Opinion

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 25-cv-22939-ALTMAN

SHOWMOJO, LLC, and TENANT

TURNER, INC.,

Plaintiffs,

v.

THRESHOLD TECHNOLOGY, LLC,

d/b/a RENTENGINE, and

ALEXANDER STRINGFELLOW,

Defendants.

___________________________________/

ORDER

Software providers sued a rival for allegedly gaining unauthorized access to—and

misappropriating—their products. The Defendants now move to compel arbitration of the claims

under the doctrine of equitable estoppel. After careful review, we GRANT in part and DENY in

part the motion.

THE FACTS

Our Plaintiffs—ShowMojo, LLC (“ShowMojo”) and Tenant Turner, Inc. (“Tenant

Turner”)—“provide[ ] . . . property management software” to “real estate professionals throughout

the United States.” Third Amended Complaint (the “TAC”) [ECF No. 57] ¶ 1. Those Platforms—

“proprietary, cloud-based,” and “specifically designed for the property management industry”—

“allow property managers to efficiently coordinate leasing activities, manage leads, schedule showings,

facilitate communication with prospective tenants[,] and integrate with third-party services and

hardware.” Id. ¶¶ 1, 21. To prevent “competitor access” and “reverse engineering,” the Plaintiffs

“safeguard their Platforms and associated confidential information through . . . technical,

contractual[,] and operational controls.” Id. ¶¶ 25, 28.

“As part of these protections,” our Plaintiffs say, “prospective user[s]” of the platforms “must

accept the applicable Terms of Use before any account is provisioned or access is permitted.” Id. ¶ 28.1

And those Terms of Use, we’re further told, “expressly forbid[ ] the use of the[ ] Platforms by

competitors,” giving “access to the Platforms or any of their features available to third parties,” and

“[r]everse engineering, decompiling, disassembling, copying, creating derivative works from, or

otherwise analyzing the Platforms—or any underlying source code, algorithms, or functionalities—

for the purpose of developing, enhancing, or providing a competing product or service[.]” Id. ¶¶ 38–

39.

Despite such protections, our Plaintiffs allege that a “direct competitor”—RentEngine, “a

leasing platform for property managers”—“engaged in a systematic and deliberate scheme to

improperly access and exploit [the] Plaintiffs’ Platforms and confidential information.” Id. ¶¶ 4, 44.

According to our Plaintiffs, RentEngine “has been directly soliciting [the] Plaintiffs’ customers to

provide access to their profiles on [the] Plaintiffs’ Platforms, claiming that such access is necessary for

purposes such as data migration or demonstrations of RentEngine’s services,” even though its “true

objective [i]s to gain unauthorized entry into [the] Plaintiffs’ secure, proprietary systems to further its

own competitive interests.” Id. ¶ 45. And “[o]nce provided with [a] customer’s login credentials,” our

Plaintiffs continue, RentEngine “make[s] additional accounts under that customer profile to access

and manipulate [the] Plaintiffs’ Platforms.” Id. ¶ 46.

1 Our Plaintiffs—two different companies—each have their own Terms of Use. See Tenant

Turner Terms of Use [ECF No. 147-1]; ShowMojo Terms of Use [ECF No. 147-2]. But they refer to

those terms as a monolithic “Terms of Use.” See, e.g., TAC ¶ 28 (“[A]ny prospective user must accept

the applicable Terms of Use before any account is provisioned or access is permitted[.]”). We do the

same, unless otherwise noted.

The Plaintiffs claim to have uncovered at least forty instances of RentEngine “us[ing]

customer credentials to establish unauthorized accounts on the Platforms.” Id. ¶ 51. And those

instances, the Plaintiffs add, have allowed RentEngine to “receive[ ] a vast amount of private, properly-

protected information about Plaintiffs . . . to which [it] w[a]s not entitled,” including the “confidential

features, data flows, user interfaces[,] and functional tools . . . that comprise [the] Plaintiffs’ proprietary

trade secrets.” Id. ¶¶ 51, 58. Armed with that information, the Plaintiffs tell us, RentEngine

“accelerate[d] [its] product development”; “divert[ed] leads and communications to [its own] systems”;

“replicate[d] numerous password-protected processes”; and “misappropriated images and depictions

of Plaintiffs’ interfaces and features” in “marketing brochures” to “disparage and misrepresent

the . . . Plaintiffs’ offerings in the marketplace.” Id. ¶¶ 60, 64, 77, 80.

“As a direct result of [that] misappropriation,” the Plaintiffs allege, RentEngine “avoided

substantial development costs and achieved a material head-start in product design, feature breadth,

onboarding/migration capabilities[,] and marketing.” Id. ¶ 99. In so doing, they further claim,

“RentEngine intentionally caused confusion and harm in the marketplace, materially damaging [the]

Plaintiffs’ business reputation, goodwill[,] and competitive standing.” Id. ¶ 90; see also id. ¶ 102

(“Plaintiffs have suffered and continue to suffer significant business and reputational injuries,

including loss of customer relationships and goodwill, harm to their industry standing, and a reduction

in market share.”).

In May 2025, our Plaintiffs sued RentEngine and its “Chief Executive Officer,” Alexander

Stringfellow. Id. ¶ 17. See Complaint [ECF No. 1]. In July 2025, the Plaintiffs filed a Motion for

Preliminary Injunction (the “PI Motion”) [ECF No. 7] along with a Motion to Expedite Discovery

[ECF No. 8]. That same month, we granted the Motion to Expedite Discovery, see Order Granting

Motion to Expedite [ECF No. 11], and the parties filed a Joint Motion for an Extension of Time to

Comply with the Order to Expedite Discovery [ECF No. 16]. In August 2025, the Plaintiffs filed the

First Amended Complaint [ECF No. 28]. That same day, the parties jointly moved for a stipulated

order, noting that they “reached an agreement to resolve the issues related to the request for a

preliminary injunction[.]” Joint Motion for Entry of Stipulated Order [ECF No. 29] at 1.

In October 2025, the Plaintiffs filed the Second Amended Complaint [ECF No. 43]. And, in

November 2025, the Plaintiffs filed the operative TAC, bringing eleven counts. Of those eleven

counts, only Count IX names both RentEngine and Stringfellow (together, the “Defendants”). The

remaining ten counts concern only RentEngine.

Count I alleges a violation of the Computer Fraud and Abuse Act (the “CFAA”), 18 U.S.C.

§ 1030(a). See TAC ¶¶ 107–124. Count II alleges tortious interference with contract. See id. ¶¶ 125–

135. Count III alleges unjust enrichment. See id. ¶¶ 136–144. Count IV asserts a claim under the

Lanham Act, 15 U.S.C. § 1125(a)(1)(B). See TAC ¶¶ 145–159. Count V alleges a violation of the Florida

Deceptive and Unfair Trade Practices Act (the “FDUPTA”), Fla. Stat. §§ 501.201 et seq. See TAC

¶¶ 160–171. Count VI advances an unfair-competition claim. See id. ¶¶ 172–190. Count VII brings a

conversion claim. See id. ¶¶ 191–201. Count VIII alleges trespass to chattels. See id. ¶¶ 202–211. Count

IX alleges common-law fraud. See id. ¶¶ 212–229. Count X alleges a violation of the Defend Trade

Secrets Act (the “DTSA”), 18 U.S.C. § 1836. See TAC ¶¶ 230–243. Finally, Count XI alleges a violation

of the Florida Uniform Trade Secrets Act (the “FUTSA”), Fla. Stat. § 688.001. See TAC ¶¶ 244–257.

In December 2025, the Defendants filed the Motion to Compel Arbitration or, Alternatively,

to Dismiss (the “Motion”) [ECF No. 63]. Later that month, the Plaintiffs filed the Response in

Opposition to the Motion (the “Response”) [ECF No. 69]. And, in January 2026, the Defendants filed

a Reply in Support of the Motion (the “Reply”) [ECF No. 72]. The Motion is now ripe for

adjudication.2

2 In March 2026, the Plaintiffs moved for leave to file a fourth amended complaint. See Motion

for Leave [ECF No. 82]. We denied that request, noting (among other things) that the Plaintiffs failed

THE LAW

Section 2 of the Federal Arbitration Act (the “FAA”) provides that “[a] written provision

in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy

thereafter arising out of such contract or transaction . . . 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.

That provision reflects “both a liberal policy favoring arbitration, and the fundamental principle that

arbitration is a matter of contract.” AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011) (cleaned

up). Accordingly, “any doubts concerning the scope of arbitrable issues should be resolved in favor

of arbitration.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983).

The FAA “also establishes procedures by which federal courts implement § 2’s substantive

rule.” Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 68 (2010). “A party to an arbitration agreement

may move ‘for an order directing that such arbitration proceed in the manner provided for in such

agreement’ under § 4 of the FAA, and for a stay of proceedings in federal court pending the outcome

of arbitration under § 3.” Attix v. Carrington Mortg. Servs., LLC, 35 F.4th 1284, 1294 (11th Cir. 2022)

(quoting 9 U.S.C. §§ 3–4). But “[b]efore enforcing an arbitration agreement, the court should ensure

that the agreement was formed and that it applies to the dispute at hand.” Ibid. “If the parties’

arbitration agreement applies to their dispute and no grounds render it invalid or unenforceable, the

court ‘shall’ compel arbitration and stay proceedings in federal court.” Ibid. (quoting §§ 3–4).

ANALYSIS

The Motion advances two arguments. It asks in the main that we compel arbitration. And it

maintains in the alternative that the TAC fails to state a claim for relief. We begin—and end—with

the motion to compel arbitration.

to respond to the Defendants’ argument that leave could’ve been sought back in September 2025. See

Order Denying Leave [ECF No. 92].

According to the Defendants, “the Terms of Use . . . contain broad arbitration provisions

requiring arbitration of disputes between the Plaintiffs and their customers.” Motion at 5. The

Defendants therefore invoke the doctrine of equitable estoppel, which they say allows them “to

enforce [the] arbitration agreement between . . . the Plaintiffs and the customers.” Id. at 9. That

doctrine applies here, they argue, for two reasons: first, because “the Terms of Use . . . are the genesis

of each of the Plaintiffs’ claims,” id. at 12; and second, because the TAC alleges “concerted,

interdependent misconduct” on the part of the Defendants and the Plaintiffs’ customers. Id. at 14.

But “[e]ven if equitable estoppel were unavailable,” the Defendants add, “the Court should still compel

arbitration because [the] Plaintiffs . . . affirmatively allege that [the] Defendants accepted the Terms

of Use.” Ibid.

Our Plaintiffs accuse the Defendants of “gloss[ing] over a basic fact of this case”—namely,

that they “are, in fact, signatories to [the] Plaintiffs’ Terms of Use.” Response at 19; see also ibid. (“The

Complaint details the countless times Defendants agreed to Plaintiffs’ Terms of Use to furtively gain

access to Plaintiffs’ Platforms, thus, rendering Defendants signatories to Plaintiffs’ Terms of Use.”).

And, as signatories, the Plaintiffs continue, the Defendants “may not invoke the doctrine of equitable

estoppel,” which applies only to “a non-signatory to an agreement.” Id. at 20 (quotation marks omitted).

Still, our Plaintiffs maintain that “arbitration is inappropriate” because the Plaintiffs “never intended

to contract with [the] Defendants,” which means “the contract between [the] Plaintiffs and [the]

Defendants was never formed on account of fraud in the factum.” Id. at 21. In any event, the Plaintiffs

conclude, the Defendants “waived” any arbitration right through “conduct . . . inconsistent with any

intent to arbitrate.” Id. at 24.

After careful review, we compel arbitration of ShowMojo’s claims—and stay Tenant Turner’s

claims pending that arbitration. And we reach that holding in three steps. First, as a threshold matter,

we confirm that the Terms of Use contain valid—and applicable—arbitration provisions. Second, we

conclude that the Defendants, as signatories to a void contract, can invoke equitable estoppel to

compel arbitration of ShowMojo’s (but not Tenant Turner’s) claims. Third, and finally, we reject the

Plaintiffs’ waiver argument.

I. The Prerequisites for Arbitrability

Before determining whether the Defendants are signatories, we must first confirm that “a

written agreement exists,” that the agreement “contain[s] an arbitration clause,” and that “an arbitrable

issue exists[.]” Pro. Consulting Servs. S.A.S. v. Inmigracion Pro, LLC, 2024 WL 4103919, at *4 (S.D. Fla.

Sept. 6, 2024) (Altman, J.) (cleaned up). We do so in short order.

“The FAA reflects the fundamental principle that arbitration is a matter of contract.” Rent-A-

Ctr., 561 U.S. at 67. So, “the first question in any arbitration dispute must be: What have these parties

agreed to?” Coinbase, Inc. v. Suski, 602 U.S. 143, 148 (2024). To that end, “we look to the wording of

the . . . provision itself” to “determine whether the parties have manifested a clear and unmistakable

intent to arbitrate[.]” Jones v. Waffle House, Inc., 866 F.3d 1257, 1267 (11th Cir. 2017). Here, two such

provisions exist—§ 16.1 of the Tenant Turner Terms of Use and § 11.1 of the ShowMojo Terms of

Use.3 Section 16.1 of the former requires arbitration of “any controversies, claims, counterclaims, or

other disputes between you and us or you and a third-party agent of ours.” Tenant Turner Terms of

Use [ECF No. 147-1] at 7. And § 11.1 of the latter requires arbitration of “any dispute or controversy

arising out of, in relation to, or in connection with these Terms of Use including, without limitation,

any and all disputes, claims (whether in tort, contract, statutory, or otherwise), or disagreements

3 The TAC hyperlinks to both Tenant Turner’s and ShowMojo’s Terms of Use. See TAC ¶ 29

n.2, n.3; see also Defendants’ Notice of Filing Terms of Use Referenced in Operative Complaint and

Motion to Compel Arbitration [ECF No. 147]. And the Defendants agree that we “may consider the

entirety of the Terms of Use . . . because the Terms of Use are ‘central’ to the Plaintiffs’ Complaint.”

Motion at 4 n.1; see also ibid. (“[N]either party will dispute the authenticity of the Terms of Use for the

purposes of this [M]otion.”). We therefore rely on the versions of the Terms of Use incorporated by

the TAC. See FED. R. CIV. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is

a part of the pleading for all purposes.”).

concerning the existence, breach, interpretation, application, or termination of these Terms[.]”

ShowMojo Terms of Use [ECF No. 147-2] at 7.

Our parties dispute whether the Defendants accepted the Terms of Use. But neither side

contests that the Terms of Use bind signatories, that the Terms of Use contain valid arbitration

provisions, and that—to the extent that the Defendants are signatories—those provisions encompass

the claims at issue here. See, e.g., Motion at 2 (arguing that, if it’s “true” that the Defendants agreed to

the Terms of Use, then “arbitration is straightforward” because “both sets of Terms contain broad,

mandatory arbitration provisions that require this dispute to be arbitrated”); id. at 4 (“[T]he Terms of

Use also contain broad arbitration provisions requiring arbitration of disputes between the Plaintiffs

and their customers.”); Reply at 1 (noting that the “gateway factors for arbitration are satisfied”);

Response at 24 (“Plaintiffs intended to, and did, enter an agreement with the Targeted Customers and

at all times believed their agreements to be with Targeted Customers.”).

We see no reason to find otherwise. Tenant Turner’s arbitration provision reaches all issues

that occur “between you and us or you and a third-party agent of ours.” Tenant Turner Terms of Use

at 7. That language (it’s true) limits the parties to whom the provision applies. But § 16.1 otherwise

embraces “any controversies, claims, counterclaims, or other disputes”—not just those bearing a

certain nexus to the Terms of Use—between applicable parties. Ibid. (emphasis added). And while

ShowMojo’s arbitration provision requires some nexus to the Terms of Use (i.e., the “dispute or

controversy” must be “arising out of, in relation to, or in connection with these Terms of Use”), it

doesn’t limit the parties to whom the provision applies.

Whether Tenant Turner’s arbitration provision applies to the Defendants thus turns on

whether the Defendants are signatories to the Terms of Use. But both Tenant Turner’s and

ShowMojo’s arbitration provisions prove broad enough in scope to encompass the claims set forth in

the TAC. At a minimum, all eleven counts explicitly reference the Terms of Use, see TAC ¶¶ 1–144,

160–257, or at least concern information gleaned from the Defendants’ (undisputed) access of the

Platforms, see id. ¶¶ 145–159; see also Reply at 9 (“It is undisputed that Defendants accessed the

Platforms[.]”). All eleven counts thus arise out of, relate to, or connect with the Terms of Use. See

Telecom Italia, SpA v. Wholesale Telecom Corp., 248 F.3d 1109, 1114 (11th Cir. 2001) (deeming “broad” a

clause requiring arbitration of “‘any dispute between them or claim by either party to the contract

against the other.’” (cleaned up)); Armada Coal Exp., Inc. v. Interbulk, Ltd., 726 F.2d 1566, 1568 (11th

Cir. 1984) (“The pertinent clause . . . is admitted by both parties to be broad; it states that ‘any dispute

arising during the execution of the Charter Party shall be settled by arbitration.’” (cleaned up)); see also

Cheruvoth v. SeaDream Yacht Club Inc., 2021 WL 4595177, at *1 (11th Cir. Oct. 6, 2021) (“We have stated

that federal courts interpret arbitration clauses broadly where possible.” (cleaned up)).

In sum: The Plaintiffs’ claims—if nothing else—implicate valid arbitration clauses and present

arbitrable issues. So, with the prerequisites for arbitrability met, we can proceed to the merits.

II. The Defendants Can Compel Arbitration of ShowMojo’s Claims

That brings us to the parties’ central dispute: Can the Defendants compel arbitration of the

Plaintiffs’ claims? Our answer is yes—but only as to ShowMojo’s claims. And we arrive at that answer

in four parts. First, we agree with the Plaintiffs that the Defendants are signatories to the Terms of

Use. Second, we agree with the Plaintiffs that any contract between the Defendants and the Plaintiffs

is void, but we disagree with the Plaintiffs’ contention that signatories to a void contract cannot attempt

an equitable-estoppel defense. Third, we determine that the Defendants successfully invoke equitable

estoppel to compel arbitration of ShowMojo’s claims. Fourth, and finally, we stay Tenant Turner’s

claims.

a. The Defendants are Signatories to the Terms of Use

Our Plaintiffs believe that the Defendants “agreed to [the] Plaintiffs’ Terms of Use to furtively

gain access to [the] Plaintiffs’ Platforms.” Response at 19; see also id. at 20 (insisting that the

“Defendants do not dispute” their signatory status). But the Defendants believe it “undisputed” that

they “were not contractual counterparties to the Terms of Use.” Reply at 2 (emphasis added). On the

record before us, we agree with the Plaintiffs.

To be sure, the Plaintiffs “never intended for their Terms of Use to be accepted by or govern

their relationships with an industry competitor.” TAC ¶ 38. But the thrust of the TAC remains the

same: The Defendants accessed the Platforms—and, in so doing, acceded to the Terms of Use. See, e.g.,

TAC ¶ 29 (“To create user accounts on Plaintiffs’ Platforms, Defendants were required to accept

Tenant Turner’s Customer Terms and ShowMojo’s Terms of Use[.]”); id. ¶ 31 (“[T]o access the

Tenant Turner Platform—whether authorized or not—the user must affirmatively accept the ‘Tenant

Turner Customer Terms[.]’”); id. ¶ 37 (“Defendants, through creating and operating unauthorized user

accounts on ShowMojo’s Platform, agreed to be bound by ShowMojo’s Terms of Use by guising

themselves as bona fide ShowMojo customers.”); id. ¶ 46 (“At least one such account was created by

Stringfellow[.]”); id. ¶ 51 (“Defendants used customer credentials to establish unauthorized accounts

on the Platforms.”).

The Defendants concede as much. They admit that they “accessed the Platforms . . . through

customer-provided credentials.” Reply at 9; see also id. at 6 (“It is undisputed . . . that Plaintiffs’

customers provided Defendants with access to Plaintiffs’ systems[.]”); Motion at 16 (“[I]t is undisputed

that the Plaintiffs’ customers provided RentEngine with their login credentials, whether for data-

migration purposes or any other reason, such as to generate lock-box codes. Either way, RentEngine’s

use of consensually provided access credentials to access the Plaintiffs’ Platforms makes the alleged

access “authorized.”). And they never dispute that this access required accepting the Terms of Use.

All the Defendants argue is that the signatory theory is “illogical” because the Plaintiffs “repeatedly

allege that they never intended for their Terms of Use to be accepted by or govern their relationships

with an industry competitor.” Reply at 2 (cleaned up). But that response has little bearing on whether,

as a factual matter, the Defendants accepted the Terms of Use by accessing and/or creating accounts

on the Platforms.

“When deciding motions to compel, we draw all reasonable inferences in favor of the non-

moving party.” Sudakow v. CleanChoice Energy, Inc., 153 F.4th 280, 285 (2d Cir. 2025) (Park, J.) (cleaned

up); see also Ragab v. Howard, 841 F.3d 1134, 1139 (10th Cir. 2016) (“When parties do not dispute the

material facts surrounding an arbitration provision, then a district court, while viewing the facts most

favorable to the non-moving party, can decide as a matter of law whether the parties actually agreed

to arbitrate.”).4 Doing so here requires giving weight to at least three datapoints. One, the Defendants

concede that they accessed the Platforms. Two, the Defendants never contest that this activity required

accepting the Terms of Use. And three, neither the Defendants nor the Plaintiffs has requested an

evidentiary hearing, disputed the authenticity of any documents, or identified a genuine issue of

material fact that prevents us from adjudicating the Motion on the record before us. So, drawing all

4 “The FAA does not expressly identify the evidentiary standard a party seeking to avoid

compelled arbitration must meet.” Tinder v. Pinkerton Sec., 305 F.3d 728, 735 (7th Cir. 2002). Still, the

Eleventh Circuit—among others—has held that “[w]e treat motions to compel arbitration similarly to

motions for summary judgment.” Hearn v. Comcast Cable Commc’ns, LLC, 992 F.3d 1209, 1215 n.3 (11th

Cir. 2021). But that doesn’t mean such motions always require evidentiary hearings. At least the Third,

Fourth, and Eighth Circuits have analyzed motions to compel arbitration under Rule 12(b)(6)’s

standard. See Guidotti v. Legal Helpers Debt Resol., L.L.C., 716 F.3d 764, 773 (3d Cir. 2013) (explaining

that “the Rule 12(b)(6) standard is no longer appropriate” when “the complaint and incorporated

documents facially establish arbitrability but the non-movant has come forward with enough evidence

in response to the motion to compel arbitration to place the question in issue”); Berkeley Cnty. Sch. Dist.

v. Hub Int’l Ltd., 944 F.3d 225, 233–34 (4th Cir. 2019) (“[W]e accept as true the allegations of the

Operative Complaint that relate to the underlying dispute between the parties.” (quotation marks

omitted)); City of Benkelman v. Baseline Eng’g Corp., 867 F.3d 875, 881 (8th Cir. 2017) (“[The] motion is

properly analyzed under either Rule 12(b)(6) or Rule 56.”). And, in holding that “a summary judgment-

like standard is appropriate,” the Eleventh Circuit allows for “a district court [to] conclude as a matter

of law that parties did or did not enter into an arbitration agreement . . . if there is no genuine dispute

as to any material fact concerning the formation of such an agreement.” Bazemore v. Jefferson Cap. Sys.,

LLC, 827 F.3d 1325, 1333 (11th Cir. 2016); see also Air-Con, Inc. v. Daikin Applied Latin Am., LLC, 21

F.4th 168, 175 (1st Cir. 2021) (“Like the other courts of appeals to consider the question, we decline

to mandate specific procedures and leave the conduct of the § 4 trial to the discretion of the district

court.” (citations omitted)).

reasonable inferences from those datapoints, we find that the Defendants are signatories to the Terms

of Use.5

b. Fraud in the Factum Renders the Defendants Non-Signatories

“Under the FAA, a party to an arbitration agreement may petition a United States district court

for an order directing that ‘arbitration proceed in the manner provided for in such agreement.’” Stolt-

Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 682 (2010) (quoting § 4). So, having found that the

Defendants are signatories to the Terms of Use, we must compel arbitration under those Terms of

Use—unless some exception applies. See AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643,

650 (1986) (“[W]here the contract contains an arbitration clause, there is a presumption of arbitrability

in the sense that an order to arbitrate the particular grievance should not be denied unless it may be

said with positive assurance that the arbitration clause is not susceptible of an interpretation that

covers the asserted dispute.” (cleaned up)). Our Plaintiffs identify such an exception, arguing that “the

contract between [the] Plaintiffs and Defendants was never formed on account of fraud in the

factum.” Response at 21. We take up that theory below.

“Fraud in the factum has been described as the sort of fraud that procures a party’s signature

to an instrument without knowledge of its true nature or contents, as fraud which occurs within the

instrument itself, and as fraud arising when a party signs a document without full knowledge of the

character or essential terms of the instrument.” Fed. Sav. & Loan Ins. Corp. v. Gordy, 928 F.2d 1558,

1565 (11th Cir. 1991) (cleaned up). Whereas a “fraud in the inducement claim will lie” if a party

“understands the nature of the contract they are executing but contends that there has been some

5 That outcome comports with common parlance. A signatory is simply “[a] person or entity

that signs a document, personally or through an agent, and thereby becomes a party to an agreement.”

Black’s Law Dictionary 1666 (12th ed. 2024); see also Webster’s Third New International Dictionary

2116 (2002) (“a signer with another”); American Heritage Dictionary 1630 (5th ed. 2016) (“Bound by

signed agreement.”; “One who has signed a contract or other legal document as a party.”).

material misrepresentation as to the obligations rising thereunder,” a fraud-in-the-factum claim

“relate[s] to the execution of the contract.” Solymar Invs., Ltd. v. Banco Santander S.A., 672 F.3d 981, 995

(11th Cir. 2012); see also Browning v. Fla. Hometown Democracy, Inc., PAC, 29 So. 3d 1053, 1062 (Fla. 2010)

(defining fraud in the factum as “[f]raud occurring when a legal instrument as actually executed differs

from the one intended for execution by the person who executes it, or when the instrument may have

had no legal existence”). As a result, “[f]raud in the factum renders an instrument entirely void.”

Baumann v. Savers Fed. Sav. & Loan Ass’n, 934 F.2d 1506, 1516 (11th Cir. 1991).6

Our Plaintiffs argue that the Defendants—“wolves in sheep’s clothing”—“covertly

substituted themselves in as a party without [the] Plaintiffs’ consent[.]” Response at 24. Specifically,

they claim that they “believed they had an agreement that was something different from what it was,”

since the Plaintiffs “at all times believed their agreements to be with Targeted Customers.” Ibid.; see

also TAC ¶ 5 (“Defendants gained unfettered and entirely unauthorized access to Plaintiffs’ Platforms

by disguising themselves as legitimate, paying customers.”); id. ¶ 6 (“At Defendants’ behest, a subset

of users with existing ‘profiles’ on Plaintiffs’ Platforms created unauthorized ‘user accounts’—which

were controlled by Defendants and for Defendants’ benefit—on the existing users’ Tenant Turner

6 “Federal courts must . . . apply background principles of state contract law when evaluating

arbitration agreements.” Lamps Plus, Inc. v. Varela, 587 U.S. 176, 190 (2019) (Thomas, J., concurring)

(cleaned up)). In pressing their fraud-in-the-factum theory, our Plaintiffs rely on Florida law, noting

that “the same mutual-assessment requirement exists under Florida,” “Delaware,” and “Virgina” law.

Response at 21 n.3. The Defendants offer no objection to that approach—and indeed fail to engage

with the merits of the theory. We therefore accept the parties’ choice-of-law decision. For our

purposes, in any event, we see no material difference in how these states conceptualize fraud in the

factum. See, e.g., Lincoln Nat. Life Ins. Co. v. Joseph Schlanger 2006 Ins. Tr., 28 A.3d 436, 441 (Del. 2011)

(“Fraud in the factum occurs when a party makes a misrepresentation that is regarded as going to the

very character of the proposed contract itself, as when one party induces the other to sign a document

by falsely stating that it has no legal effect. If the misrepresentation is of this type, then there is no

contract at all, or what is sometimes anomalously described as a void, as opposed to voidable,

contract.” (cleaned up)); Lucas v. Thompson, 61 Va. Cir. 44 (2003) (“Fraud in the factum is synonymous

with fraud in the execution. In order to state a cause of action for fraud in the execution of an

instrument, a plaintiff must allege that the instrument was misread to him, or his signature was

obtained to a different instrument from the one he intended to sign.” (cleaned up)).

and ShowMojo profiles. This deceptive Trojan Horse approach concealed Defendants’ entrance and

enabled their exploitation of Plaintiffs’ Platforms.”); id. ¶ 48 (“[T]o bypass the technical safeguards

implemented by Plaintiffs that monitored and restricted RentEngine’s access, RentEngine and

Stringfellow utilized false or misleading contact information, including fictitious domains and alias

email accounts, . . . to conceal their identity[.]”)

The Defendants deny neither that this conduct occurred nor that it constitutes fraud in the

factum. They argue instead—and exclusively—that the fraud-in-the-factum theory is “internally

inconsistent,” since “the voiding of the Terms [of Use] would necessarily vitiate the Plaintiffs’

substantive claims.” Reply at 4. But given the Defendants’ concession that they accessed the Platforms

through the customers (and their failure to address the merits of the argument), we find—on the

record before us—that the Plaintiffs are right to posit that any “agreement between [the] Plaintiffs

and Defendants [is] void.” Response at 22; see also Hamilton v. Southland Christian Sch., Inc., 680 F.3d

1316, 1319 (11th Cir. 2012) (“[T]he failure to make arguments and cite authorities in support of an

issue waives it.”).

But our agreement with the Plaintiffs ends there. Having advanced their fraud-in-the-factum

theory, our Plaintiffs conclude that “the dispute must be resolved by the Court rather than sent to

arbitration” because “there is no contract at all” between the parties. Ibid. (quotation marks omitted);

see also id. at 23 (“[W]hen a defendant’s conduct amounts to fraud in the factum, the issue is decided

by the courts rather than an arbitrator notwithstanding an arbitration clause in the relevant

agreement.”). That view relies on an unstated premise—that a party to a void contract cannot resort

to equitable estoppel. But we see no support for that assumption.

“A successful fraud in the factum claim makes the underlying contract void ab initio.” Solymar,

672 F.3d at 994. “Something that is ‘void ab initio’ is null from the beginning, as from the first moment

when a contract is entered into.” Griffin v. Coca-Cola Refreshments USA, Inc., 989 F.3d 923, 934 n.6 (11th

Cir. 2021) (cleaned up). “A void contract,” in other words, “has no legal effect whatsoever.” Landcastle

Acquisition Corp. v. Renasant Bank, 57 F.4th 1203, 1223 (11th Cir. 2023) (cleaned up). So, “[a] contract

that is void ab initio is a contract that never existed.” Pruco Life Ins. Co. v. Wells Fargo Bank, N.A., 780

F.3d 1327, 1332 (11th Cir. 2015).

Our Plaintiffs neglect those principles. If (as the Plaintiffs urge) the agreement between the

Plaintiffs and the Defendants is void, then the Defendants are no longer bound by it. See Restatement

(Second) of Contracts § 7 (1981) (“ [A] void contract . . . is not a contract at all[.]”); 1 Williston on

Contracts § 1:20 (4th ed. 2025) (“Void promises are not legally binding, have no legal effect, and,

therefore, are not contracts . . . . In particular, ‘void ab initio’ means a bargain is null from the

beginning, as from the first moment when the purported contract was entered into.”); see also Oubre v.

Entergy Operations, Inc., 522 U.S. 422, 432 (1998) (Breyer, J., concurring) (“[A]n absolutely void

contract . . . is void as to everybody whose rights would be affected by it if valid.”); Ferrero v. Associated

Materials Inc., 923 F.2d 1441, 1452 (11th Cir. 1991) (Birch, J., dissenting) (“[W]here one is party to a

void contract, he is not ‘bound’ by it; it represents no ‘existing restraint’ upon his conduct.”). And if

the Defendants are no longer bound, then the equitable-estoppel doctrine—inapplicable to

signatories—should become available.

Misapprehending the logic of their own theory, our Plaintiffs fail to direct us to any cases

suggesting that a party’s signatory status—but not legal obligations—can survive the voiding of a

contract. They contend instead that, “[i]n the Eleventh Circuit, a true claim of fraud in the

execution . . . does not bind the parties to arbitration.” Response at 23 (cleaned up). But the cases on

which they rely—Cancanon v. Smith Barney, Harris, Upham & Co., 805 F.2d 998, 1001 (11th Cir. 1986),

and Solymar—are inapposite here. Those cases support a more modest proposition: Courts—not

arbitrators—resolve contract-formation challenges. Neither passes on whether a signatory to a void

contract can invoke equitable estoppel. Indeed, neither even mentions equitable estoppel.7

Our Plaintiffs fail to recognize—and so fail to counteract—this problem. That failure leaves

us with basic contract-law principles as our only guidance. And those principles point in one direction.

If a void contract never exists and imposes no legal obligations, then its signatory can attempt to

compel arbitration through equitable estoppel. We must therefore determine whether the Defendants

satisfy the criteria for applying the doctrine.

c. The Defendants Successfully Invoke Equitable Estoppel as to ShowMojo’s

Claims

“Without an agreement to arbitrate, a court cannot compel the parties to settle their dispute

in an arbitral forum.” Lubin v. Starbucks Corp., 122 F.4th 1314, 1319 (11th Cir. 2024) (cleaned up). And

yet, “[i]n some cases, a non-signatory plaintiff can be bound to an arbitration agreement based on

equitable estoppel.” Id. at 1321. “[G]rounded in fairness,” Bahamas Sales Assoc., LLC v. Byers, 701 F.3d

1335, 1342 (11th Cir. 2012), that doctrine prevents parties from “playing fast and loose with the

courts” and “protects the judicial system,” In re Coastal Plains Inc., 179 F.3d 197, 205 (5th Cir. 1999);

see also Grigson v. Creative Artists Agency L.L.C., 210 F.3d 524, 528 (5th Cir. 2000) (“The linchpin for

equitable estoppel is equity—fairness.”). Equitable estoppel thus “gives a non-signatory a right to

enforce an arbitration agreement by precluding the signatory from taking inconsistent positions.”

Chemaly v. Lampert, 174 F.4th 843, 856 (11th Cir. 2026).

7 Cancanon held that, “where the allegation is one of fraud in the factum, i.e., ineffective assent

to the contract, the issue is not subject to resolution pursuant to an arbitration clause contained in the

contract documents.” 805 F.2d 998, 1000. And Solymar explained the “two-step process required in

considering the arbitrability of any contract containing an arbitration clause.” 672 F.3d at 990; see also

ibid. (noting that courts must first resolve “any formation challenge to the contract containing the

arbitration clause” and then determine “whether any subsequent challenges are to the entire

agreement, or to the arbitration clause specifically”). We fail to see how those cases preclude equitable

estoppel here.

“State law controls whether a signatory to an agreement containing an arbitration clause can

equitably compel a nonsignatory to arbitrate a dispute.” In re Martin, 2026 WL 2469945, at *1 (11th

Cir. Aug. 19, 2026); see also Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 631 (2009) (“[T]raditional

principles of state law allow a contract to be enforced by or against nonparties to the contract

through . . . estoppel[.]” (cleaned up)). And, under Florida law, “an equitable estoppel theory allows a

non-signatory to enforce the provisions of a contract against a signatory in two circumstances.”

Chemaly, 174 F.4th at 856. One, “when the signatory to the contract relies on the terms of the contract

to assert his or her claims against the non-party.” Ibid. (cleaned up). Two, “when the signatory raises

allegations of interdependent and concerted misconduct by both the non-party and one or more of

the signatories to the contract.” Ibid. (cleaned up).8

8 Another choice-of-law note. Section 18.2 of the Tenant Turner Terms of Use provides that

the agreement “will be governed by and interpreted in accordance with the law of the Commonwealth

of Virginia,” “[e]xcept as otherwise described.” Tenant Turner Terms of Use at 8. And Section 11.1

of the ShowMojo Terms of Use provides that “any dispute arising out or related to this Agreement or

your use of the Services will be governed by the laws of the State of Delaware, without regard to its

conflict of laws rules.” ShowMojo Terms of Use at 7. Still, the Defendants bring their equitable-

estoppel arguments under Florida law, relying principally on our decision in Pro. Consulting Servs. S.A.S.

See, e.g., Motion at 12–13 (applying Florida’s equitable-estoppel law). Our Plaintiffs never address that

discrepancy. Indeed, as emphasized above, our Plaintiffs never engage with the substance of the

equitable-estoppel theory.

Given the parties’ briefing, we’ll analyze the issue under Florida law. See Sizemore v. Zhao, 2026

WL 962097, at *4 (S.D. Fla. Apr. 9, 2026) (Altman, J.) (“Where ‘the parties litigate the case under the

assumption that a certain law applies, we will assume that that law applies.’” (quoting Byers, 701 F.3d

at 1342); see also Hershey v. Donaldson, Lufkin & Jenrette Sec. Corp., 317 F.3d 16, 20 (1st Cir. 2003) (“Where

parties have agreed to the choice of law, this court is free to forego an independent analysis and accept

the parties’ agreement.” (cleaned up)); Masco Corp. v. Wojcik, 795 F. App’x 424, 427 (6th Cir. 2019)

(“[C]ourts . . . regularly rely on the litigants’ agreement about the governing law (or, more often, on

one litigant’s failure to dispute the issue) to avoid deciding what could be knotty choice-of-law

questions.” (cleaned up)).

In any event, we see no conflict among the laws of Florida, Delaware, and Virginia, since all

three states recognize the two theories at issue here. See, e.g., Eventus Holdings LLC v. Cliq, Inc., 2026

WL 1363765, at *7 (Del. Super. Ct. May 14, 2026) (“Under Delaware law, a non-signatory may invoke

equitable estoppel to enforce an arbitration provision against a signatory in two limited

circumstances[.] First, equitable estoppel applies when the signatory to a written agreement containing

an arbitration clause must rely on the terms of the written agreement in asserting its claims against the

nonsignatory . . . . Second, application of equitable estoppel is warranted when the signatory to the

In pressing its equitable-estoppel theory, the Defendant relies on both circumstances. It claims

that “the Terms of Use (and, specifically, their confidentiality, access, and security provisions) are the

genesis of each of the Plaintiffs’ claims,” given that “each count of the Complaint invokes, relies upon,

or otherwise references the Terms of Use to support the Plaintiffs’ claims.” Motion at 13. And it

contends that the doctrine likewise applies “based on allegations of concerted, interdependent

misconduct because the Plaintiffs allege that their customers facilitated the misappropriation of

confidential information to the Defendants—either knowingly or, as the Complaint alleges, under

false pretenses.” Id. at 14. For their part, the Plaintiffs insist that the Defendants cannot invoke

“principles of fairness and justice” when it has “acted in such an egregiously dishonest and anti-

competitive manner.” Response at 19. But as to the merits of those equitable-estoppel arguments, the

Plaintiffs remain silent.

We can decide the issue under the first prong. “A party relies on the terms of a contract when

the party’s claims are intimately founded in and intertwined with the underlying contract obligations.”

Byers, 701 F.3d at 1343 (cleaned up). But “the party must actually depend on the underlying contract

to make out his or her claim against the nonsignatory”—i.e., “[t]he signatory must attempt to hold the

nonsignatory to the terms of the contract.” Ibid. “A simple but-for relationship does not constitute

contract containing an arbitration clause raises allegations of substantially interdependent and

concerted misconduct by both the nonsignatory and one or more of the signatories to the contract.”);

Tattoo Art, Inc. v. Tat Int’, LLC, 711 F. Supp. 2d 645, 653–54 (E.D. Va. 2010) (“The equitable estoppel

doctrine is applicable in two circumstances. First, equitable estoppel applies when the signatory to a

written agreement containing an arbitration clause must ‘rely on the terms of the written agreement in

asserting its claims against the nonsignatory. Second, equitable estoppel also applies when the

signatory to a contract containing the arbitration clause raises allegations of substantially

interdependent and concerted misconduct by both the nonsignatory and one or more of the

signatories to the contract.” (cleaned up)). So, “[b]ecause the outcome in this case is the same

under . . . Florida law and [the other state] law[s], we need not decide which law applies.” Leidel v.

Coinbase, Inc., 729 F. App’x 883, 886 (11th Cir. 2018).

the actual dependence on the underlying contract that equitable estoppel requires.” Bailey v. ERG

Enters., LP, 705 F.3d 1311, 1321–22 (11th Cir. 2013).

The Defendants clear that test. As they observe, the TAC relies on the Terms of Use in

asserting all eleven counts. The CFAA claim, for instance, alleges that the “access [to the] Plaintiffs’

Platforms was procured by fraud—i.e., by fundamentally changing the nature of the Terms of Use

through Defendants substituting itself into the agreement in place of the Targeted Customers—which

was contrary to [the] Plaintiffs’ intent for and understanding of the Terms of Use, and as required by

the Terms of Use.” TAC ¶ 109. Similarly, the tortious-interference claim alleges that “RentEngine

expressly requires that . . . customer[s] . . . add RentEngine to its existing Tenant Turner or ShowMojo

account”—in “violation of both Tenant Turner’s and ShowMojo’s Terms of Use.” Id. ¶ 129.

The remaining counts are similar. See, e.g., id. ¶ 138 (unjust-enrichment claim alleging that

RentEngine “obtained valuable data” through “its unauthorized access and use of Plaintiffs’

Platforms”); id. ¶¶ 145–47 (Lanham Act claim alleging that RentEngine made “false or misleading

statements” about the “capabilities, performance, security[,] and reliability of [the] Plaintiffs’

Platforms”);9 id. ¶ 166 (FDUPTA claim alleging that the “misrepresentations deceived the Targeted

Customers into . . . violating the Targeted Customers’ existing agreements with Plaintiffs and

subjecting those Targeted Customers to potential legal liability under the Platforms’ Terms of Use”);

id. ¶ 175 (unfair-competition claim alleging that “RentEngine accepted [the] Plaintiff’s Terms of Use”

about “the prohibitions on third-party access and sharing of credentials”); id. ¶ 194 (conversion claim

9 Count IV doesn’t explicitly mention the Terms of Use. But it describes its Lanham Act claim

in the context of the preceding paragraphs, all of which it “incorporate[s].” TAC ¶ 145. And that

context informs its allegations. In claiming that RentEngine misrepresented the “characteristics and

qualities of [the] Plaintiffs’ Platforms and/or software,” as well as the “authenticity and origin of

content or features ‘sourced’ from Plaintiffs,” id. ¶ 147, the TAC draws on its earlier claims that the

Defendants “gained unfettered and entirely unauthorized access to [the] Plaintiffs’ Platforms” and

“leveraged this unrestricted access to improperly exploit [the] Plaintiffs’ Platforms for anti-competitive

purposes,” id. ¶ 5.

alleging that “RentEngine intentionally solicited Plaintiffs’ customers to provide login

credentials . . . in direct violation of Plaintiffs’ Terms of Use”); id. ¶ 205 (trespass-to-chattel claim

alleging that “RentEngine has been intentionally accessing Plaintiffs’ Platforms . . . in violation of the

Plaintiffs’ Terms of Use”); id. ¶ 213 (common-law-fraud claim alleging that “RentEngine and

Stringfellow have created fictitious domains and alias email accounts to . . . maintain . . . unauthorized

access to the Platforms” (emphasis added)); id. ¶ 236 (DTSA claim alleging that “Defendants

misappropriated Plaintiffs’ trade secrets” through “unauthorized user accounts” (emphasis added)); id.

¶ 248 (FUTSA claim alleging that the Plaintiffs “condition[ ] access on express acceptance of Plaintiffs’

Terms of Use”).

Those claims thus “rely upon or presume the existence of an underlying contract.” In re

Humana Inc. Managed Care Litig., 285 F.3d 971, 976 (11th Cir. 2002). The TAC is “replete with

references to [the] duties” held by the Plaintiffs’ “customers”—and uses the violation of those duties

as the backdrop for all eleven counts. McBro Plan. & Dev. Co. v. Triangle Elec. Const. Co., 741 F.2d 342,

344 (11th Cir. 1984). To establish that the Defendants gained and misused “unauthorized”

information, the Plaintiffs point to the fact that the Terms of Use impose “confidentiality” restrictions,

prohibit “sharing credentials or using the Platforms for the benefit of third parties,” and

“express[ly] . . . limit[ ] access” to the Platforms. TAC ¶ 174. And so, because the Terms of Use “form

the legal basis of th[e] claims” set forth in the TAC, the Defendants can use an equitable-estoppel

theory to compel arbitration under the Terms of Use. Bailey, 705 F.3d at 1322; see also Hughes Masonry

Co. v. Greater Clark Cnty. Sch. Bldg. Corp., 659 F.2d 836, 841 n.9 (7th Cir. 1981) (explaining that a party

“is estopped from denying . . . the benefit of the arbitration clause with regard to claims that

are . . . intimately founded in and intertwined with the underlying contract obligations”).

But that’s not the end of our inquiry. “[A] court may order arbitration of a particular dispute

only when satisfied that the parties agreed to arbitrate that dispute.” Granite Rock Co. v. Int’l Bhd. of

Teamsters, 561 U.S. 287, 297 (2010). So, even if the doctrine applies, “equitable estoppel is limited to

compelling arbitration only if the plaintiff’s claims are covered by the arbitration clause.” Kroma, 845

F.3d at 1355–56. But whereas the ShowMojo Terms of Use require arbitration irrespective of the type

of litigant, see ShowMojo Terms of Use at 7, the Tenant Turner Terms of Use narrow the scope of

litigants to whom the provision applies, requiring arbitration only of issues “between you and us or you

and a third-party agent of ours,” Tenant Turner Terms of Use at 7 (emphasis added).

That difference matters. “Arbitration under the FAA is a matter of consent, not

coercion.” E.E.O.C. v. Waffle House, Inc., 534 U.S. 279, 294 (2002) (cleaned up). So, the FAA may

“require[ ] expansive interpretation of arbitration agreements,” but “not at the expense of limiting

language in contracts.” Doe v. Princess Cruise Lines, Ltd., 657 F.3d 1204, 1217 (11th Cir. 2011) (cleaned

up). We thus cannot overlook the fact that, while ShowMojo’s arbitration provision encompasses

qualifying claims no matter who the party is, Tenant Turner’s arbitration provision applies only if the

Defendants are signatories or if the Plaintiffs’ customers count as the Plaintiffs’ “third-party agent.”

The parties miss this issue too. And so, on the record before us and in the absence of any

argument that the “third-party agent” hook applies, we find that the Defendants can use the equitable-

estoppel theory to compel arbitration of only ShowMojo’s—not Tenant Turner’s—claims. As the

Eleventh Circuit has made clear, “equitable estoppel permits a nonsignatory to an agreement to avail

herself of an arbitration clause only when the claims asserted against her fall within the scope of the

clause that the signatories had agreed upon.” Kroma, 845 F.3d at 1356–57 (emphasis added). Holding

otherwise “provide[s] a non-signatory with a scalpel to re-sculpt what appears on the face of a

contract.” Id. at 1357. We will do no such rewriting.

d. Discretionary Stay

The FAA provides that courts “shall . . . stay the trial of the action”—not merely part of the

action—“[i]f any suit . . . be brought . . . upon any issue referable to arbitration[.]” 9 U.S.C. § 3

(emphasis added); see also Volkswagen Of Am., Inc. v. Sud’s Of Peoria, Inc., 474 F.3d 966, 971 (7th Cir.

2007) (defending that reading of § 3). So, “[w]hen a court is presented with both arbitrable and non-

arbitrable claims, . . . the decision to stay the non-arbitrable claims is within the court’s discretion.”

Variable Annuity Life Ins. Co. v. Laferrera, 680 F. App’x 880, 884 (11th Cir. 2017). Indeed, it can “be

advisable to stay litigation among the non-arbitrating parties pending the outcome of the arbitration.”

Moses H. Cone, 460 U.S. at 21 n.23.

“That decision is one left to the district court . . . as a matter of its discretion to control its

docket.” Ibid. “Crucial to this determination is whether arbitrable claims predominate or whether the

outcome of the nonarbitrable claims will depend upon the arbitrator’s decision.” Klay v. All Defendants,

389 F.3d 1191, 1204 (11th Cir. 2004). “[A] district court should stay an entire suit pending arbitration

if there is a serious danger (should it fail to do so) of inconsistent rulings or needless duplication of

effort.” GEA Grp. AG v. Flex-N-Gate Corp., 740 F.3d 411, 418 (7th Cir. 2014) (Posner, J.); see also

AgGrow Oils, L.L.C. v. Nat’l Union Fire Ins. Co. of Pittsburgh, 242 F.3d 777, 783 (8th Cir. 2001) (“[I]ssues

such as the risk of inconsistent rulings, the extent to which parties will be bound by the arbitrators’

decision, and the prejudice that may result from delays must be weighed in determining whether to

grant a discretionary stay, and in fashioning the precise contours of any stay.”).

In considering whether to stay Tenant Turner’s claims, we find instructive the Eleventh

Circuit’s decision in Variable Annuity Life Ins. Co. v. Laferrera, 680 F. App’x 880 (11th Cir. 2017). That

case involved three Defendants: two financial advisors previously employed by the Plaintiffs, and one

insurance company “owned and operated” by those advisors. Id. at 882. Suspecting that the advisors

misused trade secrets to poach clients, the Plaintiffs fired the advisors and sued. After the district court

compelled arbitration of the claims against the advisors but declined to issue a discretionary stay of

the claims against the advisors’ company, the Eleventh Circuit reversed.

Finding that the district court abused its discretion by failing to stay the claims against the

company, the Variable Annuity panel noted that the claims against all three Defendants were “based

on the exact same factual allegations,” that the company “took no action except through” the advisors,

and that the company “could not be held liable unless the [advisors were] also liable.” Id. at 884. So,

as the panel saw it, “[p]ermitting the claims against [the company] to go forward in federal court while

the same claims against the [advisors] proceed in arbitration would require the [advisors] to defend

identical claims in two separate forums” and could “give rise to the possibility of inconsistent results.”

Id. at 885. It thus vacated the district court’s ruling, explaining that “a discretionary stay should have

been granted because arbitrable claims predominate and the outcome of the nonarbitrable claims will

depend upon the arbitrator’s decision.” Ibid. (cleaned up).

That calculus cuts in favor of a discretionary stay here. To be sure, the TAC doesn’t allege an

ownership relationship between the Plaintiffs. But our Plaintiffs—sharing counsel—bring the same

claims. All eleven counts of the TAC involve identical facts. Nothing in the TAC delineates any

difference in the harm suffered by the two Plaintiffs, in the Defendants’ abuse of the Platforms, or in

the way the Platforms operated. To the contrary, the TAC treats the Platforms as one product, discusses

the Terms of Use as one concept, and describes one “systematic and deliberate scheme to improperly

access and exploit [the] Plaintiffs’ Platforms.” TAC ¶ 44.

“[P]iecemeal litigation” has its place. Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985)

(cleaned up). But this case resembles Variable Annuity. Arbitrable claims predominate because the

Plaintiffs together bring all eleven counts. Arbitrating ShowMojo’s claims will “help resolve, or at least

shed some light on, the issues remaining in federal court” because the Plaintiffs allege the same facts

and identify the same harm. Volkswagen, 474 F.3d at 972. And simultaneous proceedings would both

risk “inconsistent results” and force the Defendants to “defend identical claims in two separate

forums.” Variable Annuity, 680 F. App’x at 885. We’ll therefore stay the Tenant Turner claims while

the parties arbitrate the ShowMojo claims. See Abousamak v. Buckhead Life Rest. Grp. Inc., 2022 WL

22983391, at *2 (S.D. Fla. Oct. 25, 2022) (Cannon, J.) (“Woodside’s claims, brought in the same

Complaint as Abousamak, are based on the same factual allegations as the claims subject to the

arbitration agreements . . . . [P]roceeding on Woodside’s claims would leave open the possibility of

inconsistent results on factually similar claims.”); Quash Seltzer, LLC v. PepsiCo, Inc., 2021 WL 1963639,

at *7 (S.D. Fla. May 17, 2021) (Ruiz, J.) (“[W]hen . . . claims are based on the same facts and are

inherently inseparable as those delegated to arbitration, the better course is to stay the claims involving

the nonsignatory.”); cf. Branch v. Ottinger, 477 F. App’x 718, 721 (11th Cir. 2012) (finding no abuse of

discretion in declining to stay non-arbitrable claims when the district court found that “there would

not be any overlap of defendants between different fora,” “that refusing to grant a stay would not

result in duplicative proceedings,” and “that all the claims against Mr.

Ottinger . . . were . . . independent of the claims against the other defendants”).

III. The Defendants Haven’t Waived Their Arbitration Rights

“Like any other contractual right, the right to arbitrate can be waived.” Gutierrez v. Wells Fargo

Bank, NA, 889 F.3d 1230, 1235–36 (11th Cir. 2018) (cleaned up). “A party has waived its right to

arbitrate if, under the totality of the circumstances, the party has acted inconsistently with the

arbitration right.” S&H Contractors, Inc. v. A.J. Taft Coal Co., 906 F.2d 1507, 1514 (11th Cir. 1990).

“There’s no set rule as to what constitutes waiver of an arbitration agreement, so we review whether

a waiver has occurred based on the facts of each case.” Warrington v. Rocky Patel Premium Cigars, Inc.,

2023 WL 1818920, at *2 (11th Cir. Feb. 8, 2023). Still, a “key factor in deciding this is whether a party

has substantially invoked the litigation machinery,” such as by proceeding “with extensive discovery

and court proceedings.” Gutierrez, 889 F.3d at 1236 (cleaned up).

Our Plaintiffs believe that the Defendants “waived” any “right to enforce the arbitration

clauses in [the] Plaintiffs’ Terms of Use” through “conduct . . . inconsistent with any intent to

arbitrate.” Response at 24. To support that theory, they advance four arguments. First, the Plaintiffs

say that the Defendants “made no reservation of their right to seek arbitration” when making their

“first appearance in this action” and in the “Stipulated Order resolving both the preliminary injunction

motion and expedited discovery.” Id. at 24–25. Second, they point out that the parties “negotiated a

protective order and ESI stipulation, with [the] Defendants again failing to reserve any right to

arbitrate[.]” Id. at 25. Third, the Plaintiffs contend that, “while Tenant Turner’s Terms of Use have a

carve out for injunctive relief being resolved by the courts rather than through arbitration, ShowMojo’s

Terms of Use do not, so [the] Defendants’ conduct was inconsistent with an intent to invoke

ShowMojo’s Terms of Use.” Ibid. And fourth, the Plaintiffs claim that they suffered “prejudice.” Ibid.

The Defendants tell a different story. They maintain that the “litigation of the Plaintiffs’ PI

Motion” complied with the “very text of the arbitration provisions” because both Terms of Use

“contain a . . . carve-out for injunctive-relief proceedings.” Reply at 5. They insist that “they moved

for arbitration at the earliest possible opportunity—their deadline to respond to the Plaintiffs’ original

Complaint.” Ibid. And they claim that they “repeatedly and explicitly reserved their right to arbitrate,

both in court filings and in virtually every communication to the Plaintiffs’ counsel about this case,”

making any prejudice “the product of the Plaintiffs’ own decisions.” Ibid.

Reviewing the timeline of events, we cannot say that the Defendants exhibited “the classic

‘heads I win, tails you lose’ approach to dispute resolution.” Metro. Edison Co. v. Pennsylvania Pub. Util.

Comm’n, 767 F.3d 335, 367 (3d Cir. 2014). The two-month gap between the Defendants’ appearance

and their first attempt to compel arbitration, see First Motion to Compel Arbitration or, Alternatively,

to Dismiss (the “First MTC”) [ECF No. 34], “pales in comparison to the lag times the Eleventh Circuit

has found suspect in other cases,” Lopez v. JW Lee Inc., 2026 WL 709744, at *4 (S.D. Fla. Mar. 13,

2026) (Altman, J.); see, e.g., E.C. Ernst, Inc. v. Manhattan Constr. Co., 551 F.2d 1026, 1040–41 (5th Cir.

1977) (finding waiver after two-and-a-half years of litigation); Davis v. White, 795 F. App’x 764, 770

(11th Cir. 2020) (eighteen months); Krinsk v. SunTrust Banks, Inc., 654 F.3d 1194, 1201 (11th Cir. 2011)

(nine months); S&H Contractors, Inc., 906 F.2d at 1514 (eight months). Indeed, the Eleventh Circuit

has rejected theories of waiver in timelines twice as long as ours. See Sherrard v. Macy’s Sys. & Tech. Inc.,

724 F. App’x 736, 740 (11th Cir. 2018) (“[N]either filing an answer nor waiting four months to seek

arbitration was sufficient to constitute a waiver[.]” (quoting Coca–Cola Bottling Co. of N.Y., Inc. v. Soft

Drink and Brewery Workers Union Local 812, 242 F.3d 52, 57–58 (2nd Cir. 2001))).

Nor can we say that the Defendants spent those two months trying to “resolve the parties’

entire dispute on the merits.” Davis, 795 F. App’x at 769 (emphasis added). During that timeframe, the

Defendants made four filings—none substantive. On July 17, 2026, after we granted the Plaintiffs’

request to expedite discovery, the parties filed a joint motion seeking an extension of time to comply

with discovery obligations. See Joint Motion for an Extension of Time to Comply with the Order to

Expedite Discovery. In that joint motion, the Defendants noted that they would “abide by their

discovery obligations” instead of “engag[ing] in motion practice”—but also that they carried doubts

about the feasibility of completing “all expedited discovery by the current deadlines.” Id. at 3.

On August 20, 2025, the parties jointly resolved the Plaintiffs’ PI Motion. See Joint Motion for

Entry of Stipulated Order. That joint motion made clear that the Defendants “do not admit liability

or wrongdoing and preserve all available defenses, claims, objections, and rights.” Stipulated

Preliminary Injunction Order [ECF No. 29-1] at 5. On September 8, 2025, the parties filed a Joint

Scheduling Report, noting that the Defendants “do not intend to waive, and they expressly reserve,

their right to move to compel arbitration.” Joint Scheduling Report [ECF No. 31] at 1 n.1. And, on

September 12, 2025, the Defendants sought leave to use extra pages in their briefing on the First

MTC. See Unopposed Motion for Leave to File Excess Pages [ECF No. 33].

None of the four filings concerned the merits of the case. See Kawasaki Heavy Indus., Ltd. v.

Bombardier Recreational Prods., Inc., 660 F.3d 988, 995 (7th Cir. 2011) (declining to find waiver when a

party’s motion didn’t “even ma[k]e mention of the merits in its briefing”); Forby v. One Techs., L.P., 909

F.3d 780, 784 (5th Cir. 2018) (distinguishing a “full-throated attempt to win th[e] case on the merits”

from a motion that “only delayed or raised procedural concerns”). And we cannot fault the

Defendants for filing a Joint Scheduling Report—or for working with the Plaintiffs to resolve the PI

Motion and the expedited-discovery deadlines. See Pinnacle Constructors Grp. LLC v. SSC Tuscaloosa

Apartments LLC, 2024 WL 3042536, at *2 (11th Cir. June 18, 2024) (noting that participation in a

“Rules-mandated meeting” doesn’t qualify as “substantially invoking the litigation machinery”

(quotation marks omitted)); Garcia v. Fuentes Rest. Mgmt. Servs. Inc., 141 F.4th 671, 678 (5th Cir. 2025)

(“Traditionally, this court has considered routine scheduling orders and discovery continuances as

district court actions that may not move the needle on waiver.” (cleaned up)); see also Walker v. J.C.

Bradford & Co., 938 F.2d 575, 578 (5th Cir. 1991) (“Attempts at settlement . . . are not inconsistent

with an inclination to arbitrate and do not preclude the exercise of a right to arbitration.”).

The remaining arguments fare no better. ShowMojo’s Terms of Use do provide safe harbor

for injunctive-relief proceedings. See ShowMojo Terms of Use at 7–8 (“Nothing in this section will

prevent either party from seeking immediate injunctive relief from any court of competent jurisdiction,

and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of

the right to arbitrate.”). And the Plaintiffs’ complaints of prejudice miss the mark, as “prejudice is not

a condition of finding that a party . . . waived its right to stay litigation or compel arbitration under the

FAA.” Morgan v. Sundance, Inc., 596 U.S. 411, 419 (2022). We thus cannot say that the Defendants

waived their arbitration rights.

CONCLUSION

After careful review, therefore, we ORDER and ADJUDGE as follows:

1. The Defendants’ Motion to Compel Arbitration or, Alternatively, to Dismiss [ECF No. 63] is

GRANTED in part and DENIED in part.

a. The parties ace ORDERED to submit to arbitration the claims concerning

ShowMojo. Every 120 days from the date of this Order, the parties shall file a joint

status report on the progress of their arbitration proceedings.

b. The claims concerning Tenant Turner are STAYED pending the arbitration of the

claims concerning ShowMojo.

2. ‘This case is STAYED and shall remain CLOSED pending the completion of arbitration. All

deadlines are TERMINATED, and any other pending motions—including the Plaintiffs’

Objections to the Order to Compel Discovery [ECF No. 117]—are DENIED as moot.

DONE AND ORDERED in the Southern District of Florida on September 14, 2026.

ROY K. ALTMAN

UNITED STATES DISTRICT JUDGE

cc: counsel of record

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