REDACTED VERSION OF DOCUMENT SUBMITTED UNDER SEAL 

DEFENDANTS’ SUPPLEMENTAL BRIEFING REGARDING ARBITRATION HEARING’S QUESTIONS 3 AND 4 

Case No. 3:17-cv-00939-WHA 1

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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 

Telephone: 415.268.7000 

Facsimile: 415.268.7522 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC., 

OTTOMOTTO LLC, and OTTO TRUCKING LLC 

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 

Telephone: 202.237.2727 

Facsimile: 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., 

OTTOMOTTO LLC, AND OTTO 

TRUCKING LLC’S 

SUPPLEMENTAL BRIEFING 

REGARDING MOTION TO 

COMPEL ARBITRATION 

HEARING’S QUESTIONS 3 AND 4 

(DKT. 263) AND ADDITIONAL 

QUESTIONS FROM THE COURT 

Date: April 27, 2017 

Time: 8:00 a.m. 

Ctrm: 8, 19th Floor 

Judge: The Honorable William H. Alsup 

Trial Date: October 2, 2017

Case 3:17-cv-00939-WHA Document 322 Filed 05/01/17 Page 1 of 7
DEFENDANTS’ SUPPLEMENTAL BRIEFING REGARDING ARBITRATION HEARING’S QUESTIONS 3 AND 4 

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Uber Technologies, Inc., Ottomotto LLC, and Otto Trucking LLC (collectively, 

“Defendants”) hereby submit this response to the Court’s questions related to Uber’s Motion to 

Compel Arbitration. (Dkt. 263; 4/27/2017 Hearing Tr. 44:20–46:20.) 

I. How would provisional relief work in this case if sent to arbitration? Would 

provisional relief in arbitration be backed up by the contempt power of the court? 

Has any reported decision ever dealt with this issue? (Dkt. 263, Question 3.) 

Waymo’s ability to seek and enforce provisional relief would be unaffected if the Court 

sends this case to arbitration. 

First, there is no question that Waymo may seek preliminary injunctive relief in 

arbitration. (Reply at 14–15 (citing Levandowski Agreements (Dkt. 138 at 52)); JAMS Rule 

24(e).) The arbitral panel can issue a preliminary injunction if Waymo meets the standard for such 

relief, and the panel has the power to impose sanctions for non-compliance with any order. Certain 

Underwriters at Lloyd’s London v. Argonaut Ins. Co., 264 F. Supp. 2d 926, 943–44 (N.D. Cal. 

2003). Second, interim injunctive relief “calculated to preserve assets or performance needed to 

make any final award meaningful” is reviewable for confirmation and enforcement by the district 

courts under the Federal Arbitration Act (“FAA”). In Pacific Reinsurance Management Corp. v. 

Ohio Reinsurance Corp., 935 F.2d 1019, 1022–23 (9th Cir. 1991), the arbitration panel entered an 

“Interim Final Order” that was “in the nature of a preliminary injunction.” Id. The party subject to 

the order appealed; their opponents opposed federal court review, contending that the Order was 

not final and thus not reviewable. Id. at 1022 (citing cases). The Ninth Circuit disagreed: 

[I]f temporary equitable relief is to have any meaning, the relief must be 

enforceable at the time it is granted, not after an arbitrator’s final decision on the 

merits. Arbitrators have no power to enforce their decisions. Only courts have that 

power. Consequently, courts in other circuits that have been faced with 

arbitrators’ temporary equitable awards have not characterized them as non-final 

awards on the merits which can only be reviewed in extreme cases. Rather, they 

have characterized them as confirmable, final awards on an issue distinct from the 

controversy on the merits. 

Id. at 1022–23 (internal citations and footnotes omitted; emphasis in original). 1 Instead, 

enforcement of such relief is “essential to preserve the integrity” of the arbitral process. Id. at 

 

1

 Since arbitrators can impose sanctions, the statement that “only courts” have power to enforce 

arbitration awards is “narrowly construed.” Certain Underwriters, 264 F. Supp. 2d at 943. 

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DEFENDANTS’ SUPPLEMENTAL BRIEFING REGARDING ARBITRATION HEARING’S QUESTIONS 3 AND 4 

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1023; see also Certain Underwriters, 264 F. Supp. 2d at 936 (“temporary equitable relief may be 

essential to preserving assets or enforcing performance, and that such relief needs to be judicially 

enforceable at the time it is granted in order to be meaningful.”) (citing Pacific Reinsurance). Such 

an order has the “same force and effect, in all respects, as, and [is] subject to all the provisions of 

law relating to, a judgment in an action” under the FAA. 9 U.S.C. § 13; see also 9 U.S.C. § 9. 

Third, the judicial power to “enforce” interim injunctive relief awarded by an arbitration 

panel is subject to the Court’s discretionary civil contempt powers because it is considered to be a 

final award enforceable with the Court’s full authority. Defendants are aware of no case that holds 

that the enforcement of an interim award should be treated any differently than final arbitration 

award, which is enforceable in the same fashion as any other judgment of the Court. See Seven 

Arts Pictures PLC v. Jonesfilm, 311 F. App’x 962, 965 (9th Cir. 2009), as amended (Mar. 25, 

2009) (the “court did not abuse its discretion by finding Appellants in civil contempt and awarding 

sanctions against them, given Appellants’ failure to comply with the court’s order enforcing the 

arbitration award”).2

 The Ninth Circuit in Pacific Reinsurance treated the interim equitable order 

at issue just as it would treat a final award under the FAA. Pacific Reinsurance, 935 F.2d at 1022–

23. Moreover, civil contempt is the method by which all injunctions are enforced. Hangarter v. 

Paul Revere Life Ins. Co., 289 F. Supp. 2d 1105, 1107 (N.D. Cal. 2003). 

II. May the judge independently review any such provisional relief before deciding to 

enforce it? (4/27/2017 Hearing Tr. 44:20–45:24.) 

The district court reviews an arbitrator’s preliminary injunctive award under the limited 

standard of review afforded by the FAA. 9 U.S.C. §§ 10, 11. Pacific Reinsurance is instructive. 

After determining that the award was reviewable, the Ninth Circuit considered whether to vacate 

the award under the standard in FAA § 10, including whether the Interim Final Order “exceeded 

the arbitrators’ authority, was tainted by the panel's misbehavior, [or] was in manifest disregard of 

law and fact.” Pacific Reinsurance, 935 F.2d at 1023–26; see also Certain Underwriters, 264 F. 

Supp. 2d at 944 (confirming and vacating interim orders under the § 10 standard). In addition, the 

 

2

 The Court asked for “reported” decisions. Seven Arts is in the Federal Appendix, and Ninth 

Circuit rules indicate that it is not precedential. However, the Ninth Circuit permits citation to 

post-2007 unpublished decisions. FED. R. OF APP. PROC. 32.1; Ninth Circuit Rule 36-3. 

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district court may “make an order modifying or correcting” an award under the standards in 9 

U.S.C. § 11. The modification power is vested in the district court, just like the power to vacate. 

III. What does the term “ineffectual” in California Code of Civil Procedure 1281.8(b) 

mean, and how would it work in this case? (4/27/2017 Hearing Tr. 46:9–20.) 

Section 1281.8(b) permits parties to an arbitration agreement to seek preliminary 

injunctive relief from a court “only upon the ground that the award to which the applicant may be 

entitled may be rendered ineffectual without provisional relief.” Thus, provisional relief is only 

available “where the arbitrator’s award may not be adequate to make the aggrieved party whole.” 

Woolley v. Embassy Suites, Inc., 227 Cal. App. 3d 1520, 1527 ( 1991); Manhattan Loft, LLC v. 

Mercury Liquors, Inc., 173 Cal. App. 4th 1040, 1054 (2009), as modified (May 18, 2009). For 

example, the legislative history makes clear that a party may secure writ of attachment where 

“needed to preserve the value or worth of item [sic] in dispute under the arbitration agreement.” 

(Dept. Consumer Affairs, Enrolled Bill Rep. on Sen. Bill No. 1394 (1989–1990 Reg. Sess.) Sept. 

11, 1989, p. 1); Cal. Retail Portfolio Fund GmbH & Co. KG v. Hopkins Real Estate Grp., 193 Cal. 

App. 4th 849, 856–57 (2011) (ineffectual-relief requirement satisfied if there is evidence of 

insolvency or severe financial difficulties). A court’s power to enter interim injunctive relief in an 

arbitral dispute is limited “to ensure that the court does not invade the province of the arbitrator.” 

Cal. Retail, 193 Cal. App. 4th at 856 (citations omitted). 

It is not clear that § 1281.8(b) is applicable in federal court.3

 Nevertheless, Federal courts 

apply a very similar threshold in deciding whether to grant preliminary injunctive relief on a claim 

that must be arbitrated. Where an arbitrator is authorized and able to grant the equivalent of the 

interim relief sought, a district court should not grant preliminary injunctive relief unless doing so 

is “necessary to preserve the status quo and the meaningfulness of the arbitration process” and “the 

requirements for granting injunctive relief are otherwise satisfied.” Toyo Tire Holdings Of 

 

3

 Section 1281.8(b) is a procedural state statute that permits applications for preliminary 

injunctive relief in California “superior court.” Cal. Retail, 193 Cal. App. 4th at 856. The reported 

federal cases applying section 1281.8(b) consider it in the context of a writ of attachment. See 

China Nat. Metal Prod. Import/Export v. Apex Dig., 141 F. Supp. 2d 1013 (C.D. Cal. 2001). The 

Federal Rule of Civil Procedure authorizing such writs, Rule 64, expressly imports state-law 

standards for relief. By contrast, Federal Rule of Civil Procedure 65, which authorizes district 

courts to order preliminary injunctive relief, does not. 

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Americas Inc. v. Cont’l Tire N. Am., Inc., 609 F.3d 975, 981 (9th Cir. 2010); Simula, Inc. v. 

Autoliv, Inc., 175 F.3d 716, 725–26 (9th Cir. 1999); Genias Graphics Gmbh & Co. KG v. Tecplot, 

Inc., No. C13-1064-JCC, 2013 WL 12092542, at *2 (W.D. Wash. Aug. 21, 2013) (construing 

Toyo); see also Uptown Drug Co., Inc. v. CVS Caremark Corp., 962 F. Supp. 2d 1172, 1187 (N.D. 

Cal. 2013) (declining to intervene in arbitration by considering injunctive relief). The duration of 

any preliminary injunction a court issues on arbitrable claim is normally limited—it should expire 

at the time an arbitration panel is in place to decide whether the panel believes such interim relief 

is warranted. Cf. Auntie Anne’s, Inc. v. Wang, No. CV 14-01049 MMM (EX), 2014 WL 

11728722, at *16 (C.D. Cal. July 16, 2014) (treating motion for preliminary injunction “as a 

motion for interim relief pending submission of the parties’ dispute to arbitration”); Nat’l Ass’n of 

Gov’t Employees, Inc. v. Nat’l Emergency Med. Servs. Ass’n, Inc., 969 F. Supp. 2d 59, 73–74 (D. 

Mass. 2013) (granting preliminary injunctive relief “[p]ending the outcome of any requests for 

preliminary relief submitted in arbitration proceedings”). 

Waymo cannot meet either the state or the federal standard here. As Defendants explained 

at length in its briefing on Waymo’s motion for a preliminary injunction, Waymo has not 

demonstrated any threat of imminent harm that would be irreparable. (See Dkt. 177 at 23–28.) 

Uber has also removed Mr. Levandowski from his role with LiDAR and as the lead of the 

Advanced Technology Group. (See Dkt. 302 at 6.) Nor can Waymo meet its additional burden to 

show that court intervention is urgently required to make any arbitration effective. No property is 

threatened to be dissipated or at risk. Uber has consented to a panel of three highly credentialed 

arbitrators who are already hearing the closely related Google arbitration claims against Mr. 

Levandowski.4

 And these arbitrators are empowered to grant interim relief. Thus, Waymo is fully 

 

4

 We note that paragraph 23 of Google’s Arbitration Demand says “Google is informed and 

believes that Respondents’ plan included taking employees and consultants from Google, 

including employees and consultants with access to Google confidential information and trade 

secrets.” (Dkt. 138 at 13.) (emphasis added). 

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protected by its ability to seek interim relief from the arbitrators. 

In addition, Waymo’s own delay is fatal to any claim for “urgency” in seeking relief from 

this or any Court. Genias Graphics, 2013 WL 12092542, at *2 (finding that a delay of “months” 

undermined any showing of urgency under Toyo: “Genias argues that immediate interim relief is 

necessary to protect its valuable customer information, but its actions do not reflect the kind of 

urgency that would justify the Court intervening in ongoing arbitration proceedings.”). Indeed, 

Waymo has recently admitted that it was contemplating a lawsuit against Uber since at least 

August 2016, but chose to wait for months despite its knowledge that Levandowski allegedly 

downloaded files before he went to work for Uber’s autonomous vehicle project. 

IV. How much discovery and motion practice have occurred in Waymo’s arbitration 

proceedings against Levandowski to date? (Dkt. 263, Question 4) 

Discovery is underway. On January 20, Google made an initial production of documents 

in response to requests made under the California Labor Code, and Google took the position that 

part of that production was relevant to its claims in the arbitrations. On April 10, in accordance 

with JAMS Rule 17 and the parties’ stipulated schedule, the parties made their initial exchange of 

relevant documents.5

 (Rule 17 requires an initial exchange of relevant documents before any 

discovery requests are served.) On April 18, Google supplemented its earlier productions. Under 

the stipulated schedule, the first date for service of discovery requests (on both parties and nonparties) is May 1. The fact discovery cutoff is January 5, 2018. 

As for motion practice, on April 26, one of the Respondents moved to dismiss several of 

Google’s claims. Google’s opposition to that motion is due May 23, and the reply brief is due 

June 2. A hearing on the motion to dismiss is set for June 9 at 1:00 p.m. 6

 

5

 Mr. Levandowski declined to produce documents on April 10, invoking his Fifth Amendment 

privilege. On April 17, Google moved for an order compelling Mr. Levandowski to produce all 

documents relevant to Google’s claims, and on April 24, Mr. Levandowski opposed Google’s 

motion. A hearing on the motion is scheduled for May 8 at 10:00 a.m. 

6

 Because of a recent substitution of counsel, Mr. Levandowski received an extension of time to 

file his separate motion to dismiss. Mr. Levandowski’s motion is due May 1; Google’s opposition 

is due May 27; Mr. Levandowski’s reply remains June 2; and the hearing on all Respondents’ 

motions to dismiss remains set for June 9 at 1:00 p.m. 

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Dated: May 1, 2017 MORRISON & FOERSTER LLP 

By: /s/ Arturo J. González 

Arturo J. González 

Attorneys for Defendants 

UBER TECHNOLOGIES, INC., 

OTTOMOTTO LLC, AND OTTO TRUCKING, 

LLC

ATTESTATION OF E-FILED SIGNATURE 

I, Meredith R. Dearborn, am the ECF User whose ID and password are being used to file 

this Brief. In compliance with General Order 45, X.B., I hereby attest that Arturo J. González has 

concurred in this filing. 

Dated: May 1, 2017 

/s/ Meredith R. Dearborn 

 Meredith R. Dearborn 

Case 3:17-cv-00939-WHA Document 322 Filed 05/01/17 Page 7 of 7