007) .................................................................................................................. 2 

Ontiveros v. Zamora, 

No. CIV. S-08-567 LKK, 2013 WL 1785891 (E.D. Cal. Apr. 25, 2013) ............................................... 3 

Pearce v. E.F. Hutton Group, Inc., 

828 F.2d 826 (D.C. Cir. 1987) ................................................................................................................ 3 

Pokorny v. Quixtar Inc., 

No. 07-00201 SC, 2008 WL 1787111 (N.D. Cal. Apr. 17, 2008) .................................................... 3, 12 

Rajagopalan v. Noteworld, LLC, 

No. C11-5574 BHS, 2012 WL 2115482 (W.D. Wash. June 11, 2012) .................................................. 2 

Richards v. Ernst & Young LLP, 

No. C-08-04988 RMW, 2012 WL 92738 (N.D. Cal. Jan. 11, 2012) ................................................ 3, 12 

Roe v. SFBSC Mgmt., LLC, 

No. 14-CV-03616-LB, 2015 WL 1798926 (N.D. Cal. Apr. 17, 2015) .................................................. 3 

Shearson/Am. Exp., Inc. v. McMahon, 

482 U.S. 220 (1987) .............................................................................................................................. 11 

Stern v. Cingular Wireless Corp., 

No. CV 05 8842 CAS, 2006 WL 2790243 (C.D. Cal. Sept. 11, 2006) ............................................ 9, 12 

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

140 Cal. App. 4th 828 (2006) ................................................................................................................. 6 

Winig v. Cingular Wireless LLC, 

No. C06-4297 MMC, 2006 WL 3201047 (N.D. Cal. Nov.6, 2006) ....................................................... 9 

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

No. C 12-05109 SI, 2013 WL 1832638 (N.D. Cal. May 1, 2013) ................................................... 9, 11 

STATUTES

United States Code 

Title 9, Section 16 ................................................................................................................................... 1 

United States Code 

Title 9, Section 16(a)(1)(B) .................................................................................................................. 12 

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Uber Technologies, Inc. and Ottomotto LLC (collectively, “Defendants”) hereby submit this 

motion to stay pending appeal of the Court’s Order denying their motion to compel arbitration. (Dkt. 

425). 

INTRODUCTION 

While Defendants understand that the Court ultimately disagreed with their position, Defendants’ 

motion to compel arbitration presented serious legal questions that Defendants will shortly appeal to the 

Federal Circuit. Consistent with their desire to resolve these proceedings quickly, Defendants plan to 

seek expedited briefing in the Federal Circuit. Defendants respectfully request that the Court stay these 

proceedings until the Federal Circuit has a chance to rule on the merits of Defendants’ motion, lest time, 

effort, and resources be spent on a dispute that must be resolved through binding arbitration 

proceedings. Defendants do not request a stay of this Court’s Preliminary Injunction 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. (Dkt. 433, 

441.) Rather, Defendants seek to stay additional discovery and trial. 

LEGAL STANDARD 

The denial of a motion to compel arbitration and the denial of a stay of the district court 

proceedings are immediately appealable under the Federal Arbitration Act. 9 U.S.C. § 16. The Ninth 

Circuit has delineated four specific factors that a court must consider in determining whether to enter a 

stay pending an appeal of a denial of a motion to compel arbitration: 

(1) whether the stay applicant has made a strong showing that he is likely to succeed on 

the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether 

issuance of the stay will substantially injure the other parties interested in the proceeding; 

and (4) where the public interest lies. 

Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken v. Holder, 556 U.S. 418, 434 

(2009)). In applying these factors, courts employ “interrelated legal tests” on a “continuum”—either “a 

probability of success on the merits and the possibility of irreparable injury,” or 

“serious legal questions are raised and that the balance of hardships tips sharply” in the stay applicants’ 

favor. Golden Gate Rest. Ass’n v. City and Cty. of San Francisco, 512 F.3d 1112, 1115–16 (9th Cir. 

2008). “These two formulations represent two points on a sliding scale in which the required degree of 

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irreparable harm increases as the probability of success decreases.” NRDC, Inc. v. Winter, 502 F.3d 

859, 862 (9th Cir. 2007). In other words, under the sliding scale approach, “a stronger showing of one 

element may offset a weaker showing of another.” Leiva-Perez v. Holder, 640 F.3d 962, 964 (9th Cir. 

2011). Finally, courts also “consider ‘where the public interest lies’ separately from and in addition to” 

irreparable injury. Winter, 502 F.3d at 863. All of these factors favor a stay pending resolution of 

Defendants’ appeal of the Court’s Order denying their motion to compel arbitration. 

While there are various formulations to describe the first factor, the Ninth Circuit has “concluded 

that many of these formulations, including ‘reasonable probability,’ ‘fair prospect,’ ‘substantial case on 

the merits,’ and ‘serious legal questions . . . raised,’ are largely interchangeable.” Lair, 697 F.3d at 1204 

(citing Leiva-Perez, 650 F.3d at 967-68). Under these formulations, Defendants must show “that there 

is a ‘substantial case for relief on the merits,’” but “[t]he standard does not require the petitioners to 

show that ‘it is more likely than not that they will win on the merits.’” Id.; see also Leiva-Perez, 650 

F.3d at 971 (granting stay because it was “a substantial case” that “raises serious legal questions”). 

Instead, when a motion to compel arbitration “presents legitimate, substantial questions,” this prong is 

satisfied, even where the court “stands by the reasoning and conclusions . . . denying [movant]’s motion 

to compel arbitration.” Rajagopalan v. Noteworld, LLC, No. C11-5574 BHS, 2012 WL 2115482, at *2 

(W.D. Wash. June 11, 2012).1

In order to satisfy the second Nken factor, Defendants must show that “there is a probability of 

irreparable injury if the stay is not granted.” Lair, 697 F.3d at 1214. In “the special context of [a] 

denied motion to compel arbitration, the second [Nken] factor will generally be satisfied.” Murphy v. 

DirecTV, Inc., No. 2:07-CV-06465-FMC, 2008 WL 8608808, at *3 (C.D. Cal. July 1, 2008) (internal 

 

1 See also Roe v. SFBSC Mgmt., LLC, No. 14-CV-03616-LB, 2015 WL 1798926, at *2 (N.D. Cal. Apr. 

17, 2015) (Beeler, M.J.) (finding a serious legal question even though “[t]he court does not agree that it 

got the order wrong” because “it would be hubris to pretend that BSC’s well-stated arguments might not 

convince the Ninth Circuit to reverse this court’s decision”); Pokorny v. Quixtar Inc., No. 07-00201 SC, 

2008 WL 1787111, at *1 (N.D. Cal. Apr. 17, 2008) (Conti, J.) (“Such conflicting rulings demonstrate 

that the law is unsettled and guidance from the appellate court would be beneficial.”); Richards v. Ernst 

& Young LLP, No. C-08-04988 RMW, 2012 WL 92738, at *2 (N.D. Cal. Jan. 11, 2012) (Whyte, J.) 

(“Defendant has identified several points on which there is a reasonable probability that the court of 

appeals might disagree with this court’s decision.”); Ontiveros v. Zamora, No. CIV. S-08-567 LKK, 

2013 WL 1785891, at *3 (E.D. Cal. Apr. 25, 2013) (“I stand by my reasoning that defendant has waived 

its right to compel arbitration. Nevertheless, it would be disingenuous to pretend that defendant does not 

have a ‘fair prospect’ of success on appeal.”). 

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quotations omitted). The last two Nken factors require the Court “to weigh the public interest against the 

harm to the opposing party.” Lair, 697 F.3d at 1215. 

ARGUMENT 

I. DEFENDANTS’ APPEAL PRESENTS SERIOUS QUESTIONS THAT THE FEDERAL 

CIRCUIT ARE LIKELY TO RESOLVE IN THEIR FAVOR. 

Defendants’ appeal of this Court’s Order will raise serious questions. First, Defendants’ motion 

to compel arbitration presents issues of “first impression,” such that “the motion presents a substantial 

question” and proceedings should be stayed pending appeal. Britton v. Co-op Banking Grp., 916 F.2d 

1405, 1412 (9th Cir. 1990) (citing Pearce v. E.F. Hutton Group, Inc., 828 F.2d 826, 829 (D.C. Cir. 

1987)); see also In re Wirecomm Wireless, Inc., No. 2:07-CV-02451-MCE, 2008 WL 3056491, at *3 

(E.D. Cal. Aug. 1, 2008) (issue that had not “been definitively resolved in the Ninth Circuit” was one of 

first impression). Second, this Court’s Order required making a “fact dependent” decision on the 

“degree of interrelatedness necessary to allow a non-signatory to compel arbitration based on equitable 

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

17, 2007) (Ware, J.) (alterations omitted).

A. Several of this Court’s holdings are issues of first impression 

First, the first prong of the Kramer test allows a nonsignatory to enforce an arbitration clause 

“when 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.” 

705 F.3d at 1128 (emphasis added). This Court’s reasoning with respect to the first Kramer prong 

focused on whether Waymo relied on the 2009 and 2012 employment agreements between Google and 

Levandowski (“Levandowski Agreements”). (Dkt. 425 at 5 (“In short, while defendants stress that 

Waymo’s allegations reference the arbitration agreements in question, they have still not shown that 

Waymo must rely on those agreements such that equitable estoppel applies.”).) But by its very terms, 

Kramer suggests that reliance and “intimately founded in and intertwined” are two distinct situations, 

either one of which is sufficient to apply equitable estoppel. See Kramer v. Toyota Motor Corp., 705 

F.3d 1122, 1128 (9th Cir. 2013); see also Metalclad Corp v. Ventana Envtl. Organizational P’ship, 109 

Cal. App. 4th 1705, 1717 (2003) (compelling arbitration after noting: “Although Sunkist does not rely 

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exclusively on the license agreement to support its claims, each claim presumes the existence of such an 

agreement. We find that each counterclaim maintained by Sunkist arises out of and relates directly to the 

license agreement.”). At a minimum, despite the court’s holding, a serious claim can be made that just 

because a party does not formally rely on the underlying contract, its claims of “concerned misconduct” 

may still be “intimately founded in and intertwined with” the obligations of signatory’s underlying 

agreement.  It is at least an issue of first impression that would benefit from appellate review. 

Second, the second prong of the Kramer test applies equitable estoppel to cases alleging 

concerted misconduct when “the allegations of interdependent misconduct are founded in or intimately 

connected with the obligations of the underlying agreement.” 705 F.3d at 1129 (citations and alterations 

omitted).2 In its analysis of this second prong, this Court’s Order states: “At bottom, defendants have 

not shown that Waymo relies on the 2009 or 2012 agreements to assert its claims against defendants 

while simultaneously seeking to avoid the arbitration clauses of those agreements.” (Dkt. 425 at 6 

(emphasis added).) But Kramer prong two does not require reliance. Serious minds can disagree 

whether holding that a party does not rely on the underlying contract is sufficient to establish that 

Kramer prong two is not met. It is at least an issue of first impression that would benefit from appellate 

review. 

Third, this case raises the issue of first impression of whether Waymo can rely on the 

Levandowski Agreements in its complaint and then subsequently disclaim reliance to avoid arbitration. 

After expressly relying on the confidentiality obligation in its employment agreements—including 

Levandowski’s—in its complaint and motion for a preliminary injunction, (Dkt. 23 ¶¶ 72, 82; Dkt. 24 at 

5), Plaintiff sought to distance itself from the employment agreement by initially disclaiming any future 

 

2 While this Court’s Order did not make a specific finding on this issue, the parties do not seriously 

disagree that Waymo alleged concerted misconduct between Uber and Levandowski. (See Stein Decl., 

Ex. 1 at 38:7–8, 38:17–19.) Indeed, this Court’s Preliminary Injunction Order states: “The evidence 

shows that, . . . before . . . his departure, Levandowski and Uber Technologies, Inc., planned for Uber to 

acquire Levandowski’s new companies” and that “Uber hired Levandowski even though it knew or 

should have known that he possessed over 14,000 files likely containing Waymo’s intellectual 

property.” (Dkt. 433 at 1, 17; see also Stein Decl., Ex. 3 at 4:25-6:14, 18:13-19:20 (showing that 

concerted misconduct is one of Waymo’s core case themes).) Thus, Uber has satisfied the first part of 

Kramer v. Toyota Motor Corp’s “concerted misconduct” test, under which a nonsignatory can enforce 

an arbitration clause “when the signatory alleges substantially interdependent and concerted misconduct 

by the nonsignatory and another signatory.” 705 F.3d 1122, 1128–29 (9th Cir. 2013) (citations and 

alterations omitted). 

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reliance on the Levandowski Agreements to prove its claims at trial. (Stein Decl., Ex. 1 (4/27/17 

Hearing Transcript) at 5:18-20.)3 As noted in Goldman v. KPMG LLP, in order to evaluate whether 

equitable estoppel applies, courts “examine the facts alleged in the complaint.” 173 Cal. App. 4th 209, 

231 (2009). This Court’s holding that, notwithstanding the facts alleged in the Complaint, Plaintiff may 

avoid arbitration by “expressly foresw[earing] reliance” on contracts that it has already referenced is 

unprecedented. (Dkt. 425 at 4.)4 

Fourth, Defendants identified numerous decisions applying California law that compelled a 

plaintiff to arbitrate its case against a non-signatory to an arbitration agreement because the claims were 

“intimately founded in and intertwined with the underlying contract.” (Reply Br. at 4.) This Court’s 

Order distinguished two of these cases because it found that the facts in those cases presented more 

“intertwinement” or “intimacy” than the facts in this case. (Dkt. 425 at 7 (re: Metalclad, 109 Cal. App. 

4th at 1713: “Moreover, its claims here are not dependent on or inextricably bound up with those 

agreements.”)); id. (re: Turtle Ridge Media Grp., Inc. v. Pac. Bell Directory, 140 Cal. App. 4th 828 

(2006): “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.”).) 

While Defendants disagree that the claims in those two cases, and other cases cited by Defendants in 

their reply brief, present more “intertwinement” or “intimacy” with the underlying contractual 

obligations than the present case, the fact remains that no Ninth Circuit or California Court of Appeal 

decision has clearly articulated a standard for what would be sufficiently intertwined or intimate with a 

contract or its underlying obligations. That is true with respect to both prongs of the Kramer test, 

leaving courts with little clarity on the standards. 

Finally, while there is a difference between the standards articulated in the first and second 

 

3 Waymo quickly qualified that statement by saying it would not rely on the agreement “provided that 

Uber does not open the door by reference to these agreements or lack thereof of those agreements, which 

is something that we would just have to address down the road.” (Id. at 5:18-24.) As Uber explained, 

this exception is so vague and broad that, even if Waymo’s disclaimer were a valid way to avoid 

arbitration, the exception swallows Waymo’s disclaimer. 

4 Similarly, there is a serious legal question—and issue of first impression—as to whether a plaintiff 

may disavow reliance on an agreement in order to avoid arbitration under the second Kramer prong, 

which makes no mention of reliance and which applies when concerted misconduct is alleged and “the 

allegations of interdependent misconduct [are] founded in or intimately connected with the obligations

of the underlying agreement.” Kramer, 705 F.3d at 1129 (emphases added). 

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prongs of the Kramer test, neither the Ninth Circuit nor the California Court of Appeal have definitively 

resolved the difference between the “intimately intertwined with the underlying contract” standard of the 

first prong and the “intimately connected with the obligations of the underlying contract” standard of the 

second prong. The appellate court’s resolution of this issue of first impression could be critical to 

resolving the appeal because there is no dispute that there are allegations of interdependent misconduct 

in this case. 

B. This Court’s determination on interrelatedness is fact-dependent 

In Jones, the district court denied a motion to allow a non-signatory to arbitrate, but found that 

the motion to compel arbitration raised substantial issues sufficient to support a stay pending appeal 

because the “degree of interrelatedness necessary to allow a non-signatory to compel arbitration based 

on equitable estoppel is extremely fact dependent.” 2007 WL 1456041, at *2 (granting motion to stay).5 

To the extent that this Court’s holding does not rely solely on determining a lack of reliance, but also 

relies on holding that Waymo’s claims are not “intimately founded in or intertwined with” or 

“dependent on or inextricably bound up with” its contractual obligations, the Court’s holding is a factdependent determination that raises substantial issues sufficient to support a stay pending appeal. 

In this case, as the Court observed during the April 27 hearing, Waymo and Levandowski 

entered into “the broadest possible arbitration agreement you can.” (Stein Decl., Ex. 1 at 40:1–2.) 

While he was employed by Google and Waymo—and thereafter—Levandowski was bound by the 

confidentiality obligations set forth in the Levandowski Agreements that contain broad arbitration 

clauses. (Id. at 4:24–6:19, 7:16–8:16, 18:22–25; Dkt. 23 at ¶¶ 52–53 (discussing confidentiality 

obligations).) Indeed, it is undisputed that the Levandowski Agreements contain provisions that define 

what information is “confidential,” that provide for how confidential information is to be treated, and 

that provide for and itemize ownership of inventions—all allegations that Waymo relied on in its 

complaint to demonstrate that it had taken reasonable measures to protect the confidentiality of its trade 

secrets. (Dkt. 138 at 35–37, 47–49; Dkt. 23 at ¶¶ 52–53, 72, 82.)6

 

5 Jones was subsequently voluntarily dismissed and there is no appellate decision in this case. See Jones 

v. Deutsche Bank AG, 07-15792 (9th Cir. dismissed Feb. 27, 2008). 

6 Page cites from Docket138 follow ECF pagination on the top right. 

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This Court’s Preliminary Injunction Order relies on conduct by Levandowski during his 

employment at Google/Waymo that related to his confidentiality obligations under the Levandowski 

Agreements. For example, this Court determined that “Uber hired Levandowski even though it knew or 

should have known that he possessed over 14,000 confidential Waymo files likely containing Waymo’s 

intellectual property.” (Dkt. 433 at 17; see also id. at 7 (Defendants “do not deny that [Levandowski] 

took over 14,000 files from Waymo, that Uber lured him with the possibility of acquisition as soon as 

(and before) he left Waymo”).) This reliance on Levandowski’s conduct during his employment when 

he was subject to the Levandowski Agreements is an indication that Waymo’s claims are interrelated 

and intertwined with the Levandowski Agreements. 

Thus, to the extent that the “extremely fact dependent” determination of the “degree of 

interrelatedness necessary to allow a non-signatory to compel arbitration based on equitable estoppel,” 

Jones, 2007 WL 1456041, at *2 (alterations omitted), is a basis for this Court’s holding on Defendants’ 

motion to compel arbitration, it is fact-dependent and presents a substantial issue for appeal. (Stein 

Decl., Ex. 1 at 38:17–19.) 

II. DEFENDANTS WILL SUFFER IRREPARABLE HARM ABSENT A STAY 

Defendants will suffer irreparable harm absent a stay because they will be required to undergo 

the expense of additional discovery, pretrial preparations, and possibly trial before the appeal is 

resolved, thus mooting the appeal and negating the advantages of arbitration. 

In order to satisfy the second Nken factor, Defendants must show that “there is a probability of 

irreparable injury if the stay is not granted.” Lair, 697 F.3d at 1214. Of course, if Defendants “must 

undergo the expense and delay of a trial before being able to appeal, the advantages of arbitration—

speed and economy—are lost forever.” Alascom, Inc. v. ITT N. Elec. Co., 727 F.2d 1419, 1422 (9th Cir. 

1984). Therefore, motions to compel arbitration are “unique” in that “monetary expenses incurred in 

litigation” can be “considered irreparable harm.” 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.). Numerous district courts 

“have continued to follow Alascom to find that, in the special context of [a] denied motion to compel 

arbitration, the second [Nken] factor will generally be satisfied.” Murphy, 2008 WL 8608808, at *3 

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(internal quotations omitted).7 Moreover, 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.” 

Gray v. Golden Gate Nat. Recreational Area, No. C 08–00722, 2011 WL 6934433, *3 (N.D. Cal. 

Dec. 29, 2011) (Laporte, MJ.). Thus, district courts in this circuit routinely rely on these facts to hold 

that a party appealing a denial of a motion to compel arbitration will probably suffer irreparable harm 

absent a stay. See, e.g., Winig v. Cingular Wireless LLC, No. C06-4297 MMC, 2006 WL 3201047, at 

*2 (N.D. Cal. Nov.6, 2006) (Chesney, J.); Stern v. Cingular Wireless Corp., No. CV 05 8842 CAS, 2006 

WL 2790243, at *2 (C.D. Cal. Sept. 11, 2006); Ford v. Verisign, Inc., No. 05 CV 0819 JM (RBB), 2006 

U.S. Dist. LEXIS 88856, at *7 (S.D. Cal. Mar. 8, 2006). 

The potential harm to Defendants is even greater where, as here, trial is imminent. 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.” Antonelli v. Finish Line, Inc., No. 

5:11-CV-03874 EJD, 2012 WL 2499930, at *2 (N.D. Cal. June 27, 2012) (Davila, J.); see also 

Ontiveros, 2013 WL 1785891, at *5 (noting, ninth months before trial was scheduled to begin: “At this 

stage of the litigation, for defendant to be forced to proceed to trial, only to afterwards be allowed to 

arbitrate the dispute, would constitute a hollow victory indeed.”); Cardenas v. AmeriCredit Fin. Servs. 

Inc., No. C 09-04978 SBA, 2011 WL 846070, at *4 (N.D. Cal. Mar. 8, 2011) (Armstrong, J.) 

(“[C]onducting further proceedings, up to and including preparing for and conducting a trial that may 

ultimately be unnecessary, would result in significant litigation costs-as well as the expenditure of 

judicial resources.”); Cervantes v. Pac. Bell Wireless, 2006 U.S. Dist. LEXIS 89198, *4 (S.D. Cal. 

Mar. 8, 2006) (without a stay, defendant “will be forced to incur the expenses of preparing for trial, 

losing the advantages of arbitration, even if the Ninth Circuit ultimately orders arbitration.”). Trial in 

this case is scheduled to start on October 2, 2017. (Stein Decl., Ex. 2 (3/16/17 CMC Transcript) at 

15:15–16:14.) Defendants will move for expedited briefing in the Federal Circuit. (Stein Decl., ¶ 6.) 

 

7 See also Int’l Ass’n of Machinists & Aerospace Workers, AFL-CIO v. Aloha Airlines, Inc., 776 F.2d 

812, 815 (9th Cir. 1985) (denial of motion to compel arbitration “has serious consequences that can only 

be challenged by immediate appeal”); Jones, 2007 WL 1456041, at *2 (if a stay is denied, and the 

appeal is successful, “the Court’s and the parties’ resources will have been needlessly expended on 

continuing preparations for trial”). 

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However, it cannot be certain that its motion will be granted, and even if it is granted, it cannot be 

certain when the Federal Circuit will issue its decision on the appeal. Thus, without a stay, Defendants 

will almost certainly be required to undergo the expense of trial preparation, and may very well face 

trial, before the Federal Circuit issues its opinion—classic irreparable harm.

III. PLAINTIFF WILL SUFFER NO HARM SHOULD THE COURT STAY PROCEEDINGS 

Should the Court stay this case pending appeal, Plaintiff would not suffer any cognizable harm 

that could outweigh the harm to Defendants if a stay is not issued. Plaintiff cannot claim harm from 

Defendants’ alleged use of its allegedly stolen trade secrets during the pendency of the arbitration 

because Defendants 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); see Hawai’i v. Trump, 

No. CV 17-00050 DKW-KJM, 2017 WL 536826, at *2–3 (D. Haw. Feb. 9, 2017) (stay did not prejudice 

non-movant when there was an injunction in place against challenged conduct). And unlike the harm 

suffered by Defendants in “forever” losing the benefits of arbitration if a stay is denied, Alascom, Inc., 

727 F.2d at 1422, any delay in collection of monetary damages “may be mitigated by remedies such as 

prejudgment interest.” Zaborowski, 2013 WL 1832638, at *3. 

IV. THE PUBLIC INTEREST FAVORS A STAY. 

Public policy also supports a stay. First, public policy “favors an efficient allocation of judicial 

resources. It does not make sense for this Court to expend its time and energy preparing this case for 

trial and possibly trying it only to learn at a later date from the court of appeals that it was not the proper 

forum to hear the case.” Mundi v. Union Sec. Life Ins. Co., No. CV-F-06-1493OWWTAG, 2007 WL 

2385069, at *6 (E.D. Cal. Aug. 17, 2007); see also In re Wirecomm Wireless, Inc., 2008 WL 3056491, 

at *5 (“Staying a potentially unnecessary adversary action in a bankruptcy court conserves judicial 

resources.”). 

Second, the public interest in promoting arbitration, protected by Congress in the FAA, 

Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 225 (1987), favors a stay here. Granting a stay 

pending appeal would promote the “the strong federal policy encouraging arbitration as a prompt, 

economical and adequate method of dispute resolution for those who agree to it.” A.G. Edwards & 

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Sons, Inc. v. McCollough, 967 F.2d 1401, 1404 n.2 (9th Cir. 1992) (internal quotation marks omitted); 

see also Richards, 2012 WL 92738, at *2 (“[T]he federal policy favoring arbitration embodied in the 

FAA and the economical use of judicial resources lead the public interest to favor a stay, even when 

other interests are at play.”); Stern, 2006 WL 2790243, at *2 (“a stay will serve the public interest in 

arbitration as articulated by Congress.”); Pokorny, 2008 WL 1787111, at *2 (“The speed and efficiency 

of ADR are the foundation for a strong federal policy favoring arbitration over litigation, which would 

be contravened by requiring the parties to litigate while the appeal is pending.”). Moreover, Congress’ 

enactment of the immediate right of appeal of the denial of arbitration under the FAA, 9 U.S.C. § 

16(a)(1)(B), speaks volumes as to its view that the public would best be served by having that issue 

decided before the litigation itself proceeds apace. 

CONCLUSION 

For the foregoing reasons, Defendants respectfully request that the Court grant Defendants’ 

motion and stay all proceedings other than those outlined in the preliminary injunction order issued by 

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

Order (Dkt. 433, 441) until the conclusion of Defendants’ appeal of this Court’s denial of Defendants’ 

Motion to Compel Arbitration. 

Dated: May 19, 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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