Can EU hosts bring arbitration under the American Arbitration Association rules?

Welcome to the June 8th edition of the Airbnb Host Monday Update. The big news last week was the launch of the 10,000Hosts.com platform, which is the self-help platform with hosts with claims under $10,000 or $15,000. This is the platform that hosts can use in order to handle their own arbitrations with the American Arbitration Association. And it not only prepares the documents for you as part of the document automation process, but will also provide you the support after you file to not only be able to file your arbitration, but to win your arbitration. 10,000 Hosts LLC is offering this platform and we helped with that effort. All right, so Start the Arbitration Claim under 10,000 Hosts will allow you to go into the platform, Give your email address, provide the information that is going to be included in all of these different parts of the form. And you'll see my help videos here, and you're gonna provide all this information around the left, and then it's gonna spit out the arbitration forms, the instructions, everything you need to succeed. So if you know people who have claims under $10,000, or you do, go ahead and access the platform. You can go all the way through the system and You won't have to pay anything until you get to the end. And then if you decide that you want to receive the forms, go ahead and pay at that time. And it's $150, and it will get you the forms that you need and put you into the 10,000 Hosts process. The other news is that we started to see some of the defenses being lodged by Airbnb. No surprise, they do intend to put up defenses, but just because Airbnb makes a defense doesn't mean that that defense is legitimate or that it will win in arbitration. Under the terms of service, Airbnb has agreed that the arbitrators get to decide all issues and that the arbitrator can decide what the terms mean, if they're applicable, if they're void, and how they get interpreted. So everything is going to be sent to an arbitrator no matter what the defense is. So one of the defenses that came up that I want to talk about for people in the EU is a defense that we saw that amounts to this. And so this is an email that, that a host received received that says, thank you for noting that you are going to be bringing arbitration. We note that you have filed a demand for arbitration. And then it says, please note, as a resident of the European Economic Area, as set out in the TOS, you have contracted with Airbnb Ireland UC. We also would like to point out that Section 19 of the TOS is expressly subject to Paragraph 21. Now, 19, you'll see gives you the right to file, at your option, arbitration in the U.S. under the American Arbitration Association rules. That's our interpretation. That's what we— how we believe a normal average person and the arbitrator will read the Terms of Service. What they're saying here is that the dispute resolution and arbitration agreement shall apply if your country of residence is in the United States or your country of residence is not in the United States, but bring any claim against Airbnb in the United States. There's your— they say it themselves— your option to bring a claim in the United States. And then it says in parentheses, to the extent that it is not in conflict with paragraph 21. And then they quote, if your country of residence or establishment is outside the United States and China, you agree to submit to the non-exclusive jurisdiction of the Irish courts. Judicial proceedings that you are able to bring against us arising from or in connection with these terms may only be brought in a court located in Ireland or a court with the jurisdiction in your place of residence. So they're taking the position that you can only sue them in court in your place of residence or in Ireland. And here's why we believe this is not a reasonable interpretation of the terms. And why they're simply just trying to put up defenses and roadblocks as expected. The first thing is, if we take a look at the terms of service, you'll note that there is a terms of service for non-European users and for European users. Why is that? And the reason is because, number one, in EU you have GDPR that they have to comply with. That doesn't apply elsewhere. The other is that the European Commission, which protects consumers, brought an action against Airbnb saying that their terms of service were unreasonable, were unfair, and that they needed to make some changes to the terms of service. And so part of that resolution was some language that they added about your right to bring a judicial action in the place of your residence. Now, keep in mind, you basically have 2 options under the terms of service. You can bring arbitration, or you can bring in the US a small claims action, a judicial proceeding in court as opposed to arbitration. In the EU, you can bring an arbitration, or you can bring an action in your court of law, a judicial proceeding in your court of law against Airbnb. Now, the reason why we are recommending and believe arbitration is superior in our opinion is because Number one, in, in the small claims court in the US, for instance, you are limited as to the amount of damages. You have to pay the filing fee, and then Airbnb doesn't have to pay any filing fee to respond. You do not get discovery typically, so you can't ask for documents, which you're going to need to win the arbitration. In arbitration, Airbnb has to pay all the remaining arbitration fees above your $200 fee. Which can be substantial in the thousands or $10,000 or more range, which creates incentives for Airbnb to want to resolve the matter. So we think arbitration is superior, and for EU folks that want to bring American Arbitration Association arbitrations, we're doing that not only through our representation through Travers Legal with clients that retain us, but 10,000 Hosts offers a platform to help you through that process. So let's just take a look at the terms of service for European users. So please note section 19 of these terms contain an arbitration clause and class action waiver that applies to all claims brought against Airbnb in the United States. This says you can bring claims in the United States, arbitration claims in the United States. Okay. By accepting These terms, you agree to be bound by the arbitration clause and class action waiver. So let's take a look at 19. So 19, which applies to EU, says the dispute resolution arbitration agreement shall apply if you bring any claims against Airbnb in the United States, if not in conflict with 21, which it's not. So you have the option of bringing an American Arbitration Association claim in the U.S. under paragraph 19, under plain reading of paragraph 19. And then they provide you the whole process for bringing that arbitration with— guess what?— the American Arbitration Association. Okay, tells you what rules apply, and it tells you what your rights are under the EU Terms of Service. Okay, so your agreement to arbitrate And then here they say that you agree and to, to, uh, that any dispute, claim, or controversy arising out of or relating to these terms or breach, termination, validity, enforcement, or interpretation of the terms or the use of the platform will be settled by binding individual arbitration. That's their terms of service. Now, arbitration is not a judicial proceeding. If you were to go to a judicial proceeding, even though this says you can't and the EU Commission has said you can, then you would be bound by paragraph 21, which, by the way, in this EU provision is different than in the US provision. In this 21, it doesn't say what is included here. 21 doesn't exist in the EU version, and it says these terms shall be governed and construed by Irish law, which is going to be true in arbitration under the American Arbitration Association, and then it provides some indication that as a consumer, you may bring a judicial proceeding relating to these terms before the competent court in your place of residence. So, may is permissive. There's your option. But it doesn't say must, and it doesn't preclude arbitration, and actually specifically tells you how, if you elect to bring arbitration in the US. So look at this, is even if you're a US resident or non-EU resident, this just shows you that Airbnb will put up legalistic defenses as roadblocks. We're here to help. If you are our client, we will handle all those for you. and make the arguments that need to be made to win those arguments. If you're in the EU and you are engaged in self-help, we will also be providing you videos to help you navigate these issues, these roadblocks that Airbnb is going to try and put up. Now, big step back. This is the point of our effort. Airbnb arbitrates claims all day long. against Airbnb hosts. They have fancy law firms, expensive law firms. They do it at scale, defend arbitration. By limiting you to individual arbitrations, by precluding collective arbitrations and class actions, they have these advantages of being able to say things like this. And how will you know any different? You're never gonna be able to get an attorney to represent you on most of these claims, so they've got you under their thumb. But no more, because we're acting collectively, because we are helping Airbnb hosts navigate these issues, because we're fighting back. And we're gonna be here not only tomorrow, but we're here for the long term to fight these fights, to win these arbitrations, and to force Airbnb to give us a seat at the table. My name is Enrico Schaefer. We'll see you next week.