Davitashvili v. Grubhub

23-521-cv (L)
Davitashvili v. Grubhub
In the
United States Court of Appeals
for the Second Circuit
A UGUST TERM 2023
Nos. 23-521-cv (L); 23-522-cv (Con)
MARIAM D AVITASHVILI and ADAM B ENSIMON, individually and on
behalf of all others similarly situated,
Plaintiffs-Appellees,
P HILIP E LIADES , JONATHAN S WABY , JOHN B OISI , NATHAN O BEY,
Consolidated Plaintiffs-Appellees,
v.
G RUBHUB INC., DBA Seamless, POSTMATES INC., U BER TECHNOLOGIES ,
INC., in its own right and as parent of wholly owned subsidiary Uber
Eats,
Defendants-Appellants.*
* The Clerk of Court is directed to amend the caption as set forth
above.

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23-521-cv (L)
Davitashvili v. Grubhub
On Appeal from the United States District Court for the Southern
District of New York
A RGUED: D ECEMBER 15, 2023
D ECIDED: MARCH 13, 2025
Before: C ABRANES , S ULLIVAN, and PÉREZ, Circuit Judges.
Grubhub Inc., Postmates Inc., and Uber Technologies, Inc.
(jointly, “Defendants”) moved to compel arbitration of a putative
antitrust class action. The question presented is whether the United
States District Court for the Southern District of New York (Lewis A.
Kaplan, Judge) erred in denying the motion of Defendants to compel
arbitration. We consider (1) whether an agreement to arbitrate was
made between Defendants and Plaintiffs; (2) whether, in the
circumstances presented, arbitrability is an issue for the Court or the
arbitrator to resolve; and (3) whether the relevant arbitration clauses
are enforceable.
Defendants provide online “platforms”—websites or mobile
applications—for ordering restaurant meals. Customers place

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restaurant orders on a platform for pickup or delivery, and restaurants
use the platform to fill those orders. The restaurants agree not to sell
meals at lower prices “off-platform”—that is, through channels other
than Defendants’ web and mobile applications. These agreements are
known as no-price competition clauses, or “NPCCs.”
This appeal arises from a putative class action against
Defendants alleging violations of Section 1 of the Sherman Antitrust
Act of 1890 and its state analogues. The case is brought by three classes
of restaurant customers: customers who purchased “takeout” or
delivery goods directly from a restaurant subject to a Defendant’s
NPCC; customers who purchased dine-in goods from a restaurant
subject to a Defendant’s NPCC; and customers who purchased goods
through a non-defendant’s platform from a restaurant subject to a
Defendant’s NPCC.
Defendants moved to compel arbitration for the customers who
have used Defendants’ platforms (jointly, “Plaintiffs”), on the basis of
the arbitration clauses in Defendants’ respective “Terms of Use.” On
March 16, 2023, the District Court denied Defendants’ motion to
compel arbitration, holding that the scope of the arbitration clauses
presented issues for the Court, rather than the arbitrator, to resolve,
and that they did not apply to Plaintiffs’ claims because the claims
lacked “any nexus” to Defendants’ Terms of Use. This appeal
followed.
We now AFFIRM the District Court’s order in part insofar as it
ruled that the threshold question of arbitrability for Plaintiffs’ claims

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against Grubhub is for the court to decide and that Grubhub’s
arbitration clause does not apply to Plaintiffs’ antitrust claims against
Grubhub, REVERSE the District Court’s order in part insofar as it
ruled that Grubhub failed to establish that it formed an agreement to
arbitrate with Plaintiffs and that the threshold question for Plaintiffs’
claims against Uber and Postmates is for the court to decide, and
REMAND the cause for further proceedings consistent with this
opinion.
Judge Pérez concurs in full in the judgment of the Court and files
a separate opinion. Judge Sullivan concurs in part and dissents in part,
concurring with the judgment of the Court with respect to Parts II-A
and II-B and dissenting with respect to Part II-C.
Z ACHARY D. TRIPP , Washington, DC (David
J. Lender, Eric S. Hochstadt, New York, NY,
on the brief), Weil, Gotshal & Manges LLP,
Washington, DC for Defendant-Appellant
Grubhub Inc.
A DAM G. U NIKOWSKY , New York, NY
(Elizabeth B. Deutsch, on the brief), Jenner &
Block LLP, Washington, DC for Defendants-
Appellants Uber Technologies, Inc. and
Postmates Inc.

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S TEPHEN LAGOS , New York, NY (Edward
Normand, Velvel (Devin) Freedman, on the
brief), Freedman Normand Friedland LLP,
New York, NY for Plaintiffs-Appellees.
JOSÉ A. C ABRANES , Circuit Judge:
Grubhub Inc., Postmates Inc., and Uber Technologies, Inc.
(jointly “Defendants”) moved to compel arbitration of a putative
antitrust class action. The question presented is whether the United
States District Court for the Southern District of New York (Lewis A.
Kaplan, Judge) erred in denying the motion of Defendants to compel
arbitration. We consider (1) whether an agreement to arbitrate was
made between Defendants and Plaintiffs; (2) whether, in the
circumstances presented, arbitrability is an issue for the Court or the
arbitrator to resolve; and (3) whether the relevant arbitration clauses
are enforceable.
Defendants provide online “platforms”—websites or mobile
applications—for ordering restaurant meals.1 Customers place
1 Grubhub defines a “Mobile Application” as a “software to access
Grubhub’s websites, technology platforms, and related online and mobile
services via a mobile device.” Appendix (“A”) 134. While Uber and
Postmates do not define the term “mobile application” in their Terms of Use,
see infra note 5, we understand that the Uber and Postmates mobile
applications have the same function and have similar characteristics as the
Grubhub mobile application. “The term online platform is not defined in [any]

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restaurant orders on a platform for pickup or delivery, and restaurants
use the platform to fill those orders. The restaurants agree not to sell
meals at lower prices “off-platform”—that is, through channels other
than Defendants’ web and mobile applications. These agreements are
known as no-price competition clauses, or “NPCCs.”2
This appeal arises from a putative class action against
Defendants alleging violations of Section 1 of the Sherman Antitrust
Act of 1890 and its state analogues.3 The case is brought by three
classes of restaurant customers: customers who purchased “takeout”
or delivery goods directly from a restaurant subject to a Defendant’s
NPCC; customers who purchased dine-in goods from a restaurant
subject to a Defendant’s NPCC; and customers who purchased goods
through a non-defendant’s platform from a restaurant subject to a
Defendant’s NPCC.4
Defendants moved to compel arbitration for the customers who
have used Defendants’ platforms (jointly “Plaintiffs”), on the basis of
federal statute. An online platform generally refers to any computer
application or service that provides digital content and services on the
internet.” C ONG . R SCH . SERV., R47662, D EFINING AND R EGULATING ONLINE
P LATFORMS (2023).
2 A-20 (¶ 1).
3 A-20 (¶ 1), 49-73 (¶¶ 188-214).
4 A-65-66 (¶¶ 173-75).

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the arbitration clauses in Defendants’ respective “Terms of Use.”5 On
March 16, 2023, the District Court denied Defendants’ motion to
compel arbitration, holding that the scope of the arbitration clauses
presented issues for the Court, rather than the arbitrator, to resolve,
and that they did not apply to Plaintiffs’ claims because the claims
lacked “any nexus” to Defendants’ Terms of Use.6 This appeal
followed. We now AFFIRM the District Court’s order in part insofar
as it ruled that the threshold question of arbitrability for Plaintiffs’
claims against Grubhub is for the court to decide and that Grubhub’s
arbitration clause does not apply to Plaintiffs’ antitrust claims against
Grubhub, REVERSE the District Court’s order in part insofar as it
ruled that Grubhub failed to establish that it formed an agreement to
arbitrate with Plaintiffs and that the threshold question for Plaintiffs’
claims against Uber and Postmates is for the court to decide, and
REMAND the cause for further proceedings consistent with this
opinion.
5 Defendants’ Terms of Use refer to their relationships with
customers. Thus, Grubhub defines its Terms of Use as “a contract between
[the customer] and [Grubhub] that governs [the customer’s] access and use
of the Platform and Services.” A-124. Uber states that its Terms of Use
“govern [the customer’s] access or use . . . of the multi-sided digital
marketplace platform . . . and any related content or services . . . made
available . . . by Uber.” A-193. Because Postmates is an Uber subsidiary,
Uber’s Terms of Use apply equally to Postmates. See A-170-173.
6 Davitashvili v. Grubhub Inc., No. 20-cv-3000, 2023 WL 2537777, at *11-
12 (S.D.N.Y. 2023) (Lewis A. Kaplan, Judge); see supra note 5.

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I. BACKGROUND
Plaintiffs allege that Defendants fixed restaurant meal prices by
entering into NPCCs with restaurants in which the restaurants agreed
not to charge lower prices off-platform. Plaintiffs claim that these
NPCCs have caused them to pay artificially high prices for restaurant
meals. They seek injunctive relief and damages based on both their
direct purchases from NPCC-bound restaurants through Defendant
platforms and their indirect purchases from NPCC-bound restaurants
through non-defendant platforms.
Defendants jointly moved to compel arbitration, arguing that
their platforms’ Terms of Use contained arbitration clauses. On March
16, 2023, the District Court denied the motion to compel.7 The Court
first determined that Plaintiffs agreed to Uber’s and Postmates’s Terms
of Use, but not Grubhub’s. Next, the Court held that the enforceability
of the arbitration clauses was a question for the Court, rather than the
arbitrator, to resolve. The Court concluded that the arbitration clauses
in Defendants’ Terms of Use did not apply to Plaintiffs’ claims because
the claims “lacked any nexus to the agreement containing the clause.”8
Defendants appealed the District Court’s order denying the
motions to compel arbitration under 9 U.S.C. § 16, which allows
interlocutory appeals from orders denying motions to compel
arbitration.
7 Davitashvili, 2023 WL 2537777.
8 Id. at *10.

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II. DISCUSSION
The Federal Arbitration Act (“FAA”) reflects “both a liberal
federal policy favoring arbitration and the fundamental principle that
arbitration is a matter of contract.”9 Specifically, Section 2 of the FAA,
in relevant part, guarantees that “[a] written provision in . . . a contract
evidencing a transaction involving commerce to settle by arbitration a
controversy thereafter arising out of such contract . . . shall be valid,
irrevocable, and enforceable, save upon such grounds as exist at law
or in equity for the revocation of any contract.”10 Because Sections 3
and 4 of the FAA require courts to “respect and enforce the parties’
chosen arbitration procedures,” the courts must “place[] arbitration
agreements on an equal footing with other contracts.”11 The Supreme
Court has explained that courts must “rigorously enforce arbitration
agreements according to their terms.”12 Under Section 4, a party may
move to compel arbitration in accordance with an arbitration
agreement.13 We review de novo a district court’s denial of a motion to
compel arbitration.14
9 AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (internal
quotation marks and citations omitted).
10 9 U.S.C. § 2.
11 Epic Sys. Corp. v. Lewis, 584 U.S. 497, 506 (2018); Rent-A-Center, W.,
Inc. v. Jackson, 561 U.S. 63, 67 (2010) (citations omitted).
12 Am. Express Co. v. Italian Colors Rest., 570 U.S. 228, 232 (2013)
(internal quotation marks and citation omitted).
13 See 9 U.S.C. § 4.
14 Lloyd v. J.P. Morgan Chase & Co., 791 F.3d 265, 269 (2d Cir. 2015).

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We hold, first, that Plaintiffs agreed to arbitrate with
Defendants. Next, we hold that in the circumstances presented here,
the Court should resolve questions of “arbitrability”— that is, whether
the instant disputes are subject to arbitration—with respect to
Grubhub, while the arbitrator should resolve questions of arbitrability
with respect to Uber and Postmates. We conclude that Grubhub’s
arbitration agreement does not apply to Plaintiffs’ antitrust claims.
A. Plaintiffs Agreed to Arbitrate with Defendants
To determine whether parties agreed to arbitrate, courts apply
a “standard similar to that applicable for a motion for summary
judgment,” that is, courts must “consider all relevant, admissible
evidence submitted by the parties” and must “draw all reasonable
inferences in favor of the non-moving party.”15 In doing so, the court
applies “ordinary state-law principles that govern the formation of
contracts”—here, the state-law principles of New York.16 The party
seeking arbitration bears the initial burden of demonstrating that an
agreement to arbitrate exists.17
15 Nicosia v. Amazon.com, Inc., 834 F.3d 220, 229 (2d Cir. 2016)
(quotation marks and citations omitted).
16 First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995). The
parties do not dispute that New York state law applies. See Pls. Br. at 14-15;
Grubhub Br. at 24 (“It is undisputed that New York law governs contract
formation and contract interpretation in this case.”).
17 Zachman v. Hudson Valley Fed. Credit Union, 49 F.4th 95, 101-02 (2d
Cir. 2022).

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Before we address whether the putative agreements require
arbitration of the disputes at issue, we first need to inquire whether an
agreement to arbitrate between the parties exists, and whether
questions of “arbitrability” are for the court or the arbitrator to
decide.18 We address these questions in turn.
Defendants’ Terms of Use contain arbitration clauses. No party
disputes that Plaintiffs assented to the Terms of Use of Uber and
Postmates.19 Plaintiffs argue, however, that they did not affirmatively
assent to Grubhub’s Terms of Use. We disagree.
Under New York law, when “an offeree does not have actual
notice of certain contract terms, he is nevertheless bound by such terms
if he is on inquiry notice of them and assents to them through conduct
that a reasonable person would understand to constitute assent.”20 In
determining whether an offeree has inquiry notice of a contract’s
terms, New York courts evaluate “whether the term was obvious and
whether it was called to the offeree’s attention”—an analysis that
18 See Coinbase, Inc. v. Suski, 602 U.S. 143, 148-149 (2024) (laying out
this framework).
19 See Davitashvili, 2023 WL 2537777, at *6.
In the proceedings below, the District Court held that, with respect to
Plaintiff-Appellee Bensimon, Uber had not satisfied its initial burden that
Bensimon had agreed to an arbitration clause. We do not address this
question with respect to Bensimon because Uber does not appeal the District
Court’s Order as to Bensimon.
20 Starke v. SquareTrade, Inc., 913 F.3d 279, 289 (2d Cir. 2019).

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“often turns on whether the contract terms were presented to the
offeree in a clear and conspicuous way.”21
The same principles apply to online contracts, where “we look
to the design and content of the relevant interface22 to determine if the
contract terms were presented to the offeree in way that would put her
on inquiry notice of such terms.”23 Factors include whether the terms
of use are “spatially coupled” with the checkout button, whether the
entire screen is visible at once without scrolling, whether the checkout
button is “temporally coupled” with the hyperlink24 to the terms of
use, and whether the language is clear.25
21 Id.
22 The term “interface” includes websites and smartphone
applications. Meyer v. Uber Techs., Inc., 868 F.3d 66, 75 (2d Cir. 2017).
23 Id.
24 “An electronic link providing direct access from one distinctively
marked place in a hypertext or hypermedia document to another in the same
or a different document.” Merriam-Webster Online, https://www.merriam-
webster.com/dictionary/hyperlink.
25 Id. at 292 (citing Meyer, 868 F.3d at 78 ); see also id. at 291 n.8 (“The
Meyer Court applied California law to the contract formation question, but
noted that New York and California apply substantially similar rules for
determining whether the parties have mutually assented to a contract term.”
(quotation marks omitted)).

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13
Here, we conclude that Grubhub’s web and mobile application
interfaces—screenshots of which were included in the amended
complaint—gave reasonable notice of the arbitration provision.26
The mobile application checkout page of Grubhub is akin to the
one we found, in 2017, to provide inquiry notice in Meyer v. Uber
Technologies, Inc. As in Meyer, the hyperlink to the Terms and
Conditions “appears directly below” the checkout button.27 In
addition to being spatially coupled with the checkout button, the
notice is temporally coupled because it is presented on the same screen
“at a place and time that the consumer will associate with the initial
purchase or enrollment”—that is, on the purchase screen itself.28
Finally, the phrase “By placing your order, you agree,” is substantially
identical to the “By creating an Uber account, you agree” language in
Meyer that we held to be “a clear prompt directing users to read the
Terms and Conditions and signaling that their acceptance of the
benefit of registration would be subject to contractual terms.”29 In
short, we conclude that “a reasonably prudent smartphone user”
would have notice of Grubhub’s Terms of Use for its mobile app.30
26 See A-120 (Grubhub mobile interface); 122 (Grubhub web interface).
27 Meyer, 868 F.3d at 78.
28 Id. (quoting Schnabel v. Trilegiant Corp., 697 F.3d 110, 127 (2d Cir.
2012)).
29 Id. at 79.
30 Id.

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Grubhub’s web interface also puts users on inquiry notice.
Plaintiffs argue that Grubhub’s web interface is akin to the one we
found wanting in Nicosia v. Amazon.com, Inc. While the Grubhub web
interface is not as streamlined as its mobile app, the page is less
cluttered than the webpage in Nicosia.31 Additionally, the Grubhub
web interface has hyperlinks to Grubhub’s Terms of Use that are both
spatially and temporally coupled with the checkout button. And the
relevant language (“By placing your order, you agree”) is the same as
the mobile application’s.32 These features, taken together, are enough
to provide inquiry notice to a reasonably prudent web user.33
Thus, we hold that there is a valid agreement to arbitrate
between Plaintiffs and Grubhub.
31 Compare A-122 with Nicosia, 834 F.3d at 241.
32 A-122.
33 We also reject Plaintiffs’ argument that Grubhub failed to establish
what its mobile and web interfaces looked like at the time Plaintiffs placed
their respective orders. Although Grubhub’s declaration did not specify the
exact date on which the screenshots were taken, the only plausible reading
of the declaration is that the screenshots depict the mobile application and
website as they appeared at all times relevant to the complaint.

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B. For Grubhub, Arbitrability Is for the Court to Decide. For
Uber and Postmates, Arbitrability Is for the Arbitrator to
Decide.
When a party moves to compel arbitration under Section 4, the
gateway question of “arbitrability” arises.34 Thus, our next inquiry is
related to the question of arbitrability, or, in other words, whether an
arbitration agreement covers a specific issue. First, we need to
determine whether the court or the arbitrator should be the decision-
maker on the question of arbitrability. Second, if it is for the court to
make that determination, we inquire whether the issues are within the
scope of the arbitration agreement and if the agreement is enforceable.
We review de novo a district court’s determination “whether the
issue of arbitrability is for the court or for the arbitrator.”35 The
Supreme Court has instructed us that “[c]ourts should not assume that
the parties agreed to arbitrate arbitrability unless there is clear and
unmistakable evidence that they did so.”36 The FAA provides that the
issue of arbitrability should presumptively be resolved by the courts.37
Parties can include in the arbitration agreement a provision
delegating the question of arbitrability to the arbitrator. This is usually
34 Gingras v. Think Fin., Inc., 922 F.3d 112, 126 (2d Cir. 2019) (quoting
Rent-A-Center, W., Inc., 561 U.S. at 68–69).
35 Bell v. Cendant Corp., 293 F.3d 563, 565 (2d Cir. 2002).
36 First Options, 514 U.S. at 944 (alterations adopted) (quotation marks
and citation omitted).
37 BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 34 (2014); see also
9 U.S.C. § 2.

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called a “delegation clause” or a “delegation provision.” When parties
“explicitly incorporate rules that empower an arbitrator to decide
issues of arbitrability, the incorporation serves as clear and
unmistakable evidence of the parties’ intent to delegate such issues to
an arbitrator.”38
With respect to Grubhub, the District Court correctly found that the
question of arbitrability remains with the Court. Grubhub's arbitration
clause clearly and unmistakably states that “issues related to the scope,
validity, and enforceability of this Arbitration Agreement are for a
court to decide.”
As for Uber and Postmates, the District Court denied their motion
to compel arbitration, concluding that the dispute belonged in federal
court because Plaintiffs had mounted a convincing challenge to the
delegation clause contained in the agreements.39 We disagree.
“When the parties’ contract delegates the arbitrability question to
an arbitrator, the courts must respect the parties’ decision as embodied
in the contract” pursuant to §§ 2, 3, and 4 of the FAA, “unless
[Plaintiffs] challenged the delegation provision specifically.”40 The
District Court found that Plaintiffs had challenged the delegation
clause by mentioning it in a footnote that reads: “For the avoidance of
doubt, the Platform Plaintiffs challenge the validity of the Delegation
38 Contec Corp. v. Remote Sol., Co., 398 F.3d 205, 208 (2d Cir. 2005).
39 Davitashvili, 2023 WL 2537777, at *9.
40 Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. 63, 65 (2019);
Rent-A-Center, W., Inc., 561 U.S. at 72 (emphasis added).

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Clause itself, on the grounds that it would be unconscionable to permit
Postmates to enforce that clause.”41
But this brief aside does not allow Plaintiffs to evade the
agreement’s delegation clause. “An argument mentioned only in a
footnote” is not “adequately raised or preserved for appellate
review.”42 All the more so here, where Plaintiffs did not append any
argument to their conclusory assertion of the clause’s
unconscionability.43
In any event, Plaintiffs fail to challenge the clause with sufficient
specificity. Plaintiffs argue that arbitration in general would be
unconscionable. Our precedents require something more: Plaintiffs
must show why allowing an arbitrator—as opposed to a court—to
decide the question of arbitrability would be unconscionable.44 In
41 Davitashvili, 2023 WL 2537777, at *9; see A-221.
42 City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d
Cir. 2011).
43 See Niagara Mohawk Power Corp. v. Hudson River-Black River
Regulating Dist., 673 F.3d 84, 107 (2d Cir. 2012) (“Merely mentioning or
simply stating an issue in an appellate brief is insufficient to preserve it for
our review: an appellant must advance an argument, and we generally will
decline to consider issues that are not sufficiently argued.”) (alterations
adopted and quotation marks omitted).
44 Compare Rent-A-Center, 561 U.S. 63 (declining to consider plaintiff’s
unconscionability challenges because none were specific to the delegation
provision), with Gingras v. Think Fin., Inc., 922 F.3d 112 (2d Cir. 2019)
(plaintiffs alleged that the delegation provision was fraudulent).

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Gingras, for instance, the plaintiffs alleged that a tribe-affiliated
payday lender had set up an arbitration scheme governed by tribal law
where the lender itself could influence the contents of tribal law and
where tribal courts had “broad authority” to set aside any arbitral
award.45 According to the plaintiffs, the entire process, including the
delegation clause, was designed to funnel arbitration into a “sham”
tribunal and “shield” any award from federal court review.46 Because
this was a “specific attack” on the delegation clause itself, we
concluded that arbitrability was an issue for the courts.47 Here, by
contrast, Plaintiffs have not shown that it would be unfair to defer to
an arbitrator on that question.
Because Plaintiffs have not specifically challenged the delegation
clause, we hold that their claims against Uber and Postmates should
be sent to an arbitrator to determine whether those claims are
arbitrable.
C. Grubhub’s Arbitration Clause Does Not Apply to Plaintiffs’
Claims
Plaintiffs argue that even if they can be said to have agreed to
arbitrate with Grubhub, their antitrust claims do not fall within the
scope of the arbitration clause. We agree.
45 See Gingras, 922 F.3d at 118, 126; see also Joint Appendix at 55 (¶ 131),
Gingras, 922 F.3d 112 (No. 16-2019), ECF No. 102.
46 Joint Appendix at 55 (¶ 131), Gingras, 922 F.3d 112 (No. 16-2019),
ECF No. 102.
47 Gingras, 922 F.3d at 126.

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In determining whether the parties’ arbitration agreement
covers a particular claim—a question we review de novo—we “focus[]
on the factual allegations in the complaint rather than the legal causes
of action asserted.”48 The FAA’s scope is limited to “agreements to
arbitrate controversies that ‘arise out of’ the parties’ contractual
relationship”—that is, controversies that were "cause[d]” by the
relationship.49
Grubhub’s arbitration provision states:
You and Grubhub agree that all claims, disputes, or
disagreements that may arise out of the interpretation or
performance of this Agreement or payments by or to
Grubhub, or that in any way relate to your use of the
Platform, the Materials, the Services, and/or other
content on the Platform, your relationship with
Grubhub, or any other dispute with Grubhub, (whether
based in contract, tort, statute, fraud, misrepresentation,
or any other legal theory) (each, a ‘Dispute’) shall be
submitted exclusively to binding arbitration. Dispute
shall have the broadest possible meaning. This includes
claims that arose, were asserted, or involve facts
48 Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 36 (2d Cir. 2002)
(quoting Genesco, Inc. v. T. Kakiuchi & Co., 815 F.2d 840, 846 (2d Cir. 1987)).
49 Viking River Cruises, Inc. v. Moriana, 596 U.S. 639, 652 n.4 (2022)
(noting that the “‘arising out of’ language normally refers to a causal
relationship”); see also 9 U.S.C. § 2 (referring to controversies “arising out of”
arbitration contracts or transactions).

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occurring before the existence of this or any prior
Agreement as well as claims that may arise after the
termination of this Agreement. This Mutual Arbitration
Agreement is intended to be broadly interpreted.50
Grubhub argues that Plaintiffs’ claims are related to Plaintiffs’
“access and use of Grubhub” and thus fall within the scope of the
arbitration provision.51 Not so. Plaintiffs’ claims—that Defendants
violated federal and state antitrust law by inducing restaurants to
agree to NPCCs—have nothing to do with Plaintiffs’ individualized
use of Grubhub’s website or mobile application. Rather, their claims
concern their access and use of other platforms and restaurants; they
allege that they pay higher prices when ordering from these entities
because of Grubhub’s anticompetitive practices.52 And to the extent
Plaintiffs’ use of Grubhub helped improve Grubhub’s market share,
thereby enabling Grubhub to act anticompetitively, this alleged
relation is both too speculative and too attenuated to qualify as a
“cause” of Plaintiffs’ antitrust claims. For example, in rejecting the
applicability of an employment arbitration agreement to a plaintiff’s
ERISA claims, we noted in Cooper v. Ruane Cunnif & Goldfarb Inc. that
“others who were never [defendant’s] employees could have brought
50 A-143.
51 Grubhub Br. at 60.
52 See A-21-22 (¶¶ 7-8), 65-67 (¶¶ 170-75, 180(b)).

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claims identical to those stated by [plaintiff].”53 So too here. Plaintiffs
who never used Grubhub are just as much class members as those who
have. Indeed, Grubhub does not dispute that at least some plaintiffs
have “well-plead claims despite never having used any of the
[D]efendants’ platforms.”54 As the District Court put it, the fact that
any members of the three classes of plaintiffs used Grubhub’s platform
is “purely coincidental.”55
Because Grubhub’s arbitration provision does not apply to
Plaintiffs’ claims, the District Court—not an arbitrator—should
adjudicate the merits of the complaint.
CONCLUSION
To summarize:
1. Plaintiffs assented to Uber’s, Postmates’s, and Grubhub’s
Terms of Use. Therefore, agreements to arbitrate were
formed between Plaintiffs and Defendants.
2. Grubhub’s Terms of Use clearly and unmistakably delegates
arbitrability questions to the court.
53 990 F.3d 173, 183 (2d Cir. 2021).
54 Davitashvili, 2023 WL 2537777, at *10; see Grubhub Br. at 58.
55 Davitashvili, 2023 WL 2537777, at *10. Because we hold that
Grubhub’s arbitration provision does not apply to Plaintiffs’ claims, we do
not reach whether the provision is unconscionable or otherwise
unenforceable.

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3. Uber’s and Postmates’s Terms of Use delegate arbitrability
questions to the arbitrator, and Plaintiffs failed to challenge
the delegation provision specifically. Thus, Plaintiffs’ claims
against Uber and Postmates should be sent to an arbitrator to
determine, inter alia, whether those claims are arbitrable.
4. Grubhub’s arbitration clause does not apply to Plaintiffs’
antitrust claims against Grubhub because Plaintiffs’ antitrust
claims do not arise out of the Terms of Use.
For the foregoing reasons, we AFFIRM in part and REVERSE
in part the District Court’s judgment, and we REMAND the cause to
the District Court to adjudicate the merits of the complaint with
respect to Grubhub and for further proceedings consistent with this
opinion.

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MYRNA PÉREZ , Circuit Judge, concurring:
The specifics of this dispute concern a distinctly modern form of
online contract formation, but this is just another skirmish in a long-
running battle over the enforcement of arbitration agreements.1 I join
this Court’s well-reasoned opinion in full. I write separately to
emphasize two important limits on merchants’ ability to force
consumers into arbitration that we recognize and reinforce in our
holdings as to Grubhub.
1 See, e.g., Cedeno v. Sasson, 100 F.4th 386, 400 (2d Cir. 2024) (declining to enforce arbitration
agreements that waived “statutory remedies under” ERISA); Specht v. Netscape Commc’ns
Corp., 306 F.3d 17, 35 (2d Cir. 2002) (holding that downloading software did not constitute
acceptance of terms and therefore plaintiffs were not bound by arbitration clause contained
therein); Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840 (1987) (holding arbitration
agreement was enforceable and holding certain claims were covered by arbitration
agreement but others were not); World Brilliance Corp. v. Bethlehem Steel Co., 342 F.2d 362,
364–66 (2d Cir. 1965) (holding that parties validly agreed to arbitrate defense of waiver).
This warfare metaphor is deployed frequently in discussions of the last few decades of
litigation about arbitration, which may reflect the persistence of the stakeholders on both
sides of the issue. See, e.g., Ferrell v. SemGroup Corp., 485 F. Supp. 3d 1334, 1336 n.1 (N.D.
Okla. 2020) (“[T]his case is only the latest skirmish in a running battle between interest
groups in employment litigation, with one side looking to weaponize the sweeping effect
of mandatory individual arbitration while the other side seeks to neutralize it.” (quoting
Bock v. Salt Creek Midstream LLC, No. 19-1165, 2020 WL 3989646, at *1 (D.N.M. July 15,
2020))), rev'd and remanded sub nom. Ferrell v. Cypress Env't Mgmt.-TIR, LLC, No. 20-5092,
2021 WL 5576677 (10th Cir. Nov. 30, 2021); Becker v. Delek US Energy, Inc., No. 20-CV-285,
2020 WL 4604544, at *1 (M.D. Tenn. Aug. 11, 2020) (same); GGNSC Chestnut Hill LLC v.
Schrader, No. CV 16-10525, 2018 WL 1582555, at *1 (D. Mass. Mar. 31, 2018) (“This case is an
example of the many skirmishes that continue along the recently intensifying—but
wavering—battle line between those who support resolution of disputes by arbitration and
those who support resolution of disputes by conventional litigation.”), aff'd sub nom.
GGNSC Admin. Servs., LLC v. Schrader, 958 F.3d 93 (1st Cir. 2020); see also David Horton,
Arbitration About Arbitration, 70 Stan. L. Rev. 363, 369 & n.39 (2018) (discussing whether
certain regulatory action “may be the next battleground in the ‘arbitration war’” (quoting
Editorial, The Arbitration War, N.Y. Times (Nov. 26, 2010),
https://www.nytimes.com/2010/11/27/opinion/27sat1.html)).

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2
First, traditional contract law principles apply equally to
contracts formed online and to arbitration clauses within such
contracts. The relevant principles hold that one cannot assent to a
contract term unless one has at least inquiry notice of the term, which
“turns on” its “[c]larity and conspicuousness.” Meyer v. Uber Techs.,
Inc., 868 F.3d 66, 75 (2d Cir. 2017) (internal quotation marks omitted)
(citing Specht v. Netscape Commc'ns Corp., 306 F.3d 17, 30 (2d Cir. 2002)).
Our Court’s decision today sensibly applies Meyer in finding
Grubhub’s arbitration agreement sufficiently conspicuous in the
context of Grubhub’s online interfaces. But this is likely the high-water
mark for enforcement of arbitration agreements in such settings,
where the relevant contract clauses could escape consumers’ notice.
Second, the panel agrees unanimously on the principle that
Section 2 of the Federal Arbitration Act (“FAA”) applies only to
contracting parties’ agreements to arbitrate claims “arising out of such
contract or transaction.” 9 U.S.C. § 2. We also agree unanimously that
one consequence of that principle is that the FAA does not
countenance motions to compel arbitration of claims that lack a
requisite “nexus” to the contract containing the arbitration clause. See
Maj. Op. at 22, 24; Dissenting Op. at 2–3. In this case, that principle
required denial of Grubhub’s motion.
I.
Congress enacted the FAA to make “arbitration agreements as
enforceable as other contracts, but not more so.” Morgan v. Sundance,
Inc., 596 U.S. 411, 418 (2022) (internal quotation marks omitted)
(quoting Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404
n.12 (1967)). The FAA was not intended to elevate arbitration

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3
agreements above reproach, and while courts often uphold such
agreements, there are limits. Arbitration agreements are subject to
“generally applicable contract defenses.” Doctor’s Assocs., Inc. v.
Casarotto, 517 U.S. 681, 687 (1996). For example, we will not enforce
arbitration agreements that are unconscionable, id., or contrary to
federal law, see, e.g., Cedeno v. Sasson, 100 F.4th 386, 400 (2d Cir. 2024).
And, relevant here, we will not enforce arbitration agreements to
which one party did not assent, for example because they lacked
reasonable notice,2 or because no reasonable person would
understand their assent to arbitration to extend to a given dispute.3
Our holding today is consistent with these limitations.
2 See, e.g., Soliman v. Subway Franchisee Advert. Fund Tr., Ltd., 999 F.3d 828, 842 (2d Cir. 2021)
(holding consumer lacked reasonable notice of arbitration agreement that was accessible
online via a web address displayed on a hard-copy in-store display that failed to alert
consumers to what actions would constitute assent); Starke v. SquareTrade, Inc., 913 F.3d 279,
292–95 (2d Cir. 2019) (holding consumer lacked reasonable notice of arbitration agreement
that was accessible via a hyperlink to which the consumer’s attention was not called that
was contained in a lengthy post-sale email); Nicosia v. Amazon.com, Inc., 834 F.3d 220, 235–
37 (2d Cir. 2016) (holding consumer plausibly alleged lack of reasonable notice of arbitration
agreement that was accessible via a hyperlink that appeared on a cluttered web page and
was not adjacent to the “Place your order” button that would ostensibly manifest assent);
Schnabel v. Trilegiant Corp., 697 F.3d 110, 123 (2d Cir. 2012) (holding consumer lacked
reasonable notice of arbitration agreement contained in an unsolicited email sent after
enrollment that purported to require no affirmative manifestation of assent); Specht, 306
F.3d at 32 (holding consumer lacked reasonable notice of arbitration agreement to which
their attention was not called that was accessible only by scrolling down).
3 See, e.g., McFarlane v. Altice USA, Inc., 524 F. Supp. 3d 264, 277 (S.D.N.Y. 2021)
(“Notwithstanding the literal meaning of the clause’s language, no reasonable person
would think that agreeing to [Defendant’s] Terms and Conditions would obligate them to
arbitrate literally every possible dispute he or she might have with the service provider.”
(internal quotation marks omitted)); see also Cooper v. Ruane Cunniff & Goldfarb Inc., 990 F.3d
173, 180–85 (2d Cir. 2021) (holding agreement that undisputedly required arbitration of “all

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4
In my view, Grubhub barely threaded the needle through our
precedents that have examined reasonable notice of arbitration
agreements in the context of online interfaces. If the check-out page in
Grubhub’s web interface were even marginally more cluttered, the
outcome of this appeal would likely be different.4
While the details of this case are specific to online consumer
transactions, the relevant principles are historically rooted and widely
applicable. Every contract, “in order to be binding,” “requires a
meeting of the minds and a manifestation of mutual assent.” Starke v.
SquareTrade, Inc, 913 F.3d 279, 288 (2d Cir. 2019) (internal quotation
marks omitted) (quoting Express Indus. & Terminal Corp. v. N.Y. Dep’t
of Transp., 715 N.E.2d 1050 (N.Y. 1999)). There can be no meeting of
the minds if one party lacks notice of the contract’s terms. Id. at 289.
“Where an offeree does not have actual notice of certain contract terms,
he is nevertheless bound by such terms if he is on inquiry notice” and
then assents. Id. Inquiry notice depends on “whether the term was
obvious and whether it was called to the offeree’s attention,” and that
legal claims arising out of or relating to employment” did not cover fiduciary breach claim
under ERISA).
4 Grubhub put two interfaces before us, a mobile application and a “web interface” which
“is not as streamlined as its mobile app.” Maj. Op. at 16. Because Grubhub failed to offer
any evidence before the district court about which of the interfaces Plaintiffs used, we must
infer that they used the web interface, which presents a closer call on reasonable
conspicuousness and notice. See Soliman, 999 F.3d at 833–34 (noting that “[c]ourts deciding
motions to compel arbitration apply a standard similar to that applicable for a motion for
summary judgment,” in which “we draw[] all reasonable inferences in favor of the non-
moving party” (internal quotation marks omitted) (quoting Nicosia, 834 F.3d at 229)). In any
event, I concur in our holding that both interfaces provide (barely) sufficient notice.

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5
determination “often turns on whether the contract terms were
presented to the offeree in a clear and conspicuous way.” Id.5
Applying these principles to contracts formed between
consumers and merchants online, we have recognized that
“[r]easonable conspicuousness turns on the design and content of the
relevant interface.” Soliman v. Subway Franchisee Advert. Fund Tr., Ltd.,
999 F.3d 828, 835 (2d Cir. 2021) (internal quotation marks omitted)
(quoting Starke, 913 F.3d at 289). This is a “fact-intensive” inquiry into
the totality of the circumstances. Id. (internal quotation marks
omitted) (quoting Meyer, 868 F.3d at 76). And that is reflected in our
fact-bound conclusion today that the relevant “features, taken
together, are enough to provide inquiry notice to a reasonably prudent
web user.” Maj. Op. at 17. But our precedent sets out several
guardrails that guide our inquiry.
Two of our prior cases bookend the facts of this case: Meyer v.
Uber Technologies and Nicosia v. Amazon.com, Inc., 834 F.3d 220, 235–376
(2d Cir. 2016). We have said the “clean, uncluttered, and conspicuous”
placement of the terms at issue in Meyer “can be used as a model that
5 Starke applied New York law, which applies here as well, but we have recognized that
“traditional contract formation law does not vary meaningfully from state to state.”
Edmundson v. Klarna, Inc., 85 F.4th 695, 702–03 (2d Cir. 2023); see, e.g., Meyer, 868 F.3d at 74-
75 (reciting similar principles under California law, which contains “substantially similar
rules for determining whether the parties have mutually assented to a contract term”
(internal quotation marks omitted) (quoting Schnabel, 697 F.3d at 119)); Starke, 913 F.3d at
287 n.5 (noting that in Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 388 (E.D.N.Y. 2015), the court
found New York, California, and Illinois law to be substantively similar on the issue of
contract formation); id. at 290 n.7 (“In Nicosia, we applied Washington law on the question
of contract formation, but Washington law is the same as New York law with respect to the
issue of contract formation.” (citations omitted)); Schnabel, 697 F.3d at 119 (similar with
respect to Connecticut and California).

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6
this Court has found effective.” Starke, 913 F.3d at 297. But just a year
before Meyer, we found that a web interface with extra bells and
whistles was too distracting to provide reasonable notice. See Nicosia,
834 F.3d at 236–37. We have since tolerated minor deviation from the
clarity of Meyer, such as using a different font color in an otherwise
clean interface. Edmundson v. Klarna, Inc., 85 F.4th 695, 707 (2d Cir.
2023). But we rejected an approach that bore “more resemblance to
the Amazon order page in Nicosia than to the uncluttered screen in
Meyer.” Starke, 913 F.3d at 293 (citations omitted).
Merchants therefore have a very narrow space in which to use
an interface that is less lucid than in Meyer and still compel arbitration,
and Grubhub comes very close to its outer perimeter. Like in Meyer,
Grubhub’s web interface does not hide from consumers that Grubhub
would consider their pressing the “order” button to mean they agree
to terms accessible via hyperlink. But Grubhub’s web interface is
unmistakably more chaotic than in Meyer, and only marginally less
busy than in Nicosia. Ultimately, we have declined to “hold that the
format used in Meyer is the only effective way to use hyperlinks,”
Starke, 913 F.3d at 296–97, and Grubhub’s variation on the theme offers
just enough to edge over the line of reasonableness. As merchants
continue to try to enforce contracts of adhesion containing mandatory
arbitration clauses, they would do well to strive for clarity.
Finally, I note that Grubhub also just barely met its evidentiary
burden to “submit evidence of how [its Terms of Use were] presented
to users.” Zachman v. Hudson Valley Fed. Credit Union, 49 F.4th 95, 103
(2d Cir. 2022). Grubhub offered a declaration describing the timeline
of updates to Grubhub’s Terms of Use and of Plaintiffs’ purchases from

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7
Grubhub, which purports to attach screenshots of “the Grubhub
checkout page.” Joint App’x 114 ¶ 10; id. 120, 122. Like Grubhub’s
web interface, its declaration is not a model for future litigants hoping
to prevail on a standard akin to the standard for summary judgment.
But viewed in its entirety, including both the screenshots and timeline,
the declaration is reasonably read to declare that the screenshots
depict the web interface on the relevant dates.
II.
I need not belabor the above because, even though Grubhub’s
web interface provided barely adequate notice of its arbitration clause,
we hold that Grubhub’s arbitration clause is unenforceable as to
Plaintiffs’ claims. The Court appropriately rejects what amounts to an
attempt by Grubhub to funnel every conceivable claim against it into
arbitration, no matter its content. The principle that controls this case
is recognized by all three panel members: “The phrase ‘arising out of’
[in Section 2 of the FAA] establishes a nexus limitation on which
disputes are subject to the FAA,” beyond which the FAA “will not
apply to any attempts to send that dispute to arbitration.” Dissenting
Op. at 2; see Maj. Op. at 22.
Two important consequences follow where the FAA does not
apply due to a lack of nexus. First, the FAA gives federal courts “no
power to compel arbitration” in such cases. See Revitch v. DIRECTV,
LLC, 977 F.3d 713, 724 (9th Cir. 2020) (O’Scannlain, J., concurring)
(citations omitted). Because Grubhub moved to compel only under
the FAA, that is sufficient to resolve the issue for now. See
Memorandum of Law in Support of Defendant Grubhub Inc.’s Motion
to Compel Arbitration of Certain Named Plaintiffs’ Claims,

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8
Davitashvili v. Grubhub, Inc., No. 20-cv-3000 (S.D.N.Y. Aug. 26, 2022),
ECF No. 73.
Second, while not necessary to decide the instant appeal, the
nexus limitation we recognize constrains the FAA’s extra protections
for arbitration clauses wherever and however they may be enforced.
Where claims do not “arise out of” the contract at issue, that means no
federal presumption of arbitrability, see Calderon v. Sixt Rent a Car, LLC,
5 F.4th 1204, 1213–14 (11th Cir. 2021), and no preemption of state law
perceived as hostile to arbitration, cf. AT&T Mobility LLC v. Concepcion,
563 U.S. 333, 352 (2011). Many courts have already declined to enforce
exceptionally broad arbitration clauses or to interpret them to reach
absurd results.6 Faithful application of the nexus requirement means
that in some cases, the FAA does not displace state law limits on
arbitration or place a thumb on the scale in interpreting those clauses.
* * *
Online merchants should remember that there are real limits on
their ability to force consumers to arbitrate. Those limits protect,
among others, consumers who had no reasonable notice they had
implicitly agreed to arbitration at all, or who could not reasonably
6 See, e.g., Revitch, 977 F.3d at 716-21; McFarlane, 524 F. Supp. 3d at 275–79; Mey v. DIRECTV,
LLC, No. 17-CV-179, 2021 WL 973454, at *11 (N.D. W. Va. Feb. 12, 2021); Thomas v. Cricket
Wireless, LLC, 506 F. Supp. 3d 891, 903–07 (N.D. Cal. 2020); Wexler v. AT&T Corp., 211 F.
Supp. 3d 500, 502–05 (E.D.N.Y. 2016); In re Jiffy Lube Int’l, Inc. Text Spam Litig., 847 F. Supp.
2d 1253, 1262–63 (S.D. Cal. 2012); see also Smith v. Steinkamp, 318 F.3d 775, 776–77 (7th Cir.
2003) (noting that, if certain clauses of an arbitration agreement that appear to go beyond
claims “arising from or relating” to the contract were “read as standing free from” the
underlying contract, “absurd results ensue”).

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9
conceive that an arbitration clause was as broad as the merchant later
claims.
We have emphasized in several arbitration decisions that we
have not prescribed rigid formulas to govern reasonable notice across
all online commerce,7 and we have not done so here. But as our law
comes to rest on the outer limits, merchants take on risk when they
choose not to be very clear with consumers.
The same is true of efforts to push the limits of arbitrability
under the FAA. If merchants are dissatisfied with these limits, they of
course may ask Congress to expand the FAA’s scope, but importantly,
they might not. Merchants may decide that forcing arbitration on
consumers who suffer serious injuries unrelated to their transactions
is too unpopular a position to take, commercially or politically, in
addition to being a losing argument under current law.
7 See, e.g., Edmundson, 85 F.4th at 707; Starke, 913 F.3d at 296–97; Soliman, 999 F.3d at 842
(emphasizing, “as we did in Meyer, that ‘there are infinite ways to design a website or
smartphone application’” and “we impose no particular features that must be present to
satisfy the reasonably conspicuous standard”).

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23-521
Davitashvili v. Grubhub Inc.
RICHARD J. S ULLIVAN, Circuit Judge, concurring in part and dissenting
in part:
I agree with the majority that Plaintiffs’ claims against Uber
must be sent to an arbitrator to decide the threshold question of
arbitrability, Maj. Op. Part II-B, and that Plaintiffs agreed to Grubhub’s
terms of service, Maj. Op. Part II-A. I also agree, as a general matter,
that a defendant may not compel arbitration of claims that are
“completely unrelated” to the underlying transaction or contract in
which the agreement to arbitrate was made. Revitch v. DIRECTV, LLC,
977 F.3d 713, 722 (9th Cir. 2020) (O’Scannlain, J., concurring). Where I
part ways with the majority is in its conclusion that Plaintiffs’ antitrust
claims here are unrelated to their use of Grubhub’s platform. Maj. Op.
Part II-C. As Plaintiffs allege in their own complaint, and as they
argued in opposing Grubhub’s motion to dismiss, their use of
Grubhub is what gave it the market power it needed to force
restaurants to raise their off-app prices. If that use of Grubhub is so
legally significant as to form the crux of Plaintiffs’ antitrust theory,
then it stands to reason that the antitrust claims “arise out of”
Plaintiffs’ use of Grubhub, and Grubhub may compel arbitration of
those claims under the Federal Arbitration Act (“FAA”).
As a threshold matter, I would hold that the FAA – and its
presumption in favor of arbitrability – applies to this dispute. See
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25
(1983). Pursuant to section 2 of the FAA, parties may agree to arbitrate
any dispute “arising out of” an underlying “contract or transaction”
between them. 9 U.S.C. § 2. The phrase “arising out of” establishes a
nexus limitation on which disputes are subject to the FAA. See

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2
Calderon v. Sixt Rent a Car, LLC, 5 F.4th 1204, 1212–13 (11th Cir. 2021).
A dispute cannot be said to “arise out of” the parties’ underlying
transaction when the dispute is “completely unrelated” to that earlier
transaction. Revitch, 977 F.3d at 722 (O’Scannlain, J., concurring).
While this does not necessarily require a “caus[al]” relationship,
“arising out of” does require some meaningful nexus between the
transaction and the subsequent dispute. Id.
This means that, at least in some cases, a dispute will be so
untethered from the parties’ initial transaction that the FAA (and its
pro-arbitration presumption) will not apply to any attempts to send
that dispute to arbitration. For instance, even if a customer were to
sign up for a cell phone contract and agree to arbitrate “all disputes”
with the cell provider or its “affiliates,” the FAA would not compel
arbitration in the event that the customer sued one of those affiliates
over unwanted robocalls by the affiliates’ satellite television services. Id.
at 715 (majority opinion) (affirming district court’s denial of motion to
compel arbitration on these facts). Nor would the FAA compel
arbitration of a cable company employee’s claims against his employer
for leaking his personal data merely because the employee happened
to be a private cable customer who agreed to arbitrate “any and all
disputes” when he signed up for cable. McFarlane v. Altice USA, Inc.,
524 F. Supp. 3d 264, 277–78 (S.D.N.Y. 2021). In such cases, there would
be no nexus between the underlying transaction (for the provision of
cell phone and cable services) and the subsequent litigation claims
(based on illegal satellite television robocalls and breaches of
employee data), and so the FAA would not apply.
Here, by contrast, there is a clear nexus between the litigation

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3
claims and the underlying transaction, since Plaintiffs’ use of
Grubhub’s platform is what gave Grubhub the market power to
commit the alleged antitrust violations. Indeed, Plaintiffs’ entire
theory of antitrust liability – which they allege in their complaint and
relied on in opposing Grubhub’s motion to dismiss – is that Grubhub
was able to accumulate so many users on its app that it had “market
power” to “force” restaurants to raise their off-app prices. App’x at 32
(¶ 55), 68 (¶ 190); see also Davitashvili v. Grubhub Inc., No. 20-cv-3000
(LAK), 2022 WL 958051, at *10 (S.D.N.Y. Mar. 30, 2022) (“The amended
complaint also alleges plausibly that restaurants cannot feasibly avoid
doing business with Defendants because restaurants need access to the
platforms’ customers – many of whom use only one platform due to
platform ‘stickiness’ – in order to generate sufficient sales.”).
Put simply, not only is there a nexus between Plaintiffs’ use of
Grubhub and their antitrust claims, Plaintiffs affirmatively relied on
that very nexus in asserting their antitrust claims. That is a key
distinction between this case and others like Revitch and McFarlane, in
which the plaintiffs’ theories of liability were “completely unrelated”
to the parties’ underlying transaction. Revitch, 977 F.3d at 722
(O’Scannlain, J., concurring). And it also distinguishes this case from
others relied on by the majority, where “the substance of [the
plaintiff’s] claims ha[d] no connection” to his relationship with the
defendant. Cooper v. Ruane Cunniff & Goldfarb Inc., 990 F.3d 173, 183
(2d Cir. 2021) (emphasis added). In other words, if Plaintiffs’ use of
Grubhub is sufficient to form the crux of Plaintiffs’ antitrust theory, it
stands to reason that Plaintiffs’ claims “aris[e] out of” their use of
Grubhub within the meaning of the FAA. 9 U.S.C. § 2.

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4
Because the FAA applies to this dispute, so does its “emphatic
federal policy in favor of arbitral dispute resolution.” KPMG LLP v.
Cocchi, 565 U.S. 18, 21 (2011) (internal quotation marks omitted).
Applying that presumption here, I would also hold that Grubhub’s
arbitration clause extends to the antitrust claims. The majority
disagrees, concluding that Grubhub’s arbitration clause does not cover
the antitrust claims because the clause extends only to claims that
“relate[] to Plaintiffs’ access and use of Grubhub.” Maj. Op. at 20
(internal quotation marks omitted). But as just discussed, the antitrust
claims do relate to Plaintiffs’ use of Grubhub, since Plaintiffs’ entire
theory of liability is that so many customers (including Plaintiffs) used
Grubhub that it was able to force restaurants to raise their off-app
prices. See Davitashvili, 2022 WL 958051, at *10. And even if we
harbored doubts as to whether that nexus is significant enough, the
FAA mandates that “any doubts concerning the scope of arbitrable
issues should be resolved in favor of arbitration.” Moses H. Cone, 460
U.S. at 24–25.
I therefore would hold that Grubhub’s arbitration clause validly
covers Plaintiffs’ antitrust claims, and that those claims must be sent
to arbitration. Accordingly, I respectfully dissent from Part II-C of the
majority’s opinion.

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