United States District Court, District of Columbia
CHRISTOPHER R. COOPER United States District Judge.
us who have signed up for an online service recently will
recall the experience. After entering the service
provider's website, we were presented with a “sign
up” or “create account” button prominently
displayed on the screen. Next to the button-less prominent,
no doubt-was the ubiquitous advisory that, by signing up, we
would be accepting the provider's “terms of
service.” Perhaps there was a separate check-box
prompting us to indicate our agreement to those terms.
Regardless, eager to begin using the service and realizing
that the provider's contractual terms are non-negotiable,
most of us signed up without bothering to click the
accompanying link to reveal the contractual terms. Those who
did undoubtedly found numerous pages of legalese. The
intrepid few who actually read all the terms almost certainly
learned that one of them requires users to relinquish their
right to have a jury resolve any dispute with the provider.
And that another bars class actions. This experience, shared
by countless people each day, gives rise to the dispute
presently before the Court.
Gregory Selden, who is African American, signed up with the
popular residential rental service Airbnb in advance of a
weekend getaway to Philadelphia. He created the required user
profile, including his photograph, and contacted an Airbnb
“host” about a promising listing. The host
allegedly responded that the residence was not available.
Smelling a rat, Selden created a second account under a
pseudonym, with a photograph of a white person in the user
profile, and contacted the same host about the same
accommodation. This time, Selden claims, the host was only
too happy to rent the residence.
filed suit against Airbnb for race discrimination on behalf
of himself and fellow African-American travelers who have
reported similar treatment on Airbnb. See, e.g.,
Elaine Glusac, As Airbnb Grows, So Do Claims of
Discrimination, N.Y. Times (June 26, 2016),
Likening Airbnb to a hotel and its hosts to rental agents or
hotel employees, Selden seeks to hold the company responsible
under federal civil rights laws for the discriminatory
conduct of those who offer accommodations on its website.
Airbnb contests liability, although that issue is not before
the Court because the company's standard Terms of
Service-which it claims Selden accepted by signing up to use
the site-contain a clause requiring all disputes to be
resolved by an arbitrator. Civil lawsuits with a potential
jury trial are prohibited. As are class actions.
this clause, Airbnb moves to compel arbitration of
Selden's claims. Selden responds that no contract
exists-and therefore the arbitration clause does not
apply-because the sign-up process did not place him on
adequate notice that he was agreeing to Airbnb's Terms of
Service, including mandatory arbitration. He further argues
that, even if a contract was formed, the arbitration
provision does not apply to discrimination suits and is
unconscionable in any event.
Court must grant Airbnb's motion. No matter one's
opinion of the widespread and controversial practice of
requiring consumers to relinquish their fundamental right to
a jury trial-and to forego class actions-as a condition of
simply participating in today's digital economy, the
applicable law is clear: Mutual arbitration provisions in
electronic contracts-so long as their existence is made
reasonably known to consumers-are enforceable, in commercial
disputes and discrimination cases alike. And Airbnb's
sign-up procedures were sufficiently clear to place Mr.
Selden on notice that he was agreeing to the company's
Terms of Service when he created an account. While that
result might seem inequitable to some, this Court is not the
proper forum for policy objections to mandatory arbitration
clauses in online adhesion contracts. Such objections should
be taken up with the appropriate regulators or with Congress.
Background & Procedural Posture
Selden's Use of Airbnb
Selden and a friend planned a trip to Philadelphia in March
2015. Second Amend. Compl. ¶¶ 28-35. To book their
accommodations, Selden turned to Airbnb, which describes
itself as “a trusted community marketplace for people
to list, discover, and book unique accommodations all around
the world.” About Us, Airbnb,
http://www.airbnb.com/about/about-us (last visited
Oct. 24, 2016). Airbnb allows property owners or their
representatives-“hosts” in the company's
parlance-to list their accommodations on the platform, where
travelers then attempt to book them. Def.'s Mot. Compel
Arbitration (“MCA”), Decl. of Kyle Miller ¶
2. While Airbnb facilitates the transactions, the hosts,
alone, are responsible for deciding to whom they will offer
their homes for short-term stays. Id.
first created his Airbnb account in March 2015, using an
iPhone mobile device. Pl.'s Opp'n MCA, Decl. of
Gregory Selden ¶ 2; Supp. Decl. of Kyle Miller
¶¶ 2, 4. Airbnb's mobile sign-up screen,
attached as an appendix to this Memorandum Opinion, presented
Selden with three options in descending order: “Sign up
with Facebook, ” “Sign up with Google, ”
and “Sign up with Email.” See Appendix.
Below the “Sign up with Email” button was text
that read: “By signing up, I agree to Airbnb's
Host Guarantee Terms.” Id. The text contained
hyperlinks to these various agreements. Id.
Airbnb's Terms of Service include, among other
provisions, a mandatory arbitration clause. Def.'s MCA,
Ex. B, 16-18. Selden clicked “Sign up with
Facebook” at the top of the page, and proceeded to
create his Airbnb profile in order to use the service. Decl.
of Gregory Selden ¶ 6.
profile included a photograph of his face, along with other
details like his name, age, and education. Shortly after
creating his account, he inquired with a host about the
availability of a listing that met his needs. Id. at
¶¶ 6-7. According to Selden, the host informed him
that the accommodation was not available. Id. at
¶ 7. While browsing Airbnb later that day, however,
Selden noticed that the listing was still posted.
Id. at ¶ 8. Suspecting that he was denied
accommodations due to his race, Selden created two fictitious
Airbnb accounts with profile photos depicting white men.
Id. He then used those accounts to apply to the same
listing, and, he claims, the host accepted both. Id.
Selden later took to social media with his claims of
discrimination, and the hashtag
“#airbnbwhileblack” quickly went viral. Second
Amend. Compl. ¶ 50.
Airbnb's Terms of Service
Terms of Service at the time Selden signed up for Airbnb
spanned seventeen single-spaced pages and began with the
PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN
IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES
AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND
EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE
OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS
MCA, Ex. B, 2. The “Dispute Resolution” clause,
by which Airbnb seeks to compel arbitration, appeared on page
fifteen of the document:
You and Airbnb agree that any dispute, claim or
controversy arising out of or relating to these Terms or
the breach, termination, enforcement, interpretation or
validity thereof, or to the use of the Services or use of the
Site or Application (collectively, “Disputes”)
will be settled by binding arbitration, except that each
party retains the right to seek injunctive or other equitable
relief in a court of competent jurisdiction to prevent the
actual or threatened infringement, misappropriation or
violation of a party's copyrights, trademarks, trade
secrets, patents, or other intellectual property rights. You
acknowledge and agree that you and Airbnb are each waiving
the right to a trial by jury or to participate as a plaintiff
or class member in any purported class action or
representative proceeding. If this specific paragraph is held
unenforceable, then the entirety of this “Dispute
Resolution” section will be deemed void. Except as
provided in the preceding sentence, this “Dispute
Resolution” section will survive any termination of
MCA, Ex. B, 16 (emphasis added). The section continued that
any arbitration proceedings shall be administered by the
American Arbitration Association and offered general details
about the arbitration process. Id. at 16-18.
filed a putative class action suit against Airbnb in this
Court on May 17, 2016, and has since twice amended his
Complaint. He is the sole named Plaintiff. See
Second Amend. Compl. Selden alleges that Airbnb violated
Title II of the Civil Rights Act of 1964, 42 U.S.C. §
2000a, which prohibits race discrimination in public
accommodations; the Civil Rights Act of 1866, 42 U.S.C.
§ 1981, which prohibits race discrimination in the
formation of contracts; and the Fair Housing Act, 42 U.S.C.
§ 3604, which prohibits race discrimination in the sale
or rental of housing. Id. at ¶¶ 53-72.
Airbnb moved to compel arbitration on July 13, 2016.
See Def.'s MCA. The Court heard oral argument on
the motion on October 12, 2016.