Jodi Duval v. Costco Wholesale Corporation

Background

Jodi Duval sued Costco Wholesale Corporation, Kurt “Doe,” and Does 1–25, alleging negligence and premises liability based on a slip-and-fall at a Costco store. Duval testified that she was at Costco picking up items as part of an Instacart assignment. Instacart is described as a technology company that connects customers with retail partners and personal shoppers. Costco is an Instacart retail partner.

Costco submitted an Independent Contractor Agreement that it said Duval accepted while becoming an Instacart shopper. The agreement contains an arbitration clause requiring final and binding arbitration of “any and all disputes and claims between you and any third party retailer arising out of or related to the Services performed under this Agreement.” The agreement states that the Federal Arbitration Act, a federal law governing arbitration agreements, applies.

Analysis

The court applied the Federal Arbitration Act because the agreement involved interstate commerce. The court considered whether an arbitration agreement existed between the parties and whether it covered the dispute. Duval did not otherwise argue that her claims fell outside the arbitration clause.

On authentication, Duval argued that Costco had not sufficiently proven that the electronic signature on the agreement was hers. The court found that Costco met its burden. An Instacart litigation operations lead submitted a declaration stating that Duval completed the sign-up process and signed the relevant documents on September 1, 2019. The records also showed that the same phone number and internet address accessed and signed the W-9 form, privacy policy, and agreement within one minute. The court found this circumstantial evidence sufficient, particularly because Duval did not state that she never signed the agreement, did not dispute that the phone number was hers, and provided no more specific facts showing a genuine dispute.

Duval also argued that the arbitration provision was unconscionable, meaning unfairly imposed or unreasonably one-sided. She argued that “click” agreements are disfavored and unconscionable. The court rejected the argument, finding no facts showing that the agreement was a “clickwrap” or “browsewrap” agreement and noting that Duval appeared to refer to a different agreement and proceeding when discussing “Uber” defendants. The court concluded that Duval had not met her burden to establish unconscionability.

Disposition

The court granted Costco’s motion to compel arbitration. It stayed the action pending arbitration of all claims that an arbitrator determines are subject to the parties’ arbitration agreement. The parties were ordered to provide joint status updates every 90 days from the date of the order. Judge Thomas S. Hixson issued the order.