MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, UNITED STATES DISTRICT JUDGE.

Dino Theodore and Access with Success, Inc. bring this action seeking permanent injunctive relief barring an allegedly discriminatory practice by Uber Technologies, Inc. of not providing wheelchair accessible vehicles to all areas of the Commonwealth of Massachusetts, or at least those currently served by Uber. In particular, Mr. Theodore and Access with Success contend in their now-operative second amended complaint that Uber's failure to provide wheelchair accessible vehicles in the suburb where Mr. Theodore resides, northwest of Boston near the border with New Hampshire, violates Title III of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq.

Uber has moved for an order to compel arbitration of all claims, under the Terms and Conditions to which Uber contends Mr. Theodore agreed when he created his account. More specifically, Uber argues that, at a minimum, an arbitrator should decide at the threshold the arbitrability of the claims set forth by Mr. Theodore and Access with Success under the delegation clause of the Terms and Conditions.

In opposition, Mr. Theodore and Access with Success contend that there was never any valid written agreement between Mr. Theodore and Uber through which the parties agreed to arbitrate the claims set forth in Plaintiffs' second amended complaint.

I. BACKGROUND

A. Factual Background

Mr. Theodore is a 58-year-old practicing attorney, who is paralyzed from the chest down; he lives in Dracut, Massachusetts. Due to his condition and other physical setbacks, he has begun to rely more heavily on a power wheelchair that does not allow him to use an automobile equipped with hand controls, which he otherwise could drive.

Access with Success is a non-profit corporation, whose "members are able-bodied individuals and qualified individuals with disabilities as defined by the ADA." Mr. Theodore serves as a member and a director of Access with Success, with whom he has filed at least 45 federal actions as a co-plaintiff.

In October 2016, the Massachusetts Bay Transportation Authority began working with Uber, as well as its competitor ride-share company, Lyft Inc., to introduce a pilot program to provide subsidized rides in wheelchair accessible vehicles for disabled passengers in a specific region of the Commonwealth.1 Dracut is outside the region served by the RIDE program, which is where Uber's pilot program operates; consequently, Uber allegedly has no wheelchair accessible vehicles available for Mr. Theodore to take from his home.

Massachusetts General Law c. 161A provides statutory authority for the MBTA, including the definition of its "area constituting the authority." M.G.L. c. 161A § 1 (the "area constituting the authority" of the MBTA is "the service area of the authority consisting of the 14 cities and towns, the 51 cities and towns, and other served communities," which are all defined terms under the statute). Dracut is included under the "other served communities" within the "area constituting the authority" of the MBTA, id., as well as the Lowell Regional Transit Authority, under M.G.L. c. 161B § 2. "The area constituting the authority and the inhabitants thereof are... a body politic and corporate, and a political subdivision of the commonwealth, under the name of Massachusetts Bay Transportation Authority." M.G.L. c. 161A § 2. The MBTA's organic statute provides that "no person shall, on the grounds of ... handicap, be denied participation in, or the benefits of, or be otherwise subjected to discrimination under any program or activity administered or operated by or for the authority." M.G.L. c. 161A § 5(a). Within the MBTA's statutory authority is the power to "conduct research ... experimentation... and development, in cooperation with the [mass transit division within the] department [of transportation], and other governmental agencies and private organizations when appropriate, with regard to mass transportation ... services." M.G.L. c. 161A § 3(l).

On October 4, 2016, Mr. Theodore created an account on Uber's website and downloaded the app to his smartphone. None of the options presented for his desired destination included a wheelchair accessible vehicle, and after doing more research, Mr. Theodore concluded that this service was not available and deleted the app from his phone. On July 12, 2018, after hearing about the availability of Uber wheelchair accessible vehicles, Mr. Theodore logged onto the website and began to "sign-up" again; however, he did not complete the process once he determined that Uber's wheelchair accessible vehicles were not available to him in Dracut.

B. Questions Presented

Uber's motion to compel arbitration presents the need to make determinations regarding who will decide the applicability of the Terms and Conditions of the account agreement which Mr. Theodore created on October 4, 2016.2

These determinations will be applicable both to Mr. Theodore and Access with Success.3

II. STANDARD OF REVIEW

A party seeking to compel arbitration "must demonstrate that a valid agreement to arbitrate exists, that the movant is entitled to invoke the arbitration clause, that the other party is bound by that clause, and that the claim asserted comes within the clause's scope." Soto-Fonalledas v. Ritz-Carlton San Juan Hotel Spa & Casino, 640 F.3d 471, 474 (1st Cir. 2011).

Section 2 of the Federal Arbitration Act provides that an arbitration clause in a written contract "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. Congress passed the FAA to put into place a "policy favoring arbitration." AT&T Mobility, LLC v. Concepcion, 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011). Nevertheless, "the FAA does not require parties to arbitrate when they have not agreed to do so." Cullinane v. Uber Techs., Inc., 893 F.3d 53, 60 (1st Cir. 2018) (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (internal quotation marks omitted)).

III. APPLICABILITY OF THE "TERMS AND CONDITIONS"

In answering whether or not the claims raised by Mr. Theodore and Access with Success should be resolved by arbitration, I first address the question "whether ... there exists a written agreement to arbitrate." Lenfest v. Verizon Enter. Solutions, LLC, 52 F.Supp.3d 259, 262-63 (D. Mass. 2014). "The burden of making th[e] showing [that there is a written agreement to arbitrate] lies on the party seeking to compel arbitration." Id. (citing Dialysis Access Ctr., LLC v. RMS Lifeline, Inc., 638 F.3d 367, 375 (1st Cir. 2011)). Plainly there is such a written contract here. See note 2, supra. However, if such a written contract containing the arbitration agreement was never binding on the plaintiffs, its arbitration clause cannot be enforced against them.

When determining whether the parties agreed to arbitrate, courts apply "ordinary state-law principles that govern the formation of contracts." Cullinane, 893 F.3d at 61 (citing First Options of Chi., Inc., v. Kaplan, 514 U.S. 938 944, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995)).

In Massachusetts, "[r]easonably conspicuous notice of the existence of contract terms and unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility." Id. (emphasis added) (citing Ajemian v. Yahoo! Inc., 83 Mass.App.Ct. 565, 987 N.E.2d 604, 612 (2013)).4 With that principle in mind, the Massachusetts Appeals Court in Ajemian has outlined a two-step inquiry, endorsed and applied by the First Circuit in Cullinane, to determine enforceability of clauses5 in online agreements. Id. at 62. Consequently, here I must first determine whether the contract terms were "reasonably communicated to the plaintiffs." Ajemian, 987 N.E.2d at 612. Second, I must determine whether "the record shows that those terms were `accepted and, if so, the manner of acceptance.'" Cullinane, 893 F.3d at 62 (citing Ajemian, 987 N.E. 2d at 613)).

A. Reasonable Communication to Mr. Theodore

As in Cullinane, Uber here does not argue that Mr. Theodore read the Terms and Conditions containing the arbitration clause, rather Uber "relies solely on a claim that its online presentation was sufficiently conspicuous as to bind the Plaintiffs whether or not they chose to click through the relevant terms." Id. In the "context of web-based contracts ... clarity and conspicuousness are a function of the design and content of the relevant interface." Id. (citing Meyer v. Uber Techs., Inc., 868 F.3d 66, 75 (2d Cir. 2017).

Under the provisions of the Massachusetts Uniform Commercial Code, "conspicuous" is defined as "written, displayed or presented [such] that a reasonable person against which it is to operate ought to have noticed it." M.G.L. c. 106 § 1-201(b)(10); cf. M.G.L. c. 156D § 1.40 (under the general law of corporations established by the Massachusetts Business Corporation Act, a reasonable person standard is applied to whether someone "should have noticed it").

Characteristics that should generally be considered when determining whether terms are sufficiently conspicuous include: "larger and contrasting font, the use of headings in capitals, or somehow setting off the term from the surrounding text by the use of symbols or other marks." Cullinane, 893 F.3d at 62 (citing M.G.L. c. 106 § 1-201(b)(10)). There are additional considerations "when the terms of the agreement are only available by following a link." Id. Under those circumstances, "the court must examine the language that was used to notify users that the terms of their arrangement could be found by following the link, how prominently displayed the link was, and any other information that would bear on the reasonableness of communicating [the terms]." Id. (citing Ajemian, 987 N.E.2d at 612).

In Cullinane, inquiry stopped after the First Circuit concluded that Uber did not reasonably communicate the terms of their agreement with Plaintiffs. Id. at 64. As a result, the First Circuit determined Plaintiffs were not able to provide unambiguous assent and therefore were not bound by the arbitration clause. Id.

The screen that a new user sees when he or she is signing up for the Uber account at issue here is somewhat different from that at issue in Cullinane. I am consequently faced with the question whether the difference is enough to change the outcome reached by the First Circuit in Cullinane.6

In Cullinane, a new user was not required to click the "Terms and Conditions" link in order to proceed to the next step of creating an account, even though that was the point at which the new user would be bound to those Terms and Conditions. The link to the Terms and Conditions (and the Privacy Policy) was located in a gray rectangular box, written in white text. Other terms on the page had similar features, such that the hyperlink was not accentuated by comparison. Id. at 63. For example, "`enter promo code' w[as] also written in bold and with a similarly sized font as the hyperlink ..." Id. The text of the "Terms and Conditions" link was not the largest font on the page. Id. Finally, the text used to put potential users on notice "that the creation of an Uber account would bind them to the linked terms was even less conspicuous than the" hyperlink to the "Terms and Conditions" themselves. Id.

Screenshot from Cullinane above

Screenshot from Theodore above

The only noteworthy differences between the features that relate to notice of the arbitration clause at issue here and those at issue in Cullinane are that (1) the links to the "Terms and Conditions" and "Privacy Policy" here appear in blue text against a white backdrop, whereas in Cullinane, those links were in white text against a black backdrop (as indicated by the wide, horizonal arrows at the bottom of the boxes shown above), and (2) the notification to new users that they would be bound by the "Terms and Conditions" (including arbitration) and "Privacy Policy" when they created their account here is in black text against a white backdrop, whereas in Cullinane, it was in gray text against a white backdrop (again, as indicated by the narrow, diagonal arrows in the boxes shown above).

Apart from those two differences, the relevant features present in Cullinane, as analyzed by the First Circuit, were operative at the time Mr. Theodore created his account. For example, some of the other terms on the page were still in the same color as the hyperlink, including "enter promo code," and the links to the "Terms and Conditions" and "Privacy Policy" were still not the largest text on the screen. The hyperlinks also continued to appear without any underlining. Finally, as before, the Terms and Conditions were linked at the bottom of the screen and did not require an affirmative acknowledgment7 from the prospective user that he or she was agreeing to be bound by the Terms and Conditions or the Privacy Policy by creating an Uber account.

In Cullinane, the First Circuit grounded its determination that Plaintiffs lacked sufficient notice of the agreement based on the characteristics of the hyperlink itself and how it compared to other text on the screen. The Court observed that hyperlinks were generally blue and underlined, and "the presence of other terms on the same screen with similar or larger size, typeface ..." did not render the agreement sufficiently conspicuous. While the Terms and Conditions in the agreement now before me appear in blue, but without underlining, the other characteristics that gave the First Circuit pause generally were found on the relevant Uber screen for Mr. Theodore.

The First Circuit has had one occasion to reflect further on the propositions for which Cullinane stands since it was decided in 2018. In Bekele v. Lyft, the court observed that Cullinane did not "substantially change" the applicable law and that the procedure for analyzing online contracts was and still is the Ajemian standard of "reasonably communicated and accepted." 918 F.3d 181, 187 (1st Cir. 2019). The First Circuit also took the position that the importance of analyzing reasonable notice in context was clear before Cullinane. Id.

In the meantime, the First Circuit's decision in Cullinane has received the attention of some legal scholars. It appears that Cullinane has been recognized as a paradigm of judicial reliance on analysis of the general context in answering questions regarding reasonable notice to consumers in online contracts of adhesion; but there appears to be little consideration in the academic literature of Cullinane's more particularized contextual requirements as a basis to satisfy adequate notice. See, e.g., Nancy Kim, Digital Contracts, 75 BUS. LAW. 1683, 1692 (Winter 2019-20) (noting the First Circuit's emphasis on the "design and content" of the screen in question); Kevin Conroy & John Shope, Look Before You Click: The Enforceability of Website and Smartphone App Terms and Conditions, 63 BOS. BAR. J. 23, 23-24 (Spring 2019) (observing the "complicated and fact-intensive" inquiry associated with `sign-in-wrap' agreements and Cullinane's finding of inadequate notice based on the interface design); Mark Budnitz, Touching, Tapping, and Talking: The Formation of Contracts in Cyberspace 43 NOVA L. REV. 235, 277 n. 414-15 (Spring 2019) ("Even if there were more than a few appellate-level cases, it is questionable whether they could provide helpful guidance for legislators. Courts decide issues concerning contract formation based on a detailed examination of the content and format of the specific screens presented to the consumer in the case before the court.") The First Circuit's specific directives on how courts in this Circuit are to address these inquiries and what specific circumstances should be emphasized are, in any event, binding upon me when addressing reasonable notice for sign-in-wrap agreements.

Cullinane plainly provided both high level contextual analysis and micro-analysis of particular elements of that context. Cullinane as a whole has been characterized negatively by Judge Gutierrez, of the Central District of California. West v. Uber Techs., No. CV 18-3001 PSG (GJSx), 2018 WL 5848903, at *4 (C.D. Cal. Sept. 5, 2018); see also In re. Uber Techs., Data Security Breach Litig. Brittany Durgin v. Rasier, LLC, No. CV 18-3169 PSG (GJSx), 2019 WL 6317770 at *4 (C.D. Cal. Aug. 19, 2019). With respect, I find Judge Gutierrez's view that "the Cullinane decision departs dramatically both from what other courts have found regarding Uber's registration process, and from the overall legal landscape regarding assent to online agreements" to be overstated. This overstatement appears to result from a failure to distinguish between the high level contextual analysis and the micro-analysis of particularized elements of the context. Nevertheless, in Rasier, 2019 WL 6317770 at *4, Judge Gutierrez adopted the Meyer approach, which was also expressly relied upon by Cullinane. Cullinane, 893 F.3d at 62, supra at 8 (citing Meyer).

In Meyer, the Second Circuit reversed and remanded the district court's denial of Uber's motion to compel arbitration, finding that a reasonably prudent smartphone user would understand the process of entering into contracts through smartphones apps. Id. at 77-79. The Meyer court specifically said that these users would recognize that "text that is highlighted in blue and underlined is hyperlinked to another webpage where additional information will be found." Meyer, 868 F.3d at 78. This approach essentially mirrors the First Circuit's focus in Cullinane. See also, Conroy at 23 ("This two-part test [from Ajemian and employed by the First Circuit in Cullinane] is consistent with the approach taken by other courts in the country. E.g., Meyer ..."). Indeed, the screen from Meyer appears to resemble the screen here closely. See generally Meyer, 868 F.3d at 81-82. Based on the guidance I have received from the First Circuit in Cullinane, I conclude the Terms and Conditions on the screen seen by Mr. Theodore when he created his Uber account were not conspicuous enough reasonably to communicate the existence or terms of the agreement. Therefore, Mr. Theodore cannot be bound by the mandatory arbitration provision.

B. Acceptance by Mr. Theodore

As a result of the want of legally sufficient notice to Mr. Theodore that under First Circuit law he was agreeing to be bound by the hyperlinked Terms and Conditions, which contained the mandatory arbitration clause at issue here, he could not have provided his "unambiguous consent to those terms." Cullinane, 893 F.3d at 64. Accordingly, Uber has not met its burden to justify compelling arbitration, and, under Cullinane, I must deny its motion seeking that relief because parties may not be compelled to arbitrate when they have not agreed to do so. See, supra, Cullinane, 893 F.3d at 60 (quoting Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Jr. Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)).

IV. CONCLUSION

For the reasons outlined above,

I DENY Uber's Motion [Dkt No. 20] to compel arbitration. This case will follow the ordinary course of civil litigation in this court. The Clerk shall set the matter for a scheduling conference to chart the course toward resolution of this case.