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DEFENDANTS’ REPLY IN SUPPORT OF JOINT MOTION TO COMPEL 3:17-cv-00939-WHA

ARBITRATION OF, & TO STAY, TRADE SECRET & UCL CLAIMS [9 U.S.C. §§ 3, 4]

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 REPLY IN 

SUPPORT OF MOTION TO COMPEL 

ARBITRATION OF, AND TO STAY, 

TRADE SECRET AND UCL CLAIMS 

[9 U.S.C. §§ 3, 4]

Date: April 27, 2017

Time: 8:00 a.m.

Ctrm: 8

Judge: Honorable William H. Alsup

Trial Date: October 2, 2017

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TABLE OF CONTENTS

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

ARGUMENT...................................................................................................................................2

I. EQUITABLE ESTOPPEL REQUIRES WAYMO TO ARBITRATE ITS 

CLAIMS AGAINST UBER................................................................................................2

A. Numerous California Cases Have Compelled Signatories Like Waymo 

To Arbitrate Their Claims Against Nonsignatories Like Uber................................2

B. Uber Has Not Waived Application Of The Complete Legal Standard 

That Applies To Its Motion......................................................................................3

C. Waymo’s Trade Secret Claims Against Uber Are Inextricably 

Intertwined With The Levandowski Contract, And Therefore Must Be 

Arbitrated. ................................................................................................................5

1. In Order To Meet A Required Element Of Its Trade Secret Claims, 

Waymo Relies On The Confidentiality Provisions Of Its Written 

Employment Agreements. ................................................................................6

2. Waymo Cannot Prevail On Its Trade Secret Claims Without 

Proving That Levandowski Violated The Confidentiality Provisions 

In His Employment Contract............................................................................7

3. Waymo Alleges That Uber Engaged In Concerted Misconduct With 

Levandowski That Involved Breaches Of His Employment 

Contract. .........................................................................................................10

D. Waymo Cannot Avoid Arbitration Merely By Not Naming Levandowski 

As A Defendant In This Case.................................................................................11

E. The Fact That Waymo Is Bringing Tort And Statutory Claims Against 

Uber, Rather Than Contract Claims, Is Irrelevant. ................................................12

II. THE ANSWERS TO THE COURT’S QUERIES CONFIRM THAT WAYMO 

SHOULD BE COMPELLED TO ARBITRATE ITS TRADE SECRET 

CLAIMS. ...........................................................................................................................13

III. THE COURT SHOULD STAY WAYMO’S PRELIMINARY INJUNCTION 

MOTION AS TO ALL CLAIMS SUBJECT TO ARBITRATION..................................14

CONCLUSION..............................................................................................................................15

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TABLE OF AUTHORITIES

CASES

Arnold v. DirecTV, Inc., 

2013 U.S. Dist. LEXIS 167064 (E.D. Mo. Nov. 25, 2013)..................................................... 14

Arthur Andersen LLP v. Carlisle, 

556 U.S. 624 (2009)................................................................................................................... 2

AT&T Mobility LLC v. Concepcion, 

563 U.S. 333 (2011)................................................................................................................. 15

Boucher v. All. Title Co., Inc., 

127 Cal. App. 4th 262 (2005) .................................................................................................... 3

CD Partners v. Grizzle, 

424 F.3d 795 (8th Cir. 2005) ................................................................................................... 14

Edwards v. Marin Park, Inc., 

356 F.3d 1058 (9th Cir. 2004) ................................................................................................... 5

Facility Constr. Mgmt. Inc. v. Ahrens Concrete Floors, Inc., 

2010 WL 1265184 (N.D. Ga. Mar. 24, 2010) ........................................................................... 7

Goldman v. KPMG LLP, 

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

Hart v. ITC Service Group, Inc.,

No. 4:15-cv-00599-DGK (W.D. Mo. 2015)........................................................................... 14

JSM Tuscany LLC v. Superior Court, 

193 Cal. App. 4th 1222 (2011) ............................................................................................ 2, 11

Kramer v. Toyota Motor Corp., 

705 F.3d 1122 (9th Cir. 2013) ..................................................................................... 3, 4, 5, 12

Laswell v. AG Seal Beach, LLC, 

189 Cal. App. 4th 1399 (2010) .................................................................................................. 3

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

109 Cal. App. 4th 1705 (2003) ........................................................................................ 3, 4, 11

Molecular Analytical Systems v. Ciphergen Biosystems, Inc., 

186 Cal. App. 4th 696 (2010) .............................................................................................. 2, 13

MS Dealer Service Corp. v. Franklin, 

177 F.3d 942 (11th Cir. 1999) ................................................................................................. 10

Mylan Inc. v. SmithKline Beecham Corp.,

2012 WL 603804 (D.N.J. Feb. 23, 2012) .................................................................................. 7

Riverside County Sheriff’s Dep’t v. Stiglitz,

60 Cal. 4th 624 (2014)............................................................................................................. 15

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Rodriguez v. Shen Zhen New World I LLC,

2014 WL 908464 (C.D. Cal. March 6, 2014).......................................................................... 11

Rowe v. Exline, 

153 Cal. App. 4th 1276 (2007) .................................................................................................. 3

Torbit, Inc. v. Datanyze, Inc., 

2013 WL 572613 (N.D. Cal. Feb. 13, 2013) ................................................................. 3, 11, 12

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

140 Cal. App. 4th 828 (2006) ........................................................................................ 2, 11, 13

Uptown Drug Co., Inc. v. CVS Caremark Corp., 

962 F. Supp. 2d 1172 (N.D. Cal. 2013)............................................................................... 3, 15

STATUTES

18 U.S.C. § 1839............................................................................................................................ 7

18 U.S.C. § 1839(3)....................................................................................................................... 5

Cal. Bus. & Prof. Code § 17200 .................................................................................................... 1

Cal. Civ. Code § 3426.1................................................................................................................. 7

Cal. Civil Code § 3426.1(d)(2) ...................................................................................................... 5

Cal. Code Civ. P. § 1281.8(b)...................................................................................................... 14

RULES

JAMS Rule 24(e) ......................................................................................................................... 14

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INTRODUCTION

Waymo does not seriously contest that its trade secret claims against Uber are based on 

allegations of “interdependent and concerted misconduct” between Mr. Levandowski and Uber.1 

Nevertheless, Waymo claims it is not required to arbitrate those claims because, according to 

Waymo, the concerted misconduct is not “intimately founded in and intertwined with” the 

underlying Levandowski Agreements.2 Dkt. 204 at 10, 13-14. That is false. Waymo cannot 

prevail on its trade secret claims against Uber without proving that Mr. Levandowski engaged in 

conduct that constitutes a violation of his contractual confidentiality obligations to Waymo. The 

trade secret claims therefore could not be more “intimately founded in and intertwined with” the 

Levandowski Agreements that contain a broadly worded arbitration clause. Thus, the doctrine of 

equitable estoppel requires Waymo to arbitrate its trade secret claims against Uber.

Waymo also tries to argue that it can avoid arbitration by not naming Mr. Levandowski 

as a defendant. But equitable doctrines cannot be avoided by such a formalistic ruse. Several 

California cases have allowed nonsignatory defendants to compel signatory plaintiffs to arbitrate 

their claims even though there was no signatory defendant.

Uber has consented to have an existing panel of distinguished arbitrators resolve 

Waymo’s trade secrets claims—the same panel Waymo agreed could hear its existing 

arbitrations against Mr. Levandowski. Based on the plain text of the Levandowski Agreements, 

those arbitrators have the power to grant emergency injunctive relief if it is warranted, and Uber 

is willing to move as quickly as Waymo wishes. Thus, Waymo cannot argue it would be 

deprived even for a moment of an opportunity to seek relief. This Court should compel Waymo 

to arbitrate its trade secret claims, and should stay Waymo’s preliminary injunction motion as it 

 

1 The phrase “trade secret claims” includes Count 1 (DTSA claim), Count 2 (Cal. UTSA claim), 

and Count 7 (§17200 claim based on same basic alleged misconduct as Counts 1 and 2).

 

2 The “Levandowski Agreements” refers to the employment agreements between Levandowski 

and Google. Dkt. 138 at 35, 47. Waymo does not, and cannot, contest that it is bound by these

Agreements, which requires “the Company” to arbitrate its claims, and defines “the Company” 

to include “Google Inc., its subsidiaries, affiliates, successors, or assigns.” Id.

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relates to those claims.

ARGUMENT

I. EQUITABLE ESTOPPEL REQUIRES WAYMO TO ARBITRATE ITS CLAIMS 

AGAINST UBER.

A. Numerous California Cases Have Compelled Signatories Like Waymo To 

Arbitrate Their Claims Against Nonsignatories Like Uber.

Waymo asserts that it is virtually unheard of for a nonsignatory to an arbitration 

agreement to compel a signatory to arbitrate its claims. Dkt. 204 at 9. That is false. The 

Supreme Court has recognized that “traditional principles of state law” sometimes allow a 

contract to be enforced against nonparties to the contract, and therefore any court that holds “that 

nonparties to a contract are categorically barred from” seeking relief under the Federal 

Arbitration Act is in “error.” Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 631 (2009)

(internal quotations omitted). 

Because state law governs the issue of whether equitable estoppel allows Uber to enforce 

the arbitration clause to which Waymo consented (id. at 632), it is of no moment that, as Waymo 

emphasizes, “the Ninth Circuit” has not yet “affirmed” a finding “that a nonsignatory defendant 

can compel arbitration against a signatory on the theory of equitable estoppel.” Dkt. 204 at 10. 

The relevant question is whether California courts have addressed whether equitable estoppel 

allows a nonsignatory to compel a signatory to arbitrate its claims against the nonsignatory. 

They have, holding in numerous cases that the doctrine of equitable estoppel allows a 

nonsignatory to an arbitration agreement to compel arbitration of claims made against it when 

those claims are “intertwined” with that underlying agreement. See, e.g., JSM Tuscany LLC v. 

Superior Court, 193 Cal. App. 4th 1222, 1241 (2011) (“A nonsignatory plaintiff can be 

compelled to arbitrate a claim even against a nonsignatory defendant, when the claim is itself 

based on, or inextricably intertwined with, the contract containing the arbitration clause”); Turtle 

Ridge Media Grp., Inc. v. Pac. Bell Directory, 140 Cal. App. 4th 828, 833 (2006), as modified

(July 20, 2006) (allowing nonsignatory defendant to compel plaintiff to arbitrate even though the 

entity with whom plaintiff had agreed to arbitrate was not named as a defendant); Molecular 

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Analytical Systems v. Ciphergen Biosystems, Inc., 186 Cal. App. 4th 696, 715 (2010)

(nonsignatory compelled arbitration of contract and tort claims where such claims were “founded 

in and inextricably intertwined with” underlying contract that contained an arbitration clause); 

Laswell v. AG Seal Beach, LLC, 189 Cal. App. 4th 1399, 1407-09 (2010) (allowing nonsignatory 

defendants to enforce arbitration agreement against signatory); Rowe v. Exline, 153 Cal. App. 4th 

1276, 1284-90 (2007) (same); Boucher v. All. Title Co., Inc., 127 Cal. App. 4th 262, 271-72 

(2005) (same); Metalclad Corp. v. Ventana Envtl. Organizational P’ship, 109 Cal. App. 4th 

1705, 1713-18 (2003) (same).

Likewise, federal courts applying California law have repeatedly held that when a 

signatory advances claims against a nonsignatory that are “intertwined” with obligations set forth 

in the underlying contract, the doctrine of equitable estoppel allows the nonsignatory to compel 

the signatory to arbitrate those claims. See, e.g., Uptown Drug Co., Inc. v. CVS Caremark Corp., 

962 F. Supp. 2d 1172, 1184-86 (N.D. Cal. 2013) (Tigar, J.) (nonsignatory compelling arbitration 

of trade secret claim since such a claim necessarily requires plaintiff to show misappropriation in 

violation of a written contract); Torbit, Inc. v. Datanyze, Inc., No. 5:12-CV-05889-EJD, 2013

WL 572613 at *4 (N.D. Cal. Feb. 13, 2013) (Davila, J.) (nonsignatory compelling arbitration of 

trade secret claim where claim was “intertwined with the contract providing for arbitration”). 

Thus, this is not a situation in which there are “no cases” or “only one case,” as Waymo 

tries to tell the Court. There is an entire body of case law holding that a nonsignatory may 

compel a signatory to arbitrate its claims when those claims are sufficiently “intertwined” with 

the agreement. Applying that law to this case, Waymo must arbitrate its claims against Uber.

B. Uber Has Not Waived Application Of The Complete Legal Standard That 

Applies To Its Motion.

In footnote 9 of its opposition, Waymo incorrectly contends that Uber “waived” what 

Waymo calls the “reliance” theory of equitable estoppel. That is not correct. Uber’s opening 

brief invoked the general proposition of law, established by California courts and recognized by 

the Ninth Circuit in the Kramer decision, that “[e]quitable estoppel precludes a party from 

claiming the benefits of a contract while simultaneously attempting to avoid the burdens that 

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contract imposes.” Dkt. 115 at 7 (citing Kramer v. Toyota Motor Corp., 705 F.3d 1122, 1128 

(9th Cir. 2013)). It is that general and well-established principle that governs Uber’s motion, and 

it was most certainly not waived.

As shown in the case law cited in Section I(A) above, California courts have applied this 

governing principle to a wide variety of circumstances. Citing the California state court 

decisions in Goldman and Metalclad, Kramer referred to “two circumstances” in which the 

doctrine of equitable estoppel applies to allow a nonsignatory to enforce an arbitration clause 

against a signatory, which Kramer summarized as follows:

“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”; and

“when the signatory alleges substantially interdependent and concerted 

misconduct by the nonsignatory and another signatory and ‘the allegations of 

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

obligations of the underlying agreement.’”

Kramer, 705 F.3d at 1128-29 (emphasis added) (citing Goldman v. KPMG LLP, 173 Cal. 

App.4th 209, 221 (2009), Metalclad Corp., 109 Cal. App. 4th at 1713).

The first circumstance that Kramer describes contains an “or” clause, actually identifying 

two different circumstances. That means that Kramer identifies a total of three factual situations 

in which California courts have held the doctrine of equitable estoppel 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; 

 When the claims are intimately founded in and intertwined with the underlying contract; 

or

 When the signatory alleges substantially interdependent and concerted misconduct by the 

nonsignatory and another signatory, and the allegations of interdependent misconduct are 

founded in or intimately connected with the obligations of the underlying agreement.

Kramer does not hold that these three sets of circumstances are mutually exclusive—they 

obviously are not, and frequently overlap, as they do here. Nor does Kramer hold that these are 

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different “legal theories,” as Waymo argues. These are not different legal theories. They are 

descriptions of the kinds of overlapping factual circumstances in which “[e]quitable estoppel 

precludes a party from claiming the benefits of a contract while simultaneously attempting to 

avoid the burdens that contract imposes.” Dkt. 115 at 7 (citing Kramer, 705 F.3d at 1128).

Uber’s opening brief demonstrated that each of the factual circumstances described in 

Kramer are present here. Id. at 7-9. We showed that Waymo’s claims are “governed by 

[Levandowski’s] Waymo employment agreements” (id. at 8), that Waymo’s repeated references 

to those agreements confirms that Waymo’s claims are “intertwined with the obligations” 

imposed by the Levandowski agreements (id.), and that Waymo’s entire theory of the case is one 

of “interdependent collusion” between Uber and Levandowski. Id. Thus, the opening brief 

contains “contentions as well as citations to authorities and the record” that cover each of the 

different factual circumstances recognized in Kramer. Edwards v. Marin Park, Inc., 356 F.3d 

1058, 1066 (9th Cir. 2004) (no waiver of argument where opening brief contains the 

“contentions as well as citations to authorities and the record” relevant to the argument).3

C. Waymo’s Trade Secret Claims Against Uber Are Inextricably Intertwined 

With The Levandowski Contract, And Therefore Must Be Arbitrated.

Waymo asserts that its claims against Uber “are not based on any agreement with 

Mr. Levandowski.” Dkt. 204 at 10. That is false. As shown in our opening brief and again 

below, Waymo’s trade secret claims are inextricably intertwined with the obligations set forth in 

the Levandowski Agreements.4

 

3 If the Court concludes otherwise, Uber does not object to permitting Waymo a surreply to 

address any possible claim of prejudice. 

4 Uber is not admitting Waymo can prevail against Uber merely by showing that Levandowski 

breached his agreements. Uber is simply showing that Waymo’s trade secret claims against 

Uber require it to show at least that Levandowski breached his agreements. The alleged 

Levandowski breaches are necessary, but not sufficient, for Waymo’s trade secret claims.

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1. In Order To Meet A Required Element Of Its Trade Secret Claims, 

Waymo Relies On The Confidentiality Provisions Of Its Written 

Employment Agreements.

In order to prevail on its trade secret claims, Waymo must establish that the information 

that was allegedly misappropriated is, in fact, a “trade secret.” To do so under California law, 

Waymo must prove that the supposed proprietary information “[i]s the subject of efforts that are 

reasonable under the circumstances to maintain its secrecy.” Cal. Civil Code § 3426.1(d)(2). 

Similarly, under federal law, a plaintiff is required to show that it “has taken reasonable 

measures to keep [its] information secret.” 18 U.S.C. § 1839(3). 

To meet this required element of its trade secret claims, Waymo repeatedly invokes the 

confidentiality provisions of its employment contracts. It alleges, for example, that it “has 

undertaken efforts that are reasonable under the circumstances to maintain the secrecy of the 

trade secrets at issue” through “the use of confidentiality agreements and non-disclosure 

agreements to require . . . employees to maintain the secrecy of Waymo’s confidential 

information.” FAC ¶ 82 (emphasis added). Waymo further alleges that it “requires all 

employees ... to sign confidentiality agreements before any confidential or proprietary trade 

secret information is disclosed to them.” Id. at ¶ 72 (emphasis added). See also id. at ¶¶ 52–53

(discussing engineers’ “confidentiality obligations” owed to Waymo).

Likewise, in its motion for a preliminary injunction, Waymo asserted: 

“As a condition of employment, Waymo requires all employees to enter into 

written agreements to maintain the confidentiality of proprietary and trade 

secret information....As a related ongoing measure, Waymo enforces an 

employee code of conduct that explains employees’ strict obligations to maintain 

secrecy of confidential information.” 

Dkt. 24 at 5 (emphasis added).

Of course, the most important employment agreement to Waymo, and the one it centrally 

claims was breached, is that of Mr. Levandowski. The Levandowski Agreements contain both 

the confidentiality provisions (Dkt. 138 at 47, 59) and the requirement to comply with the 

“employee code of conduct” to which Waymo refers in its Complaint and preliminary injunction 

motion. Dkt. 138 at 50, 62. If the Levandowski Agreements did not contain these provisions, 

Waymo would not be able to show that it took reasonable measures to protect the confidentiality 

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of its alleged trade secrets—thereby causing its trade secret claims to fail. 

Waymo tries to avoid having to rely on the Levandowski Agreements by arguing that 

“Mr. Levandowski owed Waymo a duty of confidentiality as a matter of California law 

independent of the specific terms of his employment agreements.” Dkt. 204 at 13-14. But the 

specific terms of a contract supersede the general provisions of the common law.5 Moreover, 

Uber is not aware of a case that has allowed a party to meet the requirement of showing it kept 

information sufficiently confidential to constitute a trade secret merely by pointing to the 

existence of a background common law duty of confidentiality. Waymo recognized as much in 

its complaint. Instead of relying on any common law duty of confidentiality, the complaint 

alleges that Waymo specifically contracted for confidentiality, and relies on those contractual 

confidentiality provisions (and the contractually-incorporated employee handbook) in an effort to 

meet the required element of keeping its alleged trade secrets confidential. It therefore cannot 

disavow the contractual arbitration promises that appear alongside those contractual 

confidentiality promises. 

2. Waymo Cannot Prevail On Its Trade Secret Claims Without Proving 

That Levandowski Violated The Confidentiality Provisions In His 

Employment Contract.

In order to prevail on its trade secret claims, Waymo must show that Uber has either (a) 

acquired Waymo’s trade secrets with knowledge that those trade secrets were acquired by 

improper means, or (b) disclosed or used Waymo’s trade secrets at a time when Uber knew that 

its knowledge of the trade secrets either (i) was “derived” from or through a person who had 

used improper means to acquire the trade secrets, or who owed a duty to Waymo to maintain the 

secrecy or limit the use of the alleged trade secrets, or (ii) was acquired under circumstances 

giving rise to a duty to keep secret or limit use. See 18 U.S.C. § 1839 (definition of 

 

5 See, e.g., Facility Constr. Mgmt. Inc. v. Ahrens Concrete Floors, Inc., No. 1:08-CV-01600-

JOF, 2010 WL 1265184, at *4 (N.D. Ga. Mar. 24, 2010) (collecting authorities holding that “the 

express terms of [a] contract supersede the common law.”); Mylan Inc. v. SmithKline Beecham 

Corp., No. CIV.A. 10-4809 JAP, 2012 WL 603804, at *6 (D.N.J. Feb. 23, 2012), rev'd in part on 

other grounds, 723 F.3d 413 (3d Cir. 2013) (holding that express contractual provision overrode 

duty of good faith and fair dealing ordinarily imposed under state law).

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“misappropriation” under Federal Defend Trade Secrets Act); Cal. Civ. Code § 3426.1

(definition of “misappropriation” under California Uniform Trade Secrets Act).

The only way that Waymo can meet one of the foregoing legal standards is to show that 

Mr. Levandowski acquired the trade secrets through improper means, or that Uber derived its 

knowledge from Mr. Levandowski, who owed a duty to Waymo to maintain the secrecy over (or 

limit the use of) those alleged trade secrets. Thus, the Levandowski Agreements are central to 

Waymo’s ability to prove liability under its trade secret claims. 

Waymo’s allegations confirm that its trade secret claims are based on Mr. Levandowski’s 

alleged violations of his contractual confidentiality obligations. Here is how Waymo entitles the 

paragraphs from its Complaint that contain its central allegations of trade secret theft: 

“Unbeknownst to Waymo, Anthony Levandowski Lays The Foundation For Defendants To 

Steal Waymo’s Intellectual Property Rather Than Compete Fairly In The Autonomous 

Vehicle Space.” Dkt. 23 at p. 11 (title to Section D).

The ensuing paragraphs allege that between November 2015 and the end of January 

2016, while he was still a Waymo employee, Mr. Levandowski was doing the following: 

 “secretly preparing to launch a competing vehicle automation venture” (id. at ¶ 41);

 “had confided in some Waymo colleagues that he planned to ‘replicate’ Waymo’s 

technology at a Waymo competitor” (id. at ¶ 42);

 “went to great lengths to take what he needed to ‘replicate’ Waymo’s technology and 

then to meet with Uber executives, all while staying a Waymo employee” (id.);

 “searched for instructions on how to access Waymo’s highly confidential design server” 

which “holds detailed technical information related to Waymo’s LiDAR systems...and is 

accessible only on a need-to-know basis” (id. at ¶ 43);

 “installed special software on his Waymo laptop to access the design server” and then 

“downloaded over 14,000 proprietary files from that server” including “9.7 GBs of 

sensitive, secret, and valuable internal Waymo information” and “2GBs .... related to 

Waymo’s LiDAR technology” and “confidential specifications for each version of every 

generation of Waymo’s LiDAR circuit boards” (id. at ¶ 44);

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 “attached a removable device (an SD Card) to the laptop containing the downloaded files 

for approximately eight hours” (id. at ¶ 45);

 “reformatted the laptop, attempting to erase any evidence of what happened to the 

downloaded files” (id. at ¶ 46);

 “used his Waymo credentials and security clearances to download additional confidential 

Waymo documents to a personal device”—these Waymo documents “included at least 

five highly sensitive internal presentations containing proprietary technical details 

regarding the manufacture, assembly, calibration, and testing of Waymo’s LiDAR 

sensors” (id. at ¶ 47);

 “After downloading all of this confidential information regarding Waymo’s LiDAR 

systems and other technology and while still a Waymo employee.....Mr. Levandowski 

attended meetings with high-level executives at Uber’s headquarters...” (id. at ¶ 48).

It does not take a lot of imagination to recognize that Waymo is alleging that 

Mr. Levandowski breached the confidentiality provisions in the Levandowski Agreements. 

Waymo never disputes that it obviously believes the foregoing conduct constitutes a breach of 

the Levandowski Agreements. Instead, Waymo relies on the formalism that Mr. Levandowski 

“is not a party.” Dkt. 204 at 10. But that is irrelevant, as discussed further in Section I(D), 

below. The relevant inquiry is whether Waymo’s allegation that Mr. Levandowski violated his 

contractual confidentiality obligations is “inextricably intertwined with,” or a necessary part of, 

Waymo’s claims against Uber. It clearly is.

Waymo claims that Uber is the beneficiary of all of Mr. Levandowski’s contractual 

breaches. And Waymo further claims that Uber is violating trade secret law because Uber 

allegedly acquired Waymo’s trade secret information knowing that it had been wrongfully 

acquired by Mr. Levandowski. Waymo cannot prevail on these claims without proving that 

Mr. Levandowski took the trade secret information in violation of his contractual obligations. If, 

contrary to Waymo’s allegations, Mr. Levandowski at all times perfectly complied with the 

confidentiality provisions in the Levandowski Agreements, then Waymo could not prevail on 

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any of its non-patent claims against Uber. Waymo has not even attempted to show otherwise.6

3. Waymo Alleges That Uber Engaged In Concerted Misconduct With 

Levandowski That Involved Breaches Of His Employment Contract.

The central allegation Waymo makes against Uber is that “[i]nstead of developing their 

own technology, Defendants stole Waymo’s long-term investments and property.” Dkt. 23 at ¶ 

10 (emphasis added). The alleged basis for this incendiary allegation is that (a) 

Mr. Levandowski allegedly stole Waymo’s trade secrets (id. at ¶¶ 41-47), (b) Mr. Levandowski

was simultaneously meeting with Uber executives while he was stealing Waymo’s trade secrets 

(id. at ¶ 48), and (c) Mr. Levandowski then abruptly left Waymo and set up a company (Otto) 

that Uber acquired soon thereafter. Id. at ¶ 55. Thus, Waymo is quite clearly alleging that Uber 

engaged in concerted misconduct with Mr. Levandowski that involved complicity in 

Mr. Levandowski’s violation of his contractual confidentiality obligations.

Waymo does not appear to contest that it is alleging that Uber and Mr. Levandowski were 

engaged in “interdependent and concerted misconduct.” Instead, Waymo argues that the 

“interdependent and concerted misconduct” was not “founded in or intimately connected with 

the obligations of the underlying agreement” (i.e., the Levandowski Agreements). Dkt. 204 at 

13-14. That is incorrect. The concerted misconduct alleged by Waymo is inextricably 

intertwined with the alleged breach of the Levandowski Agreements:

 Waymo accuses Levandowski of stealing trade secret information in violation of the 

confidentiality provisions of the Levandowski Agreements (Dkt. 23 at ¶¶ 41-49);

 Waymo accuses Uber of meeting with Levandowski while he was engaged in the alleged 

theft and while he was still an employee (id. at ¶ 48), and of then acquiring that stolen 

material by acquiring the companies Levandowski created (id. at ¶¶ 55-56). 

As alleged by Waymo, there is no way to separate the alleged concerted misconduct from 

 

6 While Waymo alleges that two other employees, Mr. Kshirsagar and Mr. Raduta, also 

downloaded a small number of Google documents, (Dkt. 23 at ¶¶ 52, 53), those allegations are 

insufficient to sustain a trade secret claim against Uber. Waymo never tries to argue otherwise. 

Moreover, it is likely the employment agreements between Waymo and Mr. Kshirsagar and 

Raduta also have arbitration clauses; Waymo has made no attempt to show they do not. 

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the alleged theft in violation of the Levandowski Agreements. Thus, the alleged concerted 

misconduct is indeed “founded in or intimately connected with the obligations of the underlying 

agreement.” 

D. Waymo Cannot Avoid Arbitration Merely By Not Naming Levandowski As 

A Defendant In This Case.

Waymo argues that because Mr. Levandowski is “not a party” to this lawsuit, the doctrine 

of equitable estoppel cannot compel Waymo to arbitrate. That is incorrect. California courts 

have repeatedly held that a nonsignatory defendant may invoke the doctrine of equitable estoppel 

to compel a signatory plaintiff to arbitrate its claims even where there is no signatory named as a 

defendant. See, e.g., Metalclad Corp., 109 Cal. App. 4th at 1718 (“Estoppel prevents Metalclad 

from avoiding arbitration by suing only the [nonsignatory] parent corporation in these 

circumstances.”) (citing MS Dealer Service Corp. v. Franklin, 177 F.3d 942, 947 (11th Cir.

1999) (holding that nonsignatory plaintiff could compel signatory defendant to arbitrate where 

there were no other parties to the litigation)); Turtle Ridge Media Grp., 140 Cal. App. 4th at 833 

(holding nonsignatory defendant could compel signatory plaintiff to arbitrate where there were 

no other defendants); Rodriguez v. Shen Zhen New World I LLC, 2014 WL 908464 at *6 (C.D. 

Cal. March 6, 2014) (applying equitable estoppel to compel plaintiff signatory to arbitrate claims 

against nonsignatory defendant even though other signatory to agreement was not named as a 

defendant). California courts have held that a non-signatory defendant can even compel a 

nonsignatory plaintiff to arbitrate its claims, with no signatories in the case. See JSM Tuscany, 

193 Cal. App. 4th at 1241.

Given that California courts compel arbitration even when a signatory plaintiff chooses to 

sue only a nonsignatory (tactically choosing to leave any other signatories out of the case), 

Waymo fails in its effort to distinguish the decision in Torbit, Inc. v. Datanyze, Inc., 2013 WL 

572613 (N.D. Cal. 2013). Torbit compelled arbitration based on facts that are virtually identical 

to those presented here. The plaintiff alleged that its former employee (Ilya Semin) used 

plaintiff’s computer network “to download its code repository, including its trade secrets and 

proprietary information, onto his personal computer,” and further alleged that Mr. Semin 

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“founded his company, Datanyze, during the course of his employment and that Datanyze is 

using” the trade secrets and proprietary information taken by Mr. Semin. Id. at *2. Mr. Semin’s 

employment agreement with plaintiff had an arbitration clause. But the defendant Datanyze was 

not a signatory to that agreement. Judge Davila held that the doctrine of equitable estoppel 

allowed Datanyze to compel arbitration because the plaintiff’s trade secret claim was 

“intertwined with” Mr. Semin’s employment agreement. Id. at *4. In particular, the court found 

that the plaintiff could not show a required element of its trade secret claim against Datanyze—

that it had “knowledge” that the trade secret was acquired by improper means—without relying 

on an interpretation of Mr. Semin’s employment agreement. Id. The same is true here.

Waymo claims Torbit is “distinguishable” because in Torbit the plaintiff sued both the 

former employee (Mr. Semin) and the company (Datanyze). Dkt. 204 at 11. But as shown 

above, that formalism is irrelevant. Equitable estoppel cannot be evaded by tactical pleading. 

Moreover, the court in Torbit analyzed the ability of Datanyze to compel arbitration without any 

reference to the fact that Mr. Semin was a named defendant (and only after concluding that the 

claims against Mr. Semin all had to be arbitrated).7 

Waymo’s attempt to avoid arbitration by not naming Mr. Levandowski as a defendant is 

gamesmanship that elevates form over substance. Equitable doctrines cannot be so easily fooled. 

E. The Fact That Waymo Is Bringing Tort And Statutory Claims Against Uber, 

Rather Than Contract Claims, Is Irrelevant.

Waymo argues that because its claims against Uber are “based in tort” and “seek to 

enforce statutory rights,” they are thereby independent from the Levandowski Agreements. Dkt. 

204 at 13. But as shown above, these tort and statutory claims have elements to them that 

Waymo cannot satisfy unless it proves facts that show a breach of the Levandowski Agreements. 

Moreover, numerous cases hold that equitable estoppel requires a signatory to a contract to 

arbitrate non-contractual claims against a nonsignatory when those claims are intertwined with 

 

7 Waymo also claims that Kramer somehow “abrogate[d]” the holding in Torbit, but there is no 

basis for that assertion. Kramer did not cite Torbit or say anything that was inconsistent with the 

holding and rationale in Torbit.

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alleged breaches of the underlying contract. See, e.g., Turtle Ridge Media Grp., 140 Cal. App. 

4th at 834-36 (granting nonsignatory’s request to compel arbitration against contract signatory of 

tort claims even where no contractual cause of action was alleged); Torbit, Inc., 2013 WL 

572613 at *4 (compelling arbitration of tort and other statutory claims because they were 

“intertwined with” alleged breaches of an employment agreement). Moreover, the language of 

the arbitration clause in the Levandowski Agreements is broad enough to capture non-contractual 

claims, as explained in our opening brief. Dkt. 115 at 10-11. The agreement also applies to such 

claims “with anyone.” Waymo’s attempt to avoid the broad arbitration provisions it negotiated 

are unpersuasive. 

II. THE ANSWERS TO THE COURT’S QUERIES CONFIRM THAT WAYMO 

SHOULD BE COMPELLED TO ARBITRATE ITS TRADE SECRET CLAIMS. 

This Court asked whether the arbitration proceedings Google initiated against 

Mr. Levandowski would address which of the 14,000-plus allegedly downloaded files qualify as 

trade secrets, and also asked “If the arbitration will not reach that issue, please explain why.” 

Dkt. 194 (emphasis added). Waymo responded by stating that the Google arbitrations will not 

address this issue, but Waymo did not “explain why.” That is because Waymo has no good 

answer to that question. Here is the true answer: Google is strategically choosing not to bring 

claims against Mr. Levandowski that could implicate its trade secrets claim because it wants to 

avoid the confidential arbitration process to which it contractually agreed. Waymo was aware of 

the alleged downloading of 14,000 files before it filed its two arbitrations in late October—yet

they said nothing in either arbitration about that purported misappropriation. Dkt. 23 at ¶ 57. 

That kind of gamesmanship to avoid a contractual commitment to arbitration is exactly what the 

doctrine of equitable estoppel is designed to prevent, and is also inconsistent with the Federal 

and California policies in favor of encouraging arbitration.8

 

8 See, e.g., Molecular Analytical Systems, 186 Cal. App. 4th at 714 (“both federal and California 

arbitration law favor the arbitration of disputes.”). 

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The Court also inquired about the status of the current arbitrations, the panelists, and the 

ability of the parties to conduct expedited discovery. Dkt. 130. We attach a declaration from 

Mr. Gonzalez briefly updating the Court on these matters. But the point we wish to emphasize 

most is that the arbitration that Uber initiated against Waymo will address the alleged download 

of the 14,000 files, including which if any of them contained trade secrets. Moreover, that Uberinitiated arbitration is positioned to move as expeditiously as Waymo wishes. Uber has 

consented to the use of the same three distinguished arbitrators that have been empaneled for the 

Waymo-initiated arbitrations, and Uber is willing to move as expeditiously as Waymo wishes in 

that arbitration. Waymo may not have agreed to that, but that just reflects Waymo’s strategic 

effort to litigate its trade secret claims in court, rather than in arbitration as contractually 

promised.

The Court also asked the parties to state whether they have ever taken positions in prior 

cases with respect to a nonsignatory’s ability to compel arbitration that are inconsistent with the 

position being taken here. Dkt. 142. Uber has not done so. Dkt. 197. Waymo and Google have 

done so at least four times. Dkt. 200. Moreover, Waymo’s disclosure to the Court was 

incomplete. It failed to identify its reply brief in support of its motion to compel arbitration in 

Hart v. ITC Service Group, Inc., No. 4:15-cv-00599-DGK (W.D. Mo. 2015). In that brief, 

Google for the first time argued that arbitration was required because the plaintiff’s claims “must 

rely on the terms of the written agreement” with the arbitration clause—an argument it seeks to 

evade here. Hart Dkt. 62 at 5 (emphasis added). In addition, Google relied heavily on case law 

requiring arbitration where no signatory appeared as a named defendant—directly rebutting one 

of its main tactics here. Id. at 5-7 (citing Arnold v. DirecTV, Inc., 2013 U.S. Dist. LEXIS 

167064 (E.D. Mo. Nov. 25, 2013) and CD Partners v. Grizzle, 424 F.3d 795 (8th Cir. 2005)).

III. THE COURT SHOULD STAY WAYMO’S PRELIMINARY INJUNCTION 

MOTION AS TO ALL CLAIMS SUBJECT TO ARBITRATION.

Waymo argues that even if its trade secret claims must be arbitrated, this Court should 

not stay its motion for preliminary injunction because it cannot get that relief in arbitration. That 

is incorrect. First, the Levandowski Agreements specifically contemplate that the arbitrators 

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shall have the power to award “ANY REMEDIES,” including “INJUNCTIVE RELIEF.” Dkt. 

138 at 52. The Levandowski Agreements also invoke the JAMS arbitration rules, and those rules

provide that the arbitrators “may grant whatever interim measures are deemed necessary, 

including injunctive relief...”9 Waymo also argues that the California Code of Civil Procedure 

provides that a party to an arbitration agreement may seek provisional relief in court, but the 

rules say that is permissible “only upon the ground that the award to which the applicant may 

be entitled may be rendered ineffectual without provisional relief.” Cal. Code Civ. P. § 

1281.8(b) (emphasis added). Here, the award Waymo seeks will not be rendered ineffectual 

without provisional relief from this Court because the arbitrators are empowered to award any 

provisional injunctive relief they find necessary. See Uptown Drug Co., 962 F. Supp. 2d at 1187. 

Far from seeking “delay,” Uber has made clear it consents to the existing panel of 

arbitrators, and is willing to move as quickly as Waymo wishes. Waymo has the burden of 

showing why that is inadequate to protect its interests. See Riverside County Sheriff’s Dep’t v. 

Stiglitz, 60 Cal. 4th 624, 633 (2014). Waymo has not met that burden. Further, Waymo is in no 

position to say the arbitration panel may not move as quickly as this Court. As shown in our 

opposition to Waymo’s preliminary injunction motion, Waymo delayed bringing its motion for 

at least five months after learning of Mr. Levandowski’s alleged downloads. Dkt.177 at 17-18. 

Waymo complains that Uber wants “secrecy.” But Waymo is the one making massive 

redactions from its court filings to protect its alleged trade secrets. The Supreme Court has 

recognized that arbitration is a particularly appropriate forum to resolve trade secret claims 

because the arbitration setting can much better “protect trade secrets” than can a public judicial 

forum. AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 344-45 (2011). 

CONCLUSION

For the foregoing reasons, the Court should compel Waymo to arbitrate its trade secret 

claims against Uber.

 

9 See Dkt. 138 at 51, 63 (incorporating JAMS arbitration rules into Levandowski Agreements): 

see also JAMS Rule 24(e), available at https://www.jamsadr.com/rules-comprehensivearbitration.

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Dated: April 17, 2017 Respectfully Submitted,

MORRISON & FOERSTER LLP

By: /s/ Arturo J. González

ARTURO J. GONZÁLEZ

Attorneys for Defendants

UBER TECHNOLOGIES, INC., 

OTTOMOTTO LLC, and OTTO TRUCKING LLC

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