Gregory Selden v. Airbnb, Inc.
4 F.4th 148
| D.C. Cir. | 2021Background
- Selden signed up for Airbnb via an iPhone "sign‑in wrap" screen that stated: By signing up, I agree to Airbnb's Terms of Service, Privacy Policy, Guest Refund Policy, and Host Guarantee Terms; those terms were hyperlinked in red and required no scrolling.
- Airbnb's Terms of Service included a broad arbitration clause and a class‑action waiver; California law governed formation questions in the Terms.
- Selden alleged racial discrimination after a host declined his booking (he used his Facebook photo as an Airbnb profile picture), then created white‑profile test accounts that were accepted; he sued Airbnb under Title II, 42 U.S.C. § 1981, and the Fair Housing Act, asserting disparate‑impact theories tied to Airbnb’s photo and true‑name policies.
- The district court compelled arbitration, the AAA arbitrator dismissed Selden’s statutory claims on threshold legal grounds (room was not a public accommodation or qualifying dwelling; Airbnb not a party/agent of host), and the arbitrator issued an award for Airbnb.
- Selden moved to vacate the award, arguing arbitrator misconduct for denying interrogatories/depositions and for ignoring his expert report; the district court denied vacatur, and Selden appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Selden agreed to arbitrate (formation/inquiry notice of sign‑in wrap) | Sign‑in screen did not put him on reasonable notice of the Terms/arbitration clause (color, layout, proximity issues) | The sign‑in wrap was clear and conspicuous—red hyperlinked terms, single screen, no scrolling—so Selden manifested assent | Court: Airbnb’s sign‑in wrap gave reasonable notice; Selden agreed to the Terms and arbitration clause |
| Whether Title II claims are arbitrable | Title II’s grant of district‑court jurisdiction and remedy language preclude arbitration; claim must be heard in federal court | FAA requires enforcement of arbitration agreements absent clear congressional command to the contrary; Title II contains no clear prohibition | Court: Title II does not prohibit arbitration; FAA governs and Title II does not override it |
| Whether Fair Housing Act claim/arbitration was unconscionable because of class‑action waiver | Class‑action waiver effectively forecloses disparate‑impact/FHA relief and is unconscionable | Plaintiff forfeited procedural‑unconscionability argument; waiver not shown unconscionable | Court: Argument forfeited for lack of procedural‑unconscionability showing; arbitration enforceable |
| Whether arbitrator misconduct (denying discovery, ignoring expert) warrants vacatur | Arbitrator refused needed interrogatories/depositions and ignored expert, prejudicing Selden | Plaintiff failed to request discovery before close and cannot show prejudice; expert would not alter arbitrator’s threshold legal rulings | Court: No vacatur—any discovery refusal was plaintiff’s own failure and no prejudice shown; expert evidence would not change determinative legal conclusions |
Key Cases Cited
- AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (policy favoring enforcement of arbitration agreements)
- Meyer v. Uber Techs., Inc., 868 F.3d 66 (2d Cir. 2017) (sign‑in wrap inquiry‑notice standard; layout/language fact‑intensive)
- Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220 (FAA enforces statutory claims absent contrary congressional command)
- CompuCredit Corp. v. Greenwood, 565 U.S. 95 (clear statement required to displace FAA enforcement of arbitration)
- Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (Congress must speak clearly to override arbitration policy)
- Mitsubishi Motors Corp. v. Soler Chrysler‑Plymouth, Inc., 473 U.S. 614 (arbitration is an alternate forum for statutory claims)
- Lessin v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 481 F.3d 813 (D.C. Cir. 2007) (failure to hear evidence requires prejudice to vacate award)
- Hall Street Assocs. v. Mattel, Inc., 552 U.S. 576 (FAA’s statutory vacatur grounds are exclusive)