Gregory Selden v. Airbnb, Inc.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 13, 2020 Decided July 13, 2021
No. 19-7168
GREGORY SELDEN,
APPELLANT
v.
AIRBNB, INC.,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cv-00933)
Ikechukwu Emejuru argued the cause for appellant. With
him on the briefs was Andrew Nyombi.
Sean Marotta argued the cause for appellee. With him on
the brief were Michelle A. Kisloff and Matthew J. Higgins.
Before: KATSAS and RAO, Circuit Judges, and EDWARDS,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
RAO, Circuit Judge: This case involves the arbitrability of
discrimination claims brought against Airbnb, an online home
2
rental platform. When Gregory Selden signed up for Airbnb,
he was presented with a sign-in wrap—a webpage that informs
the user he is agreeing to certain terms by signing up. Airbnb’s
Terms of Service included a clause requiring that all disputes
be resolved by arbitration. The district court held that Selden
agreed to those Terms of Service by signing up for Airbnb and
so compelled arbitration of his claims. The arbitrator ruled in
favor of Airbnb and the district court refused to vacate the
arbitration award. On appeal, Selden argues that he did not
agree to arbitrate because Airbnb’s sign-up screen failed to put
him on notice of the arbitration clause in its Terms of Service
and regardless, that his discrimination claims were not
arbitrable. He also maintains the arbitrator committed
misconduct by failing to provide for sufficient discovery and
by refusing to consider his expert report.
We affirm. Airbnb’s sign-up screen put Selden on
reasonable notice that by signing up to use the platform he
agreed to Airbnb’s Terms of Service; and Selden’s
discrimination claims were arbitrable. Selden also failed to
establish that he was prejudiced by the arbitrator’s alleged
misconduct.
I.
Airbnb provides an online “community marketplace” for
people to list and rent accommodations around the world. A
“host” with a property to rent creates a listing on Airbnb’s
website. A “guest” who wants to rent a property can sign up
and use Airbnb’s marketplace to communicate directly with a
property’s host to request a booking. If the host accepts, the
host and guest enter an agreement. Airbnb facilitates the
marketplace for property rentals and payment for bookings, but
is otherwise not involved in the interaction between a host and
guest. Airbnb does not operate the accommodations, set the
3
price, or determine availability. Those decisions are made
exclusively by a host, who decides whether to rent his property
and on what terms.
To use Airbnb, a new user must create an account and
profile through Airbnb’s website. During the time relevant to
this suit, an iPhone user would see this screen when signing up:
J.A. 231.
The screen presents three options to sign up for Airbnb:
using a Facebook account, a Google account, or an email.
4
Directly below these options, the screen states: “By signing up,
I agree to Airbnb’s Terms of Service, Privacy Policy, Guest
Refund Policy, and Host Guarantee Terms.” J.A. 231. The
terms and policies appear in red and are hyperlinks to the
relevant document.
The Terms of Service begin with a warning, in all caps,
that they “contain important information regarding [a user’s]
legal rights, remedies and obligations,” including “various
limitations and exclusions, a clause that governs the
jurisdiction and venue of disputes, and obligations to comply
with applicable laws and regulations.” J.A. 69 (capitalization
altered). The “Dispute Resolution” section includes an
arbitration clause in which, as relevant here, a user and Airbnb
“agree that any dispute, claim or controversy arising out of or
relating to these Terms … or to the use of the Services or use
of the Site … will be settled by binding arbitration.”1 J.A. 83.
1
The arbitration clause provides in full:
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.
Further, unless both you and Airbnb otherwise agree
5
This section also includes a class action waiver in which a user
and Airbnb “agree that [they] 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.”
J.A. 83. Any arbitration would be administered by the
American Arbitration Association (“AAA”) in accordance
with its rules. California law governs any disputes.
This case arose when Gregory Selden created an Airbnb
account in March 2015. When Selden went to the sign-up page
on his iPhone, he chose to sign up with his Facebook account.
At the time, Airbnb required a user to provide a profile picture,
which hosts could view.2 Selden’s Facebook profile picture
became his Airbnb profile picture.
After Selden signed up for Airbnb, he inquired about a
listing in Philadelphia to rent a single room in a property
occupied by the owner. The host told Selden the property was
not available. Later that day, Selden noticed the property was
still listed. Selden, an African American man, suspected the
in writing, the arbitrator may not consolidate more
than one person’s claims, and may not otherwise
preside over any form of any class 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
these Terms.
J.A. 83 (emphasis omitted).
2
Airbnb has since changed this policy and no profile picture is now
required.
6
host had denied his request because of his race, which the host
could see from Selden’s profile picture.
Two days later, Selden created two fake Airbnb accounts
with profile pictures of white individuals. Selden then used his
fake accounts to request renting the same property for the same
dates. According to Selden, the host accepted both requests.
Selden posted his claims of discrimination on social media with
the hashtag “#airbnbwhileblack,” which went viral.
Selden filed a complaint in the District Court for the
District of Columbia against Airbnb asserting claims under
three statutes. First, he alleged that Airbnb violated Title II of
the Civil Rights Act of 1964, Pub. L. No. 88-352, § 201, 78
Stat. 241, 243 (codified at 42 U.S.C. § 2000a), which prohibits
discrimination on the basis of race in public accommodations.3
Second, he alleged that Airbnb violated the Civil Rights Act of
1866, 14 Stat. 27 (codified as amended at 42 U.S.C. § 1981),
which prohibits discrimination on the basis of race in the
formation of contracts. Third, he alleged that Airbnb violated
the Fair Housing Act, Pub. L. No. 90-284, § 804, 82 Stat. 73,
81 (1968) (codified as amended at 42 U.S.C. § 3604), which
prohibits discrimination on the basis of race in the sale or rental
of housing. To support these discrimination claims, Selden
asserted that two Airbnb policies had a disparate impact on
African Americans: its photo policy, requiring a user to provide
a profile picture that hosts could view, and its true name policy,
requiring a user to use his true name that hosts could see.
3
A “public accommodation” related to lodging is defined as “any
inn, hotel, motel, or other establishment which provides lodging to
transient guests, other than an establishment located within a
building which contains not more than five rooms for rent or hire and
which is actually occupied by the proprietor of such establishment as
his residence.” 42 U.S.C. § 2000a(b)(1).
7
Selden asserted his discrimination claims individually and on
behalf of a class, seeking damages and injunctive relief.
Based on the arbitration clause in the Terms of Service, the
district court granted Airbnb’s motion to compel arbitration.
The district court determined that Airbnb’s sign-up screen
placed Selden on reasonable notice of the Terms of Service,
and therefore he agreed to the Terms when he signed up.
Concluding that Selden’s discrimination claims were
arbitrable, the district court ordered the parties to arbitrate and
stayed the case pending the arbitration.
Selden filed an arbitration demand with the AAA. The
arbitrator first ordered a voluntary document exchange and
explained that he would consider subsequent formal discovery
requests. Selden later requested interrogatories and
depositions, but the parties instead agreed to try mediation,
which failed. A month later, the arbitrator approved of the
parties sending document requests but also explained that he
was willing to consider renewed requests for additional
discovery after completing the document production. Selden’s
counsel followed up with an email expressly “reserv[ing] the
right to seek testimony by way of depositions … prior to [the]
close of discovery,” but never requested any interrogatories or
depositions prior to the close of discovery.
Airbnb filed a dispositive motion to have Selden’s claims
dismissed. Selden opposed the motion, in part by submitting an
expert report from Dr. Dan Svirsky. In his report, Dr. Svirsky
explained a study he coauthored about racial discrimination in
the sharing economy and posited that Airbnb’s true name
policy had a disparate impact on African Americans. During
arguments, Selden requested depositions of Airbnb employees
before the arbitrator decided the motion. A few days later, the
arbitrator granted Airbnb’s motion.
8
Although the arbitrator noted that the allegations against
the host were “serious” and “involve[d] totally
inappropriate … conduct,” the arbitrator dismissed Selden’s
claims against Airbnb as a matter of law. J.A. 320. He
determined that the host’s property—a room in an owner-
occupied, single-family residence—was not a public
accommodation, so it did not fall under the protection of
Title II. He also concluded that Airbnb’s online marketplace
was not a public accommodation. Relatedly, a single-family
residence like the host’s property is not a dwelling that qualifies
for the Fair Housing Act’s protection. See 42 U.S.C.
§ 3603(b)(1). Because Airbnb was not a party to the contract
between Selden and the host, and had no agency relationship
with the host, the Civil Rights Act of 1866 did not apply. The
arbitrator entered an award in favor of Airbnb.
Selden then filed a motion to vacate the arbitrator’s award
in the district court, arguing the arbitrator erred by denying his
discovery requests for interrogatories and depositions and by
ignoring his expert report. According to Selden, these errors
amounted to misconduct and a refusal to consider evidence,
justifying vacatur of the award.
The district court denied the motion. As to the discovery
requests, the court determined the error was Selden’s, because
he failed to request interrogatories or depositions prior to the
close of discovery. With respect to the expert report, the court
held that Selden failed to show the arbitrator refused to
consider it because the arbitrator permitted Selden to submit
the report. In any event, Selden failed to establish that he was
prejudiced by the lack of discovery because the arbitrator’s
decision was based on the legal conclusion that neither the
host’s property nor Airbnb’s online platform fell within the
statutes he invoked. The district court refused to vacate the
arbitration award and dismissed Selden’s case.
9
On appeal, Selden challenges both the district court’s order
of arbitration and its denial of his motion to vacate the
arbitration award. We have jurisdiction to review the district
court’s order compelling arbitration and its refusal to vacate the
arbitration award under the Federal Arbitration Act (“FAA”),
9 U.S.C. § 16(a)(3) (providing for review of “a final decision
with respect to an arbitration”). See also Republic of Argentina
v. AWG Grp. Ltd., 894 F.3d 327, 332 (D.C. Cir. 2018). We
review these orders de novo. See Howard Univ. v. Metro.
Campus Police Officer’s Union, 512 F.3d 716, 720 (D.C. Cir.
2008); Nat’l R.R. Passenger Corp. v. ExpressTrak, LLC, 330
F.3d 523, 529 (D.C. Cir. 2003).
II.
Selden contends that the district court erred by ordering
arbitration of his discrimination claims. He maintains that he
did not agree to arbitration because Airbnb’s sign-up screen
failed to give him reasonable notice of the Terms of Service.
Selden also maintains that his statutory claims were not
arbitrable. We take each argument in turn.
A.
We hold that Selden agreed to arbitrate his claims against
Airbnb because he had reasonable notice of the Terms of
Service and the arbitration clause therein.
Under the FAA, an arbitration clause in a contract “shall
be valid, irrevocable, and enforceable, save upon such grounds
as exist at law or in equity for the revocation of any contract.”
9 U.S.C. § 2. Congress enacted the FAA “in response to
widespread judicial hostility to arbitration agreements.” AT&T
Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011). The
FAA “reflect[s] both a liberal federal policy favoring
10
arbitration and the fundamental principle that arbitration is a
matter of contract.” Id. (cleaned up). We therefore “place
arbitration agreements on an equal footing with other contracts
and enforce them according to their terms.” Id. (cleaned up).
Because arbitration is a contractual matter, we must first
determine whether the parties have agreed to arbitrate by
looking to state contract law. The district court applied
California law as to contract formation, and the parties have not
taken issue with that decision on appeal. Finding no apparent
error in that choice, we apply California law as well. See BWX
Elecs., Inc. v. Control Data Corp., 929 F.2d 707, 710 (D.C. Cir.
1991).
Under California law, “[a]n essential element of any
contract is consent,” and that “consent must be mutual.”
Monster Energy Co. v. Schechter, 444 P.3d 97, 102 (Cal. 2019)
(cleaned up). Whether mutual consent exists “is determined by
objective rather than subjective criteria, the test being what the
outward manifestations of consent would lead a reasonable
person to believe.” Id. (cleaned up). An offeree may outwardly
manifest consent by agreeing to a contract’s terms in writing or
orally. See Windsor Mills, Inc. v. Collins & Aikman Corp., 25
Cal. App. 3d 987, 992 (Ct. App. 1972). But “an offeree,
regardless of apparent manifestation of his consent, is not
bound by inconspicuous contractual provisions of which he
was unaware, contained in a document whose contractual
nature is not obvious.” Id. at 993. Even if an offeree lacked
actual notice of the terms, however, he may be bound if he
manifested his consent and “a reasonably prudent user would
[have] be[en] on inquiry notice of the terms.” Meyer v. Uber
Techs., Inc., 868 F.3d 66, 74–75 (2d Cir. 2017) (applying
California law). Inquiry notice, also called constructive notice,
turns on “whether reasonable people in the position of the
parties would have known about the terms and the conduct that
11
would be required to assent to them.” Id. at 77 (citation and
quotation marks omitted). It depends on “the clarity and
conspicuousness” of the terms. Id. at 75 (cleaned up); accord
Windsor Mills, 25 Cal. App. 3d at 993.
Selden used his Facebook account to sign in to Airbnb on
a screen that stated signing up constituted agreement to the
Terms of Service. This type of screen is known as “sign-in
wrap,” a website “designed so that a user is notified of the
existence and applicability of the site’s ‘terms of use’ when
proceeding through the website’s sign-in or login process.”
Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 399 (E.D.N.Y.
2015). In other words, a sign-in wrap bundles signing up for a
service with agreement to the website’s contractual terms.
To determine whether a sign-in wrap provides reasonable
notice of the terms to which the user is agreeing requires a
“fact-intensive inquiry.” Meyer, 868 F.3d at 76. We look to the
“layout and language of the site” to decide whether it would
provide a “reasonably prudent smartphone user” with
“reasonable notice that a click”—i.e., signing up—“will
manifest assent to an agreement.” Id. at 75, 77 (cleaned up).
We conclude that Airbnb’s sign-up screen placed Selden
on reasonable notice that by signing up he agreed to the Terms
of Service. Airbnb’s screen used a simple design. It had three
buttons allowing users to sign up using Facebook, Google, or
email. Directly below the three buttons, it stated: “By signing
up, I agree to Airbnb’s Terms of Service, Privacy Policy, Guest
Refund Policy, and Host Guarantee Terms.” J.A. 231. These
terms and policies appeared in red text against a white
background and were hyperlinked to the full policies.
Moreover, the sign-in appeared on a single screen for an iPhone
user like Selden and required no scrolling to see the notice of
the Terms of Service. As the district court explained, Airbnb’s
12
notice was “clearly legible, appropriately sized, and
unobscured by other visual elements.” J.A. 222.
To resist this conclusion, Selden argues he lacked
reasonable notice and therefore never agreed to the arbitration
clause within the Terms of Service. Selden first contends that,
because “Terms of Service” appeared in red text, a reasonable
user would not know they were hyperlinked because hyperlinks
are ordinarily blue and underlined. While it is true that
hyperlinked text is often underlined and highlighted in blue,
this is not a necessary requirement for indicating a hyperlink.
Reasonable notice does not turn on where the hyperlinked
text falls on the color wheel; rather we consider whether the
text was conspicuous. Here, the red terms were conspicuous
and put a reasonable user on notice that they were hyperlinks.
The only red text in the warning indicated the legal policies,
which were set off from the surrounding black text. See
Wickberg v. Lyft, Inc., 356 F. Supp. 3d 179, 184 (D. Mass.
2018) (explaining a pink phrase makes it “distinguishable on
the screen”). Airbnb’s screen drew a user’s attention to the
hyperlinked terms, unlike the screen in Cullinane v. Uber
Technologies, Incorporated, 893 F.3d 53, 57, 64 (1st Cir.
2018), on which the hyperlinked terms appeared in white next
to light gray text and therefore were not conspicuous.
Moreover, the sign-up screen elsewhere used red to
indicate a hyperlink. At the bottom of the sign-up screen, “Log
in” appeared in red in the prompt: “Already an Airbnb
member? Log in.” J.A. 231. Any reasonable smartphone user
would understand that clicking “Log in” would send him to
Airbnb’s login page. The prompt to “Log in,” as well as the
legal policies, appeared in red, which clearly and
conspicuously indicated the Terms of Service were a hyperlink.
13
Selden next argues that the sign-up screen’s layout of three
buttons with different logos and color schemes undercuts the
reasonableness of the notice. In particular, Selden suggests that
because of the distance between the button he selected, “Sign
up with Facebook,” and Airbnb’s Terms of Service, he lacked
reasonable notice that he was agreeing to Airbnb’s terms.
We are unpersuaded. The three buttons plainly provided
options for how a user could sign up for Airbnb because each
began “Sign up with” and then provided a method for doing so.
Directly below these three options, Airbnb informed the user
that “By signing up, I agree to Airbnb’s Terms of Service.” J.A.
231. The buttons appeared in close proximity to the notice and
on a single screen. A reasonable person would know that, by
signing up, he would be agreeing to Airbnb’s terms even if he
used his Facebook account to sign up.
Selden finally argues that Airbnb’s sign-up screen is not
“appealing to the eye” or “easy to follow,” so the design makes
the Terms of Service inconspicuous. Selden Br. 23. Aesthetic
judgments aside, for legal purposes, Airbnb’s sign-up screen
incorporates a simple, streamlined design that sufficiently
draws a user’s attention to its Terms of Service. The screen
provided reasonable notice to Selden that, by signing up, he
was agreeing to Airbnb’s Terms of Service. Whether Selden
read those Terms is irrelevant because he was on inquiry
notice. See Meyer, 868 F.3d at 79 (explaining that regardless of
whether any users “bother reading the … terms, that is the
choice the user makes; the user is still on inquiry notice”). We
conclude that Selden agreed to the Terms of Service and the
arbitration clause contained therein.
14
B.
We next consider whether Selden’s discrimination claims
were arbitrable. Selden argues that Title II of the Civil Rights
Act prohibits arbitration of claims brought under it and that it
was unconscionable to require him to arbitrate his Fair Housing
Act claim.4 We hold that all of Selden’s claims were subject to
arbitration.
1.
Whether Title II claims are arbitrable appears to be a
matter of first impression. The FAA, “standing
alone, … mandates enforcement of agreements to arbitrate
statutory claims,” but “[l]ike any statutory directive,” its
“mandate may be overridden by a contrary congressional
command.” Shearson/Am. Express, Inc. v. McMahon, 482 U.S.
220, 226 (1987). Congress may determine by statute that some
claims are not subject to arbitration. In light of the strong policy
in favor of arbitration, however, we require a clear statement
that individuals may not agree to arbitrate specific statutory
rights. See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1626
4
Selden also argued for the first time on appeal that California law
renders the Terms of Service’s arbitration clause unenforceable as to
his Title II claim. By failing to raise this argument below, Selden has
forfeited it. See Potter v. District of Columbia, 558 F.3d 542, 547
(D.C. Cir. 2009). Relying on McGill v. Citibank, North America, 393
P.3d 85 (Cal. 2017), Selden contends that there was an intervening
change in California law that excuses his forfeiture. In McGill,
however, the California Supreme Court merely applied an
established principle to claims brought under the California False
Advertising Law. See id. at 89–94 (discussing Cruz v. PacifiCare
Health Sys., 66 P.3d 1157 (Cal. 2003); Broughton v. Cigna
Healthplans of Cal., 988 P.2d 67 (Cal. 1999)). There was thus no
intervening change in law that excused Selden’s forfeiture.
15
(2018); CompuCredit Corp. v. Greenwood, 565 U.S. 95, 103
(2012).
Nothing in the text or structure of Title II forecloses
arbitration. Subsection (a) provides that district courts “shall
have jurisdiction of proceedings instituted pursuant to this
subchapter and shall exercise the same without regard to
whether the aggrieved party shall have exhausted any
administrative or other remedies that may be provided by law.”
42 U.S.C. § 2000a-6(a). This provision simply grants
jurisdiction to district courts over Title II claims. A statutory
grant of jurisdiction “neither guarantees a right to a federal
court trial nor forbids arbitration as an alternate forum.”
Garrett v. Circuit City Stores, Inc., 449 F.3d 672, 678 (5th Cir.
2006) (interpreting a Uniformed Services Employment and
Reemployment Rights Act provision providing that “the
district courts of the United States shall have jurisdiction of the
action” and holding that those claims are arbitrable); see also
Epic. Sys., 138 S. Ct. at 1626 (explaining that “Congress has
spoken often and clearly to the procedures for resolving [a
claim] in statute after statute” but that does not limit
arbitration); CompuCredit Corp., 565 U.S. at 100–01
(explaining that “the mere formulation of the cause of action in
this standard fashion” cannot establish a contrary congressional
command prohibiting arbitration).
Selden maintains that Title II forecloses arbitration
because subsection (a) states that a claimant need not exhaust
“other remedies that may be provided by law.” Selden argues a
claimant need not exhaust arbitration before proceeding in a
district court. But arbitration is not a “remedy” provided by law
in any ordinary meaning of that term.
Although “remedy” may be susceptible to a range of
meanings, “[a]ll meanings of ‘remedy’ have one thing in
16
common, namely, that that which is referred to as a remedy is
represented as a cure.” Peter Birks, Rights, Wrongs, &
Remedies, 20 OXFORD J. LEGAL STUD. 1, 9 (2000). Arbitration,
however, is not a cure to a claim; it is a dispute-resolution
process through which a litigant may obtain a cure.5 “By
agreeing to arbitrate a statutory claim,” a party “only submits
to [its] resolution in an arbitral, rather than a judicial, forum.”
Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473
U.S. 614, 628 (1985). Arbitration provides “an alternate
forum” for the resolution of claims, but the forum is not a
remedy. See Garrett, 449 F.3d at 678. Subsection (a) makes no
mention of arbitration—it simply excuses a Title II plaintiff
from exhausting his claim before filing suit and evinces no
congressional command to preclude an arbitral forum.
Selden also argues that reading subsections (a) and (b)
together suggests that federal courts are the “exclusive means”
of enforcing the rights provided by Title II. Subsection (b)
provides that “[t]he remedies provided in this subchapter shall
be the exclusive means of enforcing the rights based on this
subchapter.” 42 U.S.C. § 2000a-6(b). As we have explained,
arbitration is not a remedy within the meaning of
subsection (a), and similarly, it does not qualify as a “remed[y]
provided in this subchapter” under subsection (b). We cannot
take two subsections, neither of which addresses arbitration,
and mash them together to find that arbitration is prohibited. If
Congress wanted to prohibit arbitration of Title II claims, it
5
To be sure, the Supreme Court has described arbitration as a
“remedy,” but “only when the parties have created such a procedure
in the collective bargaining agreement.” Vaca v. Sipes, 386 U.S. 171,
196 n.17 (1967). Vaca concerned an employee’s complaint that his
union had wrongfully failed to arbitrate, and the Court considered
whether arbitration should be ordered as the remedy to the
employee’s complaint. See id. at 196.
17
could have done so in a “less obtuse” manner. CompuCredit
Corp., 565 U.S. at 103. We decline to find a limitation on
arbitration unless a statute sets forth such limitation with
“clarity.” Id. “Congress has … shown that it knows how to
override the Arbitration Act when it wishes.” Epic Sys., 138
S. Ct. at 1626 (collecting statutes); id. at 1624 (explaining the
“strong presumption that repeals by implication are
disfavored”) (cleaned up). Title II does not prohibit arbitration
and we cannot pick up the legislative pen to write a prohibition
on arbitration into the statute.
Nothing in Title II overcomes the FAA requirement to
enforce agreements to arbitrate. See Shearson/Am. Express,
482 U.S. at 226–27. The district court thus properly compelled
arbitration of Selden’s Title II claim.
2.
Selden argues that his claim under the Fair Housing Act,
42 U.S.C. § 3601, should not have been arbitrated because
Airbnb’s Terms of Service are unconscionable. In particular,
Selden contends that the Terms of Service’s class action waiver
“effectively forecloses” his ability to establish his disparate
impact claim under the Fair Housing Act, in part by prohibiting
“uniform” injunctive relief. Selden Br. 31.
To be rendered unenforceable under California law, a
contractual provision must be both procedurally and
substantively unconscionable. See Pinnacle Museum Tower
Ass’n v. Pinnacle Mkt. Dev., 282 P.3d 1217, 1232 (Cal. 2012).
Although Selden baldly asserts that the class action waiver is
“procedurally and substantively unconscionable,” he provides
no explanation of how the Terms of Service are procedurally
unconscionable and therefore has forfeited that argument. See
Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir.
18
2019) (explaining that we will not “put flesh on [the] bones” of
an argument raised “only in the most skeletal way”) (cleaned
up). In the absence of an argument that the class action waiver
is procedurally unconscionable, Selden has failed to
demonstrate an essential element of his claim that arbitration
of his Fair Housing Act claim was unconscionable.
***
Airbnb’s sign-up screen put Selden on reasonable notice
that by signing up he was agreeing to the arbitration clause
within the Terms of Service, and Selden’s discrimination
claims were subject to arbitration. We therefore affirm the
district court’s order compelling arbitration.
III.
Selden also contends that the district court erred by
refusing to vacate the arbitrator’s award due to alleged
misconduct. Under the FAA, a federal court may vacate an
arbitration award when, among other things, the arbitrator is
“guilty of misconduct … in refusing to hear evidence pertinent
and material to the controversy; or of any other misbehavior by
which the rights of any party have been prejudiced.”6 9 U.S.C.
6
Selden also frames the arbitrator’s misconduct as a “manifest
disregard of the law.” We have previously “recognized a limited
nonstatutory ground for vacating an arbitration award where the
arbitrator has acted in ‘manifest disregard of the law.’” Al-Harbi v.
Citibank, N.A., 85 F.3d 680, 682 (D.C. Cir. 1996) (cleaned up). It is
unclear, however, whether manifest disregard remains a valid ground
for vacatur after the Supreme Court’s decision in Hall Street
Associates v. Mattel, Incorporated, 552 U.S. 576, 584–86 (2008). In
Hall Street, the Supreme Court held that the FAA’s list of grounds
for refusing to enforce an award is exclusive. See id. at 586. The
FAA’s list does not include manifest disregard. See 9 U.S.C. § 10(a).
19
§ 10(a)(3). Because “every failure of an arbitrator to receive
relevant evidence does not constitute misconduct requiring
vacatur,” we vacate the award only if the failure “prejudices the
rights of the parties.” Lessin v. Merrill Lynch, Pierce, Fenner
& Smith, Inc., 481 F.3d 813, 818 (D.C. Cir. 2007) (cleaned up).
A party seeking the vacatur of an arbitration award must
establish that (1) the arbitrator committed some error, and (2)
the error made a difference.
Selden alleges that the arbitrator committed misconduct by
refusing to provide for interrogatories or depositions and by
refusing to consider Dr. Svirsky’s expert report. Neither ground
constitutes misconduct warranting vacatur of the arbitration
award.
Selden’s first ground for misconduct—that the arbitrator
failed to provide for interrogatories or depositions—fails
because it is a problem of Selden’s own making. Selden
contends he made the arbitrator aware that he wanted this
discovery on several occasions, but the arbitrator decided not
to permit the requested discovery. The arbitrator explained,
however, that he would consider renewed requests prior to the
close of discovery, which Selden expressly reserved the right
to do. Yet Selden never made those requests prior to the close
of discovery. Instead, he waited to make the request for the first
time at the hearing on Airbnb’s dispositive motion. But that
request came too late. It was not misconduct for the arbitrator
The Supreme Court has declined to resolve “whether ‘manifest
disregard’ survives … Hall Street,” either “as an independent ground
for review or as a judicial gloss on the enumerated grounds for
vacatur.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S.
662, 672 n.3 (2010). Because Selden has not established that the
arbitrator disregarded the law, we need not resolve whether manifest
disregard remains a ground for vacating an arbitration award.
20
to deny interrogatories and depositions that were not requested
prior to the close of discovery.
Selden was also not prejudiced by the lack of discovery.
The arbitrator’s award was based on a threshold legal
conclusion, namely that the host’s single-family residence was
not a public accommodation or qualifying dwelling as required
for Selden’s discrimination claims. See 42 U.S.C.
§ 2000a(b)(1) (defining “public accommodation” to exclude a
“building which contains not more than five rooms for rent”
that “is actually occupied by the proprietor of such
establishment as his residence”); id. § 3603(b)(1) (exempting a
single-family residence from the Fair Housing Act). Nor was
Airbnb’s online platform a public accommodation according to
the arbitrator. The arbitrator also determined that any alleged
discrimination was committed by the host, and Airbnb had no
part in it. Selden therefore simply could not make out a claim
under the relevant discrimination statutes, because they did not
apply to the Airbnb platform or to the host’s room for rent.
Selden does not argue that the arbitrator’s legal conclusions
were erroneous.
Selden maintains that interrogatories and depositions are
critical to a discrimination plaintiff and that their absence
“precluded him from fully prosecuting the merits [of] his
claim.” Selden Br. 36. According to Selden, this discovery was
needed “to learn about inter alia the true relationship between
Airbnb and its hosts, the credibility of Airbnb’s photo policy,
and the scale of the discriminatory impact against protected
class members.” Selden Br. 36. Selden, however, does not
explain how any evidence of this “true relationship” might
contradict the arbitrator’s legal conclusion that the listed home
was not a public accommodation or qualifying dwelling.
Selden’s vague assertions suggest that the exclusion of the
21
discovery, “far from being a serious blow to [his] case, caused
[him] little if any prejudice.” Howard Univ., 512 F.3d at 723.
Selden’s second ground of alleged misconduct is that the
arbitrator refused to consider his expert report. Selden’s expert,
Dr. Svirsky, wrote a report explaining his study of racial
discrimination in the sharing economy. Selden submitted the
report to the arbitrator, but the arbitrator made no mention of it
in his award. We need not decide whether an error occurred,
because the alleged error did not prejudice Selden.
Selden has failed to establish how the purported refusal to
consider the expert report would have altered the arbitrator’s
legal conclusions. Selden’s expert report focused on how
Airbnb’s true name policy has a disparate impact on African
American guests. Even if the true name policy had such a
disparate impact, liability under Title II attaches only in the
context of a public accommodation and liability under the Fair
Housing Act does not attach to single-family residences.
Selden has failed to establish that the alleged error would have
made a difference to the arbitrator’s legal determination that
these statutes did not apply to Selden’s claims because neither
the listed room nor the Airbnb platform was a public
accommodation or qualifying dwelling.
Because Selden has failed to demonstrate an error
affecting the outcome of the arbitration, we decline to vacate
the arbitration award.
***
For the foregoing reasons, we affirm the district court’s
order of arbitration and denial of Selden’s motion to vacate the
arbitration award.
So ordered.