On March 31, 2022, the Florida Supreme Court issued its opinion in Airbnb v. John Doe, et al. There, the Supreme Court addressed the issue of who decides arbitrability – that is, whether a dispute is subject to a contractual arbitration provision – the arbitrator or a judge.
In this case, a Texas couple reserved, on-line, a condominium in Florida with Airbnb. This process involved a “clickwrap” agreement, in which the couple agreed to Airbnb’s terms of service. Those terms included a section entitled Dispute Resolution. Within that section, the terms provided that any disputes between the parties would be subject to resolution through arbitration administered by the American Arbitration Association (“AAA”) in accordance with its rules. Those rules (not set forth in the clickwrap agreement) provided, among other things, that the arbitrator would have the power to rule on his or her own jurisdiction, including whether any particular claim or counterclaim would be subject to arbitration.
Unbeknownst to the Texas couple, the owner of the condominium unit they rented had placed hidden cameras throughout it. The couple alleged that the owner had secretly recorded their entire stay in the unit. After learning of this, they filed suit in Manatee County, Florida, naming both the owner and Airbnb as defendants. Airbnb moved to compel arbitration, and the trial court agreed. However, the Second District Court of Appeal reversed, holding that the AAA Arbitration Rules were two steps removed from the clickwrap agreement itself as well as being hidden within a body of procedural rules, and thus there was not clear and unmistakable evidence that the parties consented to this.
The case went to the Florida Supreme Court. The Supreme Court reversed the Second District Court and sided with other state courts of appeal and Federal court decisions. It held that the clauses were enforceable, and the arbitrator had the power to determine whether any claims or counterclaims raised were subject to arbitration.
The Court’s decision means that mandatory arbitration, including the arbitrator deciding whether a particular claim should even be arbitrated, can be agreed to (and enforced) even by an online “clickwrap agreement” that does not explicitly mention such power of the arbitrator, as long as it references or mentions the applicable arbitration rules (but does not have to set forth those rules themselves).
For additional questions on the authority of arbitrators, please contact our commercial and civil litigation teams. Visit our contact page here.
For the first time in 20 years, the Department of Justice (“DOJ”) has published guidance on website accessibility matters under the Americans with Disabilities Act (“ADA”).
In the publication, posted on March 18, 2022, and available at ADA.gov, the DOJ reiterates its priority for ensuring web accessibility for people with disabilities and emphasizes this is an obligation of both state and local governments under Title II of the ADA, and businesses that are open to the public, or public accommodations, under Title III.
The guidance provides a non-exclusive listing of examples, options, and resources for assistance and guidance in making websites available to the disabled. Importantly, however, the technical assistance states that “The Department of Justice does not have a regulation setting out detailed standards, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.” Thus, as the publication further notes, businesses and states have flexibility in how they comply with the ADA general requirements as to websites, but they still must ensure that the programs and services in good faith provided to the public are accessible to people with disabilities.
The publication also notes that automated accessibility checkers and overlays can be helpful tools in identifying or fixing problems, but that they need to be used carefully. The DOJ further states that pairing a manual check of a website with the use of automated checkers can give a better sense of the accessibility of the website. The DOJ also explains that the existing technical standards provide helpful guidance concerning how to ensure accessibility, and refers to the Web Content Accessibility Guidelines (WCAG) and the Section 508 standards utilized by the Federal Government for its own website.
ShuffieldLowman is ready to assist companies and clients with respect to issues that may arise from ADA website compliance. For additional questions on ADA website accessibility, please contact our commercial and civil litigation or corporate law teams. Visit our contact page here.
Orlando, Florida – ShuffieldLowman partner Keith J. Hesse recently was awarded the St. Thomas More Award from the Catholic Lawyers Guild of Central Florida during the annual Red Mass held at St. James Cathedral.
The St. Thomas More Award is presented annually to a member of the legal profession whose accomplishments represent the principles of St. Thomas More. The recipient must be a practicing Catholic who displays a commitment to Catholic social teachings, promotes Christian principles to modern problems, promotes the social, intellectual, and spiritual welfare of the people they serve, and offers personal sacrifice for the good of the community. The Red Mass is an annual special event for the legal profession and has been held in Central Florida and throughout the country for many years. It is attended by judges, attorneys, law professors, and their students, as well as government officials in the legislative and executive branches.
Hesse has more than 38 years of experience practicing law in the areas of commercial and corporate litigation, labor and employment, non-profit law, and real property litigation. In addition, he has extensive experience in probate, trust, and guardianship disputes, representing fiduciaries, beneficiaries, and creditors. He is an attorney and advisor to a variety of individuals, businesses, non-profit organizations and he is heavily involved in representing the manufacturing industry.
Hesse graduated from the University of Florida with a B.A. and University of Michigan Law School with a J.D. He is a member of The Florida Bar and admitted to all Florida State Courts, U.S. Tax Court. U.S. Court of Appeals, Eleventh Circuit and U.S. District Court, Middle District of Florida. He holds the AV preeminent rating from Martindale-Hubbell and is a frequent speaker and author.
He is a member of both the Florida Bar and the American Bar Association’s Real Property, Probate and Trust Law Sections, active in the Orange County Bar Association and Legal Aid Society, a graduate of the Leadership Orlando program, and the former Chair of the Ninth Judicial Circuit Grievance Committee. In the community, he has served on the boards of and otherwise worked to support Habitat for Humanity of Winter Park-Maitland, Big Brothers/Big Sisters of Central Florida, Junior Achievement, and other philanthropic organizations. He served for years on the Advisory Board for Barry Law School and was instrumental in helping it obtain ABA accreditation.
ShuffieldLowman’s five offices are located in Orlando, Tavares, DeLand, Port Orange, and the newest location in Lake Nona. The firm is a 45-attorney, full-service law firm, practicing in the areas of commercial and civil litigation, corporate law, estate planning, real estate, and litigation. Specific areas include tax law, securities, mergers and acquisitions, intellectual property, estate planning, and probate, planning for families with closely held businesses, guardianship and elder law, tax controversy – Federal and State, non-profit organization law, banking and finance, land use and government law, fiduciary litigation, construction law, association law, bankruptcy and creditors’ rights, labor and employment, and mediation.
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Non-competes, or non-competition agreements, are becoming more and more common. They can protect an employer from having a valuable employee that they have invested in, trained and developed from joining a direct competitor and working against them. If you have been asked by your employer to sign a non-competition agreement or if you, as the employer, are preparing one for your employee to sign, ShuffieldLowman can assist. Watch as ShuffieldLowman labor & employment law attorney, Keith Hesse, provides some tips for enforcing or defeating a non-compete.