ELLIS v. COXCOM LLC (2025)

ORDER GRANTING MOTION TO COMPEL ARBITRATION

This Court has reviewed, without hearing, Defendant CoxCom LLC's (“Cox”) motion to compel arbitration and stay the proceedings, ECF No. 16, Plaintiffs' response in opposition, ECF No. 17, Cox's reply, ECF No. 22, Plaintiffs' sur-reply, ECF No. 23, and Cox's supplemental response, ECF No. 25. Plaintiff Laura Dribble does not oppose Cox's motion to compel arbitration. ECF No. 17 at 5. Accordingly, Cox's motion, ECF No. 16, is GRANTED with respect to Plaintiff Laura Dribble. For the reasons discussed below, Cox's motion, ECF No. 16, is also GRANTED with respect to Plaintiff Pamela Ellis.

This Court is faced with determining whether an arbitration agreement between the parties requires Plaintiff Pamela Ellis to submit her claims against Cox to arbitration. But as this Court has said before, a plaintiff seeking to avoid an arbitration agreement's grasp faces a formidable task. Like a rich man attempting to enter the kingdom of heaven, a party “wishing to escape the grip of an arbitration clause may have an easier time fitting a camel through the eye of a needle.” Frame v. Alder Holdings, LLC, 2018 WL 5905889, at *1 (N.D. Fla. Feb 23, 2018). Unfortunately for Ms. Ellis, that expression rings true today.

I. Background

Cox is a business that provides cable, telephone, and internet services to customers nationwide. ECF No. 4 ¶ 20. The underlying dispute here stems from Cox's allegedly deceptive pricing and billing scheme, through which it purportedly charged its customers, including Plaintiffs, above the promised rates for internet and cable services. Id. ¶ 1. Plaintiff Pamela Ellis is a current customer of Cox and Plaintiff Laura Dribble is a former customer of Cox. ECF No. 4 ¶¶ 14–15; ECF No. 17 at 6. Plaintiffs initially filed a complaint bringing their claims individually against Cox, but then amended their complaint to also bring claims on behalf of a putative class. ECF No. 1; ECF No. 4. Plaintiffs filed three counts against Cox for violation of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”), breach of contract, and breach of the implied covenant of good faith and fair dealing. ECF No. 4 at 48–56. Shortly after Plaintiffs filed their amended complaint, Cox moved to compel arbitration and stay the proceedings. ECF No. 16.

Cox argues that Plaintiffs must individually submit their claims to arbitration because Plaintiffs agreed to a written Residential Customer Service Agreement (“RCSA”) “and any amendments or changes thereto by activating, using, and paying for Cox Services.” Id. at 5; ECF No. 22 at 2. Cox claims that it provides its customers with routine notices that they are bound by the RCSA through its website, “welcome packets,” emails when customers update their account information, notices on monthly billing statements, and annual privacy notices. ECF No. 16 at 4–6. Cox asserts that Ms. Dribble is bound by the written RCSA effective February 1, 2019 (“2019 RCSA”). ECF No. 16 at 5. In its motion to compel, Cox initially asserted that Ms. Ellis was also bound by the 2019 RCSA. Id. However, after Ms. Ellis alleged that she was a current customer of Cox bound by the written RCSA effective March 31, 2022 (“2022 RCSA”), Cox agreed that Ms. Ellis was instead bound by the 2022 RCSA. ECF No. 17 at 5–7; ECF No. 22 at 1–3; ECF No. 22-1 at 3–4; ECF No. 25 at 3. Ms. Dribble does not dispute that she must submit her claims to arbitration under the 2019 RCSA. ECF No. 17 at 5. However, Ms. Ellis argues that she is not required to submit her claims to arbitration per the 2022 RCSA. Id.

The 2022 RCSA contains a section titled “Dispute Resolution; Mandatory Binding Arbitration; Class Action Waiver—” (the “2022 Dispute Resolution Agreement” or the “Agreement”), which houses both an arbitration agreement and a delegation clause. ECF No. 17 at 4; ECF No.17-1 at 15–18; ECF No. 22-1 at 12–15. The arbitration agreement makes up the bulk of the 2022 Dispute Resolution Agreement and sets forth which disputes between Cox and its customers are to be arbitrated and in what manner. Among other things, the arbitration agreement requires customers to waive the right to a jury trial, bring their claims on an individual basis and not through class actions or “mass actions,” as defined in the agreement, waive any right to a jury trial, and agree that the Federal Arbitration Act (“FAA”)¹ and the National Arbitration and Mediation (“NAM”) Comprehensive Rules and Procedures govern all disputes and arbitrations between the parties. ECF No. 17-1 at 15–18; ECF No. 22-1 at 12–15. The Agreement also allows Cox's customers to opt out of the Agreement's terms through email or letter, save for the jury trial waiver. ECF No. 17-1 at 18; ECF No. 22-1 at 12. The delegation clause sets forth the authority of the arbitrator to decide certain questions relating to arbitration and primarily appears in Section 4(D) of the 2022 Dispute Resolution Agreement, titled “Arbitrator Authority.” ECF No. 17-1 at 16; ECF No. 22-1 at 13.

II. Legal Analysis

“A motion to compel arbitration is treated as a Rule 12(b)(1) motion to dismiss for lack of subject-matter jurisdiction.” McGhee v. Select Comfort Retail Corp., 2023 WL 10876870, at *2 (N.D. Fla. June 26, 2023). In determining whether to grant a motion to compel arbitration, a court asks (1) whether a valid agreement to arbitrate exists between the parties, (2) whether an arbitrable issue exists, and (3) whether the right to arbitrate was waived. Gomez v. Allied Pros. Ins. Co., 457 F. Supp. 3d 1351 (S.D. Fla. 2020); Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999) (explaining that these three elements are considered under both federal statutory provisions and the Florida arbitration code when a court is ruling on a motion to compel arbitration).

Cox argues that this Court should grant its motion to compel arbitration because Cox has not waived the right to arbitrate, a valid arbitration agreement exists between the parties, and Ms. Ellis's claims are within the scope of the arbitration agreement. ECF No. 16 at 12. Cox asks this Court to refrain from deciding whether the arbitration agreement is valid because the delegation clause “clearly and unmistakably” grants the arbitrator the authority to decide the arbitration agreement's validity. Id. at 13. Cox argues in the alternative that this Court should conclude that the delegation clause and the arbitration agreement are valid and submit this case to arbitration. Id. at 14.

In response, Ms. Ellis argues that that this Court should not compel arbitration for three reasons. First, Ms. Ellis asserts that Cox has waived its ability to enforce the 2022 Dispute Resolution Agreement against her because it did not mention the 2022 RCSA in its initial motion to compel. ECF No. 23 at 3–5. Second, Ms. Ellis claims that the delegation clause is not “clear and unmistakable” and that this Court must determine whether the larger arbitration agreement is valid and enforceable. ECF No. 17 at 10–11, 17. Lastly, Ms. Ellis argues that this Court should conclude that both the delegation clause and the arbitration agreement are invalid and unenforceable because they are unconscionable and against public policy. Id. at 17, 32.

This Court addresses the parties' arguments in turn,² beginning with whether Cox has waived its right to arbitrate.

A. Whether Cox Has Waived the Right to Arbitrate under the 2022 RCSA

The right to arbitrate, like any other contractual right, can be waived. Gutierrez v. Wells Fargo Bank, NA, 889 F.3d 1230, 1235 (11th Cir. 2018). But the party arguing waiver “bears a heavy burden of proof.” Id. at 1236. Because there is no set rule as to what constitutes waiver of the right to arbitrate, a court's analysis of whether waiver has occurred is based on the facts of each case. Warrington v. Rocky Patel Premium Cigars, Inc., 2023 WL 1818920, at *2 (11th Cir. Feb. 8, 2023). This involves a two-part inquiry. Gutierrez, 889 F.3d at 1235. A court begins by asking whether “under the totality of the circumstances, the party has acted inconsistently with the arbitration right.” Id. The court then asks whether the party's conduct “has in some way prejudiced the other party.” Id.

Ms. Ellis asserts that Cox has waived its right to arbitrate under the 2022 RCSA because Cox initially argued that Ms. Ellis is bound by the 2019 RCSA and did not raise the 2022 RSCA in the alternative. ECF No. 23 at 3–5.³ Ms. Ellis asks this Court to prohibit Cox from making an “entirely new motion” through its reply by changing its position to now assert that the 2022 RCSA governs her dispute. Id. at 4.⁴ Cox rebuts that it made a good faith mistake regarding the 2019 RSCA's applicability because Ms. Ellis's allegations that she was a former customer of Cox located in Gainesville, Florida led it to identify the wrong customer account. ECF No. 25 at 6–9.

Regardless of whether Cox's error is attributable to Ms. Ellis's behavior or not, its changed stance is not the type of “inconsisten[cy] with an arbitration right” that would result in waiver. See Gutierrez, 889 F.3d at 1236–37. A party's actions are instead inconsistent with an arbitration right when the party has “substantially invoked the litigation machinery prior to demanding arbitration.” Id. at 1236 (internal citation omitted). Whether a party has provided “fair notice at a relatively early stage of litigation is a primary factor in considering whether a party has acted consistently with its arbitration rights.” Id.

Here, notwithstanding any mistake regarding which version of the RCSA applies to Ms. Ellis, Cox has maintained that Ms. Ellis is required to submit to arbitration under her contract with Cox. Further, Cox's motion to compel comes at an early stage in the litigation because Cox has not yet filed an answer to Plaintiffs' amended complaint. But even if Cox's changed stance on the RSCA amounted to inconsistency with its arbitration rights, its actions cannot be said to have prejudiced Ms. Ellis. Not only has Cox already put Ms. Ellis and this Court on notice of its intent to exercise its arbitration rights, Ms. Ellis's own actions show that she adjusted to Cox's error by assuming that the 2022 RCSA applied to her claim and arguing the validity of the 2022 RCSA instead of the 2019 RCSA. ECF No. 17 at 5–9.

Accordingly, this Court concludes that Cox has not waived its right to arbitration. This Court next turns to the parties' arguments regarding whether this court or an arbitrator should determine if the arbitration agreement is valid and enforceable.

B. Who Decides the “Gateway Question” of Validity?

While normally a court must decide the “gateway question” of whether a valid agreement to arbitrate exists, the parties may contract for an arbitrator to answer that question instead. Rent-A-Center, W., Inc. v. Jackson, 561 U.S. 63, 70, 130 S.Ct. 2772, 177 L.Ed.2d 403 (2010); Lubin v. Starbucks Corp., 122 F.4th 1314, 1319 (11th Cir. 2024). An agreement to delegate the question of validity to arbitration, often called a delegation clause, is itself an arbitration agreement governed by the same principles as any other arbitration agreement. Rent-A-Center, 561 U.S. at 70, 130 S.Ct. 2772; First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct. 1920, 131 L.Ed.2d 985 (1995). But there is an important caveat: despite the general federal policy favoring arbitration, a court should not assume that the parties agreed to a delegation clause unless there is “clea[r] and unmistakabl[e]” evidence that they did. First Options of Chicago, Inc., 514 U.S. at 944, 115 S.Ct. 1920 (internal citations and quotation marks omitted). When deciding whether the parties clearly agreed to a delegation clause, a court generally applies ordinary state-law principles that govern the formation of contracts. Id. And when there is ambiguity in a delegation clause as to whether a court or arbitrator should decide a “gateway question,” there is a presumption that the court should do so. Id. at 944–45, 115 S.Ct. 1920; Flores v. Antibiotic Adjuvant, Inc., 2020 WL 10727984, at *2 (N.D. Fla. Sept. 15, 2020). So, this Court begins by examining whether the parties clearly and unmistakably agreed to submit the gateway question of validity to an arbitrator.

Cox contends that the 2022 Dispute Resolution Agreement clearly and unmistakably gives the arbitrator the authority to decide the validity and enforceability of the arbitration agreement, with only narrowly defined exceptions that do not undermine that authority. ECF No. 22 at 3. It points to Section 4(A) of the Agreement, which notes that the “[Customer] and Cox agree to arbitrate—rather than litigate in Court—all claims, disputes, or controversies between [the customer] and Cox ․ that arise out of or in any way relate to this Agreement,” and the delegation clause itself, which explicitly provides that “[e]xcept as provided in Section 4(H) below, the arbitrator may resolve all disputes concerning whether this Dispute Resolution Provision is enforceable, unconscionable, applicable, valid, void, or voidable.” Id. at 3–4. Cox also argues that the parties clearly and unmistakably delegated the authority to decide the Agreement's validity to the arbitrator by explicitly incorporating NAM's Comprehensive Rules and Procedures into the Agreement. ECF No. 22 at 6; ECF No. 22-1 at 13; ECF No. 17-1 at 16; NAM Rule 17 (B).

Ms. Ellis responds that the delegation clause's permissive language that the arbitrator “may resolve all disputes” about the Agreement's validity and enforcement creates ambiguity as to whether the arbitrator must always decide validity and enforceability, or if a court may decide validity and enforceability as well. ECF No. 17 at 13. Ms. Ellis points to principles of Florida contract and statutory construction suggesting that the plain and ordinary meaning of the word word “may” is usually permissive rather than mandatory, but in some contexts can be a “word of mandate.” Id.⁵ She asserts that these competing definitions show that the word “may” makes the delegation clause ambiguous. Id. Ms. Ellis also asserts that other portions of the Agreement stating that a “court or arbitrator” may decide certain issues regarding the arbitration agreement's enforceability create ambiguity. Id. at 14–16; see also ECF No. 17-1 at 16, 17.

This Court finds that the parties “clearly and unmistakably” agreed to have an arbitrator decide whether the arbitration agreement is valid and enforceable. The Agreement states that it is governed by NAM's Comprehensive Rules and Procedures, and NAM Comprehensive Rule 17(B) provides that “the Arbitrator shall have the authority to determine jurisdiction and arbitrability, including, but not limited to, any issue regarding the validity, existence, formation, or scope of the agreement under which arbitration is being sought and the proper parties to the agreement.” ECF No. 22-1 at 12; ECF No. 17 at 16; NAM Rule 17(b). It is well established in this Circuit that referencing or incorporating an arbitration body's rules into an arbitration agreement, where the arbitration body's rules provide that the arbitrator has the authority to rule on the existence, scope, or validity of the arbitration agreement, by itself is enough to “demonstrate[ ] a clear and unmistakable intent that the arbitrator should decide all questions related to arbitrability,” such as validity and enforceability. In re Checking Acct. Overdraft Litig., 856 F. App'x 238, 243 (11th Cir. 2021) (examining an agreement that incorporated the American Arbitration Association's Rules); Attix v. Carrington Mortg. Servs., LLC, 35 F.4th 1284, 1298 (11th Cir. 2022) (concluding that incorporating the AAA's jurisdictional rules in an agreement is clear and unmistakable evidence of the parties' intent to delegate gateway questions to an arbitrator, even if no other delegation language appears elsewhere in the arbitration agreement).

Considering this, Ms. Ellis's arguments attempt to inject ambiguity where there is none. The delegation clause restates that the arbitrator has the authority to decide whether the Agreement is valid, which is a “mutually reinforcing method[ ] of delegation,” that, when considered alongside the incorporation of NAM's Rules, becomes “more than enough” to indicate the parties' “clear and unmistakable intent to arbitrate [the] gateway issue[ ]” of validity. In re Checking Acct. Overdraft Litig., 856 F. App'x at 243 (11th Cir. 2021). The other portions of the Agreement containing exceptions to arbitration do not detract from the arbitrator's authority to decide whether the Agreement is valid.⁶

In sum, there is clear and unmistakable evidence that the parties agreed for the arbitrator to decide whether the arbitration agreement is valid by enacting a delegation clause. Having found that a delegation clause exists, this Court now turns to the parties' arguments regarding whether the delegation clause is valid and enforceable.

C. Is the Delegation Clause Valid and Enforceable?

This Court prefaced its order by explaining that a party wishing to escape the grip of an arbitration agreement faces a formidable task for good reason: the FAA “leaves no room for the exercise of discretion by a district court, but instead mandates that district courts shall direct the parties to proceed to arbitration on issues as to which an arbitration agreement has been signed.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 213, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985) (emphasis in original). The FAA requires that “any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.” Moses H. Cone Mem'l Hosp. v. Mercury Constr. Co., 460 U.S. 1, 24–25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). But while a party seeking to avoid an arbitration agreement might normally find itself trapped by the FAA's substantive mandate, the FAA does offer a valuable escape hatch. Frame, 2018 WL 5905889, at *1. It provides that a party may defeat an arbitration agreement by asserting a defense under state contract law as to the validity, revocability, or enforceability of the arbitration agreement. Id.; 9 U.S.C. § 2; Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630, 129 S.Ct. 1896, 173 L.Ed.2d 832 (2009). Relevant Florida contract law defenses as to the validity or enforceability of an arbitration agreement include that the agreement is unconscionable or against public policy.⁷

When a delegation clause exists, a court may only hear defenses targeted at the delegation clause. Parnell v. CashCall, Inc., 804 F.3d 1142, 1144 (11th Cir. 2015); In re Checking Account Overdraft Litig., 856 F. App'x at 245 (citing Rent-A-Center, 561 U.S. at 70–71, 130 S.Ct. 2772). A plaintiff may challenge a delegation clause by arguing that unconscionable procedures or procedures against public policy in the larger arbitration agreement as applied to the delegation clause render the delegation clause unconscionable. See Rent-A-Center, 561 U.S. at 74, 130 S.Ct. 2772 (noting that a court should consider challenges a plaintiff makes when claiming that unconscionable common procedures as applied to the delegation clause render the delegation clause invalid). But the plaintiff's challenge must “substantively and meaningfully” go to the parties' “precise agreement” to delegate a “gateway issue” to an arbitrator. Attix, 35 F.4th at 1304 (11th Cir. 2022). Absent a direct challenge to the delegation clause, a court must treat the delegation clause as valid and let the arbitrator review all challenges to the broader arbitration agreement. Parnell, 804 F.3d at 1148 (citing Rent-A-Center, 561 U.S. at 72, 130 S.Ct. 2772).

Ms. Ellis's contract law defenses are aimed at the larger arbitration agreement, not the delegation clause. Ms. Ellis attempts to thread the needle from the arbitration agreement to the delegation clause by dubbing unrelated portions of the Agreement “common procedures,” claiming that they are unconscionable or against public policy, and then asserting that they “apply” to the delegation clause as to render the delegation clause unconscionable and against public policy. See ECF No. 17 at 31. But simply saying that these other sections in the Agreement are “common procedures” that “apply” to the delegation clause does not make it so. Attix, 35 F.4th at 1304 (stating that it is insufficient for a party to merely recite words challenging a delegation clause, because “[c]hallenging a delegation agreement is a matter of substance, not form.”). Ms. Ellis fails to allege that the challenged provisions make the arbitrator determining the validity and enforceability of the arbitration agreement unconscionable or against public policy. See Parnell, 804 F.3d at 1149 (concluding that the plaintiff's arguments essentially asked the court to “review the validity of the arbitration agreement as a whole” because the plaintiff never “specifically challenge[d] the parties' agreement to commit to arbitration the question of the enforceability of the arbitration agreement.”) (emphasis in original).

This becomes clear with two examples taken from Ms. Ellis's numerous arguments. As one example, Ms. Ellis claims that the mass action waiver in the arbitration agreements restricts a plaintiff's choice of counsel, and that this mischief begins “at the delegation clause” by “discouraging Cox's customers form arbitrating issues of arbitrability with the legal counsel of their choice.” ECF No. 17 at 31. But Ms. Ellis does not explain how having an arbitrator rather than a court decide whether the mass action waiver is unconscionable or against public policy is itself unconscionable or against public policy. See Parnell, 804 F.3d at 1149. As another example, Ms. Ellis argues that one of the exceptions to arbitration in the Agreement is against public policy because it shifts attorney's fees in a manner contrary to FDUTPA, but she does not explain how having an arbitrator decide if this exception violates FDUTPA, as opposed to a court doing so, is unconscionable or against public policy. Id. Nor does she claim that FDUTPA prohibits the enforcement of the delegation clause. Attix, 35 F.4th at 1306 (“The parties' delegation agreement says that an arbitrator should decide questions of arbitrability, and [plaintiff] cites no law that would prohibit an arbitrator from doing so.”). Ms. Ellis was required to specifically and substantively target the delegation clause, and her arguments missed the mark.

This result comes as little surprise given that it is usually difficult for a delegation clause to be defeated by a contractual defense. See Rent-A-Center, 561 U.S. at 74, 130 S.Ct. 2772 (stating that substantive unconscionability arguments targeting the delegation agreement's unenforceability would be “a much more difficult argument to sustain” as opposed to an argument that the procedure makes arbitration of a fact bound claim unconscionable); but see Parm v. Nat'l Bank of Cal., N.A., 835 F.3d 1331 (11th Cir. 2016) (concluding that plaintiff specifically challenged the delegation clause by alleging that the arbitral forum did not exist). But a plaintiff cannot rest on characterizing unrelated provisions in the larger arbitration agreement as “common procedures” and allege that these procedures somehow apply to the delegation clause without explaining how such those procedures make the arbitrator deciding whether the arbitration agreement is valid or enforceable somehow unconscionable or against public policy.⁸

This is not to suggest that Ms. Ellis's defenses aimed at the arbitration agreement do or do not have merit. That is not something for this Court to decide. The parties have agreed for the arbitrator to determine whether the arbitration agreement is valid and enforceable. Accordingly, Ms. Ellis must bring her challenges regarding the arbitration agreement to the arbitrator. In re Checking Acct. Overdraft Litig., 856 F. App'x at 245 (11th Cir. 2021).

III. Conclusion

For the foregoing reasons,

IT IS ORDERED:

1. Cox's Motion to Compel Arbitration and Stay the Proceedings, ECF No. 16, is GRANTED.

2. This matter is STAYED pending resolution of the dispute by arbitration.

3. The parties shall file a Status Report with this Court within 14 days after the arbitration is resolved.

4. The Clerk shall administratively close the file and shall reopen the file upon the parties filing a Status Report stating that the arbitration has concluded.

SO ORDERED on March 18, 2025.

FOOTNOTES

1.   9 U.S.C. §§ 1–16.

2.   Because Ms. Ellis does not argue that her claims are outside the scope of the arbitration agreement, this Court only considers whether Cox has waived its right to arbitration and whether a valid arbitration agreement exists between the parties.

3.   Relatedly, Ms. Ellis also argues that this Court should disregard the Supplemental Declaration of Matthew Beigel, ECF No. 22-1, because he contradicted himself regarding Ms. Ellis's customer status. ECF No. 23 at 3; compare ECF No. 22-1 ¶ 11 (stating Ms. Ellis is a current customer of Cox) with ECF No. 17-1 ¶ 11 (stating that Ms. Ellis ceased being a customer of Cox in 2019).

4.   Ms. Ellis cites Fed. R. Civ. P. 12(g)(2) and (h)(2) to argue that Cox has waived its defense of improper venue regarding the 2022 RSCA by failing to assert it in original motion to compel, because the defense “was available to [Cox] but omitted from its earlier motion.” ECF No. 23 at 4–5. However, a motion to compel arbitration is considered a challenge to the court's subject-matter jurisdiction. See McGhee, 2023 WL 10876870, at *2. Challenges to a court's subject-matter jurisdiction are excepted from Fed. R. Civ. P. 12(g)(2). and subject-matter jurisdiction may be considered by a court at any time. See Fed. R. Civ. P. 12(g)(2) (waiver of defenses only applies to the defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process); Fed R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”). Setting aside this argument, even if Cox was prohibited from asserting a “entirely new motion” challenging subject matter jurisdiction through its reply, this Court would consider Cox's arguments now to promote judicial economy rather than requiring Cox to file a new motion based on the 2022 RSCA.

5.   Leghorn v. Wieland, 289 So. 2d 745, 747–48 (Fla. 2d DCA 1974) (interpreting “may” as used in an employment contract); Brooks v. Anastasia Mosquito Control Dist., 148 So. 2d 64, 66 (Fla. 1st DCA 1963) (interpreting “may” as used in Florida statute); but see Myles v. State, 602 So. 2d 1278 (Fla. 1992) (“[T]he word ‘may’ is not always permissive, but may be a word of mandate in an appropriate context.”).

6.   Ms. Ellis asserts that the arbitrator's claimed authority to decide all issues related to the validity of the Agreement is contradicted by a court's ability to find the mass action waiver in the Agreement unenforceable. ECF No. 17 at 14–16. However, Ms. Ellis ignores that a court would only be able to declare the mass action waiver unenforceable when a party first alleges breach of the Agreement and decides to bring their breach action to court. This is because Section 4(H) of the Agreement provides that a claim for breach of the Agreement is not required to go to arbitration. ECF No. 17-1 at 17; ECF No. 22-1 at 14. Section 4(C), containing the mass action waiver, and Section 4(I), containing remedies for breach of the Agreement, further acknowledge the possibility of the party's claim for breach either remaining in arbitration or going to court by stating that “a court or arbitrator” may decide certain issues when breach is alleged by either party. ECF No. 17-1 at 15, 17; ECF No. 22-1 at 12, 14. These exceptions regarding breach do not make the delegation clause ambiguous.

7.   See Basulto v. Hialeah Auto., 141 So. 3d 1145, 1158 (Fla. 2014) (discussing that unconscionability under Florida law); Anderson v. Taylor Morrison of Fla., Inc., 223 So. 3d 1088, 1091 (Fla. 2d DCA 2017) (“An arbitration agreement is unenforceable for public policy reasons when it defeats the remedial purpose of a statute or prohibits the plaintiff from obtaining meaningful relief under the statutory scheme.”); S.D.S. Autos, Inc. v. Chrzanowski, 976 So. 2d 600, 606 (Fla. 1st DCA 2007) (considering when an arbitration agreement may defeat the remedial purpose of FDUTPA or frustrate the intended relief under FDUTPA).

8.   While not bound by the decision of the United States District Court for the Southern District of California in Christianson v. Cox Commc'ns., Inc., No. 22-cv-1290-RSH-MSB, 2024 WL 7018044 (S.D. Cal. Jan. 3, 2024), this Court reached a similar conclusion regarding the existence and validity of the delegation clause in its an independent analysis of the 2022 Dispute Resolution Agreement.

Mark E. Walker, Chief United States District Judge