Gregory Selden v. Airbnb, Inc.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 13, 2020 Decided July 13, 2021

No. 19-7168

GREGORY SELDEN,

APPELLANT

v.

AIRBNB, INC.,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:16-cv-00933)

Ikechukwu Emejuru argued the cause for appellant. With

him on the briefs was Andrew Nyombi.

Sean Marotta argued the cause for appellee. With him on

the brief were Michelle A. Kisloff and Matthew J. Higgins.

Before: KATSAS and RAO, Circuit Judges, and EDWARDS,

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge RAO.

RAO, Circuit Judge: This case involves the arbitrability of

discrimination claims brought against Airbnb, an online home

2

rental platform. When Gregory Selden signed up for Airbnb,

he was presented with a sign-in wrap—a webpage that informs

the user he is agreeing to certain terms by signing up. Airbnb’s

Terms of Service included a clause requiring that all disputes

be resolved by arbitration. The district court held that Selden

agreed to those Terms of Service by signing up for Airbnb and

so compelled arbitration of his claims. The arbitrator ruled in

favor of Airbnb and the district court refused to vacate the

arbitration award. On appeal, Selden argues that he did not

agree to arbitrate because Airbnb’s sign-up screen failed to put

him on notice of the arbitration clause in its Terms of Service

and regardless, that his discrimination claims were not

arbitrable. He also maintains the arbitrator committed

misconduct by failing to provide for sufficient discovery and

by refusing to consider his expert report.

We affirm. Airbnb’s sign-up screen put Selden on

reasonable notice that by signing up to use the platform he

agreed to Airbnb’s Terms of Service; and Selden’s

discrimination claims were arbitrable. Selden also failed to

establish that he was prejudiced by the arbitrator’s alleged

misconduct.

I.

Airbnb provides an online “community marketplace” for

people to list and rent accommodations around the world. A

“host” with a property to rent creates a listing on Airbnb’s

website. A “guest” who wants to rent a property can sign up

and use Airbnb’s marketplace to communicate directly with a

property’s host to request a booking. If the host accepts, the

host and guest enter an agreement. Airbnb facilitates the

marketplace for property rentals and payment for bookings, but

is otherwise not involved in the interaction between a host and

guest. Airbnb does not operate the accommodations, set the

3

price, or determine availability. Those decisions are made

exclusively by a host, who decides whether to rent his property

and on what terms.

To use Airbnb, a new user must create an account and

profile through Airbnb’s website. During the time relevant to

this suit, an iPhone user would see this screen when signing up:

J.A. 231.

The screen presents three options to sign up for Airbnb:

using a Facebook account, a Google account, or an email.

4

Directly below these options, the screen states: “By signing up,

I agree to Airbnb’s Terms of Service, Privacy Policy, Guest

Refund Policy, and Host Guarantee Terms.” J.A. 231. The

terms and policies appear in red and are hyperlinks to the

relevant document.

The Terms of Service begin with a warning, in all caps,

that they “contain important information regarding [a user’s]

legal rights, remedies and obligations,” including “various

limitations and exclusions, a clause that governs the

jurisdiction and venue of disputes, and obligations to comply

with applicable laws and regulations.” J.A. 69 (capitalization

altered). The “Dispute Resolution” section includes an

arbitration clause in which, as relevant here, a user and Airbnb

“agree that any dispute, claim or controversy arising out of or

relating to these Terms … or to the use of the Services or use

of the Site … will be settled by binding arbitration.”1 J.A. 83.

1

The arbitration clause provides in full:

You and Airbnb agree that any dispute, claim or

controversy arising out of or relating to these Terms

or the breach, termination, enforcement,

interpretation or validity thereof, or to the use of the

Services or use of the Site or Application

(collectively, “Disputes”) will be settled by binding

arbitration, except that each party retains the right to

seek injunctive or other equitable relief in a court of

competent jurisdiction to prevent the actual or

threatened infringement, misappropriation or

violation of a party’s copyrights, trademarks, trade

secrets, patents, or other intellectual property rights.

You acknowledge and agree that you and Airbnb are

each waiving the right to a trial by jury or to

participate as a plaintiff or class member in any

purported class action or representative proceeding.

Further, unless both you and Airbnb otherwise agree

5

This section also includes a class action waiver in which a user

and Airbnb “agree that [they] are each waiving the right to a

trial by jury or to participate as a plaintiff or class member in

any purported class action or representative proceeding.”

J.A. 83. Any arbitration would be administered by the

American Arbitration Association (“AAA”) in accordance

with its rules. California law governs any disputes.

This case arose when Gregory Selden created an Airbnb

account in March 2015. When Selden went to the sign-up page

on his iPhone, he chose to sign up with his Facebook account.

At the time, Airbnb required a user to provide a profile picture,

which hosts could view.2 Selden’s Facebook profile picture

became his Airbnb profile picture.

After Selden signed up for Airbnb, he inquired about a

listing in Philadelphia to rent a single room in a property

occupied by the owner. The host told Selden the property was

not available. Later that day, Selden noticed the property was

still listed. Selden, an African American man, suspected the

in writing, the arbitrator may not consolidate more

than one person’s claims, and may not otherwise

preside over any form of any class or representative

proceeding. If this specific paragraph is held

unenforceable, then the entirety of this “Dispute

Resolution” section will be deemed void. Except as

provided in the preceding sentence, this “Dispute

Resolution” section will survive any termination of

these Terms.

J.A. 83 (emphasis omitted).

2

Airbnb has since changed this policy and no profile picture is now

required.

6

host had denied his request because of his race, which the host

could see from Selden’s profile picture.

Two days later, Selden created two fake Airbnb accounts

with profile pictures of white individuals. Selden then used his

fake accounts to request renting the same property for the same

dates. According to Selden, the host accepted both requests.

Selden posted his claims of discrimination on social media with

the hashtag “#airbnbwhileblack,” which went viral.

Selden filed a complaint in the District Court for the

District of Columbia against Airbnb asserting claims under

three statutes. First, he alleged that Airbnb violated Title II of

the Civil Rights Act of 1964, Pub. L. No. 88-352, § 201, 78

Stat. 241, 243 (codified at 42 U.S.C. § 2000a), which prohibits

discrimination on the basis of race in public accommodations.3

Second, he alleged that Airbnb violated the Civil Rights Act of

1866, 14 Stat. 27 (codified as amended at 42 U.S.C. § 1981),

which prohibits discrimination on the basis of race in the

formation of contracts. Third, he alleged that Airbnb violated

the Fair Housing Act, Pub. L. No. 90-284, § 804, 82 Stat. 73,

81 (1968) (codified as amended at 42 U.S.C. § 3604), which

prohibits discrimination on the basis of race in the sale or rental

of housing. To support these discrimination claims, Selden

asserted that two Airbnb policies had a disparate impact on

African Americans: its photo policy, requiring a user to provide

a profile picture that hosts could view, and its true name policy,

requiring a user to use his true name that hosts could see.

3

A “public accommodation” related to lodging is defined as “any

inn, hotel, motel, or other establishment which provides lodging to

transient guests, other than an establishment located within a

building which contains not more than five rooms for rent or hire and

which is actually occupied by the proprietor of such establishment as

his residence.” 42 U.S.C. § 2000a(b)(1).

7

Selden asserted his discrimination claims individually and on

behalf of a class, seeking damages and injunctive relief.

Based on the arbitration clause in the Terms of Service, the

district court granted Airbnb’s motion to compel arbitration.

The district court determined that Airbnb’s sign-up screen

placed Selden on reasonable notice of the Terms of Service,

and therefore he agreed to the Terms when he signed up.

Concluding that Selden’s discrimination claims were

arbitrable, the district court ordered the parties to arbitrate and

stayed the case pending the arbitration.

Selden filed an arbitration demand with the AAA. The

arbitrator first ordered a voluntary document exchange and

explained that he would consider subsequent formal discovery

requests. Selden later requested interrogatories and

depositions, but the parties instead agreed to try mediation,

which failed. A month later, the arbitrator approved of the

parties sending document requests but also explained that he

was willing to consider renewed requests for additional

discovery after completing the document production. Selden’s

counsel followed up with an email expressly “reserv[ing] the

right to seek testimony by way of depositions … prior to [the]

close of discovery,” but never requested any interrogatories or

depositions prior to the close of discovery.

Airbnb filed a dispositive motion to have Selden’s claims

dismissed. Selden opposed the motion, in part by submitting an

expert report from Dr. Dan Svirsky. In his report, Dr. Svirsky

explained a study he coauthored about racial discrimination in

the sharing economy and posited that Airbnb’s true name

policy had a disparate impact on African Americans. During

arguments, Selden requested depositions of Airbnb employees

before the arbitrator decided the motion. A few days later, the

arbitrator granted Airbnb’s motion.

8

Although the arbitrator noted that the allegations against

the host were “serious” and “involve[d] totally

inappropriate … conduct,” the arbitrator dismissed Selden’s

claims against Airbnb as a matter of law. J.A. 320. He

determined that the host’s property—a room in an owner-

occupied, single-family residence—was not a public

accommodation, so it did not fall under the protection of

Title II. He also concluded that Airbnb’s online marketplace

was not a public accommodation. Relatedly, a single-family

residence like the host’s property is not a dwelling that qualifies

for the Fair Housing Act’s protection. See 42 U.S.C.

§ 3603(b)(1). Because Airbnb was not a party to the contract

between Selden and the host, and had no agency relationship

with the host, the Civil Rights Act of 1866 did not apply. The

arbitrator entered an award in favor of Airbnb.

Selden then filed a motion to vacate the arbitrator’s award

in the district court, arguing the arbitrator erred by denying his

discovery requests for interrogatories and depositions and by

ignoring his expert report. According to Selden, these errors

amounted to misconduct and a refusal to consider evidence,

justifying vacatur of the award.

The district court denied the motion. As to the discovery

requests, the court determined the error was Selden’s, because

he failed to request interrogatories or depositions prior to the

close of discovery. With respect to the expert report, the court

held that Selden failed to show the arbitrator refused to

consider it because the arbitrator permitted Selden to submit

the report. In any event, Selden failed to establish that he was

prejudiced by the lack of discovery because the arbitrator’s

decision was based on the legal conclusion that neither the

host’s property nor Airbnb’s online platform fell within the

statutes he invoked. The district court refused to vacate the

arbitration award and dismissed Selden’s case.

9

On appeal, Selden challenges both the district court’s order

of arbitration and its denial of his motion to vacate the

arbitration award. We have jurisdiction to review the district

court’s order compelling arbitration and its refusal to vacate the

arbitration award under the Federal Arbitration Act (“FAA”),

9 U.S.C. § 16(a)(3) (providing for review of “a final decision

with respect to an arbitration”). See also Republic of Argentina

v. AWG Grp. Ltd., 894 F.3d 327, 332 (D.C. Cir. 2018). We

review these orders de novo. See Howard Univ. v. Metro.

Campus Police Officer’s Union, 512 F.3d 716, 720 (D.C. Cir.

2008); Nat’l R.R. Passenger Corp. v. ExpressTrak, LLC, 330

F.3d 523, 529 (D.C. Cir. 2003).

II.

Selden contends that the district court erred by ordering

arbitration of his discrimination claims. He maintains that he

did not agree to arbitration because Airbnb’s sign-up screen

failed to give him reasonable notice of the Terms of Service.

Selden also maintains that his statutory claims were not

arbitrable. We take each argument in turn.

A.

We hold that Selden agreed to arbitrate his claims against

Airbnb because he had reasonable notice of the Terms of

Service and the arbitration clause therein.

Under the FAA, an arbitration clause in a contract “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. Congress enacted the FAA “in response to

widespread judicial hostility to arbitration agreements.” AT&T

Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011). The

FAA “reflect[s] both a liberal federal policy favoring

10

arbitration and the fundamental principle that arbitration is a

matter of contract.” Id. (cleaned up). We therefore “place

arbitration agreements on an equal footing with other contracts

and enforce them according to their terms.” Id. (cleaned up).

Because arbitration is a contractual matter, we must first

determine whether the parties have agreed to arbitrate by

looking to state contract law. The district court applied

California law as to contract formation, and the parties have not

taken issue with that decision on appeal. Finding no apparent

error in that choice, we apply California law as well. See BWX

Elecs., Inc. v. Control Data Corp., 929 F.2d 707, 710 (D.C. Cir.

1991).

Under California law, “[a]n essential element of any

contract is consent,” and that “consent must be mutual.”

Monster Energy Co. v. Schechter, 444 P.3d 97, 102 (Cal. 2019)

(cleaned up). Whether mutual consent exists “is determined by

objective rather than subjective criteria, the test being what the

outward manifestations of consent would lead a reasonable

person to believe.” Id. (cleaned up). An offeree may outwardly

manifest consent by agreeing to a contract’s terms in writing or

orally. See Windsor Mills, Inc. v. Collins & Aikman Corp., 25

Cal. App. 3d 987, 992 (Ct. App. 1972). But “an offeree,

regardless of apparent manifestation of his consent, is not

bound by inconspicuous contractual provisions of which he

was unaware, contained in a document whose contractual

nature is not obvious.” Id. at 993. Even if an offeree lacked

actual notice of the terms, however, he may be bound if he

manifested his consent and “a reasonably prudent user would

[have] be[en] on inquiry notice of the terms.” Meyer v. Uber

Techs., Inc., 868 F.3d 66, 74–75 (2d Cir. 2017) (applying

California law). Inquiry notice, also called constructive notice,

turns on “whether reasonable people in the position of the

parties would have known about the terms and the conduct that

11

would be required to assent to them.” Id. at 77 (citation and

quotation marks omitted). It depends on “the clarity and

conspicuousness” of the terms. Id. at 75 (cleaned up); accord

Windsor Mills, 25 Cal. App. 3d at 993.

Selden used his Facebook account to sign in to Airbnb on

a screen that stated signing up constituted agreement to the

Terms of Service. This type of screen is known as “sign-in

wrap,” a website “designed so that a user is notified of the

existence and applicability of the site’s ‘terms of use’ when

proceeding through the website’s sign-in or login process.”

Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 399 (E.D.N.Y.

2015). In other words, a sign-in wrap bundles signing up for a

service with agreement to the website’s contractual terms.

To determine whether a sign-in wrap provides reasonable

notice of the terms to which the user is agreeing requires a

“fact-intensive inquiry.” Meyer, 868 F.3d at 76. We look to the

“layout and language of the site” to decide whether it would

provide a “reasonably prudent smartphone user” with

“reasonable notice that a click”—i.e., signing up—“will

manifest assent to an agreement.” Id. at 75, 77 (cleaned up).

We conclude that Airbnb’s sign-up screen placed Selden

on reasonable notice that by signing up he agreed to the Terms

of Service. Airbnb’s screen used a simple design. It had three

buttons allowing users to sign up using Facebook, Google, or

email. Directly below the three buttons, it stated: “By signing

up, I agree to Airbnb’s Terms of Service, Privacy Policy, Guest

Refund Policy, and Host Guarantee Terms.” J.A. 231. These

terms and policies appeared in red text against a white

background and were hyperlinked to the full policies.

Moreover, the sign-in appeared on a single screen for an iPhone

user like Selden and required no scrolling to see the notice of

the Terms of Service. As the district court explained, Airbnb’s

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notice was “clearly legible, appropriately sized, and

unobscured by other visual elements.” J.A. 222.

To resist this conclusion, Selden argues he lacked

reasonable notice and therefore never agreed to the arbitration

clause within the Terms of Service. Selden first contends that,

because “Terms of Service” appeared in red text, a reasonable

user would not know they were hyperlinked because hyperlinks

are ordinarily blue and underlined. While it is true that

hyperlinked text is often underlined and highlighted in blue,

this is not a necessary requirement for indicating a hyperlink.

Reasonable notice does not turn on where the hyperlinked

text falls on the color wheel; rather we consider whether the

text was conspicuous. Here, the red terms were conspicuous

and put a reasonable user on notice that they were hyperlinks.

The only red text in the warning indicated the legal policies,

which were set off from the surrounding black text. See

Wickberg v. Lyft, Inc., 356 F. Supp. 3d 179, 184 (D. Mass.

2018) (explaining a pink phrase makes it “distinguishable on

the screen”). Airbnb’s screen drew a user’s attention to the

hyperlinked terms, unlike the screen in Cullinane v. Uber

Technologies, Incorporated, 893 F.3d 53, 57, 64 (1st Cir.

2018), on which the hyperlinked terms appeared in white next

to light gray text and therefore were not conspicuous.

Moreover, the sign-up screen elsewhere used red to

indicate a hyperlink. At the bottom of the sign-up screen, “Log

in” appeared in red in the prompt: “Already an Airbnb

member? Log in.” J.A. 231. Any reasonable smartphone user

would understand that clicking “Log in” would send him to

Airbnb’s login page. The prompt to “Log in,” as well as the

legal policies, appeared in red, which clearly and

conspicuously indicated the Terms of Service were a hyperlink.

13

Selden next argues that the sign-up screen’s layout of three

buttons with different logos and color schemes undercuts the

reasonableness of the notice. In particular, Selden suggests that

because of the distance between the button he selected, “Sign

up with Facebook,” and Airbnb’s Terms of Service, he lacked

reasonable notice that he was agreeing to Airbnb’s terms.

We are unpersuaded. The three buttons plainly provided

options for how a user could sign up for Airbnb because each

began “Sign up with” and then provided a method for doing so.

Directly below these three options, Airbnb informed the user

that “By signing up, I agree to Airbnb’s Terms of Service.” J.A.

231. The buttons appeared in close proximity to the notice and

on a single screen. A reasonable person would know that, by

signing up, he would be agreeing to Airbnb’s terms even if he

used his Facebook account to sign up.

Selden finally argues that Airbnb’s sign-up screen is not

“appealing to the eye” or “easy to follow,” so the design makes

the Terms of Service inconspicuous. Selden Br. 23. Aesthetic

judgments aside, for legal purposes, Airbnb’s sign-up screen

incorporates a simple, streamlined design that sufficiently

draws a user’s attention to its Terms of Service. The screen

provided reasonable notice to Selden that, by signing up, he

was agreeing to Airbnb’s Terms of Service. Whether Selden

read those Terms is irrelevant because he was on inquiry

notice. See Meyer, 868 F.3d at 79 (explaining that regardless of

whether any users “bother reading the … terms, that is the

choice the user makes; the user is still on inquiry notice”). We

conclude that Selden agreed to the Terms of Service and the

arbitration clause contained therein.

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B.

We next consider whether Selden’s discrimination claims

were arbitrable. Selden argues that Title II of the Civil Rights

Act prohibits arbitration of claims brought under it and that it

was unconscionable to require him to arbitrate his Fair Housing

Act claim.4 We hold that all of Selden’s claims were subject to

arbitration.

1.

Whether Title II claims are arbitrable appears to be a

matter of first impression. The FAA, “standing

alone, … mandates enforcement of agreements to arbitrate

statutory claims,” but “[l]ike any statutory directive,” its

“mandate may be overridden by a contrary congressional

command.” Shearson/Am. Express, Inc. v. McMahon, 482 U.S.

220, 226 (1987). Congress may determine by statute that some

claims are not subject to arbitration. In light of the strong policy

in favor of arbitration, however, we require a clear statement

that individuals may not agree to arbitrate specific statutory

rights. See Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1626

4

Selden also argued for the first time on appeal that California law

renders the Terms of Service’s arbitration clause unenforceable as to

his Title II claim. By failing to raise this argument below, Selden has

forfeited it. See Potter v. District of Columbia, 558 F.3d 542, 547

(D.C. Cir. 2009). Relying on McGill v. Citibank, North America, 393

P.3d 85 (Cal. 2017), Selden contends that there was an intervening

change in California law that excuses his forfeiture. In McGill,

however, the California Supreme Court merely applied an

established principle to claims brought under the California False

Advertising Law. See id. at 89–94 (discussing Cruz v. PacifiCare

Health Sys., 66 P.3d 1157 (Cal. 2003); Broughton v. Cigna

Healthplans of Cal., 988 P.2d 67 (Cal. 1999)). There was thus no

intervening change in law that excused Selden’s forfeiture.

15

(2018); CompuCredit Corp. v. Greenwood, 565 U.S. 95, 103

(2012).

Nothing in the text or structure of Title II forecloses

arbitration. Subsection (a) provides that district courts “shall

have jurisdiction of proceedings instituted pursuant to this

subchapter and shall exercise the same without regard to

whether the aggrieved party shall have exhausted any

administrative or other remedies that may be provided by law.”

42 U.S.C. § 2000a-6(a). This provision simply grants

jurisdiction to district courts over Title II claims. A statutory

grant of jurisdiction “neither guarantees a right to a federal

court trial nor forbids arbitration as an alternate forum.”

Garrett v. Circuit City Stores, Inc., 449 F.3d 672, 678 (5th Cir.

2006) (interpreting a Uniformed Services Employment and

Reemployment Rights Act provision providing that “the

district courts of the United States shall have jurisdiction of the

action” and holding that those claims are arbitrable); see also

Epic. Sys., 138 S. Ct. at 1626 (explaining that “Congress has

spoken often and clearly to the procedures for resolving [a

claim] in statute after statute” but that does not limit

arbitration); CompuCredit Corp., 565 U.S. at 100–01

(explaining that “the mere formulation of the cause of action in

this standard fashion” cannot establish a contrary congressional

command prohibiting arbitration).

Selden maintains that Title II forecloses arbitration

because subsection (a) states that a claimant need not exhaust

“other remedies that may be provided by law.” Selden argues a

claimant need not exhaust arbitration before proceeding in a

district court. But arbitration is not a “remedy” provided by law

in any ordinary meaning of that term.

Although “remedy” may be susceptible to a range of

meanings, “[a]ll meanings of ‘remedy’ have one thing in

16

common, namely, that that which is referred to as a remedy is

represented as a cure.” Peter Birks, Rights, Wrongs, &

Remedies, 20 OXFORD J. LEGAL STUD. 1, 9 (2000). Arbitration,

however, is not a cure to a claim; it is a dispute-resolution

process through which a litigant may obtain a cure.5 “By

agreeing to arbitrate a statutory claim,” a party “only submits

to [its] resolution in an arbitral, rather than a judicial, forum.”

Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473

U.S. 614, 628 (1985). Arbitration provides “an alternate

forum” for the resolution of claims, but the forum is not a

remedy. See Garrett, 449 F.3d at 678. Subsection (a) makes no

mention of arbitration—it simply excuses a Title II plaintiff

from exhausting his claim before filing suit and evinces no

congressional command to preclude an arbitral forum.

Selden also argues that reading subsections (a) and (b)

together suggests that federal courts are the “exclusive means”

of enforcing the rights provided by Title II. Subsection (b)

provides that “[t]he remedies provided in this subchapter shall

be the exclusive means of enforcing the rights based on this

subchapter.” 42 U.S.C. § 2000a-6(b). As we have explained,

arbitration is not a remedy within the meaning of

subsection (a), and similarly, it does not qualify as a “remed[y]

provided in this subchapter” under subsection (b). We cannot

take two subsections, neither of which addresses arbitration,

and mash them together to find that arbitration is prohibited. If

Congress wanted to prohibit arbitration of Title II claims, it

5

To be sure, the Supreme Court has described arbitration as a

“remedy,” but “only when the parties have created such a procedure

in the collective bargaining agreement.” Vaca v. Sipes, 386 U.S. 171,

196 n.17 (1967). Vaca concerned an employee’s complaint that his

union had wrongfully failed to arbitrate, and the Court considered

whether arbitration should be ordered as the remedy to the

employee’s complaint. See id. at 196.

17

could have done so in a “less obtuse” manner. CompuCredit

Corp., 565 U.S. at 103. We decline to find a limitation on

arbitration unless a statute sets forth such limitation with

“clarity.” Id. “Congress has … shown that it knows how to

override the Arbitration Act when it wishes.” Epic Sys., 138

S. Ct. at 1626 (collecting statutes); id. at 1624 (explaining the

“strong presumption that repeals by implication are

disfavored”) (cleaned up). Title II does not prohibit arbitration

and we cannot pick up the legislative pen to write a prohibition

on arbitration into the statute.

Nothing in Title II overcomes the FAA requirement to

enforce agreements to arbitrate. See Shearson/Am. Express,

482 U.S. at 226–27. The district court thus properly compelled

arbitration of Selden’s Title II claim.

2.

Selden argues that his claim under the Fair Housing Act,

42 U.S.C. § 3601, should not have been arbitrated because

Airbnb’s Terms of Service are unconscionable. In particular,

Selden contends that the Terms of Service’s class action waiver

“effectively forecloses” his ability to establish his disparate

impact claim under the Fair Housing Act, in part by prohibiting

“uniform” injunctive relief. Selden Br. 31.

To be rendered unenforceable under California law, a

contractual provision must be both procedurally and

substantively unconscionable. See Pinnacle Museum Tower

Ass’n v. Pinnacle Mkt. Dev., 282 P.3d 1217, 1232 (Cal. 2012).

Although Selden baldly asserts that the class action waiver is

“procedurally and substantively unconscionable,” he provides

no explanation of how the Terms of Service are procedurally

unconscionable and therefore has forfeited that argument. See

Gov’t of Manitoba v. Bernhardt, 923 F.3d 173, 179 (D.C. Cir.

18

2019) (explaining that we will not “put flesh on [the] bones” of

an argument raised “only in the most skeletal way”) (cleaned

up). In the absence of an argument that the class action waiver

is procedurally unconscionable, Selden has failed to

demonstrate an essential element of his claim that arbitration

of his Fair Housing Act claim was unconscionable.

***

Airbnb’s sign-up screen put Selden on reasonable notice

that by signing up he was agreeing to the arbitration clause

within the Terms of Service, and Selden’s discrimination

claims were subject to arbitration. We therefore affirm the

district court’s order compelling arbitration.

III.

Selden also contends that the district court erred by

refusing to vacate the arbitrator’s award due to alleged

misconduct. Under the FAA, a federal court may vacate an

arbitration award when, among other things, the arbitrator is

“guilty of misconduct … in refusing to hear evidence pertinent

and material to the controversy; or of any other misbehavior by

which the rights of any party have been prejudiced.”6 9 U.S.C.

6

Selden also frames the arbitrator’s misconduct as a “manifest

disregard of the law.” We have previously “recognized a limited

nonstatutory ground for vacating an arbitration award where the

arbitrator has acted in ‘manifest disregard of the law.’” Al-Harbi v.

Citibank, N.A., 85 F.3d 680, 682 (D.C. Cir. 1996) (cleaned up). It is

unclear, however, whether manifest disregard remains a valid ground

for vacatur after the Supreme Court’s decision in Hall Street

Associates v. Mattel, Incorporated, 552 U.S. 576, 584–86 (2008). In

Hall Street, the Supreme Court held that the FAA’s list of grounds

for refusing to enforce an award is exclusive. See id. at 586. The

FAA’s list does not include manifest disregard. See 9 U.S.C. § 10(a).

19

§ 10(a)(3). Because “every failure of an arbitrator to receive

relevant evidence does not constitute misconduct requiring

vacatur,” we vacate the award only if the failure “prejudices the

rights of the parties.” Lessin v. Merrill Lynch, Pierce, Fenner

& Smith, Inc., 481 F.3d 813, 818 (D.C. Cir. 2007) (cleaned up).

A party seeking the vacatur of an arbitration award must

establish that (1) the arbitrator committed some error, and (2)

the error made a difference.

Selden alleges that the arbitrator committed misconduct by

refusing to provide for interrogatories or depositions and by

refusing to consider Dr. Svirsky’s expert report. Neither ground

constitutes misconduct warranting vacatur of the arbitration

award.

Selden’s first ground for misconduct—that the arbitrator

failed to provide for interrogatories or depositions—fails

because it is a problem of Selden’s own making. Selden

contends he made the arbitrator aware that he wanted this

discovery on several occasions, but the arbitrator decided not

to permit the requested discovery. The arbitrator explained,

however, that he would consider renewed requests prior to the

close of discovery, which Selden expressly reserved the right

to do. Yet Selden never made those requests prior to the close

of discovery. Instead, he waited to make the request for the first

time at the hearing on Airbnb’s dispositive motion. But that

request came too late. It was not misconduct for the arbitrator

The Supreme Court has declined to resolve “whether ‘manifest

disregard’ survives … Hall Street,” either “as an independent ground

for review or as a judicial gloss on the enumerated grounds for

vacatur.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S.

662, 672 n.3 (2010). Because Selden has not established that the

arbitrator disregarded the law, we need not resolve whether manifest

disregard remains a ground for vacating an arbitration award.

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to deny interrogatories and depositions that were not requested

prior to the close of discovery.

Selden was also not prejudiced by the lack of discovery.

The arbitrator’s award was based on a threshold legal

conclusion, namely that the host’s single-family residence was

not a public accommodation or qualifying dwelling as required

for Selden’s discrimination claims. See 42 U.S.C.

§ 2000a(b)(1) (defining “public accommodation” to exclude a

“building which contains not more than five rooms for rent”

that “is actually occupied by the proprietor of such

establishment as his residence”); id. § 3603(b)(1) (exempting a

single-family residence from the Fair Housing Act). Nor was

Airbnb’s online platform a public accommodation according to

the arbitrator. The arbitrator also determined that any alleged

discrimination was committed by the host, and Airbnb had no

part in it. Selden therefore simply could not make out a claim

under the relevant discrimination statutes, because they did not

apply to the Airbnb platform or to the host’s room for rent.

Selden does not argue that the arbitrator’s legal conclusions

were erroneous.

Selden maintains that interrogatories and depositions are

critical to a discrimination plaintiff and that their absence

“precluded him from fully prosecuting the merits [of] his

claim.” Selden Br. 36. According to Selden, this discovery was

needed “to learn about inter alia the true relationship between

Airbnb and its hosts, the credibility of Airbnb’s photo policy,

and the scale of the discriminatory impact against protected

class members.” Selden Br. 36. Selden, however, does not

explain how any evidence of this “true relationship” might

contradict the arbitrator’s legal conclusion that the listed home

was not a public accommodation or qualifying dwelling.

Selden’s vague assertions suggest that the exclusion of the

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discovery, “far from being a serious blow to [his] case, caused

[him] little if any prejudice.” Howard Univ., 512 F.3d at 723.

Selden’s second ground of alleged misconduct is that the

arbitrator refused to consider his expert report. Selden’s expert,

Dr. Svirsky, wrote a report explaining his study of racial

discrimination in the sharing economy. Selden submitted the

report to the arbitrator, but the arbitrator made no mention of it

in his award. We need not decide whether an error occurred,

because the alleged error did not prejudice Selden.

Selden has failed to establish how the purported refusal to

consider the expert report would have altered the arbitrator’s

legal conclusions. Selden’s expert report focused on how

Airbnb’s true name policy has a disparate impact on African

American guests. Even if the true name policy had such a

disparate impact, liability under Title II attaches only in the

context of a public accommodation and liability under the Fair

Housing Act does not attach to single-family residences.

Selden has failed to establish that the alleged error would have

made a difference to the arbitrator’s legal determination that

these statutes did not apply to Selden’s claims because neither

the listed room nor the Airbnb platform was a public

accommodation or qualifying dwelling.

Because Selden has failed to demonstrate an error

affecting the outcome of the arbitration, we decline to vacate

the arbitration award.

***

For the foregoing reasons, we affirm the district court’s

order of arbitration and denial of Selden’s motion to vacate the

arbitration award.

So ordered.