Florida High Court Says Airbnb Arbitration Is In Force – It’s In Fine Print | rumberger | Church
In a 6-1 decision, the Florida Supreme Court reversed the Second District Court of Appeals and found that a Texas couple who agreed to a “clickwrap” terms of service agreement when booking a rental Vacation had also agreed to the Incorporated Arbitration Rules, including a rule that empowered the arbitrator to determine whether their claims were arbitrable.
John and Jane Doe sued Airbnb and the landlord of the rental property after discovering they had been recorded by hidden cameras while staying at the rental property. Among their claims, the Dos alleged that Airbnb failed to notify them of past privacy breaches at other properties rented through the Airbnb platform. They also alleged that Airbnb failed to ensure the rental property was free of recording devices.
In response to the Does’s claims, Airbnb filed a motion to compel arbitration, arguing that the Does had agreed to its terms of service when they signed up and that they were obligated to arbitrate their claims. The arbitration clause did not expressly provide who would determine arbitrability. Instead, this term was included in the rules of the American Arbitration Association, which were incorporated into the Agreement solely by reference. The AAA rules stated that the arbitrator “shall have authority to adjudicate on its own jurisdiction, including any objection to the existence, scope, or validity of the agreement to arbitrate or the arbitrability of any claim or counterclaim”.
In response to Airbnb’s petition, the Dos argued that the click agreement — the terms agreed upon by clicking an “I agree” box on a website or phone app — did not make clear enough that the arbitrator would have sole authority to determine whether their dispute would be arbitrated.
The circuit court granted Airbnb’s motion, and the Dos appealed to the Second District, arguing that the terms of service did not clearly and unequivocally demonstrate that the parties had delegated arbitrability to the arbitrator. The Second District denied the motion and found that Airbnb’s clickwrap agreement did not constitute “clear and unequivocal” evidence of the parties’ intent, which deviated from virtually unanimous decisions both federally and federally. at the state level on this issue.
After Airbnb’s appeal, the Florida Supreme Court rejected the Second District’s reasoning and applied the arbitration clause, endorsed Third and Fifth District decisions reaching the same conclusion, and found that the AAA rules had been incorporated and expressly empowered the arbitrator to adjudicate. complaints. The only dissent came from Judge Jorge Labarga, who likened incorporating hundreds of pages of arbitration rules to asking consumers to find the proverbial needle in the haystack.
While the ruling comes as a relief to many companies that rely on similar clickwrap agreements and incorporate arbitration terms by reference, it may still be prudent to consider including arbitrability and other terms of the forum in the express language of the terms of service rather than by incorporation only.