Chair of the Shook Global Arbitration Practice Group Carlos Concepción and Of Counsel Giovanni Angles submitted an amicus curiae brief to the Florida Supreme Court in Airbnb, Inc. v. Doe on behalf of the Miami International Arbitration Society. The brief argues that the Florida high court should overturn a lower court's ruling on "clickwrap" agreements, which allow online users to consent by clicking "I agree." The plaintiff couple argued that they did not consent to their dispute with Airbnb Inc. being delegated to an arbitrator, and the trial and appeals courts found that the company did not provide enough evidence to show that the couple had "clearly and unmistakably" agreed.
"The Second District Court of Appeal held that a contract’s arbitration provision’s adoption of arbitration rules that expressly grant the arbitrator authority to decide his or her own jurisdiction does not constitute 'clear and unmistakable' evidence that the parties intended to empower the arbitrator to do just that. In this regard, the Second District is virtually alone, not only in Florida, but throughout the country," the brief argues. "The Court should reverse the opinion of the Second District Court of Appeal and hold that adopting arbitration rules which empower the arbitrator to decide his or her own jurisdiction constitutes 'clear and unmistakable' evidence that the parties agreed to arbitrate arbitrability."
Concepción discussed the brief with Law360, explaining, "The majority of cases in federal courts and the state courts of Florida say it's enough simply to incorporate the AAA rules into the arbitration clause. The Second District found it was not clear and unmistakable that the parties had agreed to delegate the power of arbitrability to the arbitrator because the parties had not expressly stated it in the arbitration clause."