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Bacon v. Avis Budget Group, Inc.

United States District Court, D. New Jersey

December 7, 2018

ABIGAIL BACON, et al., Plaintiffs,
v.
AVIS BUDGET GROUP, INC., and PAYLESS CAR RENTAL, INC., Defendants.

          MEMORANDUM OPINION

          HON. KEVIN MCNULTY, U.S.D.J.

         The plaintiffs[1] 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.)[2] Plaintiffs propose to certify a nationwide class action comprising five subclasses.

         Now 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).

         The 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, infra.

         The 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, infra.

         To the 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, infra.

         I. SUMMARY

         A. Procedural History

         The 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).

         Once 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.

         B. The U.S. Plaintiffs' Rental Agreements and Rental Jackets

         Six of 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).[3] The seventh plaintiff, Arcadia Lee, rented a car in Costa Rica.[4]

         The U.S. Plaintiffs signed identical one-page rental agreements (the "U.S. Agreement") to rent Payless cars. (PSMF ¶¶ 5-7).[5] 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.

         Each 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).

         The defendants attach copies of what they identify as the rental jackets that correspond to the U.S. Agreements (the "Rental Jackets"). (DSMF ¶ 109).[6]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).

         Payless 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).

         After 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 ¶¶ 32, 36).

         That is 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).[7]None of the U.S. Plaintiffs, it seems, actually read the Rental Jacket when they received it.

         The 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 part:

28. Arbitration.
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).

         The 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 layout.[8]

         At the 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).

         The 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 visible.

         C. Lee's Costa Rica Agreement

         Arcadia 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).

         The 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."

         At the 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).

         The 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).

         The Costa Rica Terms include a "Dispute resolution" clause, essentially an arbitration provision, which states as follows:

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).

         The 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).

         The 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).

         During 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).

         D. Third-Party Booking Websites

         Payless 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 rentals online.[9]

         The defendants attach the Booking Websites' Terms of Use that were in effect at the time the five U.S. Plaintiffs reserved their car rentals. [Id. ¶¶ 76, 83, 92).[10] 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' Terms of Use. (DSMF ¶¶ 68-69, 77, 84-85, 93, 99, 100). The Terms of Use for each of the Booking Websites included an arbitration provision.

         The 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." [Id.).

         Hotwire.com's Terms of Use are identical, except of course that "we", "us", and "our" refer to Hotwire, Inc. and the term "Expedia Partner" is absent. (DSMF ¶¶ 62, 94; DE 81-30 at 81-101).

         The arbitration provision in the Priceline.com Terms of Use 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.).

         None of 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 their cars.

         II. LEGAL STANDARD

         Federal 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.

         Once 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).

         When 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 Cir. 1992).

         Because 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)).

         A 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)).

         III. DISCUSSION

         A. The Framework on Motions to Compel Arbitration

         Federal 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 omitted).

         The 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. 2018).[11]

         To 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 principle.

         The 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. 927 (1983).

         B. The Parties' Arguments

         In 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 Websites' Terms of Use. According to defendants, then, 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.

         As 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 ...


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