[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 20-10989 ________________________

D.C. Docket No. 0:19-cv-62408-AHS

PHILIPPE CALDERON, on behalf of themselves and all others similarly situated, ANCIZAR MARIN, on behalf of themselves and all others similarly situated,

Plaintiffs - Appellees,

versus SIXT RENT A CAR, LLC,

Defendant - Appellant, SIXT FRANCHISE USA, LLC,

Defendant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________ (July 14, 2021) USCA11 Case: 20-10989 Date Filed: 07/14/2021 Page: 2 of 37

Before JILL PRYOR, NEWSOM, and MARCUS, Circuit Judges. NEWSOM, Circuit Judge, delivered the opinion of the Court, in which MARCUS, Circuit Judge, joined, and JILL PRYOR, Circuit Judge, joined in Parts I and II. JILL PRYOR, Circuit Judge, filed a concurring opinion. NEWSOM, Circuit Judge, filed a concurring opinion. NEWSOM, Circuit Judge:

A customer making an airline, hotel, or car-rental reservation on Orbitz.com agrees to a contract that includes an arbitration provision. That provision requires the customer to arbitrate disputes related to, among other things, “any services or products provided.” In this case, we must decide whether that phrase refers to services and products provided (1) by Orbitz or (2) by anyone. Reading the “any services or products provided” clause in the light of neighboring provisions and the larger contractual context—and applying a dose of common sense—we conclude that it refers only to services and products provided by Orbitz. Because the underlying dispute in our case doesn’t relate to services or products provided by Orbitz, but only to those provided by Sixt Rent A Car, a company that does business through Orbitz, we will affirm the district court’s denial of Sixt’s motion to compel arbitration.

2 USCA11 Case: 20-10989 Date Filed: 07/14/2021 Page: 3 of 37

I

Ancizar Marin used Orbitz.com to book a rental car from Sixt. Toward the end of his reservation process with Orbitz, Marin clicked on a big “Reserve Now” button immediately below a statement that said, “By selecting to complete this booking I acknowledge that I have read and accept the . . . Terms of Use.” The words “Terms of Use” were accompanied by a hyperlink prompting Marin to read and accept them. Marin clicked “Reserve Now,” indicating that he agreed to Orbitz’s Terms of Use.

Orbitz’s Terms of Use, which describe themselves as “constitut[ing] the entire agreement between [the customer] and Orbitz,” contain a provision that mandates arbitration of certain disputes. This case turns on the meaning of that arbitration provision—and in particular its use of the word “Claims.” The arbitration provision says that—

Any and all Claims will be resolved by binding arbitration, rather than in court . . . . This includes any Claims you assert against us, our subsidiaries, travel suppliers or any companies offering products or services through us, including Suppliers, (which are the beneficiaries of this arbitration agreement). The arbitration provision thus applies only to capital-C “Claims,” which, importantly, the Terms of Use define as follows:

[A]ny disputes or claims relating in any way to [1] the Services, [2] any deal