Airbnb, Inc. v. John Doe, 336 So.3d 698

Background

John and Jane Doe rented an Airbnb condominium where the host had secretly installed hidden cameras; they sued the host and Airbnb for intrusion, constructive intrusion, and loss of consortium.
Airbnb moved to compel arbitration under its clickwrap Terms of Service, which incorporate by reference the AAA Commercial Arbitration Rules and consumer procedures.
The circuit court granted the motion, finding the parties’ clickwrap agreement incorporated the AAA Rules and therefore delegated arbitrability to an arbitrator.
The Second District reversed, holding the reference to the AAA Rules was too indirect, buried, and ambiguous to be "clear and unmistakable" evidence that the parties delegated arbitrability.
The Florida Supreme Court reviewed under the FAA, concluded incorporation of the AAA Rule that expressly empowers arbitrators to decide arbitrability is "clear and unmistakable," quashed the Second District, and remanded.
Justice Labarga dissented, arguing the delegation was buried in voluminous, non-negotiable material and thus not sufficiently conspicuous to deprive courts of the arbitrability gateway question.

Issues

Issue	Plaintiff's Argument (Does)	Defendant's Argument (Airbnb)	Held
Who decides arbitrability (court or arbitrator)?	Clickwrap does not clearly and unmistakably delegate arbitrability; reference to AAA Rules is indirect and ambiguous.	Incorporation by reference of AAA Rules that expressly empower arbitrators to rule on arbitrability shows clear and unmistakable intent to delegate.	The FAA governs; incorporation of AAA Rules that expressly delegate arbitrability is clear and unmistakable evidence that arbitrator decides arbitrability.
Whether incorporation-by-reference of AAA Rules makes those rules part of the contract	Incorporation here is generic and not sufficiently explicit; rules not attached.	Incorporation by reference is valid; AAA Rules become part of the agreement.	Incorporation by reference is valid; the AAA Rules are part of the contract and binding.
Whether the AAA Rule’s language is exclusive enough to preclude court review	The rule does not say "exclusive"; thus courts retain authority.	The power to decide implies exclusivity; delegation forecloses court deciding arbitrability.	The express grant of power to arbitrator to rule on arbitrability suffices; courts must respect delegation.
Whether party sophistication or form-contract context affects the clear-and-unmistakable analysis	Consumers in a clickwrap are unlikely to discover buried delegation; context matters.	The clear-and-unmistakable standard is met regardless of form-contract context given explicit incorporation and rule language.	Court rejects requiring different standard based on sophistication here; clear-and-unmistakable met despite clickwrap form.

Key Cases Cited

First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (courts should not assume parties agreed to arbitrate arbitrability absent clear and unmistakable evidence)
Rent-A-Ctr., W., Inc. v. Jackson, 561 U.S. 63 (parties can agree to arbitrate gateway questions of arbitrability)
Henry Schein, Inc. v. Archer & White Sales, Inc., 139 S. Ct. 524 (when contract delegates arbitrability to arbitrator, courts must respect that delegation)
Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (FAA requires courts to give effect to contractual rights and expectations regarding arbitration)
Contec Corp. v. Remote Sol. Co., 398 F.3d 205 (incorporation of arbitral rules makes those rules part of the agreement and can evidence delegation)
Awuah v. Coverall N. Am., Inc., 554 F.3d 7 (describing predecessor AAA Rule language as about as clear and unmistakable as possible)