Airbnb, Inc. v. John Doe ( 2022 )

Supreme Court of Florida
____________
No. SC20-1167
____________
AIRBNB, INC.,
Petitioner,
vs.
JOHN DOE, et al.,
Respondents.
March 31, 2022
POLSTON, J.
Airbnb, Inc. (Airbnb) seeks review of the Second District Court
of Appeal’s decision in Doe v. Natt, 299 So. 3d 599, 610 (Fla. 2d
DCA 2020) (certifying conflict). 1 The issue before this Court
involves who decides arbitrability—“whether a dispute is subject to
a contract’s arbitration provision”—an arbitrator or a judge. Id. at
600. Specifically, we address whether Airbnb’s Terms of Service
that incorporate by reference the American Arbitration Association
(AAA) Rules that expressly delegate arbitrability determinations to
1. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
an arbitrator constitute “clear and unmistakable” evidence of the
parties’ intent to empower an arbitrator, rather than a court, to
resolve questions of arbitrability. As explained below, we hold that
under the Federal Arbitration Act (FAA), it does and quash the
Second District’s decision in Natt.
I. BACKGROUND
The Second District set forth the following pertinent facts:
A Texas couple, who will be referred to as John and
Jane Doe to preserve their confidentiality, decided to
vacation in Longboat Key. Through a business, Airbnb,
Inc. (Airbnb), they located a condominium unit online
that was available for a short-term rental in the Longboat
Key area. Using Airbnb’s website, Mr. and Mrs. Doe
rented the unit for a three-day stay in May of 2016.
The condominium unit was owned by Wayne Natt.
Unbeknownst to the Does, Mr. Natt had installed hidden
cameras throughout the unit. The Does allege that Mr.
Natt secretly recorded their entire stay in his unit,
including some private and intimate interactions. After
they learned of Mr. Natt’s recordings, the Does filed a
complaint in the circuit court of Manatee County, naming
both Mr. Natt and Airbnb as defendants. Their complaint
included claims of intrusion against Mr. Natt,
constructive intrusion against Airbnb, and loss of
consortium against both Mr. Natt and Airbnb. In their
constructive intrusion claims, the Does alleged that
Airbnb failed to warn them of past invasions of privacy
that had occurred at other properties rented through
Airbnb. They also alleged that Airbnb failed to ensure
that Mr. Natt’s property did not contain electronic
recording devices.
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In response to the Does’ complaint, Airbnb filed a
motion to compel arbitration. Airbnb argued that the
Does’ claims were subject to arbitration under Airbnb’s
Terms of Service, which the Does agreed to be bound to
pursuant to a “clickwrap” agreement[2] they had entered
when they first created their respective Airbnb accounts
online.
Natt, 299 So. 3d at 600-01 (footnote omitted).
Airbnb’s Terms of Service began with the following statement:
PLEASE READ THESE TERMS OF SERVICE CAREFULLY
AS THEY CONTAIN IMPORTANT INFORMATION
REGARDING YOUR LEGAL RIGHTS, REMEDIES AND
OBLIGATIONS. THESE INCLUDE VARIOUS
LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT
GOVERNS THE JURISDICTION AND VENUE OF
DISPUTES, AND OBLIGATIONS TO COMPLY WITH
APPLICABLE LAWS AND REGULATIONS.
The “Dispute Resolution” clause, by which Airbnb seeks to compel
arbitration, appeared in the Terms of Service and set forth the
following:
Dispute Resolution
You and Airbnb agree that any dispute, claim or
controversy arising out of or relating to these Terms or
the breach, termination, enforcement, interpretation or
validity thereof, or to the use of the Services or use of the
2. The Second District defined a clickwrap agreement “as one
that is entered online by proposing contractual terms and
conditions of service to a user, who then indicates his or her assent
to the terms and conditions by clicking an ‘I agree’ box.” Doe v.
Natt, 299 So. 3d 599, 601 n.2 (Fla. 2d DCA 2020).
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Site or Application (collectively, “Disputes”) will be settled
by binding arbitration, except that each party retains the
right to seek injunctive or other equitable relief in a court
of competent jurisdiction to prevent the actual or
threatened infringement, misappropriation or violation of
a party’s copyrights, trademarks, trade secrets, patents,
or other intellectual property rights. You acknowledge
and agree that you and Airbnb are each waiving the right
to a trial by jury or to participate as a plaintiff or class
member in any purported class action or representative
proceeding. Further, unless both you and Airbnb
otherwise agree in writing, the arbitrator may not
consolidate more than one person’s claims, and may not
otherwise preside over any form of any class or
representative proceeding. If this specific paragraph is
held unenforceable, then the entirety of this “Dispute
Resolution” section will be deemed void. Except as
provided in the preceding sentence, this “Dispute
Resolution” section will survive any termination of these
Terms.
Arbitration Rules and Governing Law. The arbitration
will be administered by the American Arbitration
Association (“AAA”) in accordance with the Commercial
Arbitration Rules and the Supplementary Procedures for
Consumer Related Disputes (the “AAA Rules”) then in
effect, except as modified by this “Dispute Resolution”
section. (The AAA Rules are available at
www.adr.org/arb_med or by calling the AAA at 1-800-
778-7879.) The Federal Arbitration Act will govern the
interpretation and enforcement of this section.
Rule 7 of the AAA Rules3 provided: “The arbitrator shall have the
power to rule on his or her own jurisdiction, including any
3. Before the Does filed suit, the AAA reorganized the relevant
rules. The reorganization caused the Consumer Arbitration Rules
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objections with respect to the existence, scope, or validity of the
arbitration agreement or to the arbitrability of any claim or
counterclaim.” (Emphasis added.)
After conducting a hearing on Airbnb’s motion to compel
arbitration, the circuit court granted the motion and stayed the
lawsuit pending arbitration. Natt, 299 So. 3d at 602. The circuit
court found “that the parties entered an express agreement which
incorporated the AAA rules, and that [it was] therefore bound to
submit the issue of arbitrability to the arbitrator.” Id.
On appeal, the Does argued that the circuit court erred in
compelling arbitration because the Terms of Service did not clearly
and unmistakably evidence the parties’ intent to delegate questions
of arbitrability to an arbitrator. In a 2-to-1 decision, the Second
District reversed the circuit court’s order, holding “that the
clickwrap agreement’s arbitration provision and the AAA rule it
references that addresses an arbitrator’s authority to decide
arbitrability did not, in themselves, arise to ‘clear and
to become a standalone set of rules instead of a supplement to the
Commercial Arbitration Rules. The relevant AAA Rule was relocated
from Rule 7 to Rule 14 without any alterations to its language or
this Court’s legal analysis.
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unmistakable’ evidence that the parties intended to remove the
court’s presumed authority to decide such questions.” Id. at 609-
10 (quoting First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938,
944 (1995) (“Courts should not assume that the parties agreed to
arbitrate arbitrability unless there is ‘clea[r] and unmistakabl[e]’
evidence that they did so.”)). The Second District concluded that
the agreement contained “an arguably permissive and clearly
nonexclusive conferral of an adjudicative power to an arbitrator,
found within a body of rules that were not attached to the
agreement, that itself did nothing more than identify the
applicability of that body of rules if an arbitration is convened.” Id.
at 609. The Second District reasoned that “the provision Airbnb
relies upon is two steps removed from the agreement itself, hidden
within a body of procedural rules, and capable of being read as a
permissive direction. It is at best ambiguous.” Id.
The Second District explained that the AAA rules “were
referenced in the clickwrap agreement as a generic body of
procedural rules, and that reference was limited to how ‘the
arbitration’ was supposed to be ‘administered,’ ” which the Second
District interpreted to mean “an arbitration that is actually
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commenced.” Id. at 606. The Second District further explained
that “the reference to the AAA Rules was broad, nonspecific, and
cursory” because it “simply identified the entirety of a body of
procedural rules.” Id. The Second District also criticized the AAA
Rule itself, explaining that the “rule confers an adjudicative power
upon the arbitrator, but it does not purport to make that power
exclusive. Nor does it purport to contractually remove that
adjudicative power from a court of competent jurisdiction.” Id. at
607.
The Second District acknowledged that its “decision may
constitute something of an outlier in the jurisprudence of
arbitration,” citing numerous federal cases that “have concluded
that an arbitration rule that confers a general authority on an
arbitrator to decide questions of arbitrability, when incorporated
into an agreement, evinces a sufficiently clear and unmistakable
intent to withdraw the issue from a court’s consideration.” Id. at
607-08. The Second District also certified conflict with the Fifth
District Court of Appeal’s decision in Reunion West Development
Partners, LLLP v. Guimaraes, 221 So. 3d 1278, 1280 (Fla. 5th DCA
2017) (concluding that “[w]hen . . . parties explicitly incorporate
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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”), and further
disagreed with the Third District Court of Appeal’s decision in
Glasswall, LLC v. Monadnock Construction, Inc., 187 So. 3d 248,
251 (Fla. 3d DCA 2016) (holding “that by incorporating the
Construction Industry Rules of the AAA which make the issue of
arbitrability subject to arbitration, there [was] ‘clear and
unmistakable’ evidence of [the parties’] intent to submit the issue of
arbitrability to an arbitrator”). Natt, 299 So. 3d at 608, 610.
Judge Villanti dissented “from the majority’s outlier
determination that the clickwrap agreement used by Airbnb did not
exhibit an unmistakable intent to assign the issue of arbitrability to
the arbitrator.” Id. at 610 (Villanti, J., dissenting). Specifically,
Judge Villanti disagreed “with the majority’s assertion that
‘[p]lainly, the agreement’s reference to the AAA Rules and AAA’s
administration addresses an arbitration that is actually
commenced.’ ” Id. at 610-11. The dissent explained: “The question
of whether a claim is arbitrable must, by necessity, be determined
before the commencement of arbitration. Thus, [the AAA Rule] can
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only apply at the outset of a claim, not after the arbitration has
already commenced.” Id. at 611. Also important to the dissent was
addressing “the majority’s attempt to minimize the scope of [the
AAA Rule] because, the majority says, it does not give the arbitrator
the exclusive power to decide arbitrability.” Id. Judge Villanti
explained that “[t]his ignores the obvious: the power to decide is the
power to decide,” and “[t]o contend that the absence of the term
‘exclusive’ (or words to that effect) in relation to the arbitrator gives
exclusive power to the trial court sub silentio to make that decision
is . . . a stretch too far.” Id. Ultimately, Judge Villanti “conclude[d]
that the incorporation by reference of [the AAA Rule] into a contract
comprises ‘clear and unmistakable evidence’ of the parties’
agreement to arbitrate arbitrability.” Id. at 612.
II. ANALYSIS
Airbnb argues that incorporation by reference of the AAA
Rules that expressly delegate arbitrability determinations to an
arbitrator clearly and unmistakably evidences the parties’ intent to
empower an arbitrator to resolve questions of arbitrability. 4 The
4. We review this issue de novo. See Hernandez v. Crespo,
211 So. 3d 19, 24 (Fla. 2016).
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circuit court agreed with Airbnb and compelled arbitration and
stayed the lawsuit pending arbitration. We agree with Airbnb and
the circuit court and quash the Second District’s decision.
The parties agree that issues of arbitrability are governed by
the FAA, as required by the contract. See 9 U.S.C. §§ 1-16. Federal
substantive law controls arbitration issues arising under contracts
governed by the FAA, including in state court. See Preston v. Ferrer,
552 U.S. 346, 349 (2008). In reviewing issues of federal law, this
Court is bound by decisions of the United States Supreme Court
but may consider lower federal court decisions as advisory. See
Carnival Corp. v. Carlisle, 953 So. 2d 461, 465 (Fla. 2007).
Under the FAA, arbitration is a creature of contract: an
arbitrator may resolve “only those disputes . . . that the parties have
agreed to submit to arbitration.” First Options, 514 U.S. at 943; see
also Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 682
(2010) (noting that the FAA requires courts to “give effect to the
contractual rights and expectations of the parties,” parties who are
free to structure their arbitration agreement regarding how the
arbitration is to be done and what it will cover (quoting Volt Info.
Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S.
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468, 479 (1989))). The United States Supreme Court has
“recognized that parties can agree to arbitrate ‘gateway’ questions of
‘arbitrability,’ such as whether the parties have agreed to arbitrate
or whether their agreement covers a particular controversy.” Rent-
A-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 68-69 (2010). “[W]hen
courts decide whether a party has agreed that arbitrators should
decide arbitrability,” courts “should not assume that the parties
agreed to arbitrate arbitrability unless there is ‘clea[r] and
unmistakabl[e]’ evidence that they did so.” First Options, 514 U.S.
at 944 (quoting AT & T Techs., Inc. v. Commc’ns Workers of Am., 475
U.S. 643, 649 (1986)).
The majority in the Second District’s decision below properly
characterized its opinion as an “outlier.” Natt, 299 So. 3d at 607.
All of the federal circuit courts of appeal to consider the issue have
consistently agreed that incorporation by reference of arbitral rules
into an agreement that expressly empower an arbitrator to resolve
questions of arbitrability clearly and unmistakably evidences the
parties’ intent to empower an arbitrator to resolve questions of
arbitrability. See In re Checking Acct. Overdraft Litig., 856 F. App’x
238, 243 (11th Cir. 2021); Blanton v. Domino’s Pizza Franchising
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LLC, 962 F.3d 842, 845-46 (6th Cir. 2020); Richardson v. Coverall
N. Am., Inc., 811 F. App’x 100, 103 (3d Cir. 2020); Dish Network
L.L.C. v. Ray, 900 F.3d 1240, 1248 (10th Cir. 2018); Simply
Wireless, Inc. v. T-Mobile US, Inc., 877 F.3d 522, 528 (4th Cir. 2017),
abrogated on other grounds by Henry Schein, Inc. v. Archer & White
Sales, Inc., 139 S. Ct. 524 (2019); Brennan v. Opus Bank, 796 F.3d
1125, 1130 (9th Cir. 2015); Chevron Corp. v. Ecuador, 795 F.3d
200, 207-08 (D.C. Cir. 2015); Petrofac, Inc. v. DynMcDermott
Petroleum Operations Co., 687 F.3d 671, 675 (5th Cir. 2012); Fallo
v. High-Tech Inst., 559 F.3d 874, 878 (8th Cir. 2009); Awuah v.
Coverall N. Am., Inc., 554 F.3d 7, 11 (1st Cir. 2009); Qualcomm Inc.
v. Nokia Corp., 466 F.3d 1366, 1373 (Fed. Cir. 2006), abrogated on
other grounds by Henry Schein, 139 S. Ct. 524; Contec Corp. v.
Remote Sol. Co., 398 F.3d 205, 208 (2d Cir. 2005). The United
States Court of Appeals for the Seventh Circuit, which has not ruled
directly on this issue, has held that an “agreement of the parties to
have any arbitration governed by the rules of the AAA incorporated
those rules into the agreement.” Commonwealth Edison Co. v. Gulf
Oil Corp., 541 F.2d 1263, 1272 (7th Cir. 1976).
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This federal precedent has explained that when an agreement
incorporates a set of arbitral rules, such as the AAA Rules, those
rules become part of the agreement. And where those rules
specifically empower the arbitrator to resolve questions of
arbitrability, incorporation of the rules is sufficient to clearly and
unmistakably evidence the parties’ intent to empower an arbitrator
to resolve questions of arbitrability. And as the Supreme Court has
emphasized, “[w]hen the parties’ contract delegates the arbitrability
question to an arbitrator, the courts must respect the parties’
decision as embodied in the contract.” Henry Schein, 139 S. Ct. at
528.
Here, Airbnb and the Does clearly and unmistakably agreed
that an arbitrator decides questions of arbitrability. Airbnb’s Terms
of Service explicitly incorporate by reference the AAA Rules: “The
arbitration will be administered by the American Arbitration
Association (‘AAA’) in accordance with the Commercial Arbitration
Rules and the Supplementary Procedures for Consumer Related
Disputes (the ‘AAA Rules’) then in effect.” The Terms of Service
also provide a hyperlink to the AAA Rules and a phone number for
the AAA. Further, the incorporated AAA Rules specifically provide
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that “[t]he arbitrator shall have the power to rule on his or her own
jurisdiction, including any objections with respect to the existence,
scope, or validity of the arbitration agreement or to the arbitrability
of any claim or counterclaim.” (Emphasis added.) The Terms of
Service incorporate the AAA Rules, and the express language in the
AAA Rules empowers the arbitrator to decide arbitrability.
Accordingly, consistent with the persuasive and unanimous federal
circuit court precedent, we conclude that incorporation by reference
of the AAA Rules that expressly delegate arbitrability
determinations to an arbitrator clearly and unmistakably evidences
the parties’ intent to empower an arbitrator to resolve questions of
arbitrability.
Notably, most federal circuit courts to address whether the
incorporated AAA Rules meet the “clear and unmistakable”
standard analyzed a version of the AAA Rules that predates the
version at issue here. See, e.g., JPay, Inc. v. Kobel, 904 F.3d 923,
938 (11th Cir. 2018); Blanton, 962 F.3d at 845; Contec Corp., 398
F.3d at 208. The predecessor AAA Rule stated that “[t]he arbitrator
shall have the power to rule on his or her own jurisdiction,
including any objections with respect to the existence, scope or
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validity of the arbitration agreement.” The United States Court of
Appeals for the First Circuit described this language as “about as
‘clear and unmistakable’ as language can get.” Awuah, 554 F.3d at
11. The current version of the AAA Rules—the version at issue
here—provides that “[t]he arbitrator shall have the power to rule on
his or her own jurisdiction, including any objections with respect to
the existence, scope, or validity of the arbitration agreement or to
the arbitrability of any claim or counterclaim.” (Emphasis added.)
The current AAA Rule includes the exact language of its
predecessor, but specifically adds “or to the arbitrability of any
claim or counterclaim.” This additional language expressly
addresses the arbitrator’s power to rule on the arbitrability of any
claim. Accordingly, the predecessor language federal circuit courts
deemed “clear and unmistakable” gained further clarity with the
additional arbitrability language in the current rule.
The Second District’s decision in Natt arrived at the opposite
conclusion based on its determination that “the provision Airbnb
relies upon is two steps removed from the agreement itself, hidden
within a body of procedural rules, and capable of being read as a
permissive direction.” 299 So. 3d at 609. The Second District first
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criticized that the AAA Rules “were referenced in the clickwrap
agreement as a generic body of procedural rules, and that reference
was limited to how ‘the arbitration’ was supposed to be
‘administered,’ ” which the Second District interpreted to mean “an
arbitration that is actually commenced.” Id. at 606. However, the
parties do not dispute that the Terms of Service or the AAA Rules
are part of the contract, and it is settled law that the parties can
incorporate by reference materials, including the AAA Rules, in
contracts. Indeed, Airbnb’s Terms of Service incorporate by
reference more than one dozen extracontractual policies, programs,
rules, guides, and other materials. And consistent with our holding
above, incorporation by reference of the AAA Rules that expressly
delegate arbitrability determinations to an arbitrator clearly and
unmistakably evidences the parties’ intent to empower an arbitrator
to resolve questions of arbitrability. Moreover, regarding the
“administered” language in the Terms of Service, as explained in
Judge Villanti’s dissent in Natt, the AAA Rules “can only apply at
the outset of a claim, not after the arbitration has already
commenced.” Id. at 611 (Villanti, J., dissenting). “The question of
whether a claim is arbitrable must, by necessity, be determined
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before the commencement of arbitration.” Id. Otherwise, the AAA
Rule delegating arbitrability determinations to an arbitrator would
be superfluous.
The Second District also concluded that the AAA Rule “confers
an adjudicative power upon the arbitrator, but it does not purport
to make that power exclusive.” Id. at 607. However, as succinctly
stated by Judge Villanti’s dissenting opinion, “the power to decide is
the power to decide.” Id. at 611 (Villanti, J., dissenting). The
Supreme Court has explained that “[w]hen the parties’ contract
delegates the arbitrability question to an arbitrator . . . a court
possesses no power to decide the arbitrability issue.” Henry Schein,
Inc., 139 S. Ct. at 529. The Supreme Court further stated, “[j]ust as
a court may not decide a merits question that the parties have
delegated to an arbitrator, a court may not decide an arbitrability
question that the parties have delegated to an arbitrator.” Id. at
530; see also Blanton, 962 F.3d at 849 (explaining why “the AAA
Rules are best read to give arbitrators the exclusive authority to
decide questions of ‘arbitrability’ ”). The AAA Rules empower the
arbitrator “to rule on his or her jurisdiction,” the “scope . . . of the
arbitration agreement,” and “the arbitrability of any claim or
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counterclaim.” Accordingly, this language is clear and
unmistakable and expressly delegates arbitrability determinations
to the arbitrator. 5
III. CONCLUSION
We hold that, because Airbnb’s Terms of Service incorporate
by reference the AAA Rules that expressly delegate arbitrability
determinations to an arbitrator, the agreement clearly and
unmistakably evidences the parties’ intent to empower an
arbitrator, rather than a court, to resolve questions of arbitrability.
Accordingly, we quash the Second District’s decision in Natt and
approve the Fifth District’s decision in Reunion and the Third
District’s decision in Glasswall to the extent they are consistent
with this opinion. The case is remanded to the district court for
further proceedings consistent with this opinion.
It is so ordered.
CANADY, C.J., and LAWSON, MUÑIZ, COURIEL, and
GROSSHANS, JJ., concur.
LABARGA, J., dissents with an opinion.
5. While the Second District’s decision below did not reach
the question of whether the “clear and unmistakable” analysis
should account for the sophistication of the parties, we also
conclude that this argument is without merit.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION
AND, IF FILED, DETERMINED.
LABARGA, J., dissenting.
In considering the question of who—court or arbitrator—has
the primary authority to decide whether a party has agreed to
arbitrate, the United States Supreme Court, in First Options of
Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995), warned that
“[c]ourts should not assume that the parties agreed to arbitrate
arbitrability unless there is ‘clea[r] and unmistakabl[e]’ evidence
that they did so.” Because the arbitrability provisions relied upon
by the majority to reach its decision in this case were buried within
voluminous pages of rules and policies incorporated only by
reference in a clickwrap agreement, the parties’ agreement to defer
the consequential decision of arbitrability to the arbitrator was
anything but clear and unmistakable. I respectfully dissent.
When a non-negotiable, standardized form agreement
empowers an arbitrator to resolve the fundamental question of
whether a legal matter must be submitted to arbitration, too often
the courtroom door closes, and the parties are prevented from
seeking any remedy outside of arbitration. We therefore must
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“presume that parties have not authorized arbitrators to resolve”
this “gateway” question—especially where the agreement is silent or
ambiguous on the issue—“because ‘doing so might too often force
unwilling parties to arbitrate a matter they reasonably would have
thought a judge, not an arbitrator, would decide.’ ” Lamps Plus v.
Varela, 139 S. Ct. 1407, 1416-17 (2019) (emphasis omitted)
(quoting First Options, 514 U.S. at 945).
Airbnb’s clickwrap agreement is entirely silent on the question
of who determines arbitrability. Instead, the arbitrability provision
is buried in the AAA rules, amidst more than 100 pages of policies,
rules, and conditions incorporated by reference in the clickwrap
agreement. The clickwrap agreement containing Airbnb’s Terms of
Service, itself a 22-page document, directs consumers to navigate
through Airbnb’s Payment Terms of Service, Guest Refund Policy,
Content Policy, Community Policy, Copyright Policy, Host
Guarantee, Privacy Policy, Referral Program Terms and Conditions,
and the terms of service of Apple App Store and Google Maps,
among others—before even reaching the reference to the AAA rules.
Unsuspecting consumers should not be expected to find the
proverbial needle in the haystack in order to make a clear and
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unmistakable decision about arbitrability—that choice should be
conspicuously located in the clickwrap agreement for the consumer
to consider.
I fully agree with the analysis of the Second District Court of
Appeal in Doe v. Natt, 299 So. 3d 599, 606 (Fla. 2d DCA 2020), and
its explanation of why the clickwrap agreement lacked clear and
unmistakable evidence of the parties’ intent to arbitrate the
threshold question of arbitrability:
[A]lthough the circuit court concluded that the AAA Rules
had been “incorporated” into the parties’ clickwrap
agreement for purposes of determining arbitrability
(which, the court then determined, precluded its
authority to decide arbitrability), the agreement did not
actually say that. Indeed, whatever may be gleaned from
the AAA Rules . . . those rules were referenced in the
clickwrap agreement as a generic body of procedural
rules, and that reference was limited to how “the
arbitration” was supposed to be “administered.” Plainly,
the agreement’s reference to the AAA Rules and AAA’s
administration addresses an arbitration that is actually
commenced. . . . But if the question were put, “Who
should decide if this dispute is even subject to arbitration
under this contract?” to respond, “The arbitration will be
administered by the American Arbitration Association
(‘AAA’) in accordance with the Commercial Arbitration
Rules and the Supplementary Procedures for Consumer
Related Disputes,” is not a very helpful answer and not at
all clear.
Moreover, the reference to the AAA Rules was broad,
nonspecific, and cursory: the clickwrap agreement simply
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identified the entirety of a body of procedural rules. The
agreement did not quote or specify any particular
provision or rule, such as the one Airbnb now relies
upon. And the AAA Rules were not attached to the
agreement. Instead, the agreement directed the Does to
AAA’s website and phone number if they wished to learn
more about what was in the AAA Rules. Which strikes us
as a rather obscure way of evincing “clear and
unmistakable evidence” that the parties intended to
preclude a court from deciding an issue that would
ordinarily be decided by a court.
(Emphasis added.) (Footnote omitted.)
Because consumers’ access to the courts should be carefully
guarded, I cannot agree with the majority’s conclusion that Airbnb’s
mere reference to the AAA Rules is sufficient to notify the parties
that they were empowering an arbitrator to answer such a
fundamental question. Clearly, the arbitrability provision should
have been conspicuously included in the text of the clickwrap
agreement itself. Because it was not, under these circumstances,
this Court cannot assume that the parties agreed to arbitrate a
matter they reasonably would have thought a judge would decide.
For these reasons, I respectfully dissent.
Application for Review of the Decision of the District Court of Appeal
Certified Direct Conflict of Decisions/Direct Conflict of
Decisions
Second District – Case No. 2D19-1383
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(Manatee County)
Joel S. Perwin of Joel S. Perwin P.A., Miami Beach, Florida; and
Eric J. Simonson of Hinshaw & Culbertson LLP, New Orleans,
Louisiana, and Manuel L. Iravedra of Hinshaw & Culbertson LLP,
Tampa, Florida,
for Petitioner
Torri D. Macarages and Thomas J. Seider of Brannock Humphries
& Berman, Tampa, Florida; and Damian Mallard of Mallard Law
Firm, P.A., Sarasota, Florida,
for Respondents
Edward M. Mullins and Anabel Blanco of Reed Smith LLP, Miami,
Florida; Carlos F. Concepcion and Giovanni Angles of Shook Hardy
& Bacon LLP, Miami, Florida; William K. Hill and Steven P. Sukert
of Gunster, Miami, Florida; and Harout J. Samra of DLA Piper LLP,
Miami, Florida,
for Amicus Curiae Miami International Arbitration Society
Matthew W.H. Wessler and Linnet R. Davis-Stermitz of Gupta
Wessler PLLC, on behalf of American Association for Justice and
Public Justice, Washington, District of Columbia, and Jennifer D.
Bennett of Gupta Wessler PLLC, on behalf of American Association
for Justice and Public Justice, San Francisco, California; and Bryan
S. Gowdy of Creed & Gowdy, P.A., on behalf of Florida Justice
Association, Jacksonville, Florida,
for Amici Curiae American Association for Justice, Public
Justice, P.C., and the Florida Justice Association
Elliott V. Mitchell and Edward B. Kerr of Campbell Trohn Tamayo &
Aranda, P.A., Lakeland, Florida,
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for Amici Curiae Professor Henry Allen Blair, Professor Angela
Downes, Former Professor Richard D. Faulkner, Professor
Clark Freshman, Professor Jill I. Gross, Philip J. Loree, Jr.,
and Professor Imre Stephen Szalai
Courtney Brewer and Jonathan A. Martin of Bishop & Mills, PLLC,
Tallahassee, Florida,
for Amicus Curiae Professor George Bermann
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