Reed Smith Client Alerts

With its recent decision in Airbnb, Inc. v. Doe, Case No. SC20-1167 (Fla. Mar. 31, 2022), the Florida Supreme Court has joined the overwhelming majority of U.S. state and federal courts in ruling that incorporation by reference of arbitration rules that expressly delegate arbitrability determinations to an arbitrator is “clear and unmistakable” evidence of the parties’ intent to empower an arbitrator to resolve questions of arbitrability.

To read more on the cases referenced, please access full docket information at onlinedocketssc.flcourts.org.

The Airbnb case arises from a Texas couple’s (the Does) decision to use the popular Airbnb website to rent a condominium unit owned by an individual named Wayne Natt. Upon learning that Mr. Natt had installed hidden cameras throughout the unit and secretly recorded their entire stay, the Does brought suit in Florida circuit court against both Mr. Natt and Airbnb.

In response to the Does’ complaint, Airbnb filed a motion to compel arbitration, arguing that the Does’ claims were subject to arbitration under Airbnb’s Terms of Service. The Does had agreed to the Terms of Service pursuant to the “clickwrap” agreement Airbnb users must execute when first creating their Airbnb accounts. The agreement contained a dispute resolution clause providing for arbitration to be administered by the American Arbitration Association (AAA) in accordance with its rules (AAA Rules). Further, the dispute resolution clause provided a link to the AAA Rules, which state, inter alia, 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.” AAA Commercial Arbitration Rules, R-7 (2013). The trial court granted Airbnb’s motion to compel.

The case came before the Florida Second District Court of Appeal, which broadly described it as presenting “the ‘rather arcane’ issue in arbitration of who decides whether a dispute is subject to a contract’s arbitration provision: an arbitrator or a judge.” Doe v. Natt, 45 Fla. L. Weekly D712, D712 & D716 n.1 (Fla. 2d DCA 2020) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 945 (1995)). In First Options of Chicago, Inc. v. Kaplan, the U.S. Supreme Court had explained that “Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r] and unmistakabl[e]’ evidence that they did so,” and, since then, the “clear and unmistakable” standard has governed the determination of whether parties agreed to delegate arbitrability issues to an arbitrator. 514 U.S. 938, 944 (1995) (quoting AT&T Techs. v. Communs. Workers of Am., 475 U.S. 643, 649 (1986)).