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Spacil v. Home Away, Inc.

United States District Court, D. Nevada

January 13, 2020

LINDA SPACIL, and all similarly situated individuals, Plaintiff,
v.
HOME AWAY, INC., Defendant.

          ORDER

          ELAYNA J. YOUCHAH, UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant HomeAway.com, Inc.'s (“HomeAway” or “Defendant”) Motion to Compel Arbitration (ECF No. 7). The Court has considered Defendant's Motion, Plaintiff Linda Spacil's (“Spacil” or “Plaintiff”) Response (ECF No. 17), and Defendant's Reply (ECF No. 18), and finds the following.

         BACKGROUND

         It is uncontested that HomeAway operates an online platform allowing property owners and managers to list properties for relatively short-term rent by individuals and families traveling to the location of the property rented.[1] VRBO.com is one of the services offered by HomeAway. According to Plaintiff's Complaint, as supported by the Motion to Compel, on April 3, 2019, Plaintiff submitted a request to book a property in Switzerland using VRBO, which she cancelled after receiving a discounted offer from the alleged property owner. Plaintiff apparently then sent money directly to the purported owner of the Switzerland property. However, when Plaintiff became concerned that she was the victim of a scam, she contacted HomeAway. HomeAway investigated Plaintiff's concern but, because Plaintiff chose to cancel her booking request made through the VRBO website, and instead chose to work directly with the supposed property owner, Defendant did not reimburse Plaintiff for her loss.

         In support of its Motion to Compel, HomeAway offers the declaration of Lee Huberman (“Huberman”), employed by HomeAway since at least May 2, 2016, who reviewed and is familiar with HomeAway's booking processes.[2] ECF No. 7-1. Huberman attaches to his declaration exemplars of the VRBO booking request screens that are “materially similar” to the booking request screens Plaintiff “would have experienced on or about April 3, 2019.” Declaration of Lee Huberman (“Huberman Dec.”) ¶ 7; Exs. A through C. Huberman also explains the booking process in detailed. Id. ¶¶ 8-12. Huberman states that HomeAway does not own or operate the properties listed on its website and is not a party to the agreements between those offering rentals and those accepting such offers. Id. ¶ 5.

         The booking process begins by selecting a property, identifying the dates of the proposed stay, and identifying the number of guests in the booking party. Id. ¶ 9. Once that information is entered by the person using the website, the user must click the “Request to Book” button to get to the “Begin your booking” page. Id. and Ex. A.

         Toward the bottom of the “Begin your booking page” (Exhibit A) is a blue button against a grey background with white text that reads “Agree & continue.” Id. The following pertinent language appears right above this button: “By clicking ‘Agree & continue' you are agreeing to our Terms and Conditions, Privacy Policy, and to receive booking-related texts.” Id. The letters in this sentence appears in black with the exception of the words “Terms & Conditions, ” and “Privacy Policy” that appear in blue text. Huberman Dec. ¶ 10. The blue text operates as hyperlinks and, when clicked, take the user to the full Terms & Conditions or Privacy Policy then in effect. Id. Unlike the examplars about which Plaintiff complains, there is no dispute that, in April 2019, a person using the VRBO website could not continue to the next step of the booking process without clicking on “Agree & continue.” Huberman Dec. ¶ 13.

         Once a user clicks on “Agree & continue, ” the individual is taken to the “Review rules & policies” page. Huberman Dec. ¶ 11; Exhibit B. The person must check the box stating “I have read and agree to comply with all rental policies and terms, ” and then must click the “Continue” button, which is blue with white writing. Huberman Dec. 11. If a user does not check the box indicating he/she has read and agrees to comply with the rental policies and terms, a red circle containing an exclamation point appears next to the following (also in red): “You must review and agree to all Rules and Policies to continue.” Id. Defendant points out that at the bottom of this page the words “Terms and Conditions” and “Privacy Policy” appear in blue typeface and are hyperlinks. Id. These words are relatively small and are easy to miss if a user does not scroll down to the bottom of the page. Huberman Dec. Ex. B.

         After the user checks the box, and clicks the “Continue” button, the user is taken to the next page, which states at the top: “ Enter payment information.” Huberman Dec. ¶ 12 and Ex. C. The user then enters the payment information requested and must click the “Submit Request” button to complete the booking request process. Huberman Dec. ¶ 12.[3] Huberman is unequivocal when he states that no one seeking to request a booking through VRBO in April 2019 could have done so without going through each of the steps described above. Id. ¶ 13. Importantly, neither Plaintiff's brief in opposition to the Motion to Compel nor her declaration say anything about the booking request process in which Plaintiff engaged.

         Since, November 14, 2017, the “Terms and Conditions” to which each person seeking to book a property through VRBO must agree are attached to Huberman's Declaration as Exhibit D (see Id. at 1 for effective date at top). Paragraph 19 on the bottom of page 15 of Exhibit D is titled “Disputes; Arbitration.” The second paragraph on page 16 of Exhibit D begins with the bolded words “Any and all Claims will be resolved by binding arbitration rather than in court . . ..” This sentence goes on to except small claims from arbitration “if they qualify.”

         The very next sentences state:

This includes any Claims you assert against us, our subsidiaries, users or any companies offering products or services through us (which are beneficiaries of the arbitration agreement). This also includes any Claims that arose before you accepted the Terms, regardless of whether prior versions of the Terms required arbitration.

Id. at 16. The term “Claims” is defined at the top of page 16 as “any disputes or claims relating in any way to the Site, any dealings with out customer experience agents, any services or products provided, any representation made by us, or our Privacy Policy . . ..” Id.

         The “Disputes; Arbitration” section of the Terms and Conditions is not subject to amendment, in whole or part, by HomeAway. Id. Instead, “[t]he version of this ‘Dispute; Arbitration' section in effect on the date … [the user] last accepted the Terms controls.” Id. Arbitration is to be performed by the American Arbitration Association (“AAA”) or the Judicial Arbitration Mediation Services, and HomeAway will reimburse an individual for filing fees and arbitration fees paid to AAA if the claim asserted seeks less than $10, 000. Id. Arbitration will take place where the individual-user lives unless another location is mutually agreed upon. Id. The AAA Arbitration Consumer Rules, together with the AAA general rules, apply to any arbitration under the dispute-arbitration provision. Id.

         Defendant seeks to enforce the arbitration agreement through its Motion to Compel. Defendant argues that Plaintiff completed a request to book on VRBO that necessarily required her to agree to the Terms and Conditions, which includes the arbitration agreement. Plaintiff does not contest these facts. Defendant therefore contends that because Plaintiff has offered nothing that could create a material issue of fact related to the formation of a contractual agreement to arbitrate her claims, Defendant has carried its burden of proof, and Defendant is entitled to enforce the contract and compel arbitration.

         Despite Plaintiff's failure to contest any facts presented by Defendant, Plaintiff contends that the Motion to Compel must be denied because HomeAway provides exemplars of screens “substantially similar” to the ones Plaintiff would have seen in April 2019, and HomeAway fails to identify what differences exist between what the Court received and what Plaintiff actually saw. Plaintiff contends that, for this reason, the Court cannot “ascertain whether … [Plaintiff] agreed to be bound by the arbitration provision.” Plaintiff also states that HomeAway fails to produce documents showing Plaintiff's name or electronic signature. Finally, Plaintiff argues the arbitration agreement is substantively and procedurally unconscionable.

         Plaintiff does not dispute that the Court has the authority to determine whether this matter is properly stayed or dismissed pursuant to an arbitration provision that appears in its Terms and Conditions to which users in April 2019 must have agreed in order to complete a booking request on a HomeAway website. And, to this end, Plaintiff does not dispute that she used VRBO and completed a booking request for a property in Switzerland on April 3, 2019. Plaintiff also does not respond to Defendant's contention that Plaintiff cancelled the VRBO booking and paid the purported owner/manager of the property directly rather than going through VRBO to do so. Thus, having used VRBO to select and submit a booking request, Plaintiff does not dispute that she went through each of the steps Defendant explains in detail in its Motion. Plaintiff does not offer any facts or evidence of any kind to call into question the proposition that HomeAway's Terms and Conditions have not changed since November 14, 2017, the effective date on Exhibit D. ECF No. 17-1, Ex. D. p. 1. Although Plaintiff repeatedly refers to Defendant's supposed inability to produce documents Plaintiff purportedly “signed, ” Defendant does not ...


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