Case 1:16-cv-00933-CRC Document 1 Filed 05/17/16 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GREGORY SELDEN,

Plaintiff, Individually and on Behalf of all Others Similarly Situated, v.

Civil Action: 1:16-cv-00933

AIRBNB, INC. Defendant.

________________________________________________________________________

CLASS ACTION COMPLAINT

Plaintiff Gregory Selden, individually, and on behalf of all others similarly situated, by and through his counsel Emejuru & Nyombi L.L.C, brings this action against Airbnb., Inc. (“Airbnb”), and states as follows:
	  	  	  	  	  NATURE OF THE ACTION 1.   Plaintiff maintains that pursuant to FRCP 23, the class is so numerous that joinder
of all members is impracticable, there are questions of law or fact common to the class; the claims or defenses of the representative parties are typical of the claims or defenses of the class; and the representative parties will fairly and adequately protect the interests of the class. 2.   This action is necessary to protect the civil rights of Plaintiff and all others similarly situated who have been injured by the pertinent discriminatory acts or practices committed by Airbnb’s host agents, representatives, servants of any type.
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3.   This action is necessary and increasingly important to protect the civil rights of Plaintiff’s and all others similarly situated that participate in the “sharing economy” in which businesses connect people offering goods and services with other people who want to pay for them.
4.   The reason for not joining all potential class members as Plaintiffs is that upon information and belief, there are thousands of potential plaintiff’s making it impractical to bring them before the Court. All plaintiffs participate in the sharing economy, including that of Defendant Airbnb, its agents, representatives, employees, and/or servants. The discriminatory actions complained of were taken in the line and scope of such individuals’ employment, agency or representation.
5.   There are many persons, both in Plaintiff’s residential district and in regions surrounding Defendant who are similarly situated that have been affected and the question to be determined is one of common and general interest to many persons constituting the Class to which Plaintiff belongs and the group is so numerous as to make it impracticable to bring them all before the Court, for which reason Plaintiff initiates this litigation for all persons similarly situated pursuant to FRCP 23.
6.   Issues and questions of law and fact common to the members of the class predominate over questions affecting individual members and the claims of Plaintiff’s are typical of the claims of the proposed class.
7.   The maintenance of this litigation as a Class Action will be superior to the other methods of adjudication in promoting the convenient administration of justice.
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8.   Plaintiff Gregory Selden will fairly and adequately assert and protect the interests of the Class. JURISDICTION
9.   Personal jurisdiction exists over Defendant as it does business and has the necessary minimum contacts within the District of Columbia. The defendant has purposely availed itself of the privilege of conducting activities with in the District of Columbia and invokes the benefits and protection of the laws of the District of Columbia.
10.  Subject matter jurisdiction exists through diversity jurisdiction pursuant to 28.U.S.C. § 1332 as the action is between citizens of different states and the amount in controversy, exclusive of interest and costs, exceeds seventy-five thousand dollars ($75,000.00).
11.  Federal Question jurisdiction exists because this lawsuit is brought under federal laws pursuant to 28 U.S.C. §1331	   VENUE
1.   Venue is proper pursuant to 28 U.S.C. § 1391(b)(1) as Defendant resides and conducts business in this judicial district and have their principal offices in this judicial district.
2.   Further venue is also proper in this judicial district pursuant to 28 U.S.C. §1391(b)(2) because a substantial part of the events or omissions giving rise to this claim occurred in this judicial district. Mr. Selden made the application for accommodation with Defendant while physically present in the District of Columbia.
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PARTIES 1.   Plaintiff Gregory Selden is a current resident of Virginia.
2.   Defendant Airbnb Inc. (hereinafter “Airbnb”) is a duly registered business incorporated in the State of California and with its principal offices located at 888 Brannan Street, 4th Floor, San Francisco, CA 94197.
FACTUAL ALLEGATIONS 1.   Plaintiff Gregory Selden is a 25 year-old African American [black] male. At the
time of the allegations set forth herein, Mr. Seldon was physically present in Washington DC. 2.   In or around March 2015, Plaintiff Gregory Selden planned a trip to go to Philadelphia, Pennsylvania with some friends for a weekend vacation. Prior to executing his trip, a friend traveling with Mr. Selden suggested that Mr. Selden use the housing accommodation service known as Airbnb. 3.   The Airbnb platform is accessible through an internet portal and through a mobile application. 4.   In or around March 2015, while at his job in Washington D.C., Mr. Seldon signed up for Airbnb on his mobile device through another mobile application platform, Facebook. Subsequently, Mr. Selden used the mobile application platform to book accommodation on the Airbnb platform. 5.   As a young global traveler, Mr. Selden understood that the platform was a cheaper option amongst the other competitive public accommodation operations in the United States.
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6.   Mr. Selden’s Airbnb platform profile included his face as well as other details such as his name, education, sex, age and residential location.
7.   For the first time, Mr. Selden attempted to use the online sharing platform for public accommodation in or around March 2015.
8.   Airbnb agents or employees, representatives or servants are classified specifically as Airbnb “Hosts” for the web based sharing platform
9.   In or around March 2015, the Defendant’s Host agent’s public accommodation listing included favorable dates available for Mr. Selden in Philadelphia, Pennsylvania.
10.  In or around March 2015, Mr. Selden inquired about the availability of a Philadelphia, Pennsylvania accommodation from [a person listed with a Screen name Paul] an Airbnb Host agent, representative or employee. Mr. Selden sought to obtain the accommodation from the agent or employee.
11.  In or about March 2015, Mr. Selden heard back from the Host agent rejecting his request for the vacation accommodation. The Host agent indicated that the accommodation was not available.
12.   Soon after and on the same day he was rejected by the Airbnb agent or employee, Mr. Selden stumbled across the same listing by Paul the Airbnb agent or employee indicating that the accommodation on the platform was still available. This is despite the fact that the Airbnb agent or employee told Mr. Selden that the accommodation was not available.
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13.  With the belief that he was discriminated against because of his race, Mr. Selden created two imitation Airbnb profiles in order to seek accommodation once again for the same Host agent or employee listing that previously rejected him.
14.  The first imitation profile created by Selden was named “Jessie.” Jessie was created with similar demographics as Selden. However, the race of the imitation profile was white. From the Host agents view, only Jessie’s name, profile picture, location and how long the imitation had been a member of the Airbnb community (since March 2015) were visible.
15.  The second imitation profile created by Selden was named Todd. Todd was an older white male and no education information was entered for him. Only Todd’s name, profile picture, location and how long the imitation had been a member of the Airbnb community (since March 2015) were visible.
16.  Selden used the two imitation profiles to request accommodations for the exact same dates and from the exact same Airbnb Host agent that rejected him.
17.  Subsequently, and on the same day in March 2015, the same Airbnb Host agent that originally rejected Selden immediately accepted both of the white imitation Airbnb accounts.
18.  Selden contacted Airbnb indicating to the entity that its Host agent or employee discriminated against him because he was African American, but Airbnb did not respond.
19.  Subsequently, Selden confronted Paul the Airbnb Host agent regarding the discrimination. However, the Airbnb host agent merely shamed Selden for
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speaking out against the intentional discriminatory act. Specifically, the Host agent stated that Selden or “people like [him] were simply victimizing [himself].” 20.  Defendant’s host had no legitimate reason for denying Mr. Selden accommodation . Any asserted reasons were a pretext for discrimination. 21.  Selden continued to contact Airbnb through March 2015. However, his cries to Airbnb would fall on deaf ear. 22.  Selden took his complaint of discrimination to twitter, which spawned the viral hashtag titled “#airbnbwhileblack” thousands of retweets from individuals who experienced the exact same disparate treatment from Airbnb Host agents, representatives, servants or employees. 	  
COUNT 1 VIOLATION OF TITLE II OF THE CIVIL RIGHTS ACT OF 1964 23.  Title II of the Civil Rights Act of 1964 explicitly prohibits discrimination in places of public accommodation, such as hotels, restaurants, movie theatres and sports arenas. 24.  Airbnb is an establishment affecting interstate commerce or supported in their activities by the State as places of public accommodation and lodgings. 25.  Specifically, Airbnb is an inn, hotel, motel or other establishment which provides lodging to transient guests. 26.  Plaintiff Gregory Selden was denied full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the public accommodation as defined in §2000a of this count because of his race as an
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African American. The same discriminatory actions have been unleashed on persons who are similarly situated to Plaintiffs. 27.  WHEREFORE, for the claim of Violation of Title II of the Civil Rights Act of 1964, Plaintiff, individually, and on behalf of others prays for judgment against Defendant for all damages allowable by law, including injunctive, statutory damages, compensatory damages, punitive damages, pre-judgment interest at the legal rate, post-judgment interest at the judgment rate, attorney's fees as may be awarded by the Court, the costs of this action, equitable relief, and such other and further relief as may appear warranted by this action.
COUNT II VIOLATION OF FEDERAL CIVIL RIGHTS STATUTE 42 U.S.C. § 1981 28.  Plaintiff	  incorporates	  by	  reference	  all	  paragraphs	  of	  this	  Complaint	  as	  though	   fully	  stated	  herein	  seriatim	   29.  By	   the	   above	   acts,	   Defendant	   violated	   42	   U.S.C	   §	   1981	   by	   discriminating	   against	   Mr.	   Selden	   individually	   and	   others	   similarly	   situated	   because	   of	   his	   race	  as	  an	  African	  American[black].	  	   30.  Section	   1981	   guarantees	   freedom	   from	   racial	   discrimination	   in	   the	   making,	   enforcement	  performance,	  modification,	  and	  termination	  of	  contracts.	   31.  	  Section	   1981	   also	   guarantees	   enjoyment	   of	   all	   benefits,	   privileges,	   terms,	   and	  conditions	  of	  the	  contractual	  relationship.	  	   32.  Plaintiff’s	   use	   of	   the	   airbnb	   service	   for	   housing	   accommodation	   falls	   under	   section	  1981	  protection.	  
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33.  Airbnb’s agent or employee refused to provide rental accommodations to Plaintiff because he was African American.
34.  Airbnb’s agent, representative, servant or employee Hosts purposefully and intentionally discriminated against Plaintiff because he was an African American by race. Any reasons given by Defendant’s agent Airbnb host were a mere pretext for discrimination.
35.  WHEREFORE, for the claim of violation of Federal Civil Rights Statute 42 U.S.C.§ 1981, Plaintiff, individually and on behalf of others prays for judgment against Defendant for all damages allowable by law, including injunctive relief, statutory damages, unlimited compensatory damages, punitive damages, prejudgment interest at the legal rate, post-judgment interest at the judgment rate, attorney's fees as may be awarded by the Court, the costs of this action, equitable relief, and such other and further relief as may appear warranted by this action. 	  	  	  	  	  	  	  COUNT III VIOLATION OF FAIR HOUSING ACT
36.  Plaintiff	  incorporates	  by	  reference	  all	  paragraphs	  of	  this	  Complaint	  as	  though	   fully	  stated	  herein	  seriatim.	  
37.  The Fair Housing Act prohibits discriminatory practices on the basis of race by housing agents for rental accommodation.
38.  Specifically, the Airbnb agent was not truthful in disclosing information concerning the availability of housing. Any reasons given by Defendant’s agent were a mere pretext for discrimination.
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39.  Plaintiff was the object of a misrepresentation made unlawful under the Fair Housing Act and suffered the precise injury the statute was designed to guard against.
40.  WHEREFORE, for the claim of violation of the Fair Housing Act, Plaintiff, individually and on behalf of others prays for judgment against Defendant for all damages allowable by law, including injunctive, statutory damages, compensatory damages, punitive damages, pre-judgment interest at the legal rate, post-judgment interest at the judgment rate, attorney's fees as may be awarded by the Court, the costs of this action, equitable relief, and such other and further relief as may appear warranted by this action. PRAYER FOR RELIEF WHEREFORE, Plaintiff, Gregory Selden, and on behalf of all others prays for judgment in his favor and against Defendant Airbnb for: any and all damages acceptable by law, including compensatory damages, statutory damages, punitive damages, pre-judgment interest at the legal rate, post-judgment interest at the judgment rate, attorney's fees as may be awarded by the Court, the costs of this action, equitable relief, relief pleaded in the preceding paragraphs, injunctive relief and such other and further relief as Plaintiff may be entitled to by bringing this action.
JURY DEMAND PLAINTIFF DEMANDS A TRIAL BY JURY IN THIS CASE
Respectfully submitted on this 17th day of May 2016.
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EMEJURU & NYOMBI LLC By: / s / Ikechukwu Emejuru______________
Ikechukwu “Ike” Emejuru, Esq, Bar No. 19262 Andrew Nyombi, Esq, MD0010 Emejuru & Nyombi L.L.C. Attorneys and Counselors at Law 8403 Colesville Road Suite 1100 Silver Spring, MD 20910 Telephone: (240) 638 – 2786 Facsimile: 1-800-250-7923 iemejuru@enylaw.com anyombi@enylaw.com Attorneys for Plaintiff Individually and others similarly situated
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 Case 1:16-cv-00933-CRC Document 6 Filed 05/20/16 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GREGORY SELDEN 1904 Cedar Street #413 Richmond, VA 23223

Plaintiff, Individually and on Behalf of all Others Similarly Situated, v.

Civil Action: 1:16-cv-00933

AIRBNB, INC. 888 Brannan Street, 4th floor San Francisco, CA 94197
Defendant.

________________________________________________________________________

AMENDED COMPLAINT

Plaintiff Gregory Selden, individually, and on behalf of all others similarly situated, by and through his counsel Emejuru & Nyombi L.L.C, brings this action against Airbnb., Inc. (“Airbnb”), and states as follows:
	  	  	  CLASS ACTION ALLEGATIONS 1.   Plaintiff maintains that pursuant to FRCP 23, the class is so numerous that joinder
of all members is impracticable, there are questions of law or fact common to the class; the claims or defenses of the representative parties are typical of the claims or defenses of the class; and the representative parties will fairly and adequately protect the interests of the class. 2.   This action is necessary to protect the civil rights of Plaintiff and all others similarly situated who have been injured by the pertinent discriminatory acts or
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practices committed by Airbnb’s host agents, representatives, servants of any type. 3.   This action is necessary and increasingly important to protect the civil rights of Plaintiff’s and all others similarly situated that participate in the “sharing economy” in which businesses connect people offering goods and services with other people who want to pay for them. 4.   The reason for not joining all potential class members as Plaintiffs is that upon information and belief, there are thousands of potential plaintiff’s making it impractical to bring them before the Court. All plaintiffs participate in the sharing economy, including that of Defendant Airbnb, its agents, representatives, employees, and/or servants. The discriminatory actions complained of were taken in the line and scope of such individuals’ employment, agency or representation. 5.   There are many persons (approximately in the thousands), both in Plaintiff’s residential district and in regions surrounding Defendant who are similarly situated that have been affected and the question to be determined is one of common and general interest to many persons constituting the Class to which Plaintiff belongs and the group is so numerous as to make it impracticable to bring them all before the Court, for which reason Plaintiff initiates this litigation for all persons similarly situated pursuant to FRCP 23. 6.   Issues and questions of law and fact common to the members of the class predominate over questions affecting individual members and the claims of Plaintiff’s are typical of the claims of the proposed class. Issues and questions of law and fact include allegations made upon information and belief of Violation of
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Title II of the Civil Rights Act of 1964, Violation of Federal Civil Rights Statute 42 U.S.C. § 1981, Violation of Fair Housing Act. 7.   The maintenance of this litigation as a Class Action will be superior to the other methods of adjudication in promoting the convenient administration of justice. 8.   Plaintiff Gregory Selden will fairly and adequately assert and protect the interests of the Class.
JURISDICTION 9.   Personal jurisdiction exists over Defendant as it does business and has the
necessary minimum contacts within the District of Columbia. The defendant has purposely availed itself of the privilege of conducting activities with in the District of Columbia and invokes the benefits and protection of the laws of the District of Columbia. 10.  Subject matter jurisdiction exists through diversity jurisdiction pursuant to 28.U.S.C. § 1332 as the action is between citizens of different states and the amount in controversy, exclusive of interest and costs, exceeds seventy-five thousand dollars ($75,000.00). 11.  This Court has jurisdiction over the federal claims asserted here pursuant to the Class Action Fairness Act, 28, U.S.C. § 1332(d)(2) as the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs, as members of a class of plaintiffs are citizens of a state different from that of the Defendant; members of a class of Plaintiff’s is a citizen or subject of a foreign state, and members of Plaintiff’s class are citizens of a State and the defendant its citizen or subject of a foreign state.
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12.  Federal Question jurisdiction exists because this lawsuit is brought under federal laws pursuant to 28 U.S.C. §1331	   VENUE
1.   Venue is proper pursuant to 28 U.S.C. § 1391(b)(1) as Defendant resides and conducts business in this judicial district and have their principal offices in this judicial district.
2.   Further venue is also proper in this judicial district pursuant to 28 U.S.C. §1391(b)(2) because a substantial part of the events or omissions giving rise to this claim occurred in this judicial district. Mr. Selden made the application for accommodation with Defendant while physically present in the District of Columbia. PARTIES
1.   Plaintiff Gregory Selden is a current resident of Virginia.
2.   Defendant Airbnb Inc. (hereinafter “Airbnb”) is a duly registered business incorporated in the State of California and with its principal offices located at 888 Brannan Street, 4th Floor, San Francisco, CA 94197.
FACTUAL ALLEGATIONS 1.   Plaintiff Gregory Selden is a 25 year-old African American [black] male. At the
time of the allegations set forth herein, Mr. Selden was physically present in Washington DC. 2.   In or around March 2015, Plaintiff Gregory Selden planned a trip to go to Philadelphia, Pennsylvania with a friend for a weekend vacation. Prior to
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executing his trip, a friend traveling with Mr. Selden suggested that Mr. Selden use the housing accommodation service known as Airbnb. 3.   The Airbnb platform is accessible through an internet portal and through a mobile application. 4.   In or around March 2015, while at his job in Washington D.C., Mr. Selden signed up for Airbnb on his mobile device through another mobile application platform, Facebook. Subsequently, Mr. Selden used the mobile application platform to book accommodation on the Airbnb platform. 5.   As a young global traveler, Mr. Selden understood that the platform was a cheaper option amongst the other competitive public accommodation operations in the United States. 6.   Mr. Selden’s Airbnb platform profile included his face as well as other details such as his name, education, sex, age and residential location. 7.   For the first time, Mr. Selden attempted to use the online sharing platform for public accommodation in or around March 2015. 8.   Airbnb agents or employees, representatives or servants are classified specifically as Airbnb “Hosts” for the web based sharing platform 9.   In or around March 2015, the Defendant’s Host agent’s public accommodation listing included favorable dates available for Mr. Selden in Philadelphia, Pennsylvania. 10.  In or around March 2015, Mr. Selden inquired about the availability of a Philadelphia, Pennsylvania accommodation from [a person listed with a Screen
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name Paul] an Airbnb Host agent, representative or employee. Mr. Selden sought to obtain the accommodation from the agent or employee. 11.  In or about March 2015, Mr. Selden heard back from the Host agent rejecting his request for the vacation accommodation. The Host agent indicated that the accommodation was not available. 12.   Soon after and on the same day he was rejected by the Airbnb agent or employee, Mr. Selden stumbled across the same listing by Paul the Airbnb agent or employee indicating that the accommodation on the platform was still available. This is despite the fact that the Airbnb agent or employee told Mr. Selden that the accommodation was not available. 13.  With the belief that he was discriminated against because of his race, Mr. Selden created two imitation Airbnb profiles in order to seek accommodation once again for the same Host agent or employee listing that previously rejected him. 14.  The first imitation profile created by Selden was named “Jessie.” Jessie was created with similar demographics as Selden. However, the race of the imitation profile was white. From the Host agents view, only Jessie’s name, profile picture, location and how long the imitation had been a member of the Airbnb community (since March 2015) were visible. 15.  The second imitation profile created by Selden was named Todd. Todd was an older white male and no education information was entered for him. Only Todd’s name, profile picture, location and how long the imitation had been a member of the Airbnb community (since March 2015) were visible.
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16.  Selden used the two imitation profiles to request accommodations for the exact same dates and from the exact same Airbnb Host agent that rejected him.
17.  Subsequently, and on the same day in March 2015, the same Airbnb Host agent that originally rejected Selden immediately accepted both of the white imitation Airbnb accounts.
18.  Selden contacted Airbnb indicating to the entity that its Host agent or employee discriminated against him because he was African American, but Airbnb did not respond.
19.  Subsequently, Mr. Selden confronted Paul the Airbnb Host agent regarding the discrimination. However, the Airbnb host agent merely shamed Selden for speaking out against the intentional discriminatory act. Specifically, the Host agent stated that Mr. Selden or “people like [him] were simply victimizing [himself].”
20.  As to his vacation, Mr. Selden inconvenienced by the denial, ended up staying at a hotel for a higher price than the Airbnb accommodation he originally sought. Upon information and belief the same injury has been suffered by persons similarly situated to Mr. Selden.
21.  Defendant’s host had no legitimate reason for denying Mr. Selden accommodation. Any asserted reasons were a pretext for discrimination.
22.  Selden continued to contact Airbnb through March 2015. However, his cries to Airbnb would fall on deaf ear.
23.  Mr. Selden took his complaint of discrimination to twitter, which accelerated the viral hashtag titled “#airbnbwhileblack.” Upon information and belief, there have
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been thousands of retweets from individuals who experienced the exact same disparate treatment from Airbnb Host agents, representatives, servants or employees.
COUNT 1 VIOLATION OF TITLE II OF THE CIVIL RIGHTS ACT OF 1964 24.  Title II of the Civil Rights Act of 1964 explicitly prohibits discrimination in places of public accommodation, such as hotels, restaurants, movie theatres and sports arenas. 25.  Airbnb is an establishment affecting interstate commerce or supported in their activities by the State as places of public accommodation and lodgings. 26.  Specifically, Airbnb is an inn, hotel, motel or other establishment which provides lodging to transient guests. 27.  Plaintiff Gregory Selden was denied full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of the public accommodation as defined in §2000a of this count because of his race as an African American. The same discriminatory actions have been unleashed on persons who are similarly situated to Plaintiffs. 28.  WHEREFORE, for the claim of Violation of Title II of the Civil Rights Act of 1964, Plaintiff, individually, and on behalf of others prays for judgment against Defendant for all damages allowable by law, including injunctive, statutory damages, compensatory damages, punitive damages, pre-judgment interest at the legal rate, post-judgment interest at the judgment rate, attorney's fees as may be
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awarded by the Court, the costs of this action, equitable relief, and such other and further relief as may appear warranted by this action.
COUNT II VIOLATION OF FEDERAL CIVIL RIGHTS STATUTE 42 U.S.C. § 1981 29.  Plaintiff incorporates by reference all paragraphs of this Complaint as though fully stated herein seriatim 30.  By the above acts, Defendant violated 42 U.S.C § 1981 by discriminating against Mr. Selden individually and others similarly situated because of his race as an African American[black]. 31.  Section 1981 guarantees freedom from racial discrimination in the making, enforcement performance, modification, and termination of contracts. 32.   Section 1981 also guarantees enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. 33.  Plaintiff’s use of the Airbnb service for housing accommodation falls under section 1981 protection. 34.  Airbnb’s agent or employee refused to provide rental accommodations to Plaintiff because he was African American. 35.  Airbnb’s agent, representative, servant or employee Hosts purposefully and intentionally discriminated against Plaintiff because he was an African American by race. Any reasons given by Defendant’s agent Airbnb host were a mere pretext for discrimination. 36.  WHEREFORE, for the claim of violation of Federal Civil Rights Statute 42 U.S.C.§ 1981, Plaintiff, individually and on behalf of others prays for judgment
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against Defendant for all damages allowable by law, including injunctive relief, statutory damages, unlimited compensatory damages, punitive damages, prejudgment interest at the legal rate, post-judgment interest at the judgment rate, attorney's fees as may be awarded by the Court, the costs of this action, equitable relief, and such other and further relief as may appear warranted by this action.
	  	  	  	  	  	  	  COUNT III VIOLATION OF FAIR HOUSING ACT 37.  Plaintiff incorporates by reference all paragraphs of this Complaint as though fully stated herein seriatim. 38.  The Fair Housing Act prohibits discriminatory practices on the basis of race by housing agents for rental accommodation. 39.  Specifically, the Airbnb agent was not truthful in disclosing information concerning the availability of housing. Any reasons given by Defendant’s agent were a mere pretext for discrimination. 40.  Plaintiff was the object of a misrepresentation made unlawful under the Fair Housing Act and suffered the precise injury the statute was designed to guard against. 41.  WHEREFORE, for the claim of violation of the Fair Housing Act, Plaintiff, individually and on behalf of others prays for judgment against Defendant for all damages allowable by law, including injunctive, statutory damages, compensatory damages, punitive damages, pre-judgment interest at the legal rate, post-judgment interest at the judgment rate, attorney's fees as may be awarded by
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the Court, the costs of this action, equitable relief, and such other and further relief as may appear warranted by this action.
PRAYER FOR RELIEF WHEREFORE, Plaintiff, Gregory Selden, and on behalf of all others prays for judgment in his favor and against Defendant Airbnb for: any and all damages acceptable by law, including compensatory damages, statutory damages, punitive damages, pre-judgment interest at the legal rate, post-judgment interest at the judgment rate, attorney's fees as may be awarded by the Court, the costs of this action, equitable relief, relief pleaded in the preceding paragraphs, injunctive relief and such other and further relief as Plaintiff may be entitled to by bringing this action.
JURY DEMAND PLAINTIFF DEMANDS A TRIAL BY JURY IN THIS CASE
Respectfully submitted on this 20th day of May 2016.
EMEJURU & NYOMBI LLC By: / s / Ikechukwu Emejuru______________
Ikechukwu “Ike” Emejuru, Esq, Bar No. 19262 Andrew Nyombi, Esq, MD0010 Emejuru & Nyombi L.L.C. Attorneys and Counselors at Law 8403 Colesville Road Suite 1100 Silver Spring, MD 20910 Telephone: (240) 638 – 2786 Facsimile: 1-800-250-7923 iemejuru@enylaw.com anyombi@enylaw.com
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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GREGORY SELDEN, et al., Plaintiffs,
v.

Case No. 16-cv-00933 (CRC)

AIRBNB, INC.,

Defendant.

MEMORANDUM OPINION All of us who have signed up for an online service recently will recall the experience. After entering the service provider’s website, we were presented with a “sign up” or “create account” button prominently displayed on the screen. Next to the button—less prominent, no doubt—was the ubiquitous advisory that, by signing up, we would be accepting the provider’s “terms of service.” Perhaps there was a separate check-box prompting us to indicate our agreement to those terms. Regardless, eager to begin using the service and realizing that the provider’s contractual terms are non-negotiable, most of us signed up without bothering to click the accompanying link to reveal the contractual terms. Those who did undoubtedly found numerous pages of legalese. The intrepid few who actually read all the terms almost certainly learned that one of them requires users to relinquish their right to have a jury resolve any dispute with the provider. And that another bars class actions. This experience, shared by countless people each day, gives rise to the dispute presently before the Court. Plaintiff Gregory Selden, who is African American, signed up with the popular residential rental service Airbnb in advance of a weekend getaway to Philadelphia. He created

the required user profile, including his photograph, and contacted an Airbnb “host” about a promising listing. The host allegedly responded that the residence was not available. Smelling a rat, Selden created a second account under a pseudonym, with a photograph of a white person in the user profile, and contacted the same host about the same accommodation. This time, Selden claims, the host was only too happy to rent the residence.
Selden filed suit against Airbnb for race discrimination on behalf of himself and fellow African-American travelers who have reported similar treatment on Airbnb. See, e.g., Elaine Glusac, As Airbnb Grows, So Do Claims of Discrimination, N.Y. Times (June 26, 2016), http://www.nytimes.com/2016/06/26/travel/airbnb-discrimination-lawsuit.html. Likening Airbnb to a hotel and its hosts to rental agents or hotel employees, Selden seeks to hold the company responsible under federal civil rights laws for the discriminatory conduct of those who offer accommodations on its website. Airbnb contests liability, although that issue is not before the Court because the company’s standard Terms of Service—which it claims Selden accepted by signing up to use the site—contain a clause requiring all disputes to be resolved by an arbitrator. Civil lawsuits with a potential jury trial are prohibited. As are class actions.
Invoking this clause, Airbnb moves to compel arbitration of Selden’s claims. Selden responds that no contract exists—and therefore the arbitration clause does not apply—because the sign-up process did not place him on adequate notice that he was agreeing to Airbnb’s Terms of Service, including mandatory arbitration. He further argues that, even if a contract was formed, the arbitration provision does not apply to discrimination suits and is unconscionable in any event.
The Court must grant Airbnb’s motion. No matter one’s opinion of the widespread and controversial practice of requiring consumers to relinquish their fundamental right to a jury
2

trial—and to forego class actions—as a condition of simply participating in today’s digital economy, the applicable law is clear: Mutual arbitration provisions in electronic contracts—so long as their existence is made reasonably known to consumers—are enforceable, in commercial disputes and discrimination cases alike. And Airbnb’s sign-up procedures were sufficiently clear to place Mr. Selden on notice that he was agreeing to the company’s Terms of Service when he created an account. While that result might seem inequitable to some, this Court is not the proper forum for policy objections to mandatory arbitration clauses in online adhesion contracts. Such objections should be taken up with the appropriate regulators or with Congress.
I. Background & Procedural Posture A. Selden’s Use of Airbnb
Gregory Selden and a friend planned a trip to Philadelphia in March 2015. Second Amend. Compl. ¶¶ 28–35. To book their accommodations, Selden turned to Airbnb, which describes itself as “a trusted community marketplace for people to list, discover, and book unique accommodations all around the world.” About Us, Airbnb, http://www.airbnb.com/about/aboutus (last visited Oct. 24, 2016). Airbnb allows property owners or their representatives—“hosts” in the company’s parlance—to list their accommodations on the platform, where travelers then attempt to book them. Def.’s Mot. Compel Arbitration (“MCA”), Decl. of Kyle Miller ¶ 2. While Airbnb facilitates the transactions, the hosts, alone, are responsible for deciding to whom they will offer their homes for short-term stays. Id.
Selden first created his Airbnb account in March 2015, using an iPhone mobile device. Pl.’s Opp’n MCA, Decl. of Gregory Selden ¶ 2; Supp. Decl. of Kyle Miller ¶¶ 2, 4. Airbnb’s mobile sign-up screen, attached as an appendix to this Memorandum Opinion, presented Selden with three options in descending order: “Sign up with Facebook,” “Sign up with Google,” and
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“Sign up with Email.” See Appendix. Below the “Sign up with Email” button was text that read: “By signing up, I agree to Airbnb’s Terms of Service, Privacy Policy, Guest Refund Policy, and Host Guarantee Terms.” Id. The text contained hyperlinks to these various agreements. Id. Airbnb’s Terms of Service include, among other provisions, a mandatory arbitration clause. Def.’s MCA, Ex. B, 16–18. Selden clicked “Sign up with Facebook” at the top of the page, and proceeded to create his Airbnb profile in order to use the service. Decl. of Gregory Selden ¶ 6.
Selden’s profile included a photograph of his face, along with other details like his name, age, and education. Shortly after creating his account, he inquired with a host about the availability of a listing that met his needs. Id. at ¶¶ 6–7. According to Selden, the host informed him that the accommodation was not available. Id. at ¶ 7. While browsing Airbnb later that day, however, Selden noticed that the listing was still posted. Id. at ¶ 8. Suspecting that he was denied accommodations due to his race, Selden created two fictitious Airbnb accounts with profile photos depicting white men. Id. He then used those accounts to apply to the same listing, and, he claims, the host accepted both. Id. Selden later took to social media with his claims of discrimination, and the hashtag “#airbnbwhileblack” quickly went viral. Second Amend. Compl. ¶ 50.
B. Airbnb’s Terms of Service Airbnb’s Terms of Service at the time Selden signed up for Airbnb spanned seventeen single-spaced pages and began with the following statement: PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
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Pl.’s MCA, Ex. B, 2. The “Dispute Resolution” clause, by which Airbnb seeks to compel
arbitration, appeared on page fifteen of the document:
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. 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. Def.’s MCA, Ex. B, 16 (emphasis added). The section continued that any arbitration
proceedings shall be administered by the American Arbitration Association and offered general
details about the arbitration process. Id. at 16–18.
C. Procedural History
Selden filed a putative class action suit against Airbnb in this Court on May 17, 2016, and
has since twice amended his Complaint. He is the sole named Plaintiff. See Second Amend.
Compl. Selden alleges that Airbnb violated Title II of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000a, which prohibits race discrimination in public accommodations; the Civil Rights Act of
1866, 42 U.S.C. § 1981, which prohibits race discrimination in the formation of contracts; and
the Fair Housing Act, 42 U.S.C. § 3604, which prohibits race discrimination in the sale or rental
of housing. Id. at ¶¶ 53–72. Airbnb moved to compel arbitration on July 13, 2016. See Def.’s
MCA. The Court heard oral argument on the motion on October 12, 2016.
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II. Legal Standards The Federal Arbitration Act (“FAA”) provides that a provision in a contract requiring the
arbitration of disputes related to the contract “shall be valid.” 9 U.S.C. § 2. The D.C. Circuit has held that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Wolff v. Westwood Mgmt., LLC, 558 F.3d 517, 520 (D.C. Cir. 2009). Notwithstanding a prior agreement to arbitrate, plaintiffs often attempt to resolve disputes in federal court. Section 4 of the FAA provides a remedy for the defendant: “A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court . . . for an order directing that such arbitration proceed in the manner provided for in such agreement.” 9 U.S.C. § 4.
Such a petition is often called a motion to compel arbitration, and is properly resolved under the summary judgment standard. Aliron Intern., Inc. v. Cherokee Nation Indus., Inc., 531 F.3d 863, 865 (D.C. Cir. 2008). The Court may consider evidence outside of the Complaint and shall grant the motion if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). And in making this determination, the Court shall view the facts “in the light most favorable to the nonmoving party.” Chambers v. U.S. Dept. of Interior, 568 F.3d 998, 1000 (D.C. Cir. 2009).
III. Analysis Airbnb’s Motion to Compel Arbitration presents three questions: (1) did Selden agree to
Airbnb’s Terms of Service; (2) if so, does the mandatory arbitration clause apply to his claims of race discrimination; and (3) if the clause applies to his claims, is it enforceable? For the reasons explained below, the Court finds that Selden agreed to the Terms of Service, that those terms
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require the arbitration of unlawful race discrimination claims, and that the agreement is enforceable.
A. Whether Selden Agreed to Airbnb’s Terms of Service 1. Online Adhesion Contracting
Arbitration is a matter of contract law. Thus, whether Selden agreed to arbitrate depends on whether a valid contract was formed.1 Airbnb’s Terms of Service agreement can be described as an online adhesion contract. Courts and commentators have identified a number of variations of these electronic agreements, including “browsewraps,” “clickwraps,” “scrollwraps,” and “sign-in-wraps.” See, e.g., Nguyen v. Barnes & Noble, Inc., 763 F.3d 1171, 1175–77 (9th Cir. 2014); Berkson v. Gogo LLC, 97 F. Supp. 3d 359, 366–67 (E.D.N.Y 2015). A “browsewrap” agreement is one in which an internet user accepts a website’s terms of use merely by browsing the site. A “clickwrap” agreement is one in which an internet user accepts a website’s terms of use by clicking an “I agree” or “I accept” button, with a link to the agreement readily available. A “scrollwrap” agreement is like a “clickwrap,” but the user is presented with the entire agreement and must physically scroll to the bottom of it to find the “I agree” or “I accept” button. Finally, many internet websites—including Airbnb during the relevant time period— now use “sign-in-wraps” (although “sign-up-wrap” is a more appropriate name). “Sign-in-wrap” agreements are those in which a user signs up to use an internet product or service, and the sign-

1

The Court will apply California law in deciding the issue of contract formation. Contrary

to Airbnb’s argument, Def.’s MCA 7, the California choice-of-law clause in Airbnb’s Terms of

Service does not govern this question, as the Court must assess whether Selden agreed to the

Terms of Service in the first place. See, e.g., McMullen v. Synchrony Bank, 164 F. Supp. 3d 77

(D.D.C. 2016) (“Applying the choice-of-law clause to resolve the contract formation issue would

presume the applicability of a provision before its adoption by the parties has been established.”)

(internal quotations omitted). After considering the relevant choice-of-law rules, however, the

Court is satisfied—and the parties agree—that California law applies to this threshold dispute.

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up screen states that acceptance of a separate agreement is required before the user can access the service. While a link to the separate agreement is provided, users are not required to indicate that they have read the agreement’s terms before signing up. See Barnes & Noble, 763 F.3d at 1177–79; Cullinane v. Uber Technologies, 2016 WL 3751652 at *5–7 (D. Mass. July 11, 2016).
While the relevant terminology continues to evolve, the Court’s inquiry into contract formation does not. See Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 403 (2d Cir. 2004) (“While new commerce on the Internet has exposed courts to many new situations, it has not fundamentally changed the principles of contract.”). “Mutual manifestation of assent”—the “touchstone of contract”—must still be present. Barnes & Noble, 763 F.3d at 1175 (quoting Specht v. Netscape Commc’ns Corp., 306 F.3d 17, 29 (2d Cir. 2002) (applying California law)). But because this case concerns a type of “sign-in-wrap” agreement, the consumer’s assent is “largely passive.” Berkson, 97 F. Supp. 3d at 393 (applying California law). As a result, “the contract-formation question will often turn on whether a reasonably prudent offeree would be on inquiry notice of the terms at issue.” Schnabel v. Trilegiant Corp., 697 F.3d 110, 126–27 (2d Cir. 2012) (holding that under California law, consumers were not on inquiry notice of an arbitration provision when the relevant terms were sent to them by e-mail following enrollment in an online service). As then-Judge Sotomayor explained in assessing online adhesion contracts generally, “[c]larity and conspicuousness of [the] terms are important” in making this determination. Specht, 306 F.3d at 30 (applying California law).
Applying these principles to sign-in-wrap agreements specifically, Judge Weinstein noted in an extensive discussion on the issue that district courts tend to uphold the agreements under three circumstances. Berkson, 97 F. Supp. 3d at 400–01. First, the agreements tend to be enforced if “the hyperlinked ‘terms and conditions’ is next to the only button that will allow the
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user to continue use of the website.” Id. (citing Crawford v. Beachbody, LLC, 2014 WL 6606563, at *3 (S.D. Cal. Nov. 5, 2014) (finding a forum selection clause binding when the “terms and conditions” statement was directly above the “Place Order” button)); Starke v. Gilt, 2014 WL 1652225, at *2–3 (S.D.N.Y. Apr. 24, 2014) (finding an arbitration clause binding when the “terms of use” statement was right next to the “Shop Now” button); Swift v. Zynga Game Network, Inc., 805 F. Supp. 2d 904, 908, 912 (N.D. Cal 2011) (finding an arbitration clause binding where the “terms of service” statement was directly below the “Accept” button). Second, courts tend to uphold sign-in-wrap agreements if “the user ‘signed up’ to the website and was presented with hyperlinks to the terms of use on subsequent visits.” Berkson, 97 F. Supp. 3d at 401 (citing Nicosia v. Amazon.com, Inc., 84 F. Supp. 3d 142, 151–53 (E.D.N.Y. Feb. 4, 2015) (finding an arbitration clause binding when the user clicked a box acknowledging the terms at the initial signup to the website and was presented with a hyperlink at the top of the webpage to terms of use multiple times after making purchases)). And third, sign-in-wrap agreements are usually upheld if “notice of the hyperlinked terms and conditions is present on multiple successive webpages of the site.” Berkson, 97 F. Supp. 3d at 401 (citing Major v. McCallister, 302 S.W.3d 227, 230–31 (Mo. Ct. App. 2009) (finding a forum selection clause binding when the hyperlink to the terms and conditions was presented on multiple successive webpages and on the final page of the website’s sign-up process)).
Finally, courts that have assessed the validity of sign-in-wrap agreements since Berkson have cited factors such as the size of the font, the possibility that other visual elements on the screen might obscure the “terms and conditions” statement, and whether the user signed up for the agreement using a mobile device. Compare Meyer v. Kalanick, 2016 WL 4073012 at *4, *6 (S.D.N.Y. July 29, 2016) (Rakoff, J.) (finding Uber’s terms-of-service agreement not binding
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when the terms-of-service statement “was in a font that was barely legible on [a] smartphone device . . . [and] beneath two additional buttons”) with Cullinane, 2016 WL 3751652 at *7 (finding Uber’s terms-of-service agreement binding because of the “prominent” placement of the terms-of-service statement).
2. Application of the Law to Airbnb’s Terms of Service Agreement The Court finds that Airbnb’s mobile sign-up screen adequately placed Selden on notice of Airbnb’s Terms of Service, and that he assented to those terms by clicking the sign-up box and using the service. The text “By signing up, I agree to Airbnb’s Terms of Service” is conspicuous. See Appendix. It is placed in roughly the middle of the page, in close proximity to all three sign-up buttons. The text also appears in dark font, in sharp contrast to the white background. It is, moreover, clearly legible, appropriately sized, and unobscured by other visual elements. Although the text is not directly under the first or second alternative sign-up buttons, any reasonably-observant user would notice the text and accompanying hyperlinks. So even if Selden only clicked “Sign up with Facebook” at the top of the page, he would have seen the relevant text from a quick glance down the rest of the page. Thus, by choosing to sign up for Airbnb, Selden manifested his assent to the Terms of Service.2 There is also a wider point to be made, as illustrated at the outset of this opinion. The act of contracting for consumer services online is now commonplace in the American economy. Any reasonably–active adult consumer will almost certainly appreciate that by signing up for a

2

Airbnb further asserts that Selden also agreed to the Terms of Service when he created

his two fictitious accounts. Def.’s MCA 9. Selden contends that because he created those

accounts for test purposes only, they did not result in valid agreements. Pl.’s Opp’n MCA 14.

Because the Court finds that Selden agreed to Airbnb’s Terms of Service when he created his

initial account in March 2015, the Court need not reach these arguments.

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particular service, he or she is accepting the terms and conditions of the provider. Notifications to that effect—be they check boxes or hyperlinks—abound. To be sure, few people may take time to actually read the user agreements. But ignorance of the precise terms does not mean that consumers are unaware they are entering contracts by signing up for internet-based services. So, while the record is silent as to Mr. Selden’s particular history with e-commerce, the prevalence of online contracting in contemporary society lends general support to the Court’s conclusion that Selden was on notice that he was entering a contract with Airbnb in this case.
B. Whether Airbnb’s Arbitration Agreement Encompasses Selden’s Discrimination Claims
Having found that Selden agreed to Airbnb’s Terms of Service, including the mandatory arbitration clause, the Court next turns to whether the arbitration provision encompasses Selden’s claims. Again, the provision states that “[the user] 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.” Def.’s MCA, Ex. B, 17 (emphasis added).
Courts applying California law interpret the language “arising out of or relating to” very broadly.3 California, like most jurisdictions, “embrace[s] a judicial policy strongly in favor of enforcing arbitration contracts.” Bos Material Handling, Inc. v. Crown Controls Corp., 137 Cal. App. 3d 99, 105 (Cal. Ct. App. 1982). Courts applying California law “have held such

3

Since the Court finds that a valid agreement exists between Selden and Airbnb, the

choice-of-law clause in Airbnb’s Terms of Service becomes effective and governs the Court’s

interpretation of the agreement’s terms. See Def.’s MCA, Ex. B, 16 (“These Terms will be

interpreted in accordance with the laws of the State of California.”).

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arbitration agreements sufficiently broad” to include claims that “have their roots in the relationship between the parties which was created by the contract.” Id. at 105–06 (internal quotations omitted). This language “reaches every dispute between the parties having a significant relationship to the contract and all disputes having their origin or genesis in the contract.” Rice v. Downs, 247 Cal. App. 4th 1213, 1224 (Cal. Ct. App. 2016). “To require arbitration, the factual matters need only touch matters covered by the contract containing the arbitration clause and all doubts are to be resolved in favor of arbitrability.” Id. (emphasis added).
Supreme Court precedent instructs federal courts to take the same approach. See Dowley v. Dewey Ballantine, LLP, 2006 WL 1102768 at *8 (D.D.C. Apr. 26, 2006) (noting that “when an arbitration agreement contains the dual phrases ‘arising out of or relating to,’ it is proper to interpret the agreement broadly to cover matters that touch upon the contract to be arbitrable”) (citing Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 624 (1985)); see also Prima Paint Corp. v. Flood & Conklin Mgf. Co., 388 U.S. 395, 406 (1967) (noting that the words “arising out of or relating to” in an arbitration clause are “easily broad enough to encompass” the asserted claims).
Applying this broad interpretation, it is clear that Selden’s claims of unlawful race discrimination “arise out of or relate to” his use of the Airbnb service. They therefore fall within the scope of the mandatory arbitration clause.
C. Whether Airbnb’s Arbitration Agreement is Enforceable Having concluded that Selden agreed to the mandatory arbitration clause and that the clause encompasses his claims of unlawful discrimination, the Court must next determine if the clause is enforceable in this suit. Selden’s numerous objections to enforcing the arbitration
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clause can be boiled down to two main arguments: first, that federal civil rights claims are not subject to arbitration; and second, that the arbitration clause is unconscionable. Pl.’s Opp’n MCA 14–28. The Court rejects both arguments.
1. Federal Civil Rights Laws and Arbitration Federal policy dictates that doubts about the applicability of an arbitration agreement should be resolved in favor of arbitration. Congress enacted the FAA in 1925 “to reverse the longstanding judicial hostility to arbitration agreements that had existed at English common law and had been adopted by American courts, and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991). There is no exception for statutory claims. The Supreme Court “has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving [individuals] specific protection against discrimination prohibited by federal law.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123 (2001). As then-Judge Roberts noted, courts will enforce an agreement to arbitrate a statutory claim “so long as the agreement does not require the claimant to forgo substantive rights afforded under the statute.” Booker v. Robert Half Intern., Inc., 413 F.3d 77, 79 (D.C. Cir. 2005). “If Congress did intend to limit or prohibit waiver of a judicial forum for a particular claim, such an intent will be deducible from the statute’s text or legislative history, or from an inherent conflict between arbitration and the statute’s underlying purposes.” Shearson/American Exp., Inc. v. McMahon, 482 U.S. 220, 227 (1987) (internal quotations omitted). Selden makes a specific argument that arbitration is inconsistent with the text of Title II, as well as a broader argument that none of his statutory civil rights claims can be arbitrated. Pl.’s Opp’n MCA 21–
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26. With respect to Title II, Selden emphasizes the following provisions of the statute concerning jurisdiction and remedies:
(a) The district courts of the United States 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. (b) The remedies provided in this subchapter shall be the exclusive means of enforcing the rights based on this subchapter, but nothing in this subchapter shall preclude any individual or any State or local agency from asserting any right based on any other Federal or State law not inconsistent with this subchapter, including any statute or ordinance requiring nondiscrimination in public establishments or accommodations, or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right. 42 U.S.C. §2000a–6 (emphasis added). Selden argues that “the Congressional intent for ‘where and how’ [he] can bring his Title II suit is clearly codified” in this portion of the statute. Pl.’s Opp’n MCA 25. Not so. The phrase “the district courts of the United States shall have jurisdiction” in the statute “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); see also Gilmer, 500 U.S. at 29 (rejecting the argument that “compulsory arbitration is improper because it deprives claimants of the judicial forum provided by the [statute]”). Nor is arbitration precluded by the phrase “the remedies provided . . . shall be the exclusive means of enforcing the rights [of Title II].” Plaintiffs may still vindicate their statutory rights in arbitration. Any arbitration agreement
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that prevents them from doing so is invalid. Booker, 413 F.3d at 79. The cited text therefore does not support Selden’s argument that Title II claims are not subject to arbitration.4
Selden’s broader argument is that there is an inherent conflict between arbitration and the anti-discrimination objectives of the civil rights statutes under which he brings his claims. He argues that arbitration is not a neutral proceeding, because businesses are “repeat-player[s]” who are familiar with arbitration. Pl.’s Opp’n MCA 26. The imbalance of knowledge and experience favors businesses in the selection of arbitrators, Selden claims, because employees and consumers “lack financial resources to research arbitrator[s’] past decisions.” Id. (citing Lewis Maltby, Paradise Lost—How the Gilmer Court Lost the Opportunity for Alternative Dispute Resolution to Improve Civil Rights, 12 N.Y. L. Sch. J. Hum. Rts. 1 (1994)). The Supreme Court, however, has repeatedly rebuffed these arguments as insufficient to preclude arbitration. Mitsubishi, 473 U.S. at 634 (“We decline to indulge the presumption that the parties and arbitral body conducting a proceeding will be unable or unwilling to retain competent, conscientious, and impartial arbitrators.”); Gilmer, 500 U.S. at 30 (same).
Moreover, while “judicial review of arbitral awards is extremely limited,” Teamsters Local Union No.61 v. United Parcel Serv., Inc., 272 F.3d 600, 604 (D.C. Cir. 2001) (internal citation omitted), safeguards still exist. There are five grounds on which a federal court can vacate an arbitration award. The FAA itself provides the first four:

4

As for Selden’s remaining statutory claims, he does not identify—and the Court is not

aware of—any case in which a court has found that Fair Housing Act or Section 1981 claims are

not subject to arbitration. The sparse amount of case law on the matter actually holds otherwise.

See Davis v. Fenton, 26 F. Supp. 3d 727, 742 (N.D. Ill. 2014) (ordering arbitration and noting

that “even if the Court had doubts as to whether the arbitration clause includes Plaintiff’s FHA

claim, the Court would be required to resolve those doubts in favor of arbitration”) (citing Moses

H. Cone, 460 U.S. at 24-25); Fordjour v. Washington Mut. Bank, 2008 WL 295092 (ordering

arbitration of plaintiff’s FHA and § 1981 claim) (N.D. Cal. Feb. 1, 2008).

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(1) [W]here the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or 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; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. 9 U.S.C.A. § 10(a). Courts have supplied the fifth: “In addition to the statutory grounds, arbitration awards can be vacated . . . if they are in manifest disregard of the law.” Kurke v. Oscar Gruss and Son, Inc., 454 F.3d 350, 354 (D.C. Cir. 2006) (internal citations omitted). The lack of judicial support for Selden’s argument that arbitration inherently undermines the purpose of Title II, along with the existence of these safeguards, require the Court to enforce Airbnb’s mandatory arbitration clause.
2. Unconscionability Selden’s argument of last resort is that the arbitration agreement is unconscionable. “Whether an arbitration agreement is unconscionable is primarily a question of state contract law.” Ruiz v. Millennium Residential Association, 156 F. Supp. 3d 176, 180 (D.D.C. 2016) (citing Perry v. Thomas, 482 U.S. 483, 492 n.9 (1987)). Under California contract law, a court must find that a contract is both procedurally and substantively unconscionable in order to invalidate it. Armendariz v. Foundation Health Psychcare Services, Inc., 6 P.3d 669, 690 (Cal. 2000). A contract is procedurally unconscionable if “an inequality of bargaining power” precludes the chance for “real negotiation or a meaningful choice on the part of the weaker party.” Kinney v. United HealthCare Services, Inc., 70 Cal. App. 4th 1322, 1329 (Cal. Dist. Ct. App. 1999). A contract is substantively unconscionable if its terms “are so one-sided as to shock the conscience.” Soltani v. Western & Southern Life Ins. Co., 258 F.3d 1038, 1043 (9th Cir.
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2001) (applying California law) (emphasis in original) (quoting Kinney, 70 Cal. App. 4th at 1330).
Selden argues that the Airbnb agreement is procedurally unconscionable simply because it is an adhesion contract. But adhesion contracts are not per se unconscionable under California law. E.g., Serafin v. Balco Properties Ltd., 235 Cal. App. 4th 165, 179 (Cal. Dist. Ct. App. 2015) (“[T]he fact that the arbitration agreement is an adhesion contract does not render it automatically unenforceable as unconscionable.”). Selden claims that the arbitration clause is substantively unconscionable because it “lack[s] mutuality.” Pl.’s Opp’n MCA 17. Indeed, the California Supreme Court, and other courts applying California law, have held that mandatory arbitration clauses in adhesion contracts are unconscionable when only one party is required to arbitrate. See Armendariz, 6 P.3d at 769-70; Nyulassy v. Lockheed Martin Corp., 120 Cal. App. 4th 1267, 1282 (Cal. Dist. Ct. App. 2004) (“The employment agreement requires plaintiff only to arbitrate any and all of his employment claims.); Kinney, 70 Cal. App. 4th at 1332 (“Faced with the issue of whether a unilateral obligation to arbitrate is unconscionable, we conclude that it is.”). Airbnb’s Terms of Service, however, clearly subject both parties to arbitration. See Def.’s MCA, Ex. B, 16 (“You acknowledge and agree that you and Airbnb are each waiving the right to a trial by jury . . . .”). Seldon also argues that the arbitration clause is substantively unconscionable because the costs of arbitration are too high for the consumer. This argument, too, is without merit. Plaintiff’s arbitration fees are paid for by Airbnb, unless the arbitrator “finds that either the substance of [the] claim or the relief sought . . . was frivolous or was brought for an improper purpose.” Def.’s MCA, Ex. B, 17. In sum, Airbnb’s arbitration clause does not meet the high bar for unconscionability set by the case law.
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APPENDIX The screenshot below depicts Airbnb’s sign-up screen as it would appear on an iPhone 5. Airbnb provided this image in a supplemental affidavit. See Supp. Decl. of Kyle Miller, Ex. 1. Airbnb’s records indicate—and Selden does not dispute—that he used an Apple device to sign up for Airbnb. Supp. Decl. of Kyle Miller ¶ 4.
iPhone 5
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 Case 1:16-cv-00933-CRC Document 43 Filed 09/09/19 Page 1 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GREGORY SELDEN v.

Civil Action: 1:16-cv-00933

AIRBNB, INC.

Defendant.
______________________________________________________________________________

PLAINTIFF GREGORY SELDEN’S MOTION TO VACATE ARBITRATION AWARD PURSUANT TO SECTION 10 OF THE FEDERAL ARBITRATION ACT

COMES NOW Plaintiff Gregory Selden, by and through his undersigned counsel of record and files this Motion to Vacate Arbitration Award Pursuant to Section 10(a)(3), (4) of the Federal Arbitration Act, and respectfully avers as follows:
BACKGROUND OF ARBITRATION PROCEEDINGS On May 17, 2016, Plaintiff Gregory Selden, initially filed a putative class action complaint against Airbnb, alleging that its online platform facilitates the discriminates against African American guests seeking public accommodations. (Doc. 1). On November 1, 2016, this court granted Airbnb’s Motion to Compel Arbitration. (Doc. 20).2 Followed by an appeal and petition to Supreme Court, Selden filed his demand for arbitration on October 2, 2017. (Doc. 33). Pursuant to the Arbitration agreement, Selden filed a demand that exceeded $75,000.00 and requested a hearing. (Exhibit 1, Selden Demand for Arbitration). In arbitration, Selden the same claims pursuant to: Title II of the Civil Rights Act of 1964, 42 U.S.C. § 1981, the Fair Housing Act,

2 California law governed the agreement and procedures for the arbitration. (Doc. 13-4, pg. 15)
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and a Disparate Impact theory pursuant to all claims. Airbnb subsequently answered Selden’s Demand. (Exhibit 2, Airbnb Answer).
AAA began processing Selden’s claim on February 7, 2018. (Doc. 36). Airbnb filed an early dispositive motion to dismiss the demand, arguing that Section 230 of the Communications Decency Act barred all of Selden’s claims. Id. (See Exhibit 3, Order Denying Motion to Dismiss) The arbitrator denied the motion to dismiss. Id. Within the Order, the arbitrator characterized the issues presented by Selden as “a case of first impression.” Id.
Pursuant to Rule 21 of the AAA Consumer Rules, the Arbitrator held a Preliminary Management Hearing on November 5, 2018. (Exhibit 4, Preliminary Hearing Order). The Case Management Order allowed for an informal document exchange between the parties.” Id. On January 25, 2019, the Arbitrator held a telephonic conference to “discuss any requests for formal discovery.” Id.
During the conference, Selden requested formal discovery in form of interrogatories, requests for production of documents and depositions of at least two corporate witnesses from Airbnb that could testify to Selden’s allegations. Selden’s request for formal discovery was based in part, on the complex issues involving his claims, and the public interest of the dispute. Notwithstanding, the arbitrator rejected Selden’s reasonable request for discovery and only allowed the parties to propound a mere fifteen requests for production of documents. Selden objected to the stingy discovery limitations and argued that it would be virtually impossible to prove such claims without the ability to ask one question (either through interrogatory or deposition) to anyone at Airbnb. (Exhibit 5, Email from Ikechukwu Emejuru)
Plaintiff designated Dr. Dan Svirsky, Ph.D., as an expert for his case in chief. Mr. Svirsky is an original author of the widely distributed 2016 Harvard University study, Racial Discrimination in the Sharing Economy: Evidence from a Field Experiment. (Doc. 10, SAC Exhibit 2). Airbnb also
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designated corporate witnesses for its case in chief to discuss its photo policy. (Exhibit 6, Airbnb Witness Disclosure of Alicia Latrice and Eliza Jacobs). Once again, the arbitrator refused Selden’s request to depose any witnesses in this case.
After the close of discovery, Airbnb requested and was granted leave to file summary for judgment. On May 1, 2019, Airbnb filed a motion for summary judgment. Plaintiff responded to the motion on May 10, 2019 and the arbitrator held a hearing on May 24, 2019. During the telephonic hearing, the arbitrator questioned why neither party conducted “any depositions” during discovery. (Exhibit. 7, Affidavit of Ikechukwu Emejuru). Selden’s counsel emphatically reminded the arbitrator that he disallowed depositions and interrogatories during discovery. Id.
On May 30, 2019, the arbitrator granted Airbnb’s motion for summary judgment in full. Within the Order, the arbitrator stated in part:
“At the initial phase of this Arbitration, the Respondent was requiring a photograph of the guest as part of the reservation process. The Arbitrator found this troubling, and denied a first dispositive motion based on this requirement. Since that time, the Respondent has ended that practice….This overlay has always been in the forefront of the Arbitrator’s mind as the Arbitrator negotiated the issues in this case. However, nothing presented to the Arbitrator implicates the Respondent directly other than the photograph requirement, which is now moot.”
Exhibit 8, Arbitration Award. LEGAL STANDARD
The Federal Arbitration Act 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. Technologists, Inc. v. Mir's Ltd., 725 F. Supp. 2d 120, 124 (D.D.C. 2010)
Pursuant to § 9 of the FAA, any party to an arbitration may apply to a federal district court for an order confirming the award, and "the court must grant such an order unless the award is
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vacated, modified, or corrected as prescribed in sections 10 and 11 of [the FAA]." 9 U.S.C. § 9. Section 10 provides that a district court may, upon application by any party, make an order vacating an arbitration award in the following circumstances:
(1) where the award was procured by corruption, fraud, or undue means; (2) where there was evidence of partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or 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; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made. 9 U.S.C. § 10(a). Id at Technologists, Inc. v. Mir's Ltd., 725 F. Supp. 2d 120, 124 (D.D.C. 2010). In addition, an arbitrator's “manifest disregard of the law” can compel a court to vacate an award. Nuyen v. Hong Thai Ly, 74 F. Supp. 3d 474, 479 (D.D.C. 2014), citing LaPrade v.Kidder , Peabody & Co., 246 F.3d 702, 706 (D.C.Cir.2001). Manifest disregard of the law “means more than error or misunderstanding with respect to the law.” Consequently, to modify or vacate an award on this ground, a court must find that (1) the arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether and (2) the law ignored by the arbitrators was well defined, explicit, and clearly applicable to the case. Id. (citations omitted).
ARGUMENT I. The Arbitrator’s Denial of Reasonable Discovery Amounts to Misconduct
under FAA Section 10(a)(3) and Manifest Disregard for the Law because the Proceedings Precluded Selden from a Fundamentally Fair Hearing to Effectively Vindicate his Statutory Rights. The Supreme Court held that so long as an arbitration provides for “reasonable discovery” in arbitration, then a party will be less likely to suffer from prejudice. Iskanian v. CLS Transportation
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Los Angeles, LLC, 173 Cal. Rptr. 3d 289 (Cal. 2014) In Iskanian, a wage claim case originally filed as a class action, the Supreme Court found that the parties engaged in “reasonable discovery” when “the discovery [the parties] obtained while the case was in court consisted of Iskanian's deposition and 77 pages of documents pertaining to his individual wage claim. Because the arbitration agreement itself provides for “reasonable discovery,” there is no indication that CLS obtained any material information through pretrial discovery that it could not have obtained through arbitral discovery.” Iskanian v. CLS Transportation Los Angeles, LLC, 173 Cal. Rptr. 3d 289, 308 (Cal. 2014). Indeed, the court in Iskanian, contemplated that both parties would have the opportunity at “reasonable discovery,” which included depositions, despite the arbitral forum.
Similarly, the D.C. Circuit in Cole v. Burns International Security Serv., established “five minimum requirements for [a] lawful arbitration of claims involving statutory civil rights. Cole v. Burns International Security Serv, 105 F.3d 1465 (D.C. Cir. 1997). The requirements would me met so long as the arbitration, (1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs or any arbitrators' fees or expenses as a condition of access to the arbitration forum. Id, citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991)(“Obviously, Gilmer cannot be read as holding that an arbitration agreement is enforceable no matter what rights it waives or what burdens it imposes. See Gorman, 1995 U. Ill. L. Rev. at 644 ("The Supreme Court in the Gilmer case did not hold that any sort of arbitration procedure before any manner of arbitrator would be satisfactory in the adjudication of public rights.". Such a holding would be fundamentally at odds with our understanding of the rights accorded to persons protected by public statutes like the ADEA and Title VII. The beneficiaries of public statutes are entitled to the rights and protections provided by the law.”).
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The D.C. Circuit’s minimum requirements for arbitrating statutory rights claims have long been recognized by the California Supreme Court. See Armendariz v. Foundation Health Psychcare Services, 24 Cal. 4th 83 (Cal. 2000)3(“Based on Gilmer, supra, 500 U.S. 20, and on the basic principle of non-waivability of statutory civil rights in the workplace, the Cole court formulated five minimum requirements for the lawful arbitration of such rights pursuant to a mandatory employment arbitration agreement. Such an arbitration agreement is lawful if it "(1) provides for neutral arbitrators, (2) provides for more than minimal discovery, (3) requires a written award, (4) provides for all of the types of relief that would otherwise be available in court, and (5) does not require employees to pay either unreasonable costs or any arbitrators' fees or expenses as a condition of access to the arbitration forum. Thus, an employee who is made to use arbitration as a condition of employment effectively may vindicate [his or her] statutory cause of action in the arbitral forum.' (Cole, supra, 105 F.3d at p. 1482, italics omitted.).
In the present case, the arbitrator did not provide for minimal discovery or reasonable discovery. In fact, the arbitrator provided for as little discovery as possible for Selden to vindicate his discrimination claims. Claims involving a disparate impact theory, complex fair housing and public accommodations issues. This error constitutes misconduct so as to justify vacating an award…because it affects the rights of [Selden]…and deprived him of a fair hearing. Fairchild Co., Inc. v. Richmond, F. P.R. Co., 516 F. Supp. 1305, 1314 (D.D.C. 1981), citing Newark Stereotypers Union No. 18 v. Newark Morning Ledger Co.,397 F.2d 594, 599 (3d Cir.), cert. denied, 393 U.S. 954, 89 S.Ct. 378, 21 L.Ed.2d 365 (1968).
i. Grounds for misconduct exists pursuant to 9 U.S.C. § 10(a)(3) for the arbitrator’s denial of written discovery and Selden’s ability to take depositions for this case.
3 This court mentioned Armendariz in its Order to Compel Arbitration on November 1, 2016. See Doc. 20, Selden v. Airbnb, Inc., Case No. 16-cv-00933 *16 (CRC) (D.D.C. Nov. 1, 2016). Further, both parties agree that California law governs the agreement and the procedures for the arbitration. (Doc. 13-4, TOC pg. 15.)
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To justify vacatur on the ground of misconduct, the petitioners must demonstrate that the excluded evidence was pertinent and material to the controversy, 9 U.S.C. § 10(a)(3), and that the exclusion of the evidence deprived the petitioners of a fundamentally fair hearing, Thian Lok Tio v. Washington Hospital Center, 753 F. Supp. 2d 9, 12 (D.D.C. 2010) Lessin,481 F.3d at 816; see also Fairchild,516 F. Supp. at 1314(recognizing that evidentiary mistakes do not provide grounds for vacating an arbitration award unless they undermine the fundamental fairness of the proceedings).
Adequate discovery in arbitration is deemed “indispensable for the vindication of [civil rights] claims. Armendariz v. Foundation Health Psychcare Services, 24 Cal. 4th 83, 104 (Cal. 2000) Indeed, the California Supreme Court, citing the requirements in the D.C. Circuit in Cole v. Burns, found “the denial of adequate discovery in arbitration proceedings leads to the de facto frustration of the [claimant’s] statutory rights.” Armendariz v. Foundation Health Psychcare Services, 24 Cal. 4th 83, 104 (Cal. 2000), citing Cole v. Burns International Security Serv, 105 F.3d 1465, 1482-83 (D.C. Cir. 1997). Selden’s grounds for misconduct are rooted within the denial of adequate discovery.
Courts have deemed a party’s ability to take depositions in an arbitration critical for a Plaintiff’s ability to effectively prosecute [his] statutory claims. See Fitz v. NCR Corp., 118 Cal.App.4th 702, 717 (Cal. Ct. App. 2004)(finding that discrimination claims “…are often determined by the testimony of multiple percipient witnesses, as well as written information about the disputed employment practice, it will be the unusual instance where the deposition of two witnesses will be sufficient to present a case.”).
All parties taking part in this arbitration were aware of the level of public interest in this case. But after years of litigation, the Arbitrator foreclosed Selden’s ability to ask one question (either through written interrogatory or deposition) to any Airbnb designated witness during discovery. This is grounds for misconduct. This misconduct prejudiced the rights of Selden during the
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arbitration proceedings. Lessin v. Merrill Lynch Fenner, 481 F.3d 813, 818 (D.C. Cir. 2007)( “a federal court may vacate an award only if the panel's "refusal to hear pertinent and material evidence prejudices the rights of the parties to the arbitration proceedings."), citing Hoteles Condado Beach, 763 F.2d at 40; see Employers Ins. of Wausau v. Nat'l Union Fire Ins. Co. of Pittsburgh, 933 F.2d 1481, 1490 (9th Cir.1991) (citing, e.g., Burchell v. Marsh, 58 U.S. (17 How.) 344, 350, 15 L.Ed. 96 (1854). This is evident when during the summary judgment teleconference with the arbitrator, he questioned why neither party took any depositions in this case. Supra at pg. 3. In order to prove multiple federal claims and a disparate impact theory, Selden must have been able cross examine witnesses and propound written discovery (other than Request for Production of Documents), in order to obtain material facts for his case prior to a dispositive motion being filed.
The arbitration award states that the arbitrator “found…troubling” Airbnb’s mandatory photo requirement. (Exhibit 8 - Arbitration Award, pg. 1). The arbitrator, without any citation to testimony or evidence, baldly states, “Respondent has ended that practice.” Id. But the arbitrator cites to nothing in the record that suggests Airbnb’s photo policy will no longer be an issue now or in the future. Further, the award states that “currently, a guest may elect to provide a photograph, and if provided, a host cannot observe that photograph until after the reservation process is complete.” The arbitrator’s based this rationale on a brief filed by Airbnb’s, that included a lone attachment from a press release. The attachment was not even supported with an affidavit from any Airbnb witness that could testify to the “new policy.”
It is fundamentally unfair for the arbitrator to deem one of the primary issues and forms of relief in this case as “moot,” without considering a scintilla of testimony from any Airbnb witness. The arbitrator refused to allow Selden the ability to cross examine any witness designated by Airbnb in order to test the credibility of its “new policy.” The arbitrator refused to hear pertinent evidence about inter alia how the “new policy” would be implemented, what it actually to looks like from an
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online users perspective, whether it is in fact permanent or temporary, and whether allegations of discrimination would no longer exist after implementation. Once again, this is especially troubling since Airbnb disclosed witnesses that were able to testify during discovery. Witnesses that could have provided material evidence for Airbnb’s “profile photo policy and the development and implementation of the recently announced changes to its policies regarding photos.” (Exhibit 6, Airbnb’s Witness Disclosure). As a “case of first impression, the arbitrator excluded material evidence, vastly essential to the core of Selden’s claims.
ii. The arbitrator excluded and refused to consider Selden’s expert witness and report as material evidence to preclude summary judgment.
The arbitrator referenced Airbnb’s requirement that African American guests use their biological names to obtain accommodations as a “non-issue.” This is incredible. To underscore this element of the controversy as a “non-issue,” is simply ignoring this case altogether. One of the primary reasons that this case garnered national attention was due in part, to Dr. Svirsky’s 2016 Harvard University study: Racial Discrimination in the Sharing Economy: Evidence from a Field Experiment. (Exhibit 8, Arbitrator Award, pg. 1). The report provides statistical evidence evidencing that African American guests are disproportionately impacted by Airbnb’s biological name requirement. There is no dispute that this issue is at the core of Selden’s disparate impact theory. (See Doc. 1, Plf’’s riginal filed Complaint).
The expert report was evidence that should have been considered when weighing the merits of this controversy and whether injunctive relief is appropriate. However, the arbitrator did not consider the statistical analysis provided by Dr. Svirsky’s 2016 expert analysis. The arbitrator conclusively found, “that there is nothing currently to enjoin,” without considering that the expert report still provided testimony concerning Airbnb discrimination and the disproportionate impact against African Americans. Plaintiff’s expert report clearly contained issues that are at the core of this controversy and that the arbitrator could have “enjoined” or provided relief.
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iii. The arbitrator refused to consider material evidence concerning the controversy surrounding the relationship between Airbnb and its Host.
From the outset of this litigation, Airbnb has steadfastly blamed its hosts for the discriminatory conduct on its platform. But the arbitrator refused to allow Plaintiff the ability to propound any written interrogatories or conduct depositions to get to the merits of this argument. Plaintiff was ill afforded the opportunity to discover the true relationship between Airbnb and its hosts. This is only achievable through reasonable discovery. However, the arbitrator merely relied on documents that could have been obtained through simple google search. The arbitrator did not rely on testimony from anyone at Airbnb, nor adequate discovery responses from anyone at Airbnb to make his award determination. The arbitrator excluded pertinent discovery through testimony of an Airbnb representative and interrogatories that could have provided material evidence to establish the relationship between Airbnb and its hosts.
Selden did not request a desk arbitration proceeding where both parties simply exchange documents and go back to their respective corners. Selden expected for an arbitration that would take into consideration real testimony from real representatives at Airbnb. The arbitration completely foreclosed his ability for a fundamentally fair hearing. Fairchild Co., Inc. v. Richmond, F. P.R. Co., 516 F. Supp. 1305, 1314 (D.D.C. 1981).
CONCLUSION WHEREFORE, Plaintiff Selden, requests that this court grant this motion and vacate the arbitration award.
Respectfully submitted on this 9th day of September, 2019. By: /s/ Ikechukwu Emejuru____ Ikechukwu Emejuru Emejuru Law L.L.C. 8403 Colesville Road Suite 1100 Silver Spring, MD 20910
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Telephone: (240) 638-2786 Facsimile: 1-800-250-7923 iemejuru@emejurulaw.com Andrew Nyombi KNA PEARL L.L.C. 8701 Georgia Avenue Suite 606 Silver Spring, MD 20910 Tel.: (301) 585-1568 Facsimile: 1-800-250-7923 anyombi@knapearl.com Attorneys for Plaintiff Gregory Selden
CERTIFICATE OF SERVICE I hereby certify that on this 9th day of September 2019, I served the foregoing with the Clerk of Court using the CM/ECF system, which will send notification of such filing to the following:
Ellen S. Kennedy (D.C. Bar No. 461670) ellen.kennedy@hoganlovells.com Sean Marotta (D.C. Bar Noo. 1006494) sean.marotta@hoganlovells.com Kaitlin Welborn kaitlin.welborn@hoganlovells.com HOGAN LOVELLS US LLP 555 Thirteenth Street, N.W. Washington, D.C. 20004 Tel. (202) 637-5600 Fax. (202) 637-5910
/ s / Ikechukwu Emejuru__
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 Case 1:16-cv-00933-CRC Document 48 Filed 11/27/19 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

GREGORY SELDEN, Plaintiff,
v.

Case No. 16-cv-933 (CRC)

AIRBNB, INC.,

Defendant.

OPINION AND ORDER Plaintiff Gregory Selden sued Airbnb for racial discrimination after one of the company’s “hosts” declined to rent him a room. Airbnb moved to compel arbitration of Selden’s claims under the online adhesion contract that Selden entered into by creating a user account. Controlling precedent required the Court to grant the motion, and an arbitrator ultimately ruled in Airbnb’s favor. Selden now seeks to vacate the arbitrator’s ruling on the ground that the arbitrator denied him the opportunity to depose Airbnb witnesses in discovery and failed to consider an expert report. Finding that Selden has not shouldered the heavy burden required to vacate an arbitration decision, the Court will deny his motion and dismiss the case. I. Background A. Federal Court & the Motion to Compel Gregory Selden signed up with Airbnb to find a place to stay for a weekend trip to Philadelphia. Airbnb enables “guests” like Selden to rent short-term accommodations from a “host,” who may offer an entire property or an individual room in their home. Selden created a guest profile on Airbnb’s web platform, uploaded a then-required photograph (which revealed

Case 1:16-cv-00933-CRC Document 48 Filed 11/27/19 Page 2 of 12
that he is African American), and contacted a host about a promising listing. But the host responded that the listing was no longer available. Smelling a rat, Selden created a second account under a fake name, uploaded a photograph of a white person, and contacted the same host about the same listing for the same weekend. The host readily agreed to rent his room.
Armed with this circumstantial evidence of racial discrimination, Selden filed suit against Airbnb on behalf of himself and fellow African-American travelers who have reported similar treatment using Airbnb. He alleged that Airbnb violated Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, which prohibits race discrimination in public accommodations; the Civil Rights Act of 1866, 42 U.S.C. § 1981, which prohibits race discrimination in the formation of contracts; and the Fair Housing Act (“FHA”), 42 U.S.C. § 3604, which prohibits race discrimination in the sale or rental of housing. Among other things, Selden challenged Airbnb’s policies requiring guests to upload a photograph of themselves and to use their true name, both of which he claims enables its hosts to discriminate based on race.
Airbnb moved to compel arbitration. It argued that when Selden created a user account, he agreed to the company’s Terms of Service, including a clause requiring all disputes to be resolved on an individual basis by an arbitrator. The Court—following clearly established law— held that Selden had agreed to settle disputes through arbitration, that he had relinquished his right to mount a representative action, and that his statutory claims were arbitrable. The Court thus compelled arbitration and stayed the case pending a final award. See Selden v. Airbnb, Inc., No. 16-cv-933, 2016 WL 6476934, at *9 (D.D.C. Nov. 1, 2016).
B. The Arbitration Selden then filed an arbitration demand with the American Arbitration Association. The AAA, which Airbnb’s Terms of Service required Selden to use, is a non-profit organization that
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administers arbitration proceedings. It provides standard procedural rules for arbitrations, vets arbitrators for experience and impartiality, and matches parties seeking to arbitrate with qualified arbitrators if they do not agree on one themselves. Here, the parties agreed to proceed under the AAA’s Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes.1 The process is similar to federal court: Parties may file preliminary motions to dismiss. If they are denied, limited discovery occurs. After discovery, the parties have the option to file dispositive motions, similar to summary judgment practice, or to proceed to a factfinding hearing akin to a trial.
As for discovery, the agreed-upon rules provide that “[t]he arbitrator shall manage any necessary exchange of information among the parties with a view to achieving an efficient and economical resolution of the dispute, while at the same time promoting equality of treatment and safeguarding each party’s opportunity to fairly present its claims and defenses.” AAA, Commercial Arbitration Rules, Commercial Arbitration Rules and Mediation Procedures (effective Oct. 1, 2013), Rule 22(a). The rules do not explicitly contemplate depositions.2
1 Airbnb quotes from the AAA’s Consumer Arbitration Rules, see Opp’n 6, but its own Terms of Service did not choose those rules. The Court will refer to the arbitration rules agreed to by the parties, namely the AAA’s Commercial Arbitration Rules and the Supplementary Procedures for Consumer-Related Disputes. See Terms of Service ¶ 34, ECF No. 13-7.
2 The AAA’s Commercial Arbitration Rules provide for additional procedures for “large, complex commercial disputes,” which explicitly give arbitrators discretion “[i]n exceptional cases . . . upon good cause shown and consistent with the expedited nature of arbitration” to “order depositions to obtain the testimony of a person who may possess information determined by the arbitrator to be relevant and material to the outcome of the case.” AAA, Procedures for Large, Complex Commercial Disputes, Commercial Arbitration Rules and Mediation Procedures (effective Oct. 1, 2013), Rule 3(f). This provision could be read to imply that depositions are generally not warranted or allowed for run-of-the-mill commercial arbitrations arguably like this one.
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Once in front of an arbitrator, Airbnb filed a motion to dismiss, which the arbitrator denied. The arbitrator then provided the parties an opportunity to engage in limited discovery consistent with the discovery procedures outlined in the rules; after a failed mediation attempt, he permitted both sides to file up to fifteen document requests and required each party to file a witness list. Welborn Decl. ¶ 5, Exh. 2, ECF No. 45-1. According to a declaration submitted by Airbnb’s counsel, “the arbitrator stated that he was willing to consider renewed requests for additional discovery following the completion of document discovery,” which Airbnb claims Selden failed to make prior to the close of discovery. Welborn Decl. ¶ 6–9. Selden counters that the arbitrator repeatedly denied his requests to depose corporate representatives at Airbnb, Mot. to Vacate 2–3, but he does not provide any supporting evidence that he renewed his request after the arbitrator gave him the opportunity to do so.
After the close of discovery, Airbnb filed a dispositive motion arguing that neither its platform nor the host’s listing—a room in a single-family home—is a “place of public accommodation” under Title II, that it was not a party to the unexecuted contract between the host and Selden, and that it did not have an agency relationship with the host. Taken together, these conclusions would preclude Selden from succeeding on his racial discrimination claims as a matter of law.3 Selden renewed his request for depositions at the hearing on the dispositive motion, but the arbitrator denied the request at that late stage. Welborn Decl. ¶ 12–13.
3 Title II only applies to “places of public accommodations. See, e.g., Kalantar v. Lufthansa German Airlines, 402 F. Supp. 2d 130, 139 (D.D.C. 2005) (dismissing a Title II claim because “an airline” is not a “place of public accommodation”). Section 1981 only applies to parties to—and perhaps third-party beneficiaries of—a contract. Cf. Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476 (2006) (holding that § 1981 requires the plaintiff to be a party or to have rights under the would-be contract). And the FHA exempts single-family homes rented by the owner. 42 U.S.C. § 3603(b)(1).
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The arbitrator agreed with Airbnb and dismissed the arbitration, finding “no triable issues of fact.” In re Selden v. Airbnb, Inc., No. 01-17-0006-0859, Final Decision 1 (May 30, 2019) (“Final Decision”), ECF No. 43-8. In reaching that conclusion, the merits of which are not before the court, the arbitrator made three sets of dispositive factual and legal determinations: First, the arbitrator found that the listing in question was not a “public accommodation” under Title II because the host was seeking to rent out a room in a single-family residence where he lived with his wife. Final Decision 2. Therefore, Selden could not recover under Title II for the host’s actions. Second, the arbitrator found that Airbnb’s platform is not a “public accommodation” either, which meant that Selden could not proceed under Title II based on any conduct or policy by Airbnb. Final Decision 3. Separately, the arbitrator accepted Airbnb’s assertion that it revoked its photo requirement and found that the true-name requirement was, for reasons he did not explain, a “non-issue.” Final Decision 1–2. Finally, the arbitrator found that Airbnb was not a party to the unexecuted contract between Selden and the host. He also found that the host was not acting as Airbnb’s agent because (a) the host could not bind Airbnb, (b) they were not in a fiduciary relationship, and (c) Airbnb lacked sufficient control over the host’s activities. Therefore, he decided that Airbnb is not liable for any discrimination by the host under either contract or agency theories of liability. Final Decision 2.
C. Back to Federal Court Once the arbitrator issued his decision, Selden returned to federal court seeking to vacate the ruling. His primary contention is that the arbitrator failed to provide for adequate discovery to protect his substantive rights. He also claims that the arbitrator refused to consider the testimony and report of an expert witness that he offered in support of his disparate-impact theory of discrimination. The Court holds that Selden has not met his burden to warrant
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disturbing the arbitrator’s decision; therefore, the Court will deny his motion to vacate the award and dismiss the case.
II. Standard of Review4 The party wishing to vacate an arbitration award has an exceedingly high burden. See
Al-Harbi v. Citibank, N.A., 85 F.3d 680, 683 (D.C. Cir. 1996) (describing the burden as “onerous”); Encyclopaedia Universalis S.A. v. Encyclopaedia Britannica, Inc., 403 F.3d 85, 90 (2d Cir. 2006) (explaining that the burden is a “heavy one”). The FAA establishes a national policy in favor of enforcing arbitration awards. Preston v. Ferrer, 552 U.S. 346, 353 (2008). Through the FAA, Congress “specifically directed [courts] to respect and enforce . . . parties’ chosen arbitration procedures.” Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612, 1621 (2018). Indeed, “Congress requires enforcement even when arbitration proceedings do not provide the full process protections that courts provide because the ‘primary purpose’ of the [FAA] is not to turn arbitration panels into private federal courts but to ‘ensure that private agreements to arbitrate are enforced according to their terms.’” Rep. of Argentina v. AWG Grp. Ltd., 894 F.3d 327, 332 (D.C. Cir. 2018) (quoting Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662, 682 (2010)).
A court can set aside an arbitration decision only if “the proceeding deviated significantly from the [FAA]’s standards of fair adjudication,” id., which occurs “only in very unusual circumstances.” First Optics of Chi., Inc. v. Kaplan, 514 U.S. 938, 942 (1995); accord Hall St.
4 Selden assumes that California law applies, see Mot. to Vacate 4–7, but the FAA and federal law controls whether the Court may vacate an arbitral award. See Hall St. Assocs. v. Mattel, Inc., 552 U.S. 576, 582 (2008) (explaining that the FAA provides the mechanisms for enforcing, vacating, or modifying an arbitral award); see also Terms of Service ¶ 34, ECF No. 13-7 (“[T]he Federal Arbitration Act governs the interpretation and enforcement of this provision.”).
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Assocs., 552 U.S. at 586 (holding the FAA only “address[es] egregious departures from the parties’ agreed-upon arbitration . . . .”). This makes sense. Congress determined that arbitration allows for “quicker, more informal, and often cheaper resolution for everyone involved.” Epic Sys. Corp., 138 S. Ct. at 1621. The ability to easily disturb an arbitral award would encourage losing parties to always challenge their arbitration in court, which would run counter to arbitration’s “essential virtue” of avoiding the length and expense of litigation. Rep. of Argentina, 894 F.3d at 333 (quoting Hall St. Assocs., 552 U.S. at 588).
III. Analysis The FAA provides four grounds on which a court may vacate an arbitral award: (1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of the[] [parties]; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or 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; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. § 10(a). The D.C. Circuit provides a fifth: A court may vacate an award if it was entered in “manifest disregard of the law.” See LaPrade v. Kidder, Peabody & Co., 246 F.3d 702, 706 (D.C. Cir. 2001).5 Selden contends the arbitrator is “guilty of misconduct . . . in
5 It is an open question whether the “manifest disregard” standard survives Hall St. Assocs., 552 U.S. at 584, where the Supreme Court held that § 10 “provide[s] the FAA’s exclusive grounds for expedited vacatur.” See Affinity Fin. Corp. v. AARP Fin., Inc., 468 Fed. App’x 4, 5 (D.C. Cir. 2012) (assuming without deciding that the “manifest disregard of the law” standard still exists); Regnery Pub., Inc. v. Miniter, 368 Fed. App’x 148 (2010) (same). The Court need not wade into this thicket because even if valid, this standard does not apply in this
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refusing to hear evidence pertinent and material to the controversy,” 9 U.S.C. § 10(a)(3), by limiting discovery in such a way as to prevent him from presenting that evidence and by ignoring his expert witness and report.
Discovery in arbitration need not—indeed, should not—precisely mirror discovery in federal court. An arbitration need only “provide[] for more than minimal discovery” for a court to compel a plaintiff to arbitrate a statutory claim. Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1482 (D.C. Cir. 1997). Indeed, “by arbitrating their disputes, [parties] lose . . . the extensive discovery provided by the courts.” Shearson/American Exp., Inc. v. McMahon, 482 U.S. 220, 259 n.18 (1987). Airbnb maintains that courts may not review the discovery taken in arbitration at all because the FAA does not explicitly permit a court to vacate an award on that basis. Opp’n 5 (citing 9 U.S.C. § 10). Neither side presents caselaw directly addressing this question, but the Court reads § 10(a)(3) to encompass a review—albeit a limited one—of an arbitrator’s discovery decisions. For example, if an arbitrator completely denied any opportunity for discovery—regardless of what the arbitration rules allowed—and made his decision based solely on disputed facts, the denial of discovery could be tantamount to “refusing to hear evidence pertinent and material to the controversy.” 9 U.S.C. § 10(a)(3). The Court need not resolve this question, however, because even assuming § 10(a)(3) allows a court to vacate an award based on unduly restricted discovery, Selden has failed to meet his heavy burden to show that the alleged error here requires vacatur. See Rep. of Argentina, 894 F.3d at 332 (holding that
case. Selden does not argue that the arbitrator disregarded the law; rather, he contends that the discovery process was deficient and prevented him from presenting pertinent and material evidence.
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the movant must show that “the proceeding deviated significantly from the [FAA]’s standards of fair adjudication”).
First, the Court finds that Selden did not timely request the depositions of Airbnb representatives, the denial of which he now claims requires vacatur. Thus, the error is his, not the arbitrator’s. According to the facts before the Court, Selden first requested depositions at an initial discovery teleconference, but the arbitrator delayed discovery until after the parties attempted an agreed-upon mediation. Welborn Decl. ¶ 4, Exh. 1. After the mediation failed, the record shows that Selden renewed his request for depositions at a second discovery teleconference. Welborn Decl. ¶ 5–6. The arbitrator denied the request and only ordered document discovery, Welborn Decl. ¶ 5, Exh. 2, but he added that “he was willing to consider renewed requests for additional discovery following the completion of document discovery.” Welborn Decl. ¶ 6. Selden’s counsel, noting this opportunity to renew his request for depositions, explicitly “reserve[d] the right” to do so “prior to the close of discovery.” Welborn Decl. ¶ 6, Exh. 3. Nothing in the record establishes that Selden renewed his request before discovery closed, and counsel for Airbnb has averred that he did not. Welborn Decl. ¶ 9. Selden’s counsel declares that, during a post-discovery hearing on Airbnb’s dispositive motion, he indicated to the arbitrator that he would have taken depositions had he been allowed to do so, Emejuru Decl. ¶ 2, ECF No. 43-7, but that does not establish that he renewed his request for depositions after he reserved the right to do so and before discovery closed. The weight of the evidence in the record thus points to the conclusion that Selden failed to renew his request for depositions when he was invited to do so, which is fatal to his contention that the arbitrator “refus[ed] to hear . . . evidence” from Airbnb representatives. See 9 U.S.C. § 10(a)(3).
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Even if the arbitrator did unreasonably deny a timely request for depositions, Selden has not met his burden to establish grounds to vacate the arbitrator’s decision. To succeed, Selden must show that he was prejudiced by the arbitrator’s actions. Lessin v. Merrill Lynch Fenner, 481 F.3d 813, 818 (D.C. Cir. 2007) (holding that when an arbitrator “refus[es] to hear pertinent and material evidence,” a federal court may vacate the award “only if” the refusal “prejudices the rights of the parties to the arbitration proceedings”). He has not done so. Selden has not shown how the three factual issues decided by the arbitrator that disposed of his case turned on any evidence Selden may have learned from deposing Airbnb’s corporate representatives:
Host’s Home Not a Place of Public Accommodation. Facts about the host’s home were presumably contained in the written submissions, and Selden has not identified any further evidence that Airbnb’s witnesses could have provided beyond what the written discovery revealed. Selden also could have done an independent investigation to uncover other facts regarding the host’s home.
Airbnb’s Platform Not a Place of Public Accommodation. Whether Airbnb’s platform constitutes a place of public accommodation could be determined based on the contents of its website and the Terms of Use agreement. Selden has not demonstrated why it was necessary to depose Airbnb representatives, even though that option may have been available in federal court.
Airbnb Not a Party to Contracts Between Hosts and Guests and Not in an Agency Relationship with the Host. The nature of the relationship between Airbnb and its hosts is evident in the various agreements between them cited by the arbitrator. Final Decision 2. Again, Selden has not indicated what more information about the company’s relationship with its hosts he would have learned from deposing Airbnb executives.
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In sum, Selden has not identified any facts that he could have obtained through the depositions that would have created a meaningful dispute on any of these three dispositive issues. His primary contentions are that he would have explored whether Airbnb in fact discontinued its photo policy for good, a question the arbitrator seemed to just take Airbnb’s word for, and that he would have further tested the relationship between Airbnb and its hosts. But whether Airbnb discontinued its photo policy is irrelevant to the arbitrator’s final decision given that he found that Airbnb’s platform is not a place of public accommodation, and, as noted above, Selden does not specifically identify any information he could have gleaned about Airbnb’s relationship with the host beyond what is evident in their agreements. Accordingly, Selden has not shown that he was prejudiced by the arbitrator’s alleged refusal to allow depositions.
Finally, Selden argues that the arbitrator ignored his expert witness and report. According to Selden, his expert explained why Airbnb’s true-name requirement disproportionately affects African American guests seeking accommodations through the platform, but the Final Decision dismissed the name policy as a “non-issue” without any analysis. Final Decision 1. Again, Selden has the burden to show that the arbitrator “refus[ed] to hear” the evidence, which he has not done. See 9 U.S.C. § 10(a)(3). Although the arbitrator did not mention the expert report or its conclusions in his Final Decision, the failure to do so does not necessarily mean that the he refused to hear the evidence. The arbitrator permitted Selden to submit the report, and it was among the evidence before him as he considered the case. See Welborn Decl. ¶ 11, Exh. 5 (email from Selden’s counsel to the arbitrator attaching the expert report). Selden has also not met his burden to show that he was prejudiced by the arbitrator’s failure to mention the expert report. See Lessin, 481 F.3d at 818. Because the arbitrator decided
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that Airbnb’s platform is not a place of public accommodation, it could not be found liable under Title II for the true-name requirement even if it creates a disparate impact on African-American Airbnb guests. Therefore, the arbitrator had no need to discuss the expert report, and his failure to mention it did not amount to prejudicial error.
IV. Conclusion For the foregoing reasons, it is hereby ORDERED that [EFC No. 43] Plaintiff’s Motion to Vacate Arbitration Award is
DENIED. It is further ORDERED that the case is dismissed. This is a final appealable order. SO ORDERED.

Date: November 27, 2019

CHRISTOPHER R. COOPER United States District Judge

12

 
 APPEAL,CLOSED,JURY,STAYED,TYPE−L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:16−cv−00933−CRC

SELDEN v. AIRBNB, INC. Assigned to: Judge Christopher R. Cooper Case in other court: USCA, 16−07139
USCA, 19−07168 Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 05/17/2016 Date Terminated: 12/02/2019 Jury Demand: Plaintiff Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: Federal Question

GREGORY SELDEN

represented by Andrew Nyombi KNA PEARL 8701 Georgia Avenue Suite 606 Silver Spring, MD 20910 3015851568 Fax: (800) 250−7923 Email: anyombi@knapearl.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ikechukwu Emejuru EMEJURU LAW LLC Solo Practice 8403 Colesville Road Suite 1100 Silver Spring, MD 20910 (240) 638−2786 Fax: (800) 250−4923 Email: iemejuru@emejurulaw.com ATTORNEY TO BE NOTICED

V. Defendant AIRBNB, INC.

represented by Kaitlin Welborn ACLU OF ALABAMA P.O. Box 6179 Montgomery, AL 36106 334−265−2754 Email: kwelborn@aclualabama.org TERMINATED: 04/30/2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ellen S. Kennedy 4420 Brookfield Drive Kensington, MD 20895 202−285−7502 Email: bobandellie1@msn.com TERMINATED: 10/23/2019
Michelle Anne Kisloff HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 (202) 637−6631 Fax: (202) 637−5910

Email: makisloff@hhlaw.com ATTORNEY TO BE NOTICED
Sean Marotta HOGAN LOVELLS US LLP 555 Thirteenth Street, NW Washington, DC 20004 (202) 637−4881 Fax: (202) 637−5910 Email: sean.marotta@hoganlovells.com ATTORNEY TO BE NOTICED

Date Filed 05/17/2016
05/17/2016 05/17/2016 05/18/2016 05/18/2016 05/20/2016
05/20/2016 05/25/2016
06/08/2016 06/08/2016
06/09/2016 06/23/2016
06/24/2016
06/27/2016

# Docket Text
1 COMPLAINT CLASS ACTION COMPLAINT against Airbnb Inc. with Jury Demand ( Filing fee $ 400 receipt number 0090−4532568) filed by Gregory Selden. (Attachments: # 1 Civil Cover Sheet, # 2 Civil Summons)(Emejuru, Ikechukwu) (Attachment 1 replaced on 5/18/2016) (jd). (Entered: 05/17/2016)
2 NOTICE of Appearance by Andrew Nyombi on behalf of Gregory Selden (Nyombi, Andrew) (Entered: 05/17/2016)
Case Assigned to Judge Christopher R. Cooper. (sth) (Entered: 05/18/2016)
3 NOTICE OF CORRRECTED/AMENDED COMPLAINT by GREGORY SELDEN (Emejuru, Ikechukwu) (Entered: 05/18/2016)
4 SUMMONS (1) Issued Electronically as to AIRBNB, INC.. (Attachments: # 1 Summons)(sth) (Entered: 05/18/2016)
5 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. AIRBNB, INC. served on 5/19/2016, answer due 6/9/2016 (Emejuru, Ikechukwu) (Entered: 05/20/2016)
6 AMENDED COMPLAINT against GREGORY SELDEN with Jury Demand filed by GREGORY SELDEN.(Emejuru, Ikechukwu) (Entered: 05/20/2016)
7 RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. GREGORY SELDEN served on 5/23/2016, answer due 6/13/2016 (Emejuru, Ikechukwu) (Entered: 05/25/2016)
8 MOTION for Extension of Time to Answer or Otherwise Respond by AIRBNB, INC. (Attachments: # 1 Text of Proposed Order)(Kennedy, Ellen) (Entered: 06/08/2016)
MINUTE ORDER granting 8 Defendant's Motion for Extension of Time: It is hereby ORDERED that Defendant shall answer or otherwise respond to 6 Plaintiff's Amended Complaint in this action on or before July 13, 2016. Signed by Judge Christopher R. Cooper on 6/8/2016. (lccrc3) (Entered: 06/08/2016)
Set/Reset Deadlines: Defendant shall answer or otherwise respond to 6 Plaintiff's Amended Complaint in this action on or before 7/13/2016. (kt) (Entered: 06/09/2016)
9 MOTION for Extension of Time to Certify Class by GREGORY SELDEN (Attachments: # 1 Text of Proposed Order Proposed Order)(Emejuru, Ikechukwu) (Entered: 06/23/2016)
10 MOTION to Amend/Correct COMPLAINT by GREGORY SELDEN (Attachments: # 1 Exhibit Second Amended Complaint, # 2 Exhibit SAC − Exhibit 1, # 3 Exhibit Proposed Order)(Emejuru, Ikechukwu) (Entered: 06/24/2016)
MINUTE ORDER granting Plaintiff's 9 Unopposed Motion for Extension of Time; granting 10 Plaintiff's Unopposed Motion to Amend/Correct: It is hereby ORDERED that the deadline for Plaintiff to file his motion for class certification be STAYED until the Court rules on any forthcoming Rule 12 motions. The Court will set a briefing schedule for Plaintiff's motion for class certification, if necessary, at an Initial Scheduling Conference, following its resolution of any Rule 12 motions. It is further ORDERED that Plaintiff be granted leave to file a Second Amended Complaint and that Plaintiff's Second Amended Complaint be deemed filed as of June 27, 2016.

06/27/2016 07/01/2016 07/13/2016
07/27/2016 07/29/2016 08/01/2016 08/02/2016 08/09/2016 08/15/2016 09/29/2016 10/06/2016
10/07/2016 10/11/2016 10/12/2016

Signed by Judge Christopher R. Cooper on 6/27/2016. (lccrc3) (Entered: 06/27/2016)
11 Second AMENDED COMPLAINT against AIRBNB, INC. with Jury Demand filed by GREGORY SELDEN.(td) (Entered: 06/28/2016)
12 NOTICE of Appearance by Sean Marotta on behalf of AIRBNB, INC. (Marotta, Sean) (Entered: 07/01/2016)
13 MOTION to Compel Arbitration and Dismiss by AIRBNB, INC. (Attachments: # 1 Memorandum in Support, # 2 Declaration, # 3 Exhibit A to Declaration, # 4 Exhibit B to Declaration, # 5 Exhibit C to Declaration, # 6 Exhibit D to Declaration, # 7 Exhibit E to Declaration, # 8 Text of Proposed Order)(Kennedy, Ellen). Added MOTION to Dismiss, MOTION to Stay on 7/28/2016 (td). (Entered: 07/13/2016)
14 RESPONSE re 13 MOTION to Compel Arbitration and Dismiss filed by GREGORY SELDEN. (Attachments: # 1 Appendix Table of Contents/Authorities, # 2 Declaration Declaration, # 3 Text of Proposed Order Proposed Order)(Emejuru, Ikechukwu) (Entered: 07/27/2016)
15 Consent MOTION for Extension of Time to File Response/Reply in Support of Motion to Compel Arbitration by AIRBNB, INC. (Attachments: # 1 Text of Proposed Order Proposed Order)(Marotta, Sean) (Entered: 07/29/2016)
MINUTE ORDER granting 15 Defendant's Motion for Extension of Time to File Response/Reply. It is hereby ORDERED that Defendant file its reply in support of its 13 Motion to Compel Arbitration and Dismiss by August 15, 2016. Signed by Judge Christopher R. Cooper on 8/1/2016. (lccrc2) (Entered: 08/01/2016)
Set/Reset Deadlines: ORDERED that Defendant file its reply in support of its 13 Motion to Compel Arbitration and Dismiss by August 15, 2016. Signed by Judge Christopher R. Cooper on 8/1/2016. (lsj) (Entered: 08/02/2016)
16 LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by AIRBNB, INC. (Kennedy, Ellen) (Entered: 08/09/2016)
17 REPLY to opposition to motion re 13 MOTION to Compel Arbitration and Dismiss MOTION to Dismiss MOTION to Stay filed by AIRBNB, INC.. (Kennedy, Ellen) (Entered: 08/15/2016)
Minute Order: The parties are hereby ORDERED to appear before the Court to present oral arguments re Defendant's Motion 13 to Compel Arbitration and Dismiss on 10/12/2016 at 2:00 PM in Courtroom 27A before Judge Christopher R. Cooper. Signed by Judge Christopher R. Cooper on 9/29/16. (lsj) (Entered: 09/29/2016)
MINUTE ORDER: Defendant is hereby ORDERED to file a supplemental declaration on or before October 11, 2016 explaining whether the "wireframe images" attached as Exhibit A to the Declaration of Kyle Miller are accurate representations of the Airbnb sign−up screen, in both size and content, as it would have appeared on a mobile device on the relevant dates. If the images are not accurate representations of how the screens would have appeared on a mobile device, Defendant is hereby ORDERED, if possible, to include and attest to the accuracy of such mobile−device images in its supplemental declaration. Signed by Judge Christopher R. Cooper on 10/6/2016. (lccrc3) (Entered: 10/06/2016)
Set/Reset Deadlines: Supplemental Memorandum due by 10/11/2016. (zlsj) (Entered: 10/07/2016)
18 AFFIDAVIT Supplemental Declaration of Kyle Miller by AIRBNB, INC.. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6)(Kennedy, Ellen) (Entered: 10/11/2016)
Minute Order: Motions Hearing held before Judge Christopher R. Cooper on 10/12/2016. Oral arguments submitted. Defendant AIRBNB, Inc.'s Motion 13 to Compel Arbitration and Dismiss or, in the Alternative, to Stay Pending Arbitration is taken under advisement. Court Reporter Elizabeth Saint−Loth. (lsj) (Entered: 10/12/2016)

11/01/2016 11/01/2016
11/01/2016
11/01/2016 11/01/2016 11/04/2016
11/07/2016 11/07/2016
11/09/2016 11/17/2016
11/18/2016 11/21/2016 12/01/2016 12/07/2016
12/07/2016 12/08/2016 12/12/2016 12/19/2016

19 MEMORANDUM OPINION re 13 Defendant's Motion to Compel Arbitration and Dismiss, or, in the Alternative, to Stay Pending Arbitration. Signed by Judge Christopher R. Cooper on 11/1/2016. (lccrc3) (Entered: 11/01/2016)
20 ORDER granting 13 Defendant's Motion to Compel Arbitration and Dismiss, or, in the alternative, to Stay Pending Arbitration. All proceedings are hereby STAYED pending arbitration. Signed by Judge Christopher R. Cooper on 11/1/2016. (lccrc3) (Entered: 11/01/2016)
MINUTE ORDER: The parties are further ORDERED to file a joint status report at the conclusion of arbitration proceedings or by May 1, 2017 if the proceedings have not concluded by that date. Signed by Judge Christopher R. Cooper on 11/1/2016. (lccrc3) (Entered: 11/01/2016)
Case Stayed (zlsj) (Entered: 11/01/2016)
Set/Reset Deadlines: Status Report due by 5/1/2017. (zlsj) (Entered: 11/01/2016)
21 NOTICE OF APPEAL TO DC CIRCUIT COURT as to 20 Order on Motion to Compel, Order on Motion to Dismiss, Order on Motion to Stay, 19 Memorandum & Opinion by GREGORY SELDEN. Filing fee $ 505, receipt number 0090−4733462. Fee Status: Fee Paid. Parties have been notified. (Nyombi, Andrew) (Entered: 11/04/2016)
22 Transmission of the Notice of Appeal, Order Appealed, and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 21 Notice of Appeal to DC Circuit Court,. (znmw) (Entered: 11/07/2016)
23 MOTION for Certification for interlocatory appeal by GREGORY SELDEN (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Emejuru, Ikechukwu). Added MOTION to Dismiss on 11/8/2016 (znmw). (Entered: 11/07/2016)
USCA Case Number 16−7139 for 21 Notice of Appeal to DC Circuit Court, filed by GREGORY SELDEN. (zrdj) (Entered: 11/10/2016)
24 Unopposed MOTION for Extension of Time to File Response/Reply as to 23 MOTION for Certification for interlocatory appeal MOTION to Dismiss by AIRBNB, INC. (Attachments: # 1 Text of Proposed Order)(Kennedy, Ellen) (Entered: 11/17/2016)
MINUTE ORDER granting 24 Motion for Extension of Time to File Response/Reply. Defendant's response is due on or before December 2, 2016. Signed by Judge Christopher R. Cooper on 11/18/2016. (lccrc3) (Entered: 11/18/2016)
Set/Reset Deadlines: Defendant's Responses due by 12/2/2016 (zlsj) (Entered: 11/21/2016)
25 RESPONSE re 23 MOTION for Certification for interlocatory appeal MOTION to Dismiss filed by AIRBNB, INC.. (Kennedy, Ellen) (Entered: 12/01/2016)
26 Consent MOTION for Extension of Time to File Response/Reply as to 23 MOTION for Certification for interlocatory appeal MOTION to Dismiss by GREGORY SELDEN (Attachments: # 1 Text of Proposed Order)(Emejuru, Ikechukwu) (Entered: 12/07/2016)
MINUTE ORDER granting 26 Motion for Extension of Time to File Response/Reply. Plaintiff shall submit his Reply brief by December 12, 2016. Signed by Judge Christopher R. Cooper on 12/7/2016. (lccrc3) (Entered: 12/07/2016)
Set/Reset Deadlines: Plaintiff's Reply Brief due by 12/12/2016. (zlsj) (Entered: 12/08/2016)
27 REPLY to opposition to motion re 23 MOTION for Certification for interlocatory appeal MOTION to Dismiss filed by GREGORY SELDEN. (Emejuru, Ikechukwu) (Entered: 12/12/2016)
28 ORDER denying 23 Motion for Certification of Interlocutory Appeal, or in the alternative, to Dismiss. Signed by Judge Christopher R. Cooper on 12/19/2016. (lccrc3) (Entered: 12/19/2016)

12/20/2016 04/20/2017 04/25/2017 05/01/2017 12/13/2017
02/01/2018 02/01/2018 02/08/2018 02/09/2018 02/12/2018 05/10/2018 08/10/2018 08/16/2018
08/16/2018 11/08/2018 11/08/2018 11/13/2018

29 Supplemental Record on Appeal transmitted to US Court of Appeals re 28 ORDER denying Motion for Certification of Interlocutory Appeal, or in the alternative, to Dismiss; USCA Case Number 16−7139. (znmw) (Entered: 12/20/2016)
30 MANDATE of USCA as to 21 Notice of Appeal to DC Circuit Court, filed by GREGORY SELDEN ; USCA Case Number 16−7139. (Attachments: # 1 USCA Order)(td) (Entered: 04/21/2017)
Case Stayed (zlsj) (Entered: 04/25/2017)
31 Joint STATUS REPORT by AIRBNB, INC.. (Kennedy, Ellen) (Entered: 05/01/2017)
32 TRANSCRIPT OF MOTION HEARING before Judge Christopher R. Cooper held on 10−12−2016; Page Numbers: 1 − 42. Date of Issuance: 12−13−2017. Court Reporter/Transcriber Elizabeth SaintLoth, Telephone number 202−354−3242, Transcripts may be ordered by submitting the Transcript Order Form
For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporte r referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi−page, condensed, CD or ASCII) may be purchased from the court reporter.
NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty−one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.
Redaction Request due 1/3/2018. Redacted Transcript Deadline set for 1/13/2018. Release of Transcript Restriction set for 3/13/2018.(Saint−Loth, Elizabeth) (Entered: 12/13/2017)
MINUTE ORDER: The parties are directed to file a joint notice on or before February 8, 2018 advising the Court of the status of any arbitration proceedings in this case. Signed by Judge Christopher R. Cooper on 2/1/2018. (lccrc3) (Entered: 02/01/2018)
Set/Reset Deadlines: Status Report due by 2/8/2018 (lsj) (Entered: 02/01/2018)
33 Joint STATUS REPORT by AIRBNB, INC.. (Attachments: # 1 Exhibit 1)(Kennedy, Ellen) (Entered: 02/08/2018)
MINUTE ORDER: In light of the 33 status report, the parties are directed to file a further joint status report on or before May 10, 2018. Signed by Judge Christopher R. Cooper on 2/9/2018. (lccrc3) (Entered: 02/09/2018)
Set/Reset Deadlines: Joint Status Report due by 5/10/2018 (lsj) (Entered: 02/12/2018)
34 Joint STATUS REPORT by AIRBNB, INC.. (Kennedy, Ellen) (Entered: 05/10/2018)
35 STATUS REPORT by GREGORY SELDEN. (Emejuru, Ikechukwu) (Entered: 08/10/2018)
MINUTE ORDER: In light of 35 Plaintiff's August 10, 2018 Status Report, it is hereby ORDERED that Plaintiff shall provide a further status report on or before November 8, 2018. Signed by Judge Christopher R. Cooper on 08/16/2018. (lccrc3) (Entered: 08/16/2018)
Set/Reset Deadlines: Plaintiff's Status Report due by 11/18/2018 (lsj) (Entered: 08/16/2018)
36 STATUS REPORT by GREGORY SELDEN. (Emejuru, Ikechukwu) (Entered: 11/08/2018)
37 Amended STATUS REPORT WITHDRAWING PREVIOUS STATUS REPORT by GREGORY SELDEN. (Emejuru, Ikechukwu) (Entered: 11/08/2018)
MINUTE ORDER: In light of 37 Plaintiff's Status Report, it is hereby ORDERED that Plaintiff shall file a further status report on or before February 6, 2019. Signed by

11/13/2018 02/06/2019 02/07/2019 02/07/2019 05/07/2019 05/09/2019 05/09/2019 06/20/2019 07/29/2019
07/29/2019 08/02/2019 08/05/2019 08/05/2019
08/06/2019 09/09/2019
09/23/2019 09/23/2019
09/30/2019 10/23/2019

Judge Christopher R. Cooper on 11/13/2018. (lccrc3) (Entered: 11/13/2018)
Set/Reset Deadlines: Status Report due by 2/6/2019 (lsj) (Entered: 11/13/2018)
38 STATUS REPORT by GREGORY SELDEN. (Emejuru, Ikechukwu) (Entered: 02/06/2019)
MINUTE ORDER: In light of 38 Plaintiff's Status Report, it is hereby ORDERED that Plaintiff shall file a further status report on or before May 7, 2019. Signed by Judge Christopher R. Cooper on 02/07/2019. (lccrc3) (Entered: 02/07/2019)
Set/Reset Deadlines: Status Report due by 5/7/2019. (znbn) (Entered: 02/07/2019)
39 Quarterly STATUS REPORT by GREGORY SELDEN. (Emejuru, Ikechukwu) (Entered: 05/07/2019)
MINUTE ORDER: Upon consideration of the 39 Plaintiff's status report, it is hereby ORDERED that Plaintiff shall file a further status report on or before August 5, 2019. Signed by Judge Christopher R. Cooper on 05/09/2019. (lccrc3) (Entered: 05/09/2019)
Set/Reset Deadlines: Status Report due by 8/5/2019 (lsj) (Entered: 05/09/2019)
40 Joint STATUS REPORT by AIRBNB, INC.. (Kennedy, Ellen) (Entered: 06/20/2019)
MINUTE ORDER: Upon consideration of the parties' 40 Joint Status Report, it is hereby ORDERED that the parties shall confer and submit, on or before August 5, 2019, a proposed briefing schedule for Plaintiff's anticipated petition to set aside the arbitration decision. Signed by Judge Christopher R. Cooper on 07/29/2019. (lccrc3) (Entered: 07/29/2019)
Set/Reset Deadlines: Proposed Briefing Schedule due by 8/5/2019 (lsj) (Entered: 07/29/2019)
41 NOTICE of Appearance by Kaitlin Welborn on behalf of AIRBNB, INC. (Welborn, Kaitlin) (Entered: 08/02/2019)
42 PROPOSED BRIEFING SCHEDULE by GREGORY SELDEN re Order, (Emejuru, Ikechukwu) Modified event title on 8/9/2019 (znmw). (Entered: 08/05/2019)
MINUTE ORDER: The parties shall adhere to the following briefing schedule: Plaintiff shall file his petition to set aside the arbitration decision on or before September 9, 2019; Defendant shall file its opposition on or before September 23, 2019; Plaintiff shall file his reply on or before September 30, 2019. Signed by Judge Christopher R. Cooper on 08/05/2019. (lccrc3) (Entered: 08/05/2019)
Set/Reset Deadlines: Petition due by 9/9/2019. Responses due by 9/23/2019. Replies due by 9/30/2019. (lsj) (Entered: 08/06/2019)
43 MOTION to Vacate Arbitration Award by GREGORY SELDEN (Attachments: # 1 Exhibit Exhibit 1 − Second Amended Demand for Arbitration, # 2 Exhibit Exhibit 2 − Airbnb Answer, # 3 Exhibit Exhibit 3 − Arbitration Order, # 4 Exhibit Exhibit 4 − Pre− Hearing Order, # 5 Exhibit Exhibit 5, # 6 Exhibit Exhibit 6 − Airbnb Witness List, # 7 Exhibit Exhibit 7, # 8 Exhibit Exhibit 8 − Arbitration Award)(Emejuru, Ikechukwu) (Entered: 09/09/2019)
44 NOTICE of Appearance by Michelle A. Kisloff on behalf of AIRBNB, INC. (Kisloff, Michelle) (Entered: 09/23/2019)
45 Memorandum in opposition to re 43 MOTION to Vacate Arbitration Award filed by AIRBNB, INC.. (Attachments: # 1 Declaration of Kaitlin Welborn, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5)(Kisloff, Michelle) (Entered: 09/23/2019)
46 REPLY to opposition to motion re 43 MOTION to Vacate Arbitration Award filed by GREGORY SELDEN. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4)(Emejuru, Ikechukwu) (Entered: 09/30/2019)
47 NOTICE OF WITHDRAWAL OF APPEARANCE as to AIRBNB, INC.. Attorney Ellen S. Kennedy terminated. (Kennedy, Ellen) (Entered: 10/23/2019)

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48 OPINION and ORDER denying 43 Motion to Vacate Arbitration Award. See full Order for details. Signed by Judge Christopher R. Cooper on 11/27/2019. (lccrc3) (Entered: 11/27/2019)
49 MOTION for Entry of Final Judgment by AIRBNB, INC. (Attachments: # 1 Text of Proposed Order)(Kisloff, Michelle) (Entered: 12/12/2019)
MINUTE ORDER granting 49 Motion for Entry of Final Judgment. Final judgment forthcoming. Signed by Judge Christopher R. Cooper on 12/17/2019. (lccrc3) (Entered: 12/17/2019)
50 ORDER denying 43 Motion to Vacate Arbitration Award and dismissing the case. See full Order for details. Signed by Judge Christopher R. Cooper on 12/17/2019. (lccrc3) (Entered: 12/17/2019)
51 NOTICE OF APPEAL TO DC CIRCUIT COURT by GREGORY SELDEN. Filing fee $ 505, receipt number ADCDC−6675612. Fee Status: Fee Paid. Parties have been notified. (Emejuru, Ikechukwu) (Entered: 12/24/2019)
52 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals fee was paid this date re 51 Notice of Appeal to DC Circuit Court. (jf) (Entered: 12/26/2019)
USCA Case Number 19−7168 for 51 Notice of Appeal to DC Circuit Court filed by GREGORY SELDEN. (zrdj) (Entered: 12/30/2019)
53 MOTION to Withdraw as Attorney by AIRBNB, INC. (Attachments: # 1 Text of Proposed Order, # 2 Certificate of Service)(Welborn, Kaitlin) (Entered: 04/24/2020)
MINUTE ORDER granting 53 Motion to Withdraw as Attorney. Attorney Kaitlin Welborn terminated. Signed by Judge Christopher R. Cooper on 04/30/2020. (lccrc3) (Entered: 04/30/2020)