The case stems from a lawsuit filed by a couple who were secretly recorded during their stay in a Longboat Key condominium rented through Airbnb.  Relying on the terms of service contained in its standard “clickwrap agreement”—the online contract in which an Airbnb user clicks “I agree” to proceed with a rental—Airbnb moved to compel arbitration.  The trial court initially seemed persuaded that the couple’s invasion-of-privacy claim was outside the scope of Airbnb’s terms and conditions and, therefore, was not arbitrable.  But the court nevertheless concluded that it was powerless to make that decision, relying on language in the clickwrap agreement stating that arbitration would be administered in accordance with the American Arbitration Association’s rules.  And those rules, if tracked down and read, provide that an arbitrator “shall have the power” to decide arbitrability.

Insert Brannock & Humphries, which appealed the trial court’s ruling to the Second District.  Under Supreme Court precedent, contractual language must be “clear and unmistakable” before the question of arbitrability will be taken away from the trial court.  Despite this high bar, seven federal circuit courts of appeal and two Florida appeals courts had previously found the identical language contained in Airbnb’s clickwrap agreement to be sufficient to punt the issue to the arbitrator.  Brannock & Humphries argued that all those cases were wrong.  And today, the Second District agreed, writing a detailed opinion breaking with the holdings of those other courts and explaining why Airbnb’s language was not good enough to satisfy the standard set by the Supreme Court.