Eleventh Circuit Declines to Compel Arbitration in Suit Against Rental Car Company Under Arbitration Clause in Orbitz’s Terms of Service

The Eleventh Circuit recently declined a rental car company’s attempt to invoke an arbitration clause in Orbitz.com’s terms of use in a lawsuit brought by a disgruntled customer who booked his rental car through Orbitz despite the seemingly broad language of the clause.

Ancizar Marin used Orbitz.com to book a rental car from Sixt Rent A Car. When Marin booked his rental car, he agreed to Orbitz’s terms of use, which included an arbitration clause requiring Marin to arbitrate “[a]ny and all claims.” Orbitz’s terms defined “claims” as:

[A]ny disputes or claims relating in any way to [1] the Services, [2] any dealings with our customer service agents, [3] any services or products provided, [4] any representations made by us, or [5] our Privacy Policy.

Marin subsequently picked up his car from Sixt and returned it. A few weeks later, however, he received an email from Sixt claiming that he had damaged the car and seeking $700 related to that damage. Marin sued Sixt in a putative class action. He did not sue Orbitz.

Sixt moved to compel arbitration under the arbitration clause in Orbitz’s terms. The district court denied Sixt’s motion and Sixt appealed to the Eleventh Circuit Court of Appeals, which affirmed.

The Eleventh Circuit explained that whether Marin’s claims fell within the scope of the arbitration clause in Orbitz’s terms required the court to determine whether Marin’s suit was a “claim” within the meaning of Orbitz’s arbitration clause. That in turn required the court to determine whether Marin’s suit was a “dispute[] or claim[] relating in any way to ... any services or products provided.” Although the court concluded that the answer to that question was not entirely clear, the court determined that Marin’s suit was not within the scope of Orbitz’s arbitration clause because the phrase in question related to Orbitz’s services or products, not the services or products of third parties that partnered with Orbitz. The court noted that the surrounding clauses all related “to services or products provided by Orbitz.” It also explained that Orbitz’s terms required customers asserting “claim[s]” to give written notice to Orbitz and that it would be strange to require customers to inform Orbitz about grievances they had with third parties. The Eleventh Circuit also noted that Orbitz’s terms recognized that customers would have agreements with the third-party vendors whose services they booked on Orbitz’s website. That further suggested that the phrase “services or products provided” in Orbitz’s terms referred to Orbitz’s services or products. The court also explained that “common sense” suggested that Orbitz was referring to its services and products, not third-party services or products.

The court next rejected Sixt’s argument that the Moses H. Cone canon that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration” applied. The court explained that the canon applied “only if Marin’s lawsuit against Sixt was an immediate, foreseeable result of the performance of [Marin] accepting Orbitz’s Terms” because the canon only applied if “the FAA governs the arbitration agreement at issue.” But Marin’s lawsuit was not an immediate, foreseeable result of accepting Orbitz’s terms; his dispute was with Sixt. The Eleventh Circuit also rejected Sixt’s argument that Florida law incorporated the canon.

The Eleventh Circuit therefore affirmed the district court’s denial of Sixt’s motion.

Calderon v. Sixt Rent A Car, LLC, No. 20-10989 (11th Cir. July 14, 2021).