Stephen Dye v. Tamko Building Products, Inc.

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-14052
________________________
D.C. Docket No. 8:17-cv-00590-MSS-AEP
STEPHEN DYE,
on behalf of themselves and all others
similarly situated,
DOUGLAS BOHN,
on behalf of themselves and all others
similarly situated,
Plaintiffs - Appellants,
versus
TAMKO BUILDING PRODUCTS, INC.,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 2, 2018)
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Before TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.
NEWSOM, Circuit Judge:
You’ve undoubtedly heard of—and for that matter probably accepted the
terms of—a “shrinkwrap” agreement, which binds a software (or small-electronics)
purchaser to an inside-the-box contract if she opens the product and retains it for
some specified time. In this cyber age, you’ve also almost certainly assented to the
terms of a “clickwrap” or “scrollwrap” agreement—for instance, by hitting “I
accept” when installing the latest operating system for your smartphone. This
case—not quite as hip but governed by the same basic principles—requires us to
determine the enforceability of what, for lack of a better label, we’ll call a
“shinglewrap” agreement.
Boiled to its essence, the question we must decide is this: Where a roofing-
shingle manufacturer displays on the exterior wrapping of every package of
shingles the entirety of its product-purchase agreement—including, as particularly
relevant here, a mandatory-arbitration provision—are homeowners whose roofers
ordered, opened, and installed the shingles bound by the agreement’s terms?
Applying Florida law, we conclude that the homeowners are bound—and must
therefore arbitrate any product-related claims that they allege against the
manufacturer. In particular, we hold (1) that the manufacturer’s packaging here
sufficed to convey a valid offer of contract terms, (2) that unwrapping and
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retaining the shingles was an objectively reasonable means of accepting that offer,
and (3) that the homeowners’ grant of express authority to their roofers to buy and
install shingles necessarily included the act of accepting purchase terms on the
homeowners’ behalf.
I
A
Tamko Building Products is a Missouri-based roofing company. 1 Its
“Heritage 30” shingles come with (appropriately) a 30-year limited warranty,
which is printed—in full—on the outside wrapper of every shingle package.
Although most of the warranty is set in ordinary Roman type, several key
portions—including those most significant to this appeal—are rendered in a more
conspicuous font. Each package wrapper, for instance, displays the all-capped
word “IMPORTANT” and warns the purchaser—again in all caps—to “READ
CAREFULLY BEFORE OPENING [THE] BUNDLE.” The wrapper further
explains (1) that the consumer must notify Tamko of any warranty-related claims
“within thirty (30) days following discovery of the problem with the Shingles” and
(2) that the warranty and other purchase terms are available not only on the face of
the wrapper itself but also on Tamko’s website and via a toll-free telephone
number.
1
Although the company’s logo reads “TAMKO,” we use “Tamko” for the sake of readability.
3
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As particularly relevant to this appeal, Tamko’s limited warranty contains a
mandatory-arbitration clause—which, significantly, is also printed in its entirety,
and in all caps, on the outside of every shingle wrapper. In pertinent part, that
clause states as follows:
MANDATORY BINDING ARBITRATION: EVERY CLAIM,
CONTROVERSY, OR DISPUTE OF ANY KIND WHATSOEVER
(EACH AN “ACTION”) BETWEEN YOU AND TAMKO
(INCLUDING ANY OF TAMKO’S EMPLOYEES AND AGENTS)
RELATING TO OR ARISING OUT OF THE PRODUCT SHALL
BE RESOLVED BY FINAL AND BINDING ARBITRATION,
REGARDLESS OF WHETHER THE ACTION SOUNDS IN
WARRANTY, CONTRACT, STATUTE, OR ANY OTHER LEGAL
OR EQUITABLE THEORY.
The warranty further specifies that any action against Tamko must be arbitrated
individually rather than as part of a consolidated or class action:
ANY ACTION BROUGHT BY YOU AGAINST TAMKO WILL BE
ARBITRATED (OR, IF ARBITRATION OF THE ACTION IS NOT
PERMITTED BY LAW, LITIGATED) INDIVIDUALLY AND YOU
WILL NOT CONSOLIDATE, OR SEEK CLASS TREATMENT
FOR, ANY ACTION UNLESS PREVIOUSLY AGREED TO IN
WRITING BY BOTH TAMKO AND YOU. 2
B
Enter Douglas Bohn and Stephen Dye. Both are Florida residents whose
homes are fitted with Tamko’s Heritage 30 shingles. Bohn hired Duffield Home
Improvements to install a new roof on his Middleburg, Florida home. After a few
2
There are actually two wrappers, two purchase agreements, and two arbitration provisions in
the record here. Although the language of the agreements and their associated arbitration
provisions differs ever so slightly, they are materially identical.
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years, he noticed that his shingles were crumbling and that asphalt granules were
shedding and collecting in his gutters. Similarly, Dye hired Tampa Roofing
Company to replace the roof on his house in Tampa, Florida. Shortly after
installation, Dye too noticed his shingles cracking and granules littering his patio.
Bohn and Dye filed a putative class action seeking damages and declaratory
relief on behalf of a class of building owners who had used Tamko shingles. Their
complaint alleged that Tamko manufactured its Heritage 30 shingles with less
asphalt than necessary to comply with industry standards and building codes,
which caused the shingles to crack and split. The complaint included claims for
breach of express and implied warranties, strict products liability, negligence, and
violations of the Florida Deceptive and Unfair Trade Practices Act. In response,
Tamko filed a motion to compel arbitration and an accompanying motion to
dismiss or stay court proceedings. Tamko contended that by unwrapping and
retaining its shingles the homeowners had accepted the terms of its purchase
agreement and were thus bound, pursuant to the agreement’s plain terms, to
arbitrate their claims.
The district court granted Tamko’s motion and dismissed the homeowners’
complaint. The court reasoned that the homeowners were bound to arbitrate
because through their roofers, whom they had hired to buy and install the shingles,
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they had accepted the terms of Tamko’s purchase agreement, including its
mandatory-arbitration provision. This appeal followed.
II
On appeal, we must determine whether Tamko’s warranty-emblazoned
shingle wrappers set forth a valid offer that gave purchasers an adequate
opportunity to assent to its terms—most notably, the mandatory-arbitration
clause—and, if so, whether the roofers, as the homeowners’ agents for the
purposes of purchasing and installing shingles, bound the homeowners to arbitrate
by unwrapping the shingle packages. We consider each issue in turn.3
A
First up, we consider whether the shingle wrappers conveyed a valid offer of
Tamko’s contract terms—in particular, that any product-related dispute must be
arbitrated rather than litigated. Of course they did, Tamko says, asserting that the
law is well-settled that opening and retaining a product constitutes acceptance of
terms printed on the product’s packaging. The homeowners, by contrast, contend
that consumers aren’t on notice that shingles come wrapped in purchase terms and
can’t assent to terms of which they are unaware. The nub of the dispute is whether
3
We review de novo the district court’s order granting Tamko’s motion to dismiss and compel
arbitration. Bodine v. Cook’s Pest Control Inc., 830 F.3d 1320, 1324 (11th Cir. 2016) (citation
omitted).
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Tamko’s shingle wrappers provide a reasonable opportunity for consumers to
review and accept the company’s terms of purchase.
Florida law provides the rules of decision here.4 Applying Florida law, we
recently held that “[a] valid contract—premised on the parties’ requisite
willingness to contract—may be ‘manifested through written or spoken words, or
inferred in whole or in part from the parties’ conduct.’” Kolodziej v. Mason, 774
F.3d 736, 741 (11th Cir. 2014) (quoting L & H Constr. Co. v. Circle Redmont, Inc.,
55 So. 3d 630, 634 (Fla. 5th Dist. Ct. App. 2011)); see also Fla. Stat. § 672.204(1)
(“A contract for sale of goods may be made in any manner sufficient to show
agreement, including conduct by both parties which recognizes the existence of
such a contract.”). Somewhat more specifically, courts applying Florida law have
clarified (1) that “[a] vendor, as master of the offer,” is free to “invite acceptance
by conduct” and in so doing to “propose limitations on the kind of conduct that
constitutes acceptance,” and (2) that a consumer may, in turn, “accept by
performing the acts the vendor proposes to treat as acceptance.” TracFone
Wireless, Inc. v. Pak China Grp. Co., 843 F. Supp. 2d 1284, 1298 (S.D. Fla. 2012)
4
Although the Federal Arbitration Act embodies an “emphatic federal policy in favor of arbitral
dispute resolution,” KPMG LLP v. Cocchi, 565 U.S. 18, 21 (2011), this policy does not apply to
the threshold question of whether there is “a valid agreement to arbitrate between the parties.”
Bd. of Trs. of City of Delray Beach Police & Firefighters Ret. Sys. v. Citigroup Glob. Mkts., Inc.,
622 F.3d 1335, 1342 (11th Cir. 2010) (quotations omitted). That question is governed instead by
the “ordinary state-law principles that govern the formation of contracts.” Bazemore v. Jefferson
Capital Sys., LLC, 827 F.3d 1325, 1329 (11th Cir. 2016) (quoting First Options of Chi., Inc. v.
Kaplan, 514 U.S. 938, 944 (1995)).
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(quotations omitted); accord, e.g., Salco Distribs., LLC v. iCode, Inc., No. 8:05–
CV–642, 2006 WL 449156, at *2 & n.5 (M.D. Fla. Feb. 22, 2006) (quoting
ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996)).
These settled principles give rise to two fundamental inquiries: (1) Would “a
reasonable, objective person” have understood an offer as an “invitation to
contract,” and (2) did that person’s “words and acts, judged by a reasonable
standard, manifest an intention to agree?” Kolodziej, 774 F.3d at 741–42
(quotation omitted). In considering these questions, a court must examine the
content of the offer, the circumstances in which the offer was made, and the
conduct of the parties—all the while keeping firmly in mind that “[t]he law
imputes to a person an intention corresponding to the reasonable meaning of his
words and acts.” Id. at 742 (quoting Lucy v. Zehmer, 84 S.E.2d 516, 522 (Va.
1954), “the classic case describing and applying what we now know as the
objective standard of assent”).
As particularly relevant here, courts applying Florida law have recognized
that a vendor’s prerogative to specify conduct that constitutes acceptance includes
inviting acceptance by unwrapping a product. Take, for instance, TracFone
Wireless, Inc. v. Pak China Group Co. Ltd., a shrinkwrap case cited extensively by
both parties. There, a cellphone manufacturer’s retail packaging displayed
“conspicuous language” specifically “restricting the use of the Phones for
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TracFone Prepaid Wireless service and prohibit[ing] the consumer from tampering
or altering the software or hardware in the Phone.” TracFone, 843 F. Supp. 2d at
1298. The language further stated that “[b]y purchasing or opening this package”
the consumer agreed to the manufacturer’s terms as printed on the wrapper and in
the enclosed user guide. Id. Applying Florida law, the court held that a
consumer’s act of opening the package constituted an acceptance of the
manufacturer’s terms, thereby creating a valid contract. Id. at 1298–99.
Management Computer Controls, Inc. v. Charles Perry Construction, Inc., 743
So. 2d 627 (Fla. 1st Dist. Ct. App. 1999), is similar. There, a computer-software
vendor sent a product to a customer with its licensing agreement affixed to the
outside of the box, which was itself sealed with an orange sticker warning that
“[b]y opening this packet, you indicate your acceptance of the [company’s] license
agreement.” Id. at 629. The court deemed this a valid offer and held that the
consumer “agreed to the terms of the license agreement by breaking the seal on the
software.” Id. at 631.
This case is cut from the same cloth. Tamko’s purchase terms were printed
in full on the exterior of every package of shingles, accompanied by text alerting
purchasers of an “IMPORTANT” message that they should “READ CAREFULLY
BEFORE OPENING [THE] BUNDLE.” The agreement required consumers to
notify Tamko “within thirty (30) days following discovery of the potential problem
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with the Shingles,” and further—most importantly here—featured an all-caps,
mandatory-arbitration clause.5 As in the shrinkwrap cases, Tamko’s packaging
provided conspicuous notice of its offer—something a reasonable, objective person
would understand as an invitation to contract. See Kolodziej, 774 F.3d at 741. For
the homeowners’ part, opening and retaining the shingles was the (quite ordinary,
reasonable) conduct from which their assent can be “inferred.” See id.
The homeowners acknowledge that Florida law recognizes “shrinkwrap”
contracting but contend that the nature of the product here calls for a different
analysis. It’s a fair point. Software packaging of the sort typically involved in a
shrinkwrap case is fairly small, usually delivered directly to (and sometimes
retained by) the end user, and often includes at least some notice of terms printed
both on the outside and inside of the package. By contrast, shingle packages are
large and unwieldy, are often delivered to contractors rather than end users, are
quite unlikely to be kept following installation, and in this case sported terms
5
The homeowners assert, for the first time on appeal, that this Court needn’t reach the issue of
assent (or agency, see infra) because Tamko failed to provide the district court sufficient
evidence of its shingle wrapper, leaving the court unable to evaluate whether the purchase terms
were conspicuous enough to provide sufficient notice of the offer. In particular, the homeowners
contend that a Tamko employee’s affidavit, which describes and reproduces the purchase
agreement—including the arbitration provision—isn’t good enough, and that either an actual
shingle wrapper or a photograph was necessary. The homeowners did not, however, dispute the
sufficiency (or form) of the evidence in the district court, but rather have been arguing the merits
of assent (and agency) all along. Absent special circumstances, which we conclude do not exist
here, we will not address an argument raised for the first time on appeal. See Access Now, Inc. v.
Sw. Airlines Co., 385 F.3d 1324, 1335 (11th Cir. 2004).
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printed only once on the outer wrapping. These differences matter, the argument
presumably goes, because Florida law tasks courts with determining whether “a
reasonable, objective person” would have understood Tamko’s packaging as “an
invitation to contract.” Kolodziej, 774 F.3d at 741. And it’s just not clear that
consumers have the same realistic opportunity to review shingle (or floorboard,
siding, or tile) packaging as they would software packaging.
To be sure, there are distinctions between small-box and big-box items, but
those distinctions neither alter the underlying principles nor require a different
result. Indeed, they arguably cut in different ways. On the one hand, for instance,
it’s surely true that a consumer (or his agent—more on that below) is less likely to
keep shingle packaging than software packaging after unwrapping the product. On
the other hand, one of the things that has historically made shrinkwrap cases tricky
is that the full purchase terms “are typically provided inside the packaging of
consumer goods,” while the outer packaging bears only a notice or excerpt of those
terms—leading courts to hold that valid acceptance occurs not upon purchase or
opening, but rather only upon the purchaser’s “failure to return the product after
reading, or at least having a realistic opportunity to read, the terms and conditions
of the contract included with the product.” Schnabel v. Trilegiant Corp., 697 F.3d
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110, 121–22 (2d Cir. 2012) (emphasis added).6 Here, by contrast—in the
quintessential belt-and-suspenders move—Tamko has emblazoned its entire
purchase-agreement (complete with terms, warnings, and the all-important
arbitration clause) in haec verba on the outside of every package of shingles. No
hidden terms—no buried treasure.
Moreover, and in any event, that big-box items come with purchase terms
and conditions should hardly come as a surprise to modern consumers. Post-
purchase, acceptance-by-retention warranties are ubiquitous today—think
furniture, home appliances, sporting goods, etc. It’s not only objectively
reasonable to assume that such items come with terms and conditions, it’s also
eminently reasonable to assume that by opening and retaining those items a
consumer necessarily accepts the accompanying terms and conditions. See
Kolodziej, 774 F.3d at 742 (“[T]he law imputes to a person an intention
6
While shrinkwrap cases generally consist of “[n]otice on the outside, terms on the inside, and a
right to return the software for a refund if the terms are unacceptable,” Nicosia v. Amazon.com,
Inc., 834 F.3d 220, 232 (2d Cir. 2016) (quotation omitted), in some instances shrinkwrap offers
further require consumers to click “accept” upon installing the software itself, see, e.g.,
Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 428 (2d Cir. 2004) (characterizing shrinkwrap
licenses as involving (1) “notice of a license agreement on product packaging,” (2) “presentation
of the full license on documents inside the package,” and (3) “prohibited access to the product
without an express indication of acceptance”); ProCD, 86 F.3d at 1450–53 (requiring consumer
to click a button indicating acceptance of terms during software installation, in addition to
providing notice on the box and terms inside the box). And in still other shrinkwrap cases, terms
are printed in full on the exterior of the packaging, as in the case before us today. See, e.g.,
Mgmt. Comput. Controls, 743 So. 2d at 629 (licensing agreement affixed to outside of the box,
which was also sealed with an orange “notice” sticker).
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corresponding to the reasonable meaning of his words and acts.” (quotations
omitted)).
Indeed, this expectation—and with it, fair notice—has been building for
some time. More than 20 years ago, in Hill v. Gateway 2000, 105 F.3d 1147 (7th
Cir. 1997), the Seventh Circuit rejected a suggestion that its earlier decision in
ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)—the seminal case on
shrinkwrap contracts—applied only to software, for precisely this reason. See Hill,
105 F.3d at 1149 (“ProCD is about the law of contract, not the law of software.”).
The Hill court explained that “[p]ractical considerations support allowing vendors
to enclose the full legal terms with their products,” employing a “simple approve-
or-return” model in place of a “costly and ineffectual” requirement that sellers
narrate their terms of purchase “telephonic[ally].” Id. When it comes to
warranties and other purchase terms, the Hill court explained, “[c]ompetent adults
are bound by such documents, read or unread.” Id; see also id. at 1148 (“A
contract need not be read to be effective; people who accept [the contract] take the
risk that the unread terms may in retrospect prove unwelcome.”).
All of that applies a fortiori two decades hence, in the age of Amazon Prime.
As fewer and fewer purchases are consummated face to face, and more and more
are made online, consumers should (and must) know that vendors will often
employ a “simple approve-or-return” model, enclosing their full legal terms with a
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product at shipment. Indeed, the sort of “costly and ineffectual” telephonic
recitation of terms that the Hill court posited is a vanishingly small exception to the
norm. 7 Really, how often does the modern consumer, following a large purchase,
call a vendor to sit through a verbal oration of warranty terms? Or insist on
signing and returning a form to convey acceptance of her latest online purchase,
instead of just, oh, say, keeping it?
That’s not to imply that consumers can’t choose to seek out purchase terms
by other means should they so choose. Indeed, one key reason that the Hill court
rejected the “I-didn’t-read-it” excuse was that consumers could discover the terms
of their desired purchases in one of several ways, such as by “ask[ing] the vendor
to send a copy before deciding whether to buy,” by “consult[ing] public sources
(computer magazines, the Web sites of vendors),” or by “inspect[ing] the
documents after the product’s delivery.” 105 F.3d at 1150. And of course, as we
have emphasized, the same is true here—Tamko’s purchase terms were available
not only on its packaging but also on its website and over the phone, such that a
diligent consumer could easily have discovered and reviewed them before or after
purchase.
At the end of the day, the point is simply this: modern consumers are on
notice that products come with warranties and other terms and conditions of
7
So much so that the author of today’s opinion doesn’t even know what the Seventh Circuit was
talking about. A “telephonic recitation” of warranty terms?
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purchase. And they are free to research (or not), request (or not), and read (or not)
those terms before unwrapping their purchases. As to the case before us, Florida
law makes clear that providing conspicuously printed product packaging is an OK
way to convey purchase terms. Florida consumers who purchase, open, and retain
a product are thus bound in accordance with warranty terms conspicuously printed
on that product’s packaging, whether they actually take the time to read them or
not. 8
We can summarize using what this Court has referred to as the “million-
dollar question” in evaluating assent: “What did the part[ies] say and do?”
Kolodziej, 774 F.3d at 743. By conspicuously printing its purchase terms on its
shingle wrappers, Tamko made a valid offer in accordance with Florida law. As
master of that offer, Tamko was free to invite acceptance by specified conduct, and
it did—inviting consumers to accept by opening the shingles and retaining them
for more than 30 days. By doing exactly this, the homeowners here “accept[ed] by
performing” the acts that Tamko “propose[d] to treat as acceptance,” thus
“manifest[ing] an intention to agree.” TracFone, 843 F. Supp. 2d at 1298;
Kolodziej, 774 F.3d at 742. We therefore hold that Tamko made a valid offer—
8
This accords with the basic proposition—embraced by Florida courts—that “one who signs a
written instrument without reading it with care” is, in most cases, “bound in accordance with its
written terms.” All Fla. Sur. Co. v. Coker, 88 So. 2d 508, 510 (Fla. 1956). Although this appeal
concerns unwrapping rather than signing, the principle holds true. See Hill, 105 F.3d at 1149
(speculating that even an oral recitation of terms “would not avoid customers’ assertions
(whether true or feigned) that the clerk did not read term X to them, or that they did not
remember or understand it”).
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again, including an offer to arbitrate, rather than litigate, all product-related
claims—and that its offer was accepted.
B
Hang on just a minute, the homeowners contend: Even if this was a valid
means of making an offer, they didn’t accept it—their roofers did. After all, the
homeowners say, they never saw the shingle packaging and thus never had a
reasonable opportunity to consider Tamko’s purchase terms—arbitration clause
included—so they can’t possibly be bound by them. Attributing the roofers’
acceptance to them would be, the homeowners assert, an “ill-advised” and
“unsupported” expansion of agency law. We disagree. Imputing the roofers’
notice and acceptance of Tamko’s purchase terms to the homeowners requires no
expansion, but rather fits squarely within established agency-law principles and
precedent.
Let’s start with the basics. “[A]n agency relationship requires (1) the
principal to acknowledge that the agent will act for it; (2) the agent to manifest an
acceptance of the undertaking; and (3) control by the principal over the actions of
the agent.’” Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1236 (11th
Cir. 2014) (quotation omitted). Importantly here, we have further held—applying
Florida law—that a grant of agency authority also necessarily implies “the
authority to do acts that are ‘incidental to it, usually accompany it, or are
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reasonably necessary to accomplish it.’” Bd. of Trs. of City of Delray Beach Police
& Firefighters Ret. Sys. v. Citigroup Glob. Mkts., Inc., 622 F.3d 1335, 1342–43
(11th Cir. 2010) (quoting 2 Fla. Jur.2d Agency & Employment § 47 (2005)).9 As
examples of this “incidental-to” authority, Florida courts have held, for example,
that real-estate agents charged with selling property have authority to purchase
surveying services on behalf of their principals, Bradley v. Waldrop, 611 So. 2d
31, 32–33 (Fla. 1st Dist. Ct. App. 1992), and “to make representations concerning
the description and characteristics of the property to be sold,” Outlaw v.
McMichael, 397 So. 2d 1009, 1010 (Fla. 1st Dist. Ct. App. 1981).
This case is similar. Neither party seriously disputes that the roofers were
the homeowners’ agents for purposes of purchasing and installing shingles. Both
homeowners expressly delegated those tasks to their roofers, their roofers accepted
those tasks by signing contracts, and the homeowners maintained control over their
roofers’ completion of those tasks pursuant to those contracts. See Franza, 772
F.3d at 1236. The question, then, is whether accepting Tamko’s purchase terms—
including an arbitration provision—was “incidental to,” “usually accompany[ing],”
or “reasonably necessary to accomplish” the purchase and installation of the
shingles. See Delray Beach, 622 F.3d at 1342–43.
9
See also Restatement (Third) of Agency § 2.02 cmt. d (Am. Law. Inst. 2006) (“If a principal’s
manifestation to an agent expresses the principal’s wish that something be done, it is natural to
assume that the principal wishes, as an incidental matter, that the agent take the steps necessary
and . . . proceed in the usual and ordinary way[.]”).
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The homeowners admit that they contracted with their roofers to buy
shingles, and even that the roofers might have known that by opening the shingles,
they—i.e., the roofers—were entering into an agreement with Tamko. But the
homeowners dispute that this necessarily means that the roofers accepted Tamko’s
purchase terms—including, as we keep saying, the arbitration clause—on the
homeowners’ behalf. Had they made clear that their roofers could enter into
binding contracts on their behalf, the homeowners contend, that grant might have
encompassed agreeing to the arbitration provision. But, they say, a “circumscribed
contract . . . to buy and install shingles does not bring with it the authority to enter
into any other contract whatsoever regarding those shingles.”
We think the homeowners are missing the point. Accepting the purchase
terms is not “any other contract . . . regarding those shingles”—it is the contract
regarding those shingles. Purchasing a product necessarily and by definition
encompasses accepting the terms of that purchase. The homeowners here
expressly delegated to their roofers the task of purchasing shingles, and yet they
now contest terms—in particular, those requiring mandatory arbitration—that are
part and parcel of that purchase. In the language of our precedent, accepting
purchase terms is “incidental to,” “usually accompany[ing],” and “reasonably
necessary to” the act of purchasing. And Florida law is clear that, in this respect at
least, arbitration terms are no different from any others: “[A]n agent can bind
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a principal to an arbitration agreement just like any other contract.” Fi–Evergreen
Woods, LLC v. Estate of Robinson, 172 So. 3d 493, 497 (Fla. 5th Dist. Ct. App.
2015). 10
Even aside from our “incidental-to” precedent, it is axiomatic under Florida
law—and more generally—that knowledge or notice that an agent acquires while
acting within the course and scope of his authority is generally imputed to his
principal. See, e.g., Chang v. JPMorgan Chase Bank, N.A., 845 F.3d 1087, 1095
(11th Cir. 2017); Restatement (Third) Of Agency § 5.03 (“For purposes of
determining a principal’s legal relations with a third party, notice of a fact that an
agent knows or has reason to know is imputed to the principal if knowledge of the
fact is material to the agent’s duties to the principal[.]”). Here, Tamko’s purchase
terms were printed on the shingle packaging, which the homeowners agree their
roofers opened. Because the notice that their roofers acquired while acting within
the scope of their authority to purchase and install the shingles is properly imputed
to them, the homeowners cannot now plead ignorance of the offer’s existence.
To summarize, then, acceptance of Tamko’s purchase terms—arbitration
clause and all—was incidental to, and reasonably necessary to accomplish, the
10
To the extent that the homeowners argue that their roofers may bind them to some purchase
terms, but not those pertaining to arbitration, the contention is foreclosed by recent Supreme
Court precedent. See Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1425 (2017)
(confirming that arbitration agreements may not be singled out for unfavorable treatment); see
also Fi–Evergreen Woods, 172 So. 3d at 497 (“There is no special rule requiring the principal to
independently waive the right to a jury trial or expressly and separately acknowledge or agree
that the agent is also authorized to waive a jury trial on his or her behalf.”).
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Case: 17-14052 Date Filed: 11/02/2018 Page: 20 of 20
homeowners’ express grant of agency authority to their roofers to purchase and
install shingles, and in any event, the roofers’ notice of the terms printed on the
shingle wrappers is properly imputed to the homeowners.
III
As “master of the offer,” Tamko invited purchasers to accept its contract
terms by opening and retaining the shingles—a reasonable means of acceptance-
by-conduct under Florida law. The homeowners, through their roofer agents,
validly accepted those terms—Tamko’s binding arbitration provision included.
We therefore affirm the district court’s decision to grant Tamko’s motion to
compel arbitration and to dismiss the homeowners’ complaint.
AFFIRMED.
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