United States District Court, D. New Jersey
KEVIN MCNULTY, U.S.D.J.
plaintiffs have filed a putative class action against
car rental companies Avis Budget Group, Inc.
("Avis") and an Avis subsidiary, Payless Auto
Rental, Inc. ("Payless"). The Complaint alleges
that the defendant rent-a-car companies routinely charged
customers' credit and debit cards for ancillary products
and services that the customers had not authorized, or even
had declined. The plaintiffs, car rental customers who
allegedly incurred such unauthorized charges, assert claims
for damages under New Jersey, Florida, and Nevada consumer
protection and unfair trade practices statutes, for unjust
enrichment, and for conversion. They also seek injunctive
relief. (See Compl., passim.) Plaintiffs
propose to certify a nationwide class action comprising five
before the Court are two motions for summary judgment. The
first is brought by defendants jointly. (DE 81).
Defendants' motion seeks an order compelling the
plaintiffs to arbitrate their claims on an individual basis.
The plaintiffs oppose that motion and cross-move for summary
judgment that the claims not be arbitrated, but proceed in
this Court. (DE 93).
defendants' motion for summary judgment is denied
outright to the extent it rests on the agreements signed in
person by the plaintiffs when they rented their cars in the
United States, and the plaintiffs' corresponding cross
motion is granted to the same extent. Section II.D.1 & 2,
defendants' motion and the plaintiffs' cross motion
are both denied to the extent that they rest on the agreement
signed in person by the plaintiff who rented her car in Costa
Rica, because factual issues remain. Section II. D. 3,
extent the motions rest on the terms of service on booking
websites, I find that the record is not sufficiently
developed. After appropriate discovery, the issue may be
resolved on summary judgment or tried. Section II.E,
plaintiffs filed their Complaint on September 26, 2016.
Defendants initially moved to dismiss the Complaint and
compel arbitration. (DE 16, 17). Because the defendants'
motions to dismiss presented issues of fact, I denied those
motions as offered and ordered limited discovery on the issue
of arbitrability. (See MTD Opinion). In that
Opinion, I described how discovery was necessary to develop
the record on the question of whether the parties agreed to
arbitrate so that the motion to compel could be decided on a
summary judgment standard pursuant to the framework outlined
in Guidotti v. Legal Helpers Debt Resolution,
L.L.C., 716 F.3d 764 (3d Cir. 2013). (See MTD
Opinion at 6-8).
discovery on the question of arbitrability was completed, the
defendants filed the present motion for summary judgment to
compel arbitration. Plaintiffs cross-moved for summary
judgment on the same issue.
The U.S. Plaintiffs' Rental Agreements and Rental
the seven plaintiffs (the "U.S. Plaintiffs") rented
cars in the United States-specifically, New Jersey, Nevada,
or Florida. (DSMF ¶¶ 113, 123, 131, 146, 159,
168). The seventh plaintiff, Arcadia Lee, rented
a car in Costa Rica.
U.S. Plaintiffs signed identical one-page rental agreements
(the "U.S. Agreement") to rent Payless cars. (PSMF
¶¶ 5-7). Each U.S. Agreement is essentially a
receipt. It itemizes charges and fees, lists basic
identification information about the customer and the rented
vehicle, and states pickup and drop-off details.
U.S. Plaintiffs signature appears immediately below the final
paragraph of the U.S. Agreement. That final paragraph states,
in part, as follows: "I agree the charges listed above
are estimates and that I have reviewed & agreed to all
notices & terms here and in the rental jacket."
(DSMF ¶¶ 8, 108; PRDSMF ¶¶ 8, 108)
(spacing sic in original). The U.S. Agreements do not
specifically define what a "rental jacket" is, and
the phrase is not capitalized or otherwise emphasized. (DSMF
¶ 8; PRDSMF ¶ 8; DRPR ¶ 8).
defendants attach copies of what they identify as the rental
jackets that correspond to the U.S. Agreements (the
"Rental Jackets"). (DSMF ¶ 109).These Rental
Jackets, pre-printed documents about the size of standard
sheet of paper (8.5"x11"), contain certain terms
and conditions. (DSMF ¶ 9; PRDSMF ¶ 9). Folded into
thirds, they are eventually used to enclose the U.S.
Agreements, as described more fully below. (Id.;
DSMF ¶ 15; PRDSMF ¶ 15; DRPR ¶ 15).
rental sales associates are instructed to give a rental
jacket to the customer after the customer signs the rental
agreement. (DSMF ¶¶ 14, 36; PRDSMF ¶ 14; DRPR
¶ 14). They are also instructed to give a rental jacket
to any customer who requests one. (DSMF ¶¶ 16, 36).
However, rental sales associates are not trained to alert
customers to the existence of the rental jacket or to any
additional terms while the customer is reviewing the U.S.
Agreement. (PRDSMF ¶ 36; DRPR ¶ 36).
the customer signs the U.S. Agreement, the rental sales
associate takes the signed agreement, folds the customer
copy, inserts it into a Rental Jacket, and hands the customer
the Rental Jacket with the copy of the signed U.S. Agreement
inside. (DSMF ¶¶ 14, 15; PRDSMF ¶¶ 14,
15; DRPR ¶¶ 14, 15). Thus the customer routinely
receives the Rental Jacket only after signing the U.S.
Agreement, unless the customer has specifically asked to see
the Rental Jacket at some earlier time. (DSMF ¶¶
essentially what occurred when each of the U.S. Plaintiffs
rented a car. (DSMF ¶¶ 113, 119, 121, 123, 125,
127-29, 131, 138, 140-41, 146, 151-52, 154-55, 163, 165-66,
168, 180, 182, 185). The U.S. Plaintiffs did not ask to see
the Rental Jacket; the rental sales associates did not
mention anything about the Rental Jacket as the U.S.
Plaintiffs were reviewing their Agreements; the U.S.
Plaintiffs signed their Agreements; and then the rental sales
associates folded the U.S. Agreements inside the Rental
Jackets and handed them back to each U.S. Plaintiff.
(Id.). It is undisputed that the U.S. Plaintiffs
received the Rental Jackets at the rental counter only after
they signed their Rental Agreements. (PSMF ¶¶ 1, 2;
DRPSMF ¶¶ 1, 2).None of the U.S. Plaintiffs, it seems,
actually read the Rental Jacket when they received it.
Rental Jacket, so called, is not actually titled as such; the
actual title at the top of the page is "Rental Terms and
Conditions." (DSMF ¶ 10; PRDSMF ¶ 10; DRPR
¶ 10). The Rental Jacket includes 31 paragraphs of terms
and conditions in small but legible print. The word
"jacket" is not found as a header anywhere in the
document; it does appear in the text of the second numbered
paragraph, which refers to the "Rental Document
Jacket." (DE 81-11). The terms and conditions, as well
as the layouts, are substantially the same across all six
Rental Jackets provided to the U.S. Plaintiffs. Each includes
the same arbitration provision, which states, in relevant
Dispute Resolution: Except as otherwise provided below, in
the event of a dispute that cannot be resolved informally
through the pre-dispute resolution procedure, all disputes
between you and Payless arising out of, relating to or in
connection with your rental of a vehicle from Payless and
these rental terms and conditions shall be exclusively
settled through binding arbitration through the American
Arbitration Association ("AAA") pursuant to the
AAA's then-current rules for commercial arbitration.
There is no judge or jury in arbitration. Arbitration
procedures are simpler and more limited than rules applicable
in court and review by a court is limited. YOU AND PAYLESS
AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN
INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR
REPRESENTATIVE ACTION. Notwithstanding any provision in these
terms to the contrary, if the class-action waiver in the
prior sentence is deemed invalid or unenforceable, however,
neither you nor we are entitled to arbitration. . . . This
arbitration agreement is subject to the Federal Arbitration
Act. . . . Disputes and claims that are within the scope of a
small claims court's authority, as well as disputes to or
loss of a vehicle related to your Payless rental, are exempt
from the foregoing dispute resolution provisions.
(DSMF ¶¶ 11-13, 21; PRDSMF ¶¶ 11-13, 21;
DRPR ¶¶ 11-13).
defendants keep the Rental Jackets at the rental counter,
typically near the computer terminal or printer. (DSMF
¶¶ 35, 41; PRDSMF ¶¶ 35, 41; DRPR
¶¶ 35, 41). The parties provided photos of the
rental counters where the U.S. Plaintiffs rented their cars
in Tampa, FL and Las Vegas, NV to illustrate the physical
Las Vegas location, the Rental Jackets are located on a desk
behind the counter where the rental associate stands. The
desk on which they sit is lower than the counter, so the view
of a customer who is standing more than a few feet away is
obstructed. Even for a customer standing directly at the
counter, only the bottom portion of the Rental Jacket page
would be visible. The Rental Jackets are facing in the
direction of the rental sales associate (i.e., the
text is upside-down from the customer's point of view).
photos of the Tampa location are similar, except that the
Rental Jackets are somewhat less obstructed by the counter
ledge, and the bottom of the rental jacket is therefore more
Lee's Costa Rica Agreement
Lee rented a car in Costa Rica from Payless's licensee,
Las Cuatro Vias, S.A. ("LCV"). (DSMF ¶¶
186, 192-93, 203). LCV uses an agreement that is printed on
both sides of a single sheet of paper. (Id. ¶
194). The front side is a receipt-like document, customized
by insertions, that contains the essential terms of the
particular transaction (the "Costa Rica Fill-in
Agreement"). The back side of the paper includes general
preprinted terms, in both English and Spanish, and is
entitled Rental Agreement (the "Costa Rica Terms").
(Id. ¶ 194). Both the front-side Costa Rica
Fill-in Agreement and the back-side Costa Rica Terms have
their own signature lines for the customer to sign. (PRDSMF
¶ 194; DRPR ¶ 194). Lee signed the Costa Rica
Fill-in Agreement on the front of the sheet, but did not
separately sign the Costa Rica Terms on the back. (DE 81-8;
PRDSMF ¶ 207; DRPR ¶ 207).
front side of the Costa Rica Fill-In Agreement is a
receipt-like agreement that bears the Payless logo as well as
LCV's name and address. (DE 81-8; DSMF ¶ 195). It
includes basic identification information about the customer
and the rented vehicle, itemizes charges and fees, and
identifies pickup and drop-off details for the rented
vehicle. (DE 81-8). It also includes several provisions with
blank lines next to them for the customer to initial to
signify that it is accepted or declined. (Id.).
These include a collision damage waiver, emergency roadside
assistance, and supplemental liability insurance.
(Id.). The collision damage waiver states that it is
subject to capitalized "Terms and Conditions on this
countract [sic]." (Id.). There is no document
or paragraph entitled "Terms and Conditions,"
however. The front side does not explicitly refer to content
on the back side of the paper. (Id.), Aside from the
reference in the collision damage waiver, the front-side
Costa Rica Fill-in Agreement does not refer to, let alone
identify, any separate terms and conditions. It does not
refer to any extrinsic "Rental Agreement."
bottom of the front side appears the following admonition:
"By signing below, you agree to the terms and conditions
of this Agreement, and you acknowledge that you have been
given an opportunity to read this Agreement before being
asked to sign." [Id.; DSMF ¶ 197; PRDSMF
¶ 197; DRPR ¶ 197). Lee signed the front side just
underneath that admonition. (DE 81-8).
Costa Rica Terms, i.e., the back of the sheet, bears the
heading "Rental Agreement." It comprises 21
paragraphs in English and 21 paragraphs in Spanish on a
single page. (Id.). The writing is quite small and
difficult to read, at least in the Court's copy.
(Id.). The first numbered English paragraph, titled
"Parties," explains that the parties include LCV
and the renter, defined as the "persons whose data is
detailed on the face of this document and whose signatures
are affixed at the bottom, as well as any other individuals
or entities in which name the car-rental invoice is issued by
instructions of the signatory who shall be jointly liable for
the obligations hereunder acquired." (Id.; DSMF
¶ 196; PRDSMF ¶ 196; DRPR ¶ 196).
Costa Rica Terms include a "Dispute resolution"
clause, essentially an arbitration provision, which states as
Every controversy or dispute that may be related to this
agreement or its performance, liquidation or interpretation
shall be resolved in accordance with the following procedure:
1) The parties shall resort to conciliation mechanisms in
accordance with the Conciliation Regulations of the Center
for Conciliation and Arbitration of the Chamber of Commerce
of Costa Rica. If the Parties have not reached a conciliation
agreement within fifteen business day [sic]
following the conciliation request, the controversy or
dispute shall be resolved by means of 2) Arbitration
proceedings, in accordance with the Arbitration regulation of
said center, to which rules the parties subject themselves
unconditionally. The Arbitration Panel shall be composed of
one member and resolve [sic] pursuant to law.
(DE 81-8; DSMF ¶ 199).
back side of the paper has its own signature line, at the
bottom right corner. It is preceded by the following
admonition: "By signing below, you agree to the terms
and conditions of this Agreement," in English and
Spanish. Lee did not sign the Costa Rica Terms on the back
side of the paper. (DE 81-8; PRDSMF ¶ 207; DRPR ¶
207; PSMF ¶ 48).
parties attach a video of Lee's rental transaction at LCV
in Costa Rica. (DE 93-5 at 138 (the "video")). This
video shows Lee reviewing and signing the Costa Rica
Agreement; it does not show that she ever turned over the
Costa Rica Fill-in Agreement to review the Costa Rica Terms
on the back. (Id.). The video shows the rental sales
associate physically pointing to where Lee should sign the
Costa Rica Fill-In Agreement on the front side, but it does
not show the rental sales associate communicating to Lee that
there is additional content on the back side of the paper.
[Id.; PRDSMF ¶ 208; DRPR ¶ 208).
the transaction, Lee can be heard asking, "do you want
me to sign next to each one?" The evident reference is
to the initial lines on the front requiring the customer to
accept or decline the collision damage waiver, the emergency
roadside assistance sentence, and the supplemental liability
insurance. (Video at 34:35 - 34:45). The rental sales
associate responds, "at the end, please", and
points to the signature line at the bottom of the front side.
(Id.). Later on, the rental sales associate gives
the paper back to Lee and says, "sign the initials for
your name; one, two, three, and at the end, alright?"
(Video at 54:27 - 54:59). After Lee signs the front side, the
rental sales associate takes back the paper. (Id.).
Neither the testimony nor the video suggests that Lee asked
any questions about the Costa Rica Terms or turned the sheet
over during this rental transaction. (DSMF ¶ 208).
Third-Party Booking Websites
has business relationships with travel booking websites such
as Expedia.com, Hotwire.com, and Priceline.com (collectively,
"the Booking Websites"). (DSMF ¶ 54). These
Booking Websites provide online reservation services and
assist users in making car rental reservations with vendors,
including Payless. (Id. ¶ 56). Five of the six
U.S. Plaintiffs used those websites to reserve their car
were in effect at the time the five U.S. Plaintiffs reserved
their car rentals. [Id. ¶¶ 76, 83,
92). To use the Booking Websites to reserve
their rentals, the five U.S. Plaintiffs had to click boxes
acknowledging that they had read and agreed to the Booking
Websites included an arbitration provision.
arbitration provision included in the Expedia.com Terms of
Use provided the following: "Any and all Claims will be
resolved by binding arbitration, rather than in court. . . .
This includes any Claims you assert against. . . travel
suppliers or any companies offering products or services
through us (which are beneficiaries of this arbitration
agreement)." Such arbitration, it provides, "will
be conducted only on an individual basis and not in a class,
consolidated or representative action." (DSMF
¶¶ 61, 78; DE 81-30 at 37-47). It also states that
"[y]ou agree to give us an opportunity to resolve any
disputes or claims relating in any way to. . . any services
or products provided" and that “[i]f we are not
able to resolve your Claims within 60 days, you may seek
relief through arbitration or in small claims court. . .
." (Id.; DSMF ¶ 79). The terms
"we", "us", and "our" are
defined to refer to Expedia, Inc., and its subsidiaries and
corporate affiliates, including Travelscape, LLC.
(Id.). The term "you" is defined to mean
the customer visiting or booking a reservation through
Expedia.com. [Id.). "Expedia Partner" is
defined as "any co-branded and/or linked website through
which we provide links, content or service."
"we", "us", and "our" refer to
Hotwire, Inc. and the term "Expedia Partner" is
absent. (DSMF ¶¶ 62, 94; DE 81-30 at 81-101).
provided the following: "ANY AND ALL CLAIMS MUST BE
RESOLVED BY BINDING ARBITRATION. . . AND IT PREVENTS YOU FROM
PURSUING A CLASS ACTION OR SIMILAR PROCEEDING IN ANY FORUM.
THESE LIMITATIONS APPLY TO ANY CLAIMS AGAINST. . . ANY TRAVEL
SERVICE PROVIDERS OR COMPANIES OFFERING PRODUCTS OR SERVICES
THROUGH THE SITE." (DSMF ¶¶ 63, 104; DE 81-30
at 48-79). It defines "third-party suppliers or
providers" as including "the airlines, hotels,
rental car companies and other suppliers that provide travel
or other services through this Site (such third parties
collectively referred to as the Travel Service
Providers')." [Id.). It requires a Notice
of Dispute prior to any arbitration; "If Priceline and
you, or Priceline and any Third-party, do not reach an
agreement to resolve the Claim within 60 days after the
Notice is received, you, or the Third-party, may commence an
arbitration proceeding." (Id.). It also
includes a class-action waiver. (Id.).
the plaintiffs who reserved their rentals with the Booking
Websites suggest that they had any problems with the
reservation process. The basis for those plaintiffs'
claims against defendants involve the alleged unauthorized
charges for ancillary services after the plaintiffs returned
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted "if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring
Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a
motion for summary judgment, a court must construe all facts
and inferences in the light most favorable to the nonmoving
party. See Boyle v. Cty. of Allegheny Pa., 139 F.3d
386, 393 (3d Cir. 1998). The moving party bears the burden of
establishing that no genuine issue of material fact remains.
See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). "[W]ith respect to an issue on which the
nonmoving party bears the burden of proof . . . the burden on
the moving party may be discharged by 'showing'-that
is, pointing out to the district court-that there is an
absence of evidence to support the nonmoving party's
case." Id. at 325.
the moving party has met that threshold burden, the
non-moving party "must do more than simply show that
there is some metaphysical doubt as to material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). The opposing party must
present actual evidence that creates a genuine issue as to a
material fact for trial. Anderson, 477 U.S. at 248;
see also Fed. R. Civ. P. 56(c) (setting forth the
types of evidence on which a nonmoving party must rely to
support its assertion that genuine issues of material fact
exist). "[U]nsupported allegations . . . and pleadings
are insufficient to repel summary judgment." Schoch
v. First Fid. Bancorp., 912 F.2d 654, 657 (3d Cir.
1990); see also Gleason v. Norwest Mortg., Inc., 243
F.3d 130, 138 (3d Cir. 2001) ("A nonmoving party has
created a genuine issue of material fact if it has provided
sufficient evidence to allow a jury to find in its favor at
trial."). If the nonmoving party has failed "to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial, . . . there can
be 'no genuine issue of material fact,' since a
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial." Katz v. Aetna Cas. & Sur.
Co., 972 F.2d 53, 55 n.5 (3d Cir. 1992) (quoting
Celotex, 477 U.S. at 322-23).
the parties file cross-motions for summary judgment, the
governing standard "does not change."
Auto-Owners Ins. Co. v. Stevens & Ricci, Inc.,
835 F.3d 388, 401 (3d Cir. 2016) (citing Appelmans v.
City of Phila., 826 F.2d 214, 216 (3d Cir. 1987)). The
court must consider the motions independently, in accordance
with the principles outlined above. Goldwell of N.J.,
Inc. v. KPSS, Inc., 622 F.Supp.2d 168, 184 (D.N.J.
2009); Williams v. Philadelphia Housing Auth., 834
F.Supp. 794, 797 (E.D. Pa. 1993), affd, 27 F.3d 560
(3d Cir. 1994). That one of the cross-motions is denied does
not imply that the other must be granted. For each motion,
"the court construes facts and draws inferences in favor
of the party against whom the motion under consideration is
made" but does not "weigh the evidence or make
credibility determinations" because "these tasks
are left for the fact-finder." Pichler v.
UNITE, 542 F.3d 380, 386 (3d Cir. 2008) (internal
quotation and citations omitted); see also Big Apple BMW,
Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d
arbitration is a "matter of contract" between two
parties, "a judicial mandate to arbitrate must be
predicated upon the parties' consent." Guidotti
v. Legal Helpers Debt Resolution, L.L.C., 716 F.3d 764,
771 (3d Cir. 2013) (quoting Par-Knit Mills, Inc. v.
Stockbridge Fabrics Co., Ltd., 636 F.2d 51, 54 (3d Cir.
1980)). Pursuant to the Federal Arbitration Act
("FAA"), a court may enforce a contract to
arbitrate, but only if the court is satisfied that the
"making of the agreement" to arbitrate is not
"in issue." Id.; ACE Am. Ins. Co. v.
Guerriero, 738 Fed.Appx. 72, 77 (3d Cir. 2018)
("Before compelling arbitration, . . . courts must be
satisfied that the parties have an agreement to arbitrate
because 'arbitration is a matter of contract and a party
cannot be required to submit to arbitration any dispute which
he [or she] has not agreed so to submit."') (quoting
AT & T Techs., Inc. v. Commc'ns Workers of
Am., 475 U.S. 643, 648, 106 S.Ct. 1415 (1986)).
motion to compel arbitration is evaluated under the summary
judgment standards outlined above. Id. at 77. Thus
arbitration will be compelled if the arbitrability issue
presents no genuine, material issues of fact, with
"[t]he party opposing arbitration . . . given the
benefit of all reasonable doubts and inferences that may
arise." Id. (quoting Kaneff v. Del. Title
Loans, 587 F.3d 616, 620 (3d Cir. 2009)). If, on the
other hand, there are material factual disputes regarding
arbitrability, the court should proceed to trial
"regarding 'the making of the arbitration agreement
or the failure, neglect, or refusal to perform the same,'
as Section 4 of the FAA envisions." Id.
(quoting Somerset Consulting, LLC v. United Capital
Lenders, LLC, 832 F.Supp.2d 474, 482 (E.D. Pa. 2011)).
The Framework on Motions to Compel Arbitration
law is decidedly pro-arbitration. The FAA's purpose is
"to reverse the longstanding judicial hostility to
arbitration agreements that had existed at English common law
and had been adopted by American courts, and to place
arbitration agreements upon the same footing as other
contracts." Gilmer v. Interstate/Johnson Lane
Corp., 500 U.S. 20, 24, 111 S.Ct. 1647 (1991). Thus, the
statute makes agreements to arbitrate "valid,
irrevocable, and enforceable," 9 U.S.C. § 2,
subject only to traditional principles of contract formation
and interpretation. The FAA provides that contract provisions
manifesting the intent of the parties to settle disputes in
arbitration shall be binding, allows for the stay of federal
court proceedings in any matter that is referrable to
arbitration, and permits both federal and state courts to
compel arbitration if one party has failed to comply with an
agreement to arbitrate. 9 U.S.C. §§ 2-4.
Cumulatively, those provisions "manifest a liberal
federal policy favoring arbitration agreements."
Gilmer, 500 U.S. at 24, 111 S.Ct. 1647 (quotations
relevant inquiry encompasses two questions: (1) whether the
parties agreed to arbitrate; and (2) whether the dispute is
within the scope of the agreement. Sarbak v. Citigroup
Global Markets, Inc., 354 F.Supp.2d 531, 536-37 (D.N.J.
2004); see also Green Tree Fin. Corp. v. Bazzle, 539
U.S. 444, 452, 123 S.Ct. 2402 (2003); ACE Am. Ins. Co. v.
Guerriero, 738 Fed.Appx. 72, 77 (3d Cir.
decide the first question, whether the parties have agreed to
arbitrate, the courts apply state contract law. "Before
a party to a lawsuit can be ordered to arbitrate and thus be
deprived of a day in court, there should be an express,
unequivocal agreement to that effect." Griswold v.
Coventry First LLC, 762 F.3d 264, 270 (3d Cir. 2014)
(quoting Par-Knit Mills, 636 F.2d at 54). But even
facially neutral state laws, the Supreme Court has recently
held, will be set aside if they discriminate against
agreements to arbitrate vis-a-vis other contracts:
The FAA . . . preempts any state rule discriminating on its
face against arbitration-for example, a "law
prohibiting] outright the arbitration of a particular type of
claim." .... And not only that: The Act also displaces
any rule that covertly accomplishes the same objective by
disfavoring contracts that (oh so coincidentally) have the
defining features of arbitration agreements.
Kindred Nursing Centers Ltd. P'ship v. Clark,
137 S.Ct. 1421, 1426 (2017) (quoting AT & T Mobility
LLC v. Concepcion, 563 U.S. 333, 341, 131 S.Ct. 1740)
(sarcasm in original). So the court, in applying contract
law, must keep in mind not only the general "strong
federal policy in favor of arbitration," John
Hancock Mut. Life Ins. Co. v. Olick, 151 F.3d 132, 137
(3d Cir. 1998), but also the Kindred preemption
second question, whether the dispute falls within the scope
of the arbitration agreement, is decided under federal law.
Century Indem. Co., 584 F.3d at 524. "When the
parties have a valid arbitration agreement, 'any doubts
concerning the scope of arbitrable issues should be resolved
in favor of arbitration."' Guerriero, 738
Fed.Appx. at 77-78 (quoting Mitsubishi Motors Corp. v.
Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105
S.Ct. 3346 (1985)). Accord Moses H. Cone Mem'l Hosp.
v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct.
The Parties' Arguments
broad strokes, the defendants argue that die arbitration
provisions in the Rental Jackets and the Costa Rica Terms are
enforceable and that the plaintiffs' claims fall within
the scope of those arbitration provisions. Further, they
argue that the class-action waivers in the arbitration
provisions require the plaintiffs to bring their claims on an
individual rather than a class-wide basis. Although Avis is
not a signatory to the Rental Jackets, and neither defendant
is a signatory to the Costa Rica Terms, they say they may
enforce the arbitration provisions under principles of agency
law and equitable estoppel. Furthermore, defendants argue,
the plaintiffs who reserved their car rentals through the
Booking Websites can be compelled to arbitrate their claims
based on the arbitration provisions found in the Booking
all of the plaintiffs must submit their claims against Avis
and Payless to arbitration, and on an individual basis-the
U.S. Plaintiffs in the United States, and Lee in Costa Rica.
plaintiffs see it, arbitration cannot be compelled here. The
U.S. Agreements and the Costa Rica Fill-In Agreement do not
effectively incorporate by reference the Rental Jackets or
the Costa Rica Terms, including the arbitration clauses
therein. Assuming arguendo that the Rental Jackets
and Costa Rica Terms are effective, plaintiffs ...