DoorDash Inc. has asked a Delaware judge to dismiss a proposed class action that accuses the on-demand food-delivery service of improperly collecting sales tax in states that don't allow it, claiming that the dispute should be hashed out privately in arbitration.

Attorneys for the San Francisco-based DoorDash argued in a court filing late last week that customers who sign up to use DoorDash agree to the company's terms and conditions, which mandate binding individual arbitration for disputes and a waiver of the right to participate in class actions.

DoorDash said the phrase “Terms and Conditions” is highlighted in blue text below the signup button to create user accounts and hyperlinks to a separate independent contractor agreement that includes the arbitration provision agreement in bold, all-capital letters. According to the company, the terms and conditions are immediately available to users and can be accessed by “reasonably prudent” consumers.

The argument came in the final round of briefing on DoorDash's motion to dismiss the case, which alleged that the company had made “millions of dollars” by disguising sales-tax charges in states like Delaware, New Hampshire and Montana that prohibit them.

“In reality, the amount of sales tax is simply a disguised fee to DoorDash, which DoorDash retains as revenue,” plaintiffs attorneys from Grant & Eisenhofer said in the 21-page complaint, filed in April. “Customers in tax-free states pay this charge under the incorrect impression that it is a lawful, required tax charge, when it is not.”

According to the filing, DoorDash's disclosure of its terms and conditions was buried at the bottom of its signup page, in small font, below larger logos for Google, Facebook and DoorDash, which served to “distract users, and/or possibly obscure the text if viewed on mobile devices.” The agreement, instead, included unenforceable “browsewrap” terms, under which a customer accepts a website's conditions merely by browsing the site, they said.

DoorDash and its Young Conaway Stargatt & Taylor attorneys asked U.S. District Judge Maryellen Noreika of the District of Delaware to toss the case in May. The company argued that its users were required to accept a separate agreement before they can access the service and cited to decisions from “many courts,” which approved such an arrangement.

The plaintiffs, DoorDash said, had never disputed the enforceability of the underlying class-action waiver.

“Multiple courts have held that the class-action waiver in DoorDash's [independent contractor agreement] is enforceable and compelled arbitration on an individual basis,” the company said in its brief. “And multiple courts have held that the class-action waiver in DoorDash's ICA is enforceable and compelled arbitration on an individual basis. … This court should do the same.”

The plaintiffs, Ashley Moore and Greg Safarian of Delaware, are represented by Kyle John McGee of Grant & Eisenhofer and Elena C. Norman of Young Conaway and Joshua S. Lipshutz and Michael Holecek of Gibson, Dunn & Crutcher.

The case is captioned Moore v. DoorDash.

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