DraftKings' Motion To Compel Arbitration

Case 1:15-cv-20353-DPG Document 15 Entered on FLSD Docket 06/02/2015 Page 1 of 19
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
MIAMI DIVISION
CASE NO. 15-CV-20353.DPG
JOSE AGUIRRE,
Plaintiff,
VS.
DRAFTKINGS,INC.
Defendant.
DEFENDANT'S MOTION Ai\D MEMORANDUM OF LAW IN SUPPORT OF MOTION

TO COMPEL ARBITRATION AND DISMISS PROCEEDINGS
TABLE OF CONTENTS
Page
I.
il.
INTRODUCTION AND SUMMARY OF ARGUMENT
A.
B.
III.
..,.2
FACTUAL BACKGROUND
Plaintiff s Use Of The DraftKings Website And Agreement To The Terms Of
Use, Including Its Arbitration Provision..
Disregarding His Agreement To Arbitrate, Plaintiff Improperly Pursued His

Dispute In This Court Eight Days After He Created His DraftKings 4ccount............3
ARGUMENT.
A.
Plaintiff Must Arbitrate His Claims Against DraftKings On An Individual

4
Basis
1.
The Written Arbitration Provision Is Valid....
All Of Plaintiff s Claims Fall Within The
Scope Of The Arbitration
,...,.7
Provision
3.
B.
C.
D.
IV.
DraftKings Has Not Waived Its Right To Arbitrate.....................
Plaintiff Cannot Avoid His Agreement To Arbitrate...
................ 8
................ 9
Unconscionable...
1.
The Arbitration Provision Is Not
The Requirement To Proceed On An Individual Basis In Arbitration Is

Enforceable ...............
The Court Should Dismiss The Complaint As
........9
11
All Claims Are Subject To
Arbitration
t2
DraftKings Should Be Awarded Its Attomeys' Fees And Expenses Incurred In

Enforcing Arbitration
t3
CONCLUSION....
14
TABLE OF AUTHORITIES
Paee(s)
Cases
Am. Express v. Italian Colors Restaurant,

133 S. Ct.2304 (2013).......
...11
Cruz v. Cingular Wireless, LLC,

648 F.3d 1205 (l1th Cir. 2011)
l,12
Curbelo v. Autonation Benefits Co.,

No. 14-62736,2015 V/L 667655 (S.D. Fla. Feb. 17, 2015).
Dean \ltter Reynolds, Inc. v. Byrd,

470 U.S. 213 (198s)
4,9,10,
12
Fteja v. Facebook, Inc.,

841 F. Supp.2d829 (S.D.N.Y.2012)
6,7,11
Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs.,

553 F.3d l3sl (11th Cir. 2008)
Ibrahim v. Morton's Restaurant Grp, Inc.,

No. 04-20554,2005 WL 6068544 (S.D. Fla. Mar. 16,2005).....
IT Strateges Grp, Inc. v. Allday Consultng Grp, LLC,
975 F. Supp. 2d 1267 (S.D. Fla. 2013)
Kozmav. Hunter Scott Fin., LLC,
No.09-80502-CIY,2010 WL 724498 (S.D. Fla. Feb.25,2010)
.,.2,14
l3
Lambert v. Austin Ind.,

s44F.3d rt92 (r1th Cir. 2008) ...
LexisNexis Risk Solutions FL, Inc. v. Spegel,

No. 14-80666,2014 WL 3361910 (S.D. Fla. July 9,2014)..,..
Maldonado v. Mqttress Firm, Inc.,

No. 13-292-T,2073 WL 1760272 (M.D. Fla. April 24,2013)..
Manard v. Knology, Inc.,

No.4:10-15-CDL,2010 WL 2528320 (M.D.Ga. June 18,2010).
Moses
H. Cone Mem'l Hosp. v. Mercury Const. Corp.,
460 U.S.
(1983)....
11
Pendergast v. Sprnt Nextel Corp.,

691 F.3d 1224 (11th Cir. 2012)
.10
Perera v. H&R Block Eastern Enter., Inc.,

9r4 F . Supp. 2d 1284 (S.D. Fla. 2012) ..
....5,7,13
Shearson/Am. Express, Inc. v. McMahon,

482 U.S. 220 (1987)
Stolt-Nielsen v. Animalfeeds Int'l Corp.,

130 S. Ct. 1758 (2010).......
t2
Swift v. Zynga Game Netuvork, Inc.,

805 F. Supp. 2d904,912 (N.D. Cal. 2011).
.6,
11
Unted States v. Faris,

583 F.3d 7s6 (tlth Cir. 2009)
Vernon v. Qwest Commc'ns Intern., Inc.,

857 F. Supp. 2d 1135 (D. Colo. 2012).
Statutes
9 U.S.C. $ 1...
e
u.s.c.
J
5
$2
lll
MOTION AND MEMORANDUM OF LAW

Defendant DraftKings, Inc. ("DraftKings") respectfully petitions this Court, pursuant to
the Federal Arbitration Act ("FAA") (9 U.S.C. $
l,
et seq.), for an order compelling individual
arbitration of each of the claims raised by Plaintiff Jose Aguirre ("Plaintiff') in accordance with
the terms of the parties' binding arbitration agreement.
I.
INTRODUCTION AND SUMMARY OF ARGUMENT
This matter belongs in front of an arbitrator, not a court, because the parties agreed to
arbitrate any disputes arising out of their relationship. DraftKings provides customers, such as
Plaintift with
an opportunity to enter online fantasy sports contests by registering to use
DraftKings' web-based service. As part of the login and registration process, Plaintiff agreed to
DraftKings' Terms of Use, through which the parties agreed thatooany and all dsputes" between
them would be referred to binding, non-class arbitration before the American Arbitration
Association
("AAA"). (Dent Decl. Ex. A (Terms of Use) at 4.) DraftKings
requested Plaintiff to
voluntarily dismiss this lawsuit and pursue arbitration in accordance with the Terms of Use, but
he refused this request. Accordingly, DraftKings is petitioning this Court to compel Plaintiff to
arbitrate this dispute as the parties agreed.

There is a strong policy in favor of enforcing arbitration agreements; indeed, the Supreme
Court has ordered courts to "rigorously enforce agreements to arbitrate." Sltearson/Am. Express,
Inc. v. McMahon,482 U.S. 220,226 (1987); see also Cruzv. Cingular Wireless, LLC,648F.3d
1205,1210
(llth
Cir. 2011) (the Federal Arbitration Act
oomakes
written agreements to arbitrate
valid, irrevocable, and enforceable"). This policy is so strong that in certain circumstances the
courts of this district have ordered a party who disregards a binding arbitration provision-as
Plaintiff has done here-to pay the attomeys' fees and expenses associated with bringing
petition to compel. See lbrahim v. Morton's Restaurant Grp,.[zc., No. 04-20554,2005 WL
6068544, at *2 (S.D. Fla. Mar. 16, 2005). Here, the parties' agreement expressly provides that a
party who fails to abide by the arbitration provision must pay "all attomeys' fees and expenses
reasonably incurred in enforcing this Agreement to arbitrate and the Forum to which the parties
have herein agreed," making such an award proper. (Dent Decl. Ex.
A (Terms of Use) at 5.)
Because Plaintiff has failed to abide by the clear arbitration provision, requiring both the Court
and DraftKings to needlessly expend resources, this Court should grant this petition, dismiss
Plaintiff
lawsuit, and require Plaintiff to reimburse DraftKings for the attomeys' fees and
expenses incurred to bring this petition.
il.
A.
FACTUAL BACKGROUND
Plaintiffls Use Of The DraftKings Website And Agreement To The Terms Of Use,
Including lts Arbitration Provision
Plaintiffls lawsuit centers around his use of DraftKings' online fantasy sports website,
through which Plaintiff alleges he made an initial deposit of $25 to participate in online fantasy
sports contests. (Compl.
1J
31-32.) To use the DraftKings website and make this deposit,
Plaintiff was first required to review and accept the Terms of Use that govern the website and the
parties' relationship. The Terms of Use to which Plaintiff agreed contained an arbitration
provision, under which both DraftKings and Plaintiff agreed that any and all disputes between
them would be resolved in small claims court or binding, non-class arbitration, and that any party
failing to abide by the arbitration provision would bear the costs and attorneys' fees incurred to
compel compliance with the arbitration agreement:
Any and all disputes, claims or controversies arising out of or relating to this
Agreement, the breach thereof, or any use of the Website (including all
commercial transactions conducted through the Website) ("Claims"), except for
claims filed in a small claims court that proceed on an individual (non-class, nonrepresentative) basis, shall be settled by binding arbitration before a single
arbitrator appointed by the American Arbitration Association ("AAA") in
accordance with its then governing rules and procedures[.]
**{<
This arbitration undertaking is made pursuant to and in connection with a

transaction involving interstate commerce, and shall be governed by and
construed and interpreted in accordance with the Federal Arbitration Act at 9
U.S.C. Section 1, et seq. This arbitration provision shall survive termination of
this Agreement[.] ... Any and all claims shall be arbitrated on an individual basis
only, and shall not be consolidated or joined with or in any arbitration or other
proceeding involving a Claim of any other party. You and DraftKings agree that
the arbitrator shall have no authority to arbitrate any Claim as a class action or in
any other form other than on an individual basis.
In the event that either party initiates a proceeding involving any Claim other than
an arbitration in accordance with this Section, or initiates a proceeding involving
a Claim under this Section other than in the Forum, the other party shall recover
all attorneys' fees and expenses reasonably incurred in enforcing this Agreement
to arbitrate and the Forum to which the parties have herein agreed.
(Dent Decl., Ex. A (Terms of Use) at 4-5.) Plaintiff successfully registered an account with
DraftKings on January 21,2015. Qd.,Ex.B.)

B.
Disregarding His Agreement To Arbitrate, Plaintiff Improperly Pursued His

Dispute In This Court Eight Days After He Created His DraftKings Account
Contrary to his agreement to the DraftKings' Terms of Use and its arbitration provision,
Plaintiff filed this putative class action on January 29,2015, asserting the following class claims:
(1) violation of the Florida Deceptive and Unfair Trade Practices Act ("FDUTPA") based on an
alleged violation of the Florida Free Gift Advertising Law; (2) violation of the FDUTPA based
on unfair and deceptive practices; and (3) fraud in the inducement. (Compl.
61.) More specifically, Plaintiff challenges DraftKings' offers to double
flf45-46,52-53,59-
a customer's
first
deposit, up to $600, alleging that the offer is deceptive and unfair because it is subject to certain
terms and conditions.'
DraftKings vigorously disputes Plaintiffs' allegations. DraftKings plainly describes the

terms of its double deposit offering on its website. DraftKings will not burden the Court here
with a description of the fatal flaws with Plaintif' allegations and claims because the point
of this motion is that this dispute should be decided by an arbitrator as the parties agreed.
After filing his Complaint, Plaintiff sent DraftKings
a request to
waive service of process.
DraftKings responded by informing Plaintiff s counsel that rather than proceed in court, the
dispute must be arbitrated in accordance with the Terms of Use. (Blanson Decl., Ex. B.)
Plaintift however, refused DraftKings'
request to arbitrate, and proceeded to reiterate his request
that DraftKings waive service of process. (Blanson Decl., Ex. C.) Because of Plaintiff
insistence on improperly proceeding in this forum notwithstanding the parties' agreement to

arbitrate, DraftKings is now required to petition this Court to compel arbitration.
ilI.
A.
ARGUMENT
Plaintiff Must Arbitrate His Claims Against DraftKings On An Individual Basis

Under both federal and Florida law, courts have considered three factors in determining
whether aparty is compelled to arbitrate: (1) the existence of
valid written agreement
containing an arbitration clause between the parties; (2) the presence of an arbitrable issue; and
(3) the conduct of the party seeking to enforce arbitration does not indicate a waiver of its
arbitration right. Curbelo v. Autonation Benefits Co., No. 14-62736,2015 WL 667655, at*2
(S.D. Fla. F eb. 17, 2015).
If all three factors
are
met-as is the case here-then
oothe
Court is required to issue an
order compelling arbitration." Id. (citing Hemispherx Biopharma, Inc. v. Johannesburg Consol.
Invs.,553 F.3d 1351,1366 (1lth Cir. 2008) ("The role of the courts is to rigorously enforce
agteements to arbitrate.
")).
Under the FAA2, there is a strong federal policy favoring arbitration, as arbitration
provisions are "valid, irrevocable, and enforceable, save upon such grounds as exist at law or in
2 The Federal Arbitration Act ("FAA") governs arbitration
agreements, like the one at issue

here, affecting interstate commerce. 9 U.S.C. $ 2, et seq. Here, the Terms of Use to which
the parties agreed affect interstate commerce because the agreement governs an interstate
(Cont'd on next page)
equity for the revocation of any contract." 9 U.S.C. $ 2. Accordingly, the Supreme Court has
"repeatedly described the [FAA] as embodying a national policy favoring arbitration and a
liberal federal policy favoring arbitration agreementsl.l" AT&T Mobility LLC v. Concepcion,
o'In
line
131 S. Ct.1740,1749 (2011) (internal citation omitted).
with fthe principles of the
FAA], courts must place arbitration agreements on equal footing with other contracts and enforce
them according to their terms
." Id. at 1745 (internal citations omitted).
As a result, o'absent a
ground for revocation of the contractual agreement," the FAA "leaves no place for the exercise
of discretion by a district court, [and] 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
Wtter Reynolds, Inc. v. Byrd,470 U.S. 213,2I8 (1985).
1.
The Written Arbitration Provision Is Valid
Plaintiff and DraftKings agreed to a valid written arbitration provision in the Terms of
Use. For
ooenforceable
under ordinary
written arbitration agreement to be valid, it must be
state-law contract principles." Perera v. H&R Block Eastern Enter., Inc.,9l4 F. Supp. 2d 1284,
1237 (S.D. FLa.2012) (citing Lambert v. Austn nd.,544 F.3d 1192,1195 (1lth Cir. 2008)).
Under Florida law, a valid contract requires (1) an offer, (2) an acceptance, and (3)
consideration. Maldonado v. Mattress Firm,Inc., No. 13-292-T,2013 WL 1760272, at *2 (M.D.
Fla. April 24,2013). When he voluntarily clicked the box
"I
agree to the Terms of Use and the
(Cont'd from previous page)

transaction between Plaintiff and Defendant made over the Internet. It is well-settled that the
Internet is an "instrumentality of interstate commerce," United States v. Faris,583 F.3d 756,
759 (llth Cir. 2009) (internal quotations omitted), and that the FAA therefore applies to
agreements made over the Internet, such as the one between Plaintiff and DraftKings.
Manard v. Knology,1nc., No. 4:10-15-CDL, 2010 WL 2528320, at *3 (M.D' Ga. June 18,
2010). All of these connections are sufficient to establish that the Terms of Use at issue here
evidence transactions involving interstate commerce, such that the FAA then applies in this
case.
Privacy Policy" at registration on January 27,2015, Plaintiff plainly consented to the goveming
Terms of Use and is now bound by its terms.
To use the DraftKings website, the user must agree to the Terms of Use, including its
arbitration provision. DraftKings' Terms of Use constitute an offer which Plaintiff accepted, and
Plaintiff cannot now avoid his obligations under these binding terms by arguing that his assent
was insufficient. The Terms of Use were presented to him online. While Plaintiff may argue
that he did not read the terms, "[w]hether or not the consumer bothers to look fat the terms of the
agreementl is irrelevant
)'
Fteja v. Facebook, (nc.,841 F. Supp. 2d 829,839 (S.D.N .Y . 2012)
(holding that plaintiff assented to Facebook's Terms of Use that were accessible via hyperlink).
Moreover, online agreements like the one Plaintiff entered with DraftKings (sometimes
o'modified clickwrap agreements"3) are valid and fully enforceable as a matter
referred to as
of
law because clicking an "I accept" button, as Plaintiff did here, manifests assent sufficient to
bind parties to the agreement. IT Strateges Grp, Inc. v. Allday Consulting Grp, LLC,97 5 F .
Supp. 2d 1267,1283 (S.D. Fla. 2013) (noting that an agreement containing a hyperlink to the
online user agreement provided suffrcient notice of the terms being agreed to); Swift v. Zynga
Game Nenuork,
lnc.,805 F. Supp. 2d904,912 (N.D. Cal.2011) (enforcing arbitration provision
"in light of recent caselaw holding that clickwrap presentations providing a user with
access to
the terms of service and requiring a user to affirmatively accept the terms, even if the terms are
not presented on the same page as the acceptance button, are sufficient."); Fteja,841 F. Supp. 2d
3 Courts have categonzed these situations "in which the customer must take affirmative
action-pressing a 'click' button" and the terms being accepted via mouse click "are
available with the use of h1.perlink," as modified clickwrap agreements. Vernon v. Qwest
Commc'ns Intern., lnc.,857 F. Supp. 2d 1135,1149-50 (D. Colo. 2012); S.rft,805 F. Supp.
2d at 910 (categorizing a situation "where the terms of service are not visible on the page but
instead are linked by the blue hyperlink within a smaller grey font following the 'Allow'
button" as a modified clickwrap agreement).
at 839 ("[F]or those to whom the intemet is an indispensable part of daily life, clicking the
hyperlinked phrase [to the Terms of Use] is the twenty-first century equivalent of turning over
the cruise ticket" to review the governing terms).
Here, Plaintiff was provided with an opportunity to review the governing Terms of Use in
the form of a hyperlink included in the
(Dent Decl.
J[fl
"I
agree to the Terms of Use and Privacy Policy''button.
4-5.) And because Plaintiff completed registration of his DraftKings account, he
affirmatively assented to be bound by the Terms of Use and its arbitration provision by clicking
the
"I
agree to the Terms of Use and the Privacy Policy" button; a customer simply cannot
deposit funds or use the website untilhe first has agreed to the Terms of Use. (Id.
atl5.)
Moreover, DraftKings afforded Plaintiff ample opportunity to first review the governing
Terms of Use before placing his initial $25 deposit. In addition to the hyperlink that DraftKings
presented to
Plaintift the Terms of Use are available on DraftKings' website
at all times and no
account, log-on, or money deposits are required to review them. Plaintiff (and any potential
user, for that matter) is free to review the current Terms of Use at any time. (Id.
these circumstances,
atnz.) Under
Plaintiff cannot argue he was unaware that his relationship with DraftKings
was governed by the Terms of Use and its arbitration provision, that he did not accept its terms,
or that he is not bound by them. Accordingly, under the Terms of Use, Plaintiff was required to
either bring his claims on an individual basis in small claims court or be submitted to a binding,
non-class arbitration. (Dent Decl., Ex. A (Terms of Use) at 4-5.)
2.
AII Of Plaintiff s Claims Fall \ilithin The Scope Of The Arbitration Provision
Each of Plaintiffls claims is an arbitrable issue under the Terms of Use and therefore
must be submitted to binding, non-class arbitration. The scope of the arbitration provision is a
matter of contract interpretation and is thus governed by the language in the arbitration
agreement. Perera,9l4 F. Srpp. 2d at 1287-88. When interpreting the agreement, "any doubts
concerning the scope of arbitrable issues should be resolved in favor of arbitration whether the
problem at hand is the construction of the contract language itself or an allegation of waiver,
delay, or a [] defense to arbitrability." LexisNexis Rsk Solutions FL, Inc. v. Spiegel, No. 1480666, 2014WL 3361910, at *2 (S.D. Fla. July 9,2014) (citing Moses H. Cone Mem'l Hosp. v.
Mercury Const. Corp.,460 U.S. 1,24-25 (1983)).

Al1 of Plaintiff s claims (i.e., his FDUTPA claims and fraud in the inducement claim) fall
squarely within the scope of DraftKings' Terms of Use. Plaintifls claims constitute a "disputef]
. . . arising out of or relating to this Agreement, the breach thereof, or any use of the Website
(including all commercial transactions conducted through the Website)[.]" Plaintiff made his
initial deposit of $25 through the DraftKings Website (Compl. 1[31), used that $25 deposit to pay
entry fees to enter multiple DraftKings fantasy contests through the V/ebsite (id.ll32), and
asserts that he was not able to
withdraw all of the matching deposit that was credited to his
account unless he entered more fantasy sports contests on the Website
(id.nn3l,32).
Accordingly, all his claims arise out of his use of the Website, and his agreement with
DraftKings regarding the deposit promotion. The claims must, therefore, be submitted to
binding, non-class arbitration.
3.
DraftKings Has Not Waived Its Right To Arbitrate
DraftKings has sought to enforce the arbitration provision at every step of the way, and it
has not waived the right to arbitrate. Even before
demanded that
Plaintiff dismiss his Complaint
(Blanson Decl., Ex.
B.) Plaintiff still
it was served in this case, DraftKings
and pursue the dispute,
if
at all, in arbitration.
refused to submit his claim to arbitration in accordance
with the Terms of Use (id.,Ex. C.), and Defendants promptlypetitioned the Court to compel
arbitration. Aside from the ministerial acts of entering an appearance, and filing pro hac vice
applications, the only action DraftKings has taken before the Court is filing the instant petition to
compel arbitration.
B.
Plaintiff Cannot Avoid His Agreement To Arbitrate

Here, Plaintiff cannot set forth any valid ground upon which the arbitration agreement
can be revoked, and the Court should enforce the agreement. See Curbelo,20l5 \iVL 667655,
at *2 (enforcing arbitration agreement because plaintiff could not show the agreement was
invalid). Because Plaintiffs seeking to avoid their obligations to arbitrate often argue that the
provision is unconscionable or that it would be unfair to require non-class arbitration, DraftKings
will
discuss those issues
1.
below. Neither of them have anymerit.
The Arbitration Provision Is Not Unconscionable
Plaintiff cannot satisfy his burden to demonstrate that the arbitration agreement is invalid
or the issue otherwise non-arbitrable; under Florida lawa, aparty seeking to invalidate an
a Florida
courts typically apply the choice-olaw provision in binding contractual agreements

to the unconscionability analysis. See, e.g., In re Taylor,260 B.R. 548, 558 (M.D. Fla. 2000)
("[I]n accordance with Florida's public policy favoring freedom of contract, the Court will
determine the validity of the arbitration clause under the law that the parties agreed would
govem any dispute under the contract . . . ."); Bhimv. Rent-A-Center, lnc.,655 F. Supp. 2d
1307,131 I (S.D. Fla. 2009) (applying Florida law to the unconscionability analysis when the
binding agreement at issue did not contain "a contrary choice-of-law provision"). Here, the
Terms of Use to which Plaintiff agreed included a choice-of-law provision selecting
Massachusetts law. (Dent Decl., Ex. A (Terms of Use) at 5 ("These Terms of Use shall be
governed by the internal substantive laws of the Commonwealth of Massachusetts, without
respect to its conflict of laws principles.").) Accordingly, Massachusetts law governs the
unconscionability analysis; however, because the laws of the two states do not differ in
material part, the result is the same regardless of whether Massachusetts or Florida law is
applied. See, e.g., Grand Vlireless, Inc. v. Verizon Wireless, lnc.,748 F.3d 1,6 (1st Cir.
2014) (Massachusetts courts require that the defendants "must demonstrate that a valid
agreement to arbitrate exists, that they are entitled to invoke the arbitration clause, that the
other party is bound by that clause, and that the claim asserted comes within the clause's
scope."); see also In re DiMare, 462 B.R. 283, 307 (Bankr. D. Mass. 20ll) ("[T]he test for
unconscionability [of an arbitration provision under Massachusetts law] is a conjunctive one
and the plaintiff must prove both procedural and substantive unconscionability to prevail.").
otherwise valid arbitration provision must demonstrate that the provision is both "procedurally
and substantively unconscionable." Id.; Pendergast v. Sprint Nextel Corp.,691 F.3d 1224,1229
(1lth Cir. 2012). Neither of
these conditions is present here.
"substantive unconscionability requires a showing that the terms of the arbitration

agteement are uffeasonable and unfair, and focuses on whether the arbitration provision is so
outrageously unfair as to shock the judicial conscience
." Curbelo,2015
WL 667655, at *3
(quotations and citations omitted). Plaintiff cannot demonstrate that DraftKings' arbitration
provision contains any terms that are unreasonable and unfair, never mind "so outrageously
unfair as to shock the judicial conscience."
Id.
Here, the provisions are mutual, reciprocal, and
provide for arbitration before arecognized and respected organization that has developed a
comprehensive set of rules to govern arbitrations and ensure fairness to all parties involved-the
AAA.
The arbitration provision further incorporates the Supplementary Procedures for
Consumer-Related Disputes, which provides that DraftKings will pay for the arbitrator's
compensation. (See Blanson Decl., Ex. D, at 33.) There simply is no basis for any argument of
unreasonableness or unfairness in these arbitration provisions.
Nor can Plaintiff demonstrate procedural unconscionability, which is required to

invalidate an otherwise valid arbitration provision. Procedural unconscionability focuses on "(1)
the manner in which the contract was entered into; (2) whether the complaining party had a
meaningful choice at the time the contract was entered into; [and] (3) whether he or she had a
reasonable opportunity to understand the terms of the contract." Curbelo,2015
WL
667655, at
x3 (quotations and citations omitted). Plaintiff voluntarily agreed to the DraftKings' Terms
of
Use when he completed registration for a DraftKings account, deposited money through the
website, and participated in multiple fantasy contests. The Terms of Use are freely available on
10
DraftKings' website, and are hyperlinked to the button users must click to demonstrate assent to
DraftKings' Terms of Use and Privacy Policy at registration. (Dent Decl. flfl 2,4-5.) There is
nothing unconscionable about that procedure, and the courts have consistently upheld Terms of
Use agreements similar to the one that Plaintiff entered into with DraftKings. See, e.g., Fteja,
841 F. Supp. 2d at840-41 (holding that hyperlinked Terms of Use was valid when
plaintiff was
"informed of the consequences of his assenting click and he was shown [via hyperlink] where to
click to understand those consequences") (collecting cases); Swift,805 F. Supp. 2 at9l2
(holding that an arbitration provision was binding "fb]ecause Plaintiff was provided with an
opportunity to review the terms of service in the form of a hyperlink immediately under the
'I
accept' button and she admittedly clicked 'Accept"').

2.
The Requirement To Proceed On An Individual Basis In Arbitration Is

Enforceable
To the extent Plaintiff contends that the requirement he pursue his claims individually in
a
binding, non-class arbitration renders the agreement unenforceable, the Supreme Court has
already rejected that argument.s The Supreme Court has repeatedly held that parties may waive
their right to pursue collective action. And when they do so, agreeing to proceed in
bilateral
arbitration where each party is proceeding on an individual basis, that agreement will be
enforced. Am. Expressv. Italian Colors Restaurant, 133 S. Ct.2304,2309 (2013) ("[C]ourts
must 'rigorously enforce' arbitration agreements according to their terms, including terms that
specify with whom [the parties] choose to arbitrate their disputes, and the rules under which that
The relevant section of the Terms of Use provides:
"Any and all claims shall be arbitrated on an individual basis only, and shall not be
consolidated or joined with or in any arbitration or other proceedings involving a Claim of
any other party. You and DraftKings agree that the arbitrator shall have no authority to
arbitrate any Claim as a class action or in any other form other than on an individual basis."
(Dent Decl., Ex. A (Terms of Use) at 4.)
l1
arbitration will be conducted.") (intemal quotations and citations omitted); cf, Stolt-Nielsen
Animalfeeds
Int'l Corp.,
130 S. Ct. 1758,
l7l5
v.
(2010) ("[A] party may not be compelled under
the FAA to submit to class arbitration unless there is a contractual basis for concluding that the
party agreed to do so."); Concepcion, 131 S. Ct. at 1751 (holding that a "switch from bilateral to
class arbitration" without explicit consent is fundamentally inconsistent with the
FAA's
substantive provisions).
Moreover, Plaintiff cannot attempt to use any state-law doctrines or notions

oounconscionability''to
a class action
of
circumvent the decisions of the Supreme Court recognizing the validity
waiver. Indeed, "[r]egardless of whether
of
a class action waiver may be
substantively unconscionable under Florida law, in light of the Supreme Court's holding in
lConcepcion],that state rule would be inconsistent with and, thus, preempted by the FAA."
Curbelo,20l5 V/L 667655, at *4; Pendergast, 691 F .3d at 1235. Moreover, like the plaintiffs in
Concepcion and Cruz, Plaintiff here "do[es] not allege any defects in the formation of the
contract, aside from its generally adhesive nature, which alone is insufficient to invalidate a
consumer contract." Cruz,648 F.3d at 1215 (citing Concepcon, 131 S. Ct. at 1750).
Consequently, any assertion Plaintiff may make regarding the "unconscionability" of the class
action waiver he assented to would impermissibly conflict with Concepcion The presence of a
class action waiver does not impact the validity of the arbitration agreement, and Plaintiff must
pursue his claims,
if
at all, in a binding, non-class arbitration.
The Court Should Dismiss The Complaint As All Claims Are Subject To
Arbitration
Plaintiff has brought no claim that is not subject to arbitration. When every claim raised
in
complaint is subject to arbitration, courts will couple their grant of
petition to compel with
an order dismissing the complaint, as no claims are pending before the court. Perera,
12
gl4
F.
Srpp. 2d at 1289-90
("4
case in
which arbitration has been compelled may be dismissed in the
proper circumstances, such as when a// issues raised in . . . court must be submitted to
arbitration. [] The weight of authority clearly supports dismissal of the case when qll of the
issues raised in the district court must be submitted to arbitration."); Kozma v. Hunter Scott Fin.,
IZC
No. 09-80502-KAM,20l0 WL724498, at*2 (S.D. Fla. Feb. 25,2010) (noting that the
11th Circuit has "frequently affirmed where the district court compelled arbitration and
dismissed the underlying case"); Sierra v. Cruise Ships Catering & Servs.
Int'l,No. 13-62827-
DPG, ECF. No. 13, at 2 (S.D. Fla. Oct. 15,2014) (dismissing all counts of plaintiff s complaint
after granting defendant's motion to compel arbitration).6
Accordingly, DraftKings respectfully requests that the Court both grant its petition to
compel arbitration and dismiss the Complaint in its entirety.
D.
DraftKings Should Be Awarded Its Attorneys' Fees And Expenses Incurred In

Enforcing Arbitration
Despite DraftKings' attempts to obtain PlaintifPs voluntary consent to submit this matter
to arbitration, Plaintiff has proceeded on a path of litigation just eight days after he first created a
DraftKings account that has since required DraftKings (and this Court) to needlessly expend
time and money to ensure compliance with a clear and unambiguous arbitration provision.
6 A majority of courts have held that dismissal is appropriate in circumstances like

Green v. SuperShuttle Intern., lnc.,653 F.3d 766,770 (8th Cir. 20lI) (Shephard,
these.
J.,
concurring) (noting that the majority of the federal circuits have held dismissal appropriate
when all claims are arbitrable); Choice Hotels Int'1, Inc. v. BSR Tropcana Resort, lnc.,252
F .3d 701 ,709-10 (4th Cir. 2001) ("dismissal is a proper remedy when all of the issues
presented in a lawsuit are arbitrable"); Alrd v. Dean Witter Reynolds, Inc.,97 5 F .2d 1161,
1 164 (5th Cir. 1992) (same). Although the Eleventh Circuit has not addressed this issue
directly, courts in this District have favored dismissal when-as in the case here-all claims
are covered by a binding and valid arbitration agreement. See, e.g., Perera, 914 F. Supp. 2d
at 1290; Kozma,20l0 WL 124498, at *2; Olsher Metals Corp. v. Olsher, No. 0l-321z-AJ,
2003 WL 25600635, at *9 (S.D. Fla. Mar. 26,2003).
t3
Under both the Terms of Use and the governing law in this district, Plaintiff s conduct warrants
an award of the attorneys' fees and costs required to bring this petition.
The parties' agreement expressly provides that DraftKings is entitled to its fees and costs
for this motion to compel arbitration:

In the event that either party initiates a proceeding involving any Claim other than
arbitration in accordance with this Section, or initiates a proceeding involving a
Claim under this Section other than in the Forum, the other party shall recover all
attorneys' fees and expenses reasonably incurred in enforcing this Agreement to
arbitrate and the Forum to which the parties have herein agreed.
(Dent Decl., Ex. A (Terms of Use), at 5.) This Court has enforced similar provisions
when granting petitions to compel arbitration. See lbrahim,2005 WL 6068544, at*2
(citations omitted) (holding that defendants were entitled to reasonable attorneys' fees
because "the Arbitration Agreement was valid and Plaintiffs citefd] no legal reason why
clause four, awarding attorneys' fees in litigation to compel arbitration, should [have
been] severed"). In awarding fees, the Court would not only give life to the arbitration
provisions, but also the enforcement mechanisms that the parties agreed would be in
place
if
one of them did not abide by the agreement to arbitrate.
IV.
CONCLUSION
For all the foregoing reasons, DraftKings respectfully requests that the Court enter
an order compelling
Plaintiff to submit his claims to individual arbitration. In addition,
DraftKings respectfully requests the Court to dismiss all of PlaintifPs claims and award
DraftKings its attorneys' fees and expenses incurred in enforcing arbitration.
14
RESPECTFULLY SUBMITTED in Miarni, Florida, on June 2,2015

GIBSON, DLTNN & CRUTCHER LLP
Of C ouns el for DraftKings, Inc.
333 South Grand Avenue, Suite 5400,
Los Angeles, California, 9007i
Telephone: (213) 229 -7 000
Fax: (213) 229-6234
E-mail : tloose@ gibsondurur.com
E-mail: ifoselman(Asibsondunn.com
E-mail : aschwing@ gibsondurur. com
pro hac vice motion s rthcoming
RIVERO MESTRE LLP

Attorneys for DraftKings, Inc.
2525 Ponce de Leon Boulevard, Suite 1000
Miami, Florida 33134
Telephone: (305) 445-2500
Fax: (305) 445-2505
Email : j mestre@riveromestre.com
Email : kblanson@riveromestre.com
s/ Jorse A. Mestre
JORGE A. MESTRE
Florida Bar No. 088145
By:
Kadian Blanson
Florida Bar No. 0098880
CERTIFICATE OF SERVICE
I CERTIFY that on June 2,2015,I electronically filed this document with the Clerk of
the Court using CM/ECF. I also certify that this document is being served today on all counsel of
record either by transmission of Notices of Electronic Filing generated by CM/ECF or by U.S.
Mail.
s/ Jorse A. Mestre
Jorge A. Mestre
15
Case 1:15-cv-20353-DPG Document 15-1 Entered on FLSD Docket 06/02/2015 Page 1 of 58
2
J
4
5
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10
MIAMI DIVISION
11
CASE NO. 15.CV.20353.DPG
t2
13
JOSE AGUIRRE,
t4
Plaintiff,
15
vs.
16
77
DRAFTKINGS, INC.
Defendant.
18
l9
20
21
22
23
24
25
26
27
28
Gibson, Dunn &
Crutcher LLP
DECLARATION OF KADIAN BLANSON IN SUPPORT OF DEFENDANT'S

MOTION AND MEMORANDUM OF LAW IN SUPPORT OF MOTION TO COMPEL
ARBITRATION AND DISMISS PROCEEDINGS
DECLARATION OF KADIAN BLANSON
2
a
I, Kadian Blanson, declare as follows:
1.
I am an attorney admitted to practice law before
the United States District Court in the
of
Southern District of Florida. I am an attorney in the law firm of Rivero Mestre LLP, and I am one
the attorneys responsible for the representation of Defendant DraftKings, Inc. ("DraftKings") in the
above-referenced action. I submit this declaration in support of Defendant's Memorandum of Law in
Support of Petition to Compel Arbitration and Dismiss Proceedings. Unless otherwise stated, the
following facts are within my personal knowledge and, if called and sworn as a witness, I could and
would testifu competently to these facts.
10
1l
l2
2.
Attached as Exhibit A is a true and correct copy of correspondence dated February 23,
2015, which was sent from counsel for plaintiff Jose Aguirre to DraftKings.
3.
On March 23,2015, on behalf of DraftKings, ffiy law firm sent a responsive letter to
of
t3
counsel for plaintiff Aguirre, notifying counsel that, in accordance with the DraftKings' Terms
l4
Use, Mr. Aguirre is required to submit his dispute to binding, non-class arbitration before the
15
American Arbitration Association ("AAA") in Suffolk County, Massachusetts. The letter further
t6
informed plaintiff Aguirre (through his counsel) that should he nevertheless choose to proceed with
l7
the complaint in federal court, DraftKings would file a petition to compel arbitration and seek the
18
attorney's fees and expenses associated with doing so. A true and correct copy of my March 23,
t9
2015 letter is attached as Exhibit B.
20
4.
Attached as Exhibit C is a true and correct copy of plaintiff Aguine's counsel's April
2t
24,2015 response to my firm's letter of March23,2015, in which plaintiff s counsel refused to
22
submit this dispute to arbitration.
23
5.
Attached as Exhibit D is a true and correct copy of the American Arbitration
24
Association's Supplementary Procedures for Consumer-Related Disputes that was publicly available
25
on the American Arbitration Association ("AAA") website. I obtained these Supplementary
26
Procedures by downloading
it from the AAA website through the following link on June 2,2015.
2l
28
IdcService:GET FILE&dDocName:ADRSTAGE2 009997
ectionMethod:LatestReleased.
RevisionS
I declare under penalty of perjury under the laws of the United States and the State of Florida
el
that the foregoing is true and correct, and that I executed this Declaration in Miami, Florida.
DATED: June2,20l5
Kadian Blanson
10
11
l2
13
l4
15
l6
t7
18
r9
20
2l
22
23
24
25
26
2l
28
EXHIBIT A
sc-guuls,
Plaintiff, on lchalf of
Putativc Class,
15
-cv-20353-GaYles
/Turnoff
CL/\SS;\CT.ION
\rs
f)raftKings, Inc.,
l)efenclant'
NO'ITCI OF,A' LSSUI"T

i\ND IlliQUIS]".Io $7\IVF] SI]RVICLi Ol l\
To
the
SU,Ir\,{ONS
seruice;
offcer/s ancl agent,/s of DmftKings, Inc, authorized to rcceive
Wh), are you getting this?
hts een filecl against you' <-r dre entiry yott tcpr:cset' in this court undcr
the nun:ber shorvn ltove. A copy of the complaiflt is attachecl'
A
lrwsrit
is a feq"lcst tht, to
sumfnofs, of an official notice from tl"rc coLrft. It
signing ancl rcturning thc
avgid cxpenscs! you rvaivc formal service of a surnrnons lly
fetuflr the signecl rvaivcr within 30 days
cncl'secl rvaivet. 'I'o arroicl thescr exl:enses' yLl lnust
seflt. 'I'rvo coi:ic's of the rvaivcr
from the clatc shorv^ Selorv, which is thc ctaie this notice ws
prcpaid means for
fbn ate cnclosed, alorlg.rritl.l n stampecl, self-aclchcssccl cnvclOpc of othcr
returnin4 one copY' You may lieep the othct copy'
'l'ls is not
What haPpcns nsxt?
'l'he action rvill then

filccJ, hurt no summorls will be
procccci u, if ,u,.,., hacl bceri-sen ecl nr', ilr* clatc thc rvivcr is
rroticc is sctrt (sec thc clate bclorv)
scrccl on yo, ancl vou will have 60 clays from rhc clatc this
to yoLr ourtsidc arrv iudicial clistrict of
ro rlswe thc c.'rplairrt (clr:90 clays if this notice: is scnt
If y.u rcrlrn the signeci r.vaiver, I rvil flc it with thc cot-trr.
thc Unitccl Statcs).
to
you clo not rerurn the signecl rvliver within thc time indicatecl, I rvill ar:range
or
ask thc coutt to tequite you'
have the summons ancl complaint serveel on y6lr. \ncl I will
the entiry you fepfesent, ttl py the cxpenses of rnaking service.
lf
please reacl the enclcsccl sttement about thc c{uty t<t avoid uflneccsst:y expenscs'
I certify that this
fecluest is being sent to you on thc cite belorv.
l)ate: Ircbruary 23, 2015.

Submittecl by:
Law Offce of Mason Kerns

Consel fot Plaintiffs
3178 Ner.v York Sueet
lvliami, Florida 33133
305.725.8300
maso
n1
crn sl.arvG?,gmail. co rn
/./ lrLuon Kem

Mason l(errrs,'[isc'
Irla. Ilar No. 91754
M, l>a/
Par-rl, I1sq.
M.
Jcn:od
Fla. Bar. No.92953
/
Jp.rntd
199
0Ii0t)
Waivcl ot'tltc Sct'vicc olSunlrncrs
UNmen Srnrns Dlsrzucr CoURT

fbr thc
Southcm District of Florida

Class,
)
)
)
DraftKin
Civil Action No. 15-cv-20353-Gayles/Turnoff
DeJnchnr
WAIVER OF THE SERVICE OT'SUMMONS
: Mason Kerns and Jerrod Paul, attorneys for the Plaintiff

(N arn e o/ t he p
Io i n
i./f's
I ro
r n e, o t' il
ftp rett t I p
Iu in t i
l/)
I have received your reque$t to waive service of a sumnrons in this ctiol along with a copy of the complaint,
copics of this waiver foun, and a prcpaid means of retuming one signed copy of the tbrrn to you,
l, or the Entity I ropresent, agree to savc thc cxpcnse of serving a surnmons
ancl complaitrt in this case.
I unclerctancl tlrat I, or the entity I represent, will keep all dcfenses or objectiotts to the lawsuit, the court's
tion, ancl the venuc of the action, but that I waive arry objections to lhe absence of r sulnmons or of service.
understand that I, or thc cntity I repressnt, must file ancl serve an answcr or a motion under Rule 12 within
02/2at2015
the riatc when this request was sent (or 90 clays if it rvas sent outsicle the
States). lf I lail to clo so, a delhult.juclgmcnt will be cntered against me or the entity I reprcsent
als<
days fiom
Signulttre
o.f the
ullorney or unreprcsente.l purh,
Printed nane
Prlnted nanrc ol rort.y waivng service oJ'summons
ddrcss
E-nruil trh.lres.s
'['cletlnue nunhu
Dut"v lo void Unncccssrry Expenscs of'Serving
United Statcs rvill bc lcquilcd trr
ply the epelrscs ol'servioe,
Sunmou,
unless thc clcf'endant shorvs goo<l causc fbr ths luilurc.
juristliction ovcr this nrllter or ovol lhc ticf'cndnnt or thc dcl'cntlant's proporty.
tll' ol'ssrvicc.
399 (01/09) Waiyeroi'lhc Sclyics ufSurnrnns
UNrrsn Srarss Dlsrnlcr Counr

fbr the
Southern District of Floricla
rrre, 0n Behalf of a Pulative Class,
Plainti./J'
)
)
)
DraftKinqs, lnc,
Dq/endunr
Civit Action No. 1 5-cv-20353-Gayles/Turnoff
}VAIVIIR OF THE SERVICE OF SUMMONS

Mason Kerns and Jerrod Paul, attorneys for the Plaintiff
(Name o./ the pluinl('f's uttornev or unreqresenled pkrinli.fJ)
ivecl you'squcst to waive service of a sutnlnons in tiris action along with a copy of the complainl,
copies of this waiver fbrm, and a plepaid means of retuming one signed copy of tlrc fom to you.
I have
rece
I, or the entity I represcnt, agrce to save the expense of serving
sulnutots and conlplaint in this casc.
unclerstand that l, or the entity I represet, will keep all clcfenses or objections 1o the lawsuit, tlte court's
ancl lhe venus o f thc action, but that I waive any objections to the abscuce of a sutnmons or of service.
I also undet.5tand that l, or the entity I represerlt, must file and serve an answer or a motion under Rule l2 within
days fi'orn
Statcs).
*!w!?q._*-_,
the clate when this request was ssnt (or 90 clays if it was sent outside the
against me or the entity I represent.
lf I fail to do so, a clef'ault juclgment will be enterecl
Signolttrc ol the utlorney or unresre.tenled tut'ly
PrinlKl ndntc
nane of tarly v'ctiving sert,ice o,f'sutnmons
Addre,rs
Ii-nwil
'l't:
I ct ho n
uddrest
nt nt
r
Drrty to Avoid Unneccssary Exlcnscs of Scrving a Sunnlons
Unitd Srarcs rvill bc rcquired to pay thc oxpenscs ol'service, unlcss thc dcl'endant sltorvs gor.ttl cnusc lrr thc {hilurs.
julisdiction ovcr this nrlttcr r overr thc tlcl'crtclant ur

liunltols ot ol' sctvico.
thcr
dttl'ondant's pl'operty.
ltr'
EXHIBIT B
RIVERO MESTRE
March 23,2015
Mason Kerns
Law Offce of Mason Kerns
3178 New York Street
Miami, Florida 33133
Re
Dear Mr. Kerns:
Write in response to your letter of
our firm represents DraftKings, Inc. ("DraftKings"), and I
to waive service of process in the
February 23,2015, in which you lcquested DraftKings
of process'
ut"u.-.prinecl liiigation. raftKings will not waive servce
your client,s putative class action lawsuit against DraftKings filed in federal court is directly
as part of registering to use the
contrary to the Terms of tJse to which Mr, guirre agreed
Mr' Aguirre to submit any
DraftKings website ancl service. Ths Terms rusc require
Arbitration Association
to binding, non-class arbitration before the American
dispute
("AAA") in Suffolk County,
Massachusetts:
or relating to this
Any and all disputes, claims or controversies arising out of
(includng all
Agreement, the breach thereof, or any use offhe__v/ebsite
("Claims"),.except
cornmercial transactions conducted through the Website)
individual (nonan
on
for claims nte in a small claims court tht proceed
binding arbitration-before a
class, non-r"p..r.",utive) basis, shall be setiled by
Association ("AAA")
single arbitror appointeO by the American Arbitration
In agreeing to
in accordance widr'its then governing rules and proceduresf.]
rights to a trial bJiury in
arbitrate all laims, yo, *DraftKi-ngs waive all
involving uny Claim. The.arbitration shall be held in
any action
";;;;eing
MassaJh*setts ["ihe orum"], anci judgrnent on the-award
Suffolk Couniy,
having jurisdiction
rendered by thl'arbitrator may be erfered by any court
governed by and construed
thereof. This arbitration undrtaking . . , shall be
Arbitration Act at 9I]'S'C'
and interpreted in accordance with the Federal
termination of this
section t, ri-luq, ihis arbitration provision shall survive
Agreement' ' ' .
Rivero Mestre tlp

www. rivero mestre.com
Tcos ++szsoo Fos 4lszsos
MlAfili1i""',l\Ye
Mason Kerns
March 23,2015
Page2
Any and all claims shall be arbitrated on an individual basis only, and shall
not be consolidated or joined with or in any arbitration or other proceeding
involving a Claim of any other party. You and DraftKings agree that the
arbitrator shall have no authority to arbitrate any Claim as a class action or in
any other form other than on an individual basis. . . .
the event that either party initiates a proceeding involving any Claim other
than an arbitration in accordance with this Section, or initiates a proceecling
involving a Claim under this Section other than in the Forum, the other party
shall recover all attorneys' fees and expenses reasonably incurred in enforcing
tlris Agreement to arbitrate and the Forum to which the parties have herein
agreed,
Terms of Use, DraftKings, lrttps :llwwrv,clra llk i ngs.conlllr
gl
pltenrrs'
While DraftKings does not believe there is any merit to the claims Mr, Aguirre has raised, if
Mr. Aguine wishes to pursue them, he should do so by dismissing the lawsuit and submitting
to binding, non-class arbitration, in accordance with the Terms of Use.r Should Mr. Aguirre
evertheless choose to serve DraftKings with the complaint in federal court, DraftKings will
file a petition to compel arbitration ancl seek its fees and expenses associated with doing so.
If you have any questions, please frel
free to contact me.
Sincerely,
A. Mestre
To the extent Mr, Aguirre wishes to arbitrate , the appropriate procedure is set fofih in the AAA arbilration
rules for consumer cases. Sce Consumer Arbitlation Rules, American Arbitration Associatiott, availablc at:
A
httpq/wwu.rdrorg/aan/Showllrq0.{ty?rodld=/UC:MIADliSI'4Q11.202J?S-gvlsisll:lslss$el-easd.
copy of these rules also is enclosed with this letter,
EXHIBIT
MASEI- ,'i\ I,,q

TRIAL LAWYERS
lvfason i(enls, .lisq.
mkems(@rnaselata.com
LpL 24,2415
Jotge ,. Mcstre
Riveto Mes*e LLP

2525Ponce cle Leon lJoulevard
Suitc 1000
Miami, Florida 331,34
Fre:
Agure et al,
v,
DraftKings, Inc.rlS'cv-20353-DPG
l)ear Mt. Mcstre,

the
have rcceived your lettet clatecl Match 23,201'5.It was very kincl of you t< takc
print for
rimc t' quote the'I'erms of Use rhat yolt claim bind my client, Mt, Aguirte, and to
me rhe innrorn", Arbittation Rules of the Amctican rbiuation Association.
please direct all cotrespondence to the firm by which I atn now

letterhead' My
employccl, Nlase Laia,'p.,4.. My contact infoimation is contained on this
M. Paul, remains on the case, but also asks that you clircct
;;""; in filing this action,ler:rdmatter
t'< Mase ]'ara'
[ ..rtt.rponclence telatecl to this
In the future,
In your letter, you inclicate l)raftl(ings, Inc. ("Dtaft1(ings") refuses to waiYe service,
;irry to avoid unnecessafy cxpenses of sewing the summons," Fed. R'
notwithstancling its
stipulatc
Civ, p. 4(cf (f). At your eadiest convenience, pleasc irdicat.e to me rvhethet you will
that, wh"n we scrve Draftl(ings in .Bortor., yoLr will owe Mr' Aguinc "'!'
ptefcr
cxpenses..,inculred in making serviie," Hcd. It. Civ, P. 4(dX2XA), or if you would
that we file a motin or.kig such expenses and the "rcasonable expcnscs, including
att rney,s fees, of any motionlecluireci to collect those service expenses," Fed' It. Civ. P'
4(dx2)p).
120-clay recluirenrent, I must serve your clicnt socln' If Draftl(ings changcs
regarcl to waiving servicc, please notify me within a week of this letter'
Gi'en the
its mincl with
Mason l(erns
2601 South Bayslrore Drive, 5uite 800, Miami, Floricla 33133 I.3O5.377.3770 www maselara'com
EXHIBIT D
Consumer
Arbitration Rutes
Annnlce,r AnurrRATIoN AssoclartoN'
Avaita bte ontine
at
adr.org/consumer
Rutes Amended and Effective September 1,2014
Cost of Arbitration Effective September 1,2014
Tabte of Contents
Consumer Arbitration Rules
lntroduction,...
About the AAA
The Arbitrator . .
The AAA's Consumer Arbitration Rules,
Avai labi ity

I
of Mediation th rou gh Mediation.org
Administrative Fees.
Arbitrator's Fees
Notification
.9
Fil.ing a Case and lnitiaI AAA Administrative Steps

R-1.
,9
Applicability (When the AAA Applies These Rules)
R-2. Starting Arbitration under an Arbitration Agreement in a Contract

R-3. Agreement
R-4, AAA
11
to Arbitrate When There is No AAA Arbitration Clause
13
13
Administrative Fees
R-5. Neutral Arbitrator's Compensation
14
R-. Depositing NeutralArbitrator's Compensation with the AAA,
14
14
R-7.Expenses,...
R-8. Changes
14
of Claim
R-9. Small Claims Option for
the Parties
15
R-10.
Administrative Conference with the AAA
R-1 1.
Fixing of Locale (the city, county, state, territory and/or country where the
arbitration will take place)
15
R-12. Business Notification and Publicly-Accessible Consumer Clause Registry
.,.16
R-13,
AAA and Delegation of Duties.
...17
R-14.
Jurlsdiction.
Appointing the Arbitrator

R-15. National Roster of
,,17
1B
Arbitrators . . ,
,IB
.
Appointment from National Roster
18
R-17. Number of
Arbitrators
1B
R-18. Disclosure.
R-1.
R-20. Vacancies .
ARBITRATION RULES
'lB
R-19. Disqualification of
...15
Arbitrator . . .,
19
19
American Abitration Association
Pre-Hearing Preparation .
20
R-21. Preliminary Management Hearing with the Arbitrator
20
R-22, Exchange of lnformation between the Parties
20
R-23. Enforcement Powers of the Arbitrator.
20
R-24.
Written Motions (except for Dispositive Motions-see R-33)
21
'
R-25. Representation of a Party
21
the Date, Time, and Place (the physicalsite of the hearing within the
designated locale) of Hearing.
22
Written Record of Hearing
22
R-2, Setting
R-27.
R-28. lnterpreters.
22
R-29. Documents-Only Procedure
23
Procedures....,
R-30.AttendanceatHearings
R-31. Oaths
R-32. Conductof Proceedings.....
R-33. Dispostive Motions...,
R-34. Evidence..
'..24
Hearing
',,.,24
.'
'.,
' ' '24
......24
... '.25
'..
'25
R-35, Evidence by Affidavit and Post-Hearing Filing of Documents or Other Evidence 25

R-3.
...25
lnspectionorlnvestigation....
R-37. lnterim Measures (a preliminary decision made by the arbitrator involving part
. ' .26
or all of the issue(s) in dispute in the
arbitration)
Postponements
'.', '.26
R-3g.ArbitrationintheAbsenceofaPartyorRepresentative.. ... .',26
R-38.
Conctusion of the Hearing

R-40. Closing
27
of Hearing. . . .
27
R-41. Reopening of Hearing
27
R-42. Time of Award
27
R-43. Form of Award
27
R-44, Scope of Award
28
R-45. Award
upon Settlement
R-4. Delivery of Award
to
28
28
Parties
R-47. Modification of Award for Clerical, Typographical, or Mathematical Errors
RutesAmended and Effectve geptember 1,2014. Cost ofArbitration Effectve September 1,20'14.
29
CONSUMER ARBITRATION RUI-FS
Post
Hearing
of Documents for Judicial Proceedings.
30
Applications to Court and Exclusion of Liability,
30
R-48. Release
R-49.
30
General ProceduraI Rules

R-50. Waiver
of
31
Rules,
R-51. Extensions of
R-52. Serving
31
Time
31
of Notice and AAA and Arbitrator Communications
31
R-53. lnterpretation and Application of Rules.

R-54. Remedies
32
32
for Nonpayment, . . .
32
R-55, Declining or Ceasing Arbitration
...33
Costs of Arbitration [inctuding AAA Administrative Feesl*

(i) Filing Fees
...34
(iii) Refund Schedule
....35
,..,35
(iv) Hearing Fees
....35
,,,.35
(vi)Abeyance Fee
(vii)
'34
2tr
(v) Hearing Room Rental
Expenses,..
(viii) Consumer Clause Review and Registry Fee
...3
Procedures for the Resolution of Disputes through Document Submission
37
D-1. Applicability.
37
D-2. Preliminary Management Hearing
37
D-3, Removalfrom the Procedures ,
37
D-4. Tirne of Award
',
(ii) Neutral Arbitrator's Compensation.,
ARBITRATION RULES
38
American Arbitraiion Association
Gtossary of Terms
. .39
Administrator, . .
. .39
ADR Agreement
. .39
. .39
ADRProcess...,
ADR
. .39
Program....
Arbitration
. .39
Arbitration Agreement
. .40
Arbitrator
, ,40
Case Administrator
, ,40
Claimant
..40
Demand for Arbitration (also referred to as "Demand")
, ,40
Documents-On ly Arbitration
. .41
lndependent ADR nstitution
, ,41
ln-Person Hearing
. .41
Mediation
..41
Neutral
. .41
Party
,.41
Parties.
,,42
Opposing Party.
,,42
Respondent.....
,.42
Telephone Hearing
..42
Rutes Amended and Effectve Septem ber 1, 201 4. Cost of
Arbitraton Eflective September
1, 201 4.
CONSUMER ARBITRATIN RUI,ES
Consumer Arbitration
Rutes
lntroduction
Millions of consumer purchases take place each year. Occasionally, these
transactions lead to disagreements between consumers and businesses, These
disputes can be resolved by arbitration. Arbitration is usually faster and cheaper
than going to court.
The American Arbitration Association@ ("AAA@," "the Association") applies
the Consu mer Arbitration Rules ("Rules") to arbitration clauses in agreements
between individual consumers and businesses where the business has a
standardized, systematic application of arbitration clauses with customers and
where the terms and conditions of the purchase of standardized, consumable
goods or services are non-negotiable or primarily non-negotiable in most or all
of its terms, conditions, features, or choices. The product or service must be for
personal or household use. The AAA has the discretion to apply or not to apply
the Consu mer Arbtration Ru/e, and the parties are able to bring any disputes
concerning the application or non-application of the Rules to the attention of
the arbitrator. Consumers and businesses are permitted to seek relief in a small
claims court for disputes or claims within the scope of the small claims court's
jurisdiction. These Rules were drafted and designed to be consistent with the
minimum due process principles of the Consumer Due Process Protocol,
About the AAA

The administrator's role is to manage the administrative aspects of the arbitration,
such as the appointment of the arbitrator, preliminary decisions about where
hearings might take place, and handling the fees associated with the arbitration.
As administrator, howeve the AAA does not decide the merits of a case or make
any rulings on issues such as what documents must be shared with each side.
Because the AAA's role is only administrative, the AAA cannot overrule or change
an arbitrator's decisions or rulings. The administrator will comply with any court
orders issued from litigation involving the parties to the dispute,
ARBITRATION RULES
American Arbitration Assocaton
The American Arbitration Association, founded in 1926, is a neutral,

independent, and private not-for-profit organization. We offer a broad range
of conflict management services to businesses, organizations, and individuals
We also provide education, training, and publications focused on methods

for settling disputes out of court.
The Arbitrator
Except where the parties to a case reach their own settlement, the arbitrator will
make the final, binding decision called the Award on the dispute and render it in
writing. The Arbitrator makes all the procedural decisions on a case not made by
the Administrator or not decided jointly by the parties. The arbitrator may grant
any remedy, relief, or outcome that the parties could have received in court,
including awards of attorney's fees and costs, in accordance with the law or laws
that apply to the case.

Arbitrators are neutral and independent decision mal<ers who are not employees
of the AAA. Once appointed to a case, an arbitrator may not be removed by one
party without the other party's consent or unless the Administrator determines an
arbitrator should be removed and replaced by another arbitrator chosen by the
Administrator in a manner described in these Rules.
The AAAs Consumer Arbitration Rules
The AAA has developed the Consumer Arbitration Ru/es for consumers and
businesses that want to have their disagreements resolved through arbitration
Avai labi I ity
of Mediatiorr
trrou
qh Mediation.org
Mediation in consumer disputes is also available to help parties resolve their

disputes, Parties interested in participating in mediation may find a mediator
th rou gh www. mediation. org.
Administrative Fees
The Association charges a fee for its services under these Rules. A fee schedule is
included at the end of these Rules in the Costs of Arbitration section.
Rutes Amended and Effective
September
, 20 i 4.
Cost of Arbitration Effective September
'1,
201 4.
CONSUMER ARBITRATION RULES
Arbitrator's Fees
Arbitrators are paid for the time they spend resolving disputes, The business
makes deposits as outlined in the fee schedule in the Costs of Arbitration section
of these Rules. Unused deposits are refunded at the end of the case.
Notification
A business intending to incorporate these Rules or to refer to the dispute
resolution services of the AAA in a consumer alternative dispute resolution
("ADR") plan should, at least 30 days prior to the planned effective date of
the program,
r
r
notify the Association of its intention to do so, and

provide the Association with a copy of the consumer dispute resolution plan
lf a business does not comply with this requirement, the Association reserves the
right to wthhold its administrative services. For more information, please see
R-12 below,
ARBITRATION RULES
America Arbitration Association
Fiting a Case and lnitiaI AAA Administrative Steps

R-1,
Applicability (When the AAA Applies These
Rules)
(a) The parties shall have made these Consumer Arbitration
Ru/es ("Rules") a part
of
their arbitration agreement whenever they have provided for arbitration by the
American Arbitration Association ("AAA"), and
1)
2)
have specified that these Consumer Arbitration Ru/es shall aPply;
have specified that the Supp/e mentary Procedures for Consumer-Related

Dsputes shall apply, which have been amended and renamed the Consumer
Arbitration Ru/es;
3)
the arbitration agreement is contained within a consumer agreement,

defined below, that does not specify a particular set of rules; or
as
4l
the arbitration agreement is contained within a consumer agreement,

defined below, that specifies a particular set of rules other than the
Co nsu m e r Arbitr at o n Ru/es.
as
When parties have provided for the AAAs rules or AAA administration as part
of their consumer agreement, they shall be deemed to have agreed that the
application of the AAA's rules and AAA administration of the consurner
arbitration shall be an essential term of their consumer agreement'
The AAA defines a consumer agreement as an agreement between an individual
consumer and a business where the business has a standardized, systematic
application of arbitration clauses with customers and where the terms and
conditions of the purchase of standardized, consumable goods or services are
non-negotiable or primarily non-negotiable in most or all of its terms, conditions,
features, or choices. The product or service must be for personal or household use
Examples of contracts that typically meet the criteria for application of these
Rules, if the contract is for personal or household goods or services and has an
arbitration provision, include, but are not limited to the following:
.
.
r
r
r
e
o
Credit card agreements

Telecommunications (cell phone, lSP, cable TV) agreements
Leases(residential,automobile)
Automobile and manufactured home purchase contracts
Finance agreements (car loans, mortgages, bank accounts)
Home inspection contracts

Pest control services
RutesAmendedandEffectiveSeptember1,2014
CoslofArbitratonEffectiveSeptember1,2014
CONSUMER ARBITRATION RUI-FS
.
r
.
r
.
r
r
Moving and storage contracts

Warranties (home, automobile, product)
Legal funding
Health and fitness club membership agreements

Travel services
lnsurance policies
Private school enrollment agreements
Examples of contracts that typically do not meet the criteria for application of
these Rules, should the contract contain an arbitration provision, include, but
are not limited to the following:
r
.
.
r
.
.
Home construction and remodeling contracts

Real estate purchase and sale agreements
Condominium or homeowner association by-laws

Business insurance policies (including crop insurance)
Commercial loan and lease agreements

Commercial guaranty agreements
Rules, or when they provide for

under these Rules, they
is
initiated
arbitration
AAA
and
an
by
the
arbitration
thereby authorize the AAA to administer the arbitration. The authority and duties
of the AAA are prescribed in the agreement of the parties and in these Rules and
may be carried out through such of the AAA's representatives as it may direct.
The AAA may, in its discretion, assign the administration of an arbitration to any of
its offices. Arbitrations administered under these Rules shall only be administered
by the AAA or by an individual or organization authorized by the AAA to do so.
(b) When parties agree to arbitrate under these
(c) The consumer
and the business may agree to change these Rules. lf they agree
to change the Rules, they must agree in writing, lf the consumer and the business
want to change these Rules after the appointment of the arbitrator, any changes
may be made only with the approval of the arbitrator.
(d) The AAA administers consumer disputes that meet the due process standards
contained in the Consumer Due Process Protocoland the Consumer Arbitration
Ru/es. The AAA will accept cases after the AAA reviews the parties' arbitration
agreement and if the AAA determines the agreement substantially and materially
complies with the due process standards of these Rules and the Consumer Due
Process Protocol. Should the AAA decline to administer an arbitration, either party
may choose to submit its dispute to the appropriate court for resolution.
1f)
ARBITRATION RULES
American Arbitration Association
(e) The AAA has the initial authority to apply or not to apply the Consumer
Arbitration Ru/es. lf either the consumer or the business disagrees with the AAA's
decision, the objecting party must submit the objection by the due date for filing
an answer to the demand for arbitration. lf an objection is filed, the arbitrator
shall have the authority to mal<e the final decision on which AAA rules will apply.
(f) lf, within 30 days after the AAA's commencement
of administration, a party seeks

judicial intervention with respect to a pending arbitration and provides the AAA
with documentation that judicial intervention has been sought, the AAA will
suspend administration for 30 days to permit the party to obtain a stay of
arbitration from the court.
(g) Where no disclosed claims or counterclaims exceed
$25,000, the dispute shall

be resolved by the submission of documents only/desk arbitration (see R-29 and
the Procedures for the Reso/ution of Disputes through Document Submisslon

below). Any party, however, may ask for a hearing, The arbitrator also may decide
that a hearing is necessary.
R-2. Starting Arbitration under an Arbitration Agreement in a Contract
(a) Arbitration filed under an arbitration agreement naming the AAA shall be started
in the following manner:
(1) The party who
starts the arbitration (referred to as the "claimant" throughout

the arbitration) must contact, in writing, the party that the case is filed againt
(referred to as the "respondent" throughout the arbitration) that it wishes to
arbitrate a dispute. This written contact is referred to as the Demand for

Arbitration ("Demand"). The Demand must do the following:
.
r
Briefly explain the dispute

List the names and addresses of the consumer and the business, and,
if l<nown, the names of any representatives of the consumer and the

business
.
.
r
Specify the amount of money in dispute, if applicable
ldentify the requested location for the hearing if an in-person hearing

requested
is
State what the claimant wants
(2) The claimant must also send one copy of the Demand to the AAA at the same
time the demand is sent to the respondent. When sending a Demand to the
AAA, the claimant must also send the following:
A copy of the arbitration agreement contained in the contract and/or

agreement and/or purchase document
The proper filing fee; the amount of the filing fee can be found in the
Costs of Arbitration section at the end of these Rules.
RulesAmended and Effective 9eptember 1,2014. Cost ofArbitration Effective September 1,20'14.
CONSUMER ARBITRATION RUI
FS
11
(3) lf the arbitration
is pursuantto a court order, the claimant must send one

copy of the Demand to the AAA at the same time the Demand is sent to the
respondent. When sending a demand to the AAA, the claimant must also
send the following:
r I
r I
copy of the court order
copy of the arbitration agreement contained in the contract and/or

agreement and/or purchase document
The proper filing fee
The filing fee must be paid before a matter is considered properly filed. lf the
court order directs that a specific party is responsible for the filing fee, it is the
responsibility of the filing party either to make such payment to the AAA and
seek reimbursement as directed in the court order or to mal<e other such
arrangements so that the filing fee is submitted to the AAA with the Demand.
The claimant may file by mail. The mailing address of the AAA's Case Filing
Services is:
Case Filing Services
1101 Laurel Oak Road, Sulte 100
Voorhees, NJ 08043
Or, the claimant may file online using AAA WebFile:
https://www.adr.org
Or, the claimant may file at any of the AAA's offices
(b) The AAA will send a written notice letting the consumer and the business know
the Demand for Arbitration has been received.
(c) The respondent
may submit a written response to the Demand, known as an

"answer," which describes how the respondent responds to the claimant's claim
The answer must be sent to the AAA within 14 calendar days after the date the
AAA notifies the parties that the Demand for Arbitration was received and all
filing requirements were met. The answer must be
e
.
r
in writing,
sent to the AAA, and

sent to the claimant at the same time.
(d) The respondent may also file a counterclaim, which
is the respondent filing a

Demand against the claimant. lf the respondent has a counterclaim, the
counterclaim must briefly explain the dispute, specify the amount of money
involved, and state what the respondent wants.
12
ARBITRATION RULES
(e)
lf no answer is filed within 14 calendar days, the AAA will assume that the
respondent does not agree with the claim filed by the clamant. The case will
move forward after 14 days regardless of whether an answer is filed.
(f)
When sending a Demand or an answer, the consumer and the business are
encouraged to provide enough details to make the dispute clear to the arbitrator,
R-3.
Agreement to Arbitrate When Ther"e is No AAA Arbitration Clause
lf the consumer and business do not have an arbitration agreement or their

arbitration agreement does not name the AAA, the parties may agree to have
the AAA arbitrate their dispute. To start the arbitration, the parties must send
the AAA a submission agreement, which is an agreement to arbitrate their case

with the AAA, signed by the consumer and the business (email communications
between all parties to a dispute reflecting an agreement to arbitrate also is
acceptable), The submission agreement must
be in writing (electronic communication is acceptable);
'
'
r
.
.
be signed by both parties;
briefly explain the dispute;

list the names and addresses of the consumer and the business;
specify the amount of money involved;

specify the requested location for the hearing if an in-person hearing is
requested; and
state the solution sought.
The parties should send one copy of the submission agreement to the AAA.
They must also send the proper filing fees, A fee schedule can be found in the
Costs of Arbitration section at the end of these Rules.
R-4. AAA
Administrative Fees
As a not-for-proft organization, the AAA charges fees to compensate it for the

cost of providing administrative services, The fee schedule in effect when the
case is filed shall apply for allfees charged during the administration of the case
The AAA may, in the event of the consumer's extreme hardship, defer or reduce
the consu mer's administrative fees.
AAA fees shall be paid in accordance with the Costs of Arbitration section found
at the end of these Rules.
Rutes Amended and Effective Septem ber 1. 20 1 . Cost of Arbitration Effective September
, 201 4.
CI]NSUMER ARBITRATION RUI"FS
13
R-5, Neutral Arbitrator'.s Compensation
(a) Arbitrators serving underthese
Rules shall be compensated at a rate established
by the AAA.
(b) Any arrangement for the compensation of an arbitrator shall be made through
the AAA and not directly between the parties and the arbitrator.
(c) Arbitrator compensation
shall be paid in accordance with the Costs of Arbitration
section found at the end of these Rules.

R-. Depositing Neutral
Arbitratort Compensation with the AAA
The AAA may require the parties to deposit in advance of any hearings such
sums of money as it decides are necessary to cover the expense of the
arbitration, including the arbitrator's fee, and shall render an accounting to
the parties and return any unused money atthe conclusion of the case.
R-7, Expenses
Unless otherwise agreed by the parties or as provided under applicable law,

the expenses of witnesses for either side shall be borne by the party producng
such witnesses,
All expenses of the arbitrator, including required travel and other expenses,
and any AAA expenses, as well as the costs relating to proof and witnesses
produced at the direction of the arbitrator, shall be borne in accordance with
the Costs of Arbitration section found at the end of these Rules.
R-8. Changes
of Clainr
Once a Demand has been filed, any new claims or counterclaims, or changes
to the claim or counterclaim, must be made in writing and sent to the AAA, The
party making the new or different claim or counterclaim shall send a copy to the
opposing party, As with the original Demand or counterclaim, a party shall have
14 calendar days from the date the AAA notifies the parties it received the new
or different claim or counterclaim to file an answering statement with the AAA.
lf an arbitrator has already been appointed, a new or different claim or counterclaim may only be considered lf the arbitrator allows it.
11,
ARBITRATION RULES
American Arbilration Association
R-9, Small Clairns
Opton fnr the Parties
lf a party's claim is within the jurisdiction of a small claims court, either party may
choose to take the claim to that court instead of arbitration as follows:
(a) The parties may tal<e their claims to small claims court without first filing with
the AAA.
is formally appointed
to
the opposing party
notice
party
written
can
send
a
a
AAA,
to the case by the
and the AAA that it wants the case decided by a small claims court. After receiving
this notice, the AAA will administratively close the case.
(b) After a case is filed with the AAA, but before the arbitrator
is appointed, if a party wants to take the case to small claims

court and notifies the opposing party and the AAA, it is up to the arbitrator to
determine if the case should be decided in arbitration or if the arbitration case
(c) After the arbitrator
should be closed and the dispute decided in small claims court'
R-10.
Administrative Conference with the AAA
At the request of any party or if the AAA should so decide, the AAA may have
a telephone conference with the parties and/or their representatives. The
conference may address issues such as arbitrator selection, the possibility of a
mediated settlement, exchange of information before the hearing, timing of the
hearing, the type of hearing that will be held, and other administrative matters.
Fixing of l-ocale (the city, county, state, territory and/or country where the
arbitration will take place)
R-1 1.
lf an in-person hearing isto be held and if the parties do not agreetothe

locale where the hearing is to be held, the AAA initally will determine the locale
of the arbitratlon. lf a party does not agree with the AAA's decision, that party
can ask the arbitrator, once appointed, to make a final determination, The locale
determination will be made after considering the positions of the parties, the
circumstances of the parties and the dispute, and the Consumer Due Process
Protocol.
RutesAmended and Effective Seplember 1,2014 Cost ofArbitration Effective September 1,2014.
CONSUMER ARBITRATIN RUI"ES
15
R-12. Business Notification and Publicly-Accessi[:le Consumer Clause Registry
Beginning Septembe r 1 , 2014, a business that provides for or intends to provide

for these Rules or another set of AAA Rules in a consumer contract (as defined in
R-1)should
1,
notify the AAA of the existence of such a consumer contract or of its intention
to do so at least 30 days before the planned effective date of the contract.
2,
provide the AAA a copy of the arbitration agreement'
Upon receiving the arbitration agreement, the AAA will review the agreement for
material compliance with due process standards contained in the Consumer Due
Process Protocoland the Consumer Arbitration Ru/es (see Rule 1(d)). There is a
nonrefundable fee to conduct this initial review and maintain a publicly-available
clause registry, which is detailed in the Costs of Arbitration section found at
the end of these Rules. Any subsequent changes, additions, deletions, or
amendments to a currently-registered arbitration agreement must be resubmitted
for review and a review fee will be assessed at that time. The AAA will decline
to administer consumer arbitrations arising out of that arbitration agreement
where the business fails to pay the review fee'
lf a business does not submit its arbitration agreement for review and a consumer
arbitration then is filed with the AAA, the AAA will conduct an expedited review
at that time, Along with any other filing fees that are owed for that case, the
business also will be responsible for paying the nonrefundable review and
Registry fee (including any fee for expedited review at the time of filing) for this
initial review, which is detailed in the Costs of Arbitration section found at the
end of these Rules. The AAA will decline to administer consumer arbitrations
arising out of that arbitration agreement f the business declines to pay the
review and Registry fee.
After the AAA reviews the submitted consumer clause, receives the annual
consumer registry fee, and determines it will administer consumer-related
disputes filed pursuant to the consumer clause, the business will be included
on the publicly-accessible Consumer Clause Registry. This Consumer Clause
Registry maintained by the AAA will contain the name of the business, the
address, and the consumer arbitration clause, along with any related documents
as deemed necessary by the AAA, The AAA's review of a consumer arbitration
clause and determination whether or not to administer arbitrations pursuant to
16
ARBITRATION RULES
that clause is only an administrative determination by the AAA and cannot be

relied upon or construed as a legal opinion or advice regarding the enforceabllity
of the arbitration clause. Consumer arbitration agreements may be registered att
www.adr.org/consumerclauseregistry or via email at consumerreview@adr.org.
For more information concerning the Consumer Clause Registry, please visit the
AAA's we bs ite at www.ad r. orglconsu m ercla use re g istry.
The Registry fee to initially review a business's agreement and maintain the
clause registry list is a yearly, non-refundable fee forthe business's arbitration
agreement. Any different arbitration agreements submitted by the same business
or its subsidiaries must be submitted for review and are subject to the current
review fee.
lf the AAA declines to administer a case due to the business's non-compliance
with this notification requirement, the parties may choose to submit their dispute
to the appropriate court.

R-13,
AAA and Delegation of Duties
When the consumer and the business agree to arbitrate under these Rules or
other AAA rules, or when they provide for arbitration by the AAA and an
arbitration is filed under these Rules, the parties also agree that the AAA will
administer the arbitration. The AAA'S administrative duties are set forth in the
parties' arbitration agreement and in these Rules. The AAA will have the final
decision on which office and which AAA staff members will administer the case
Arbitrations administered under these Rules shall only be administered by the
AAA or by an individual or organization authorized by the AAA to do so.
R-14.
Jurisdiction
(a) The arbitrator shall have the power to rule on his or her own jurisdiction,
including any objections with respect to the existence, scope or validity of the
arbitration agreement or to the arbitrability of any claim or counterclaim.
(b) The arbitrator shall have the power to determine the existence or validity of a
contract of which an arbitration clause forms a part. Such an arbitration clause
shall be treated as an agreement independent of the otherterms of the contract,
A decision by the arbitrator that the contract is null and void shall not for that
reason alone render invalid the arbitration clause.
(c) A party must object to the jurisdiction of the arbitrator or to the arbitrability of a
claim or counterclaim no later than the filing of the answering statement to the
claim or counterclaim that gives rise to the objection. The arbitrator may rule on
such objections as a preliminary matter or as part of the final award.
RutesAmendedandEffecrivesepremberl.20l4.cosrofArbirrarionEffectivesepremberl,20l4.
00NSUMERARBIIRATI0NRUI,..5 f7
Appoi nti ng the
Arbitrator
R-15, National Roster of Arbitrators
The AAA maintains a National Roster of Arbitrators ("National Roster") and shall
appoint arbitrators from this National Roster to resolve the parties' dispute(s).
R-1.
Appointment from National Roster
(a) lf the parties
have not appointed an arbitrator and have not agreed to a process

for appointing the arbitrator, immediately after the filing of the submission
agreement or the answel or after the deadline for filing the answe the AAA will
administratively appoint an arbitrator from the National Roster.
(b) lf the parties' arbitration agreement provides for three or more arbitrators
and they have not appointed the arbitrators and have not agreed to a process
for appointing the arbitrators, immediately after the filing of the submission
agreement or the answel or after the deadline for filing the answer, the AAA will
administratively appoint the arbitrators from the National Roster. The AAA will
appoint the chairperson.
(c) Arbitrator(s) serving under these

standards of
R-19
Rules wlll be neutral and must meet the

with respect to being impartial and independent.
R-17. Numberr of Arbitrators
lf the arbitration agreement does not specify the number of arbitrators and the
parties do not agree on the number, the dispute shall be heard and decided by
one arbitrator.
R-18. Disclosure
(a) Any person appointed or to be appointed
as an arbitrator, as well as the parties

provide
to the AAA of any
information
must
representatives,
and their
circumstances likely to raise justifiable doubt as to whether the arbitrator can
remain impartial or independent. This disclosure of information would include
(1)
any bias;
(2) any financial interest in the result of the arbitration;

(3) any personal interest in the result of the arbitration;
(4)
or
any past or present relationship with the parties or their representatives.
to provide disclosure information remains in effect throughout the

arbitration. A failure on the part of a party or a representative to comply with the
Such obligation
18
ARBITRATION RULES
requirements of this rule may result in the waiver of the rightto objectto an arbitrator in
accordance with Rule R-50.
(b) lf the AAA receives
such information from the arbitrator or another source, the
AAA will communicate the information to the parties. lf the AAA decides it is
appropriate, it will also communicate the information to the arbitrator and others.
(c)
ln order to encourage disclosure by arbitrators, disclosing such information does

not mean that the arbitrator considers the disclosed information will likely affect
his or her ability to be impartial or independent.
R-1
9. Disqualification of Arbitrator
(a) Any arbitrator shall be impartial and independent and shall perform his or her
duties carefully and in good faith. The AAA may disqualify an arbitrator who shows
(1) partiality or lack of independence;
l2l inability
or refusal to perform his or her duties with dligence and in good
faith; or
(3)
(b)
any grounds for disqualification provided by applicable law.
lf a party objects to the continued service of an arbitrator, or if the AAA should so

decide to raise the issue of whether the arbitrator should continue on the case,
the AAA will decide if the arbitrator should be disqualified. After gathering the
opinions of the parties, the AAA will decide and that decision shall be final and
conclusive.
R-20. Vacancies
lf for any reason an arbitrator cannot or is unwilling to perform the duties of the
office, the AAA may declare the office vacant. Any vacancies shall be filled based
on the origlnal procedures used to appoint the arbitrator, lf a substitute arbltrator

is appointed, the substitute arbitrator will decide if lt is necessary to repeat all or
part of any prior ruling or hearing.
RutesAmended and Effectve September 1,2014. Cost ofArbitration Effective Seplember 1,2014
CONSUMR ARBITRATIN RUI"S
19
Pre-H eari ng Prepa ration

R-21. Preliminary Management l"-learing with the Arbitrator
(a)
lf any party asks for, or if the AAA or the arbitrator decides to hold one, the
arbitrator will schedule a preliminary management hearing with the parties

and/ar their representatives as soon as possible. The preliminary management
hearing will be conducted by telephone unless the arbitrator decides an
in-person preliminary management hearing is necessary.
(b) During the preliminary management
hearing, the parties and the arbitrator should

discuss the future conduct of the case, including clarification of issues and claims,
scheduling of the hearings, and any other preliminary matters.
(c) The arbitrator
shall promptly issue written orders that state the arbitrator's

decisions made during or as a result of the preliminary management hearing. The
arbitrator may also conduct additional preliminary management hearings if the
need arises.
R-22. [xchange of lnformalion betwec'n the Parties
(a)
lf any party asks or if the arbitrator decides on his or her own, keeping in mind that
arbitration must remain a fast and economical process, the arbitrator may direct
1')
specific documents and other inforrnation to be shared between the

consumer and business, and
2l
that the consumer and business identify the witnesses, if any, they plan to
have testify at the hearing.
(b) Any exhibits the parties plan to submit at the hearing need to be shared between
the parties at least five business days before the hearing, unless the arbitrator sets
a
different exchange date.
(c) No other exchange of information beyond what
is provided for in section (a)
above is contemplated under these Rules, unless an arbitrator determines further

information exchange is needed to provide for a fundamentally fair process.
(d) The arbitrator has authority to resolve any disputes between the parties about
exchanging information.
R-23. Enforcement Powers of the Arbitrator
The arbitrator may issue any orders necessary to enforce the provisions of
rules R-2'l andR-22 and to otherwise achieve a fair, efficient, and economical
resolution of the case, including, but not limited to:
(a)
20
an order setting the conditions for any exchange or production of confidential

documents and information, and the admission of confidential evidence at the
hearing in order to preserve such confidentiality;
ARBITRATION RULES
Amercon Arbitration Association
(b) to the extent the exchange of information takes place pursuant to
R-22, imposing
reasonable search limitations for electronic and other documents if the parties are
unable to agree;
(c) allocating
costs of producing documentation, including electronically-stored
documentation;
(d)
in the case of willful non-compliance with any order issued by the arbitrator,
drawing adverse inferences, excluding evidence and other submissions,
and/or making special allocations of costs or an interim award of costs arising
from such non-compliance; and
(e)
issuing any other enforcement orders that the arbitrator is empowered to issue
under applicable law.
R-24.
Written Motions (except for Dispositive Motions-see R-33)
The arbitrator may consider a party's request to file a written motion (except for
Dispositive Motions- see R-33) only after the parties and the arbitrator conduct
a conference call to attempt to resolve the issue that gives rise to the proposed
motion. Only after the parties and the arbitrator hold the call may the arbitrator
consider a party's request to file a written motion. The arbitrator has the sole
discretion to allow or deny the filing of a written motion and his or her decision
is final,
R-25, Representalion of a Party
Any party may participate in the arbitration without representation, or may be

represented by counsel or other authorized representative, unless such choice
is prohibited by applicable law. A party intending to be represented shall give
the opposing party and the AAA the name, address, and contact information
of the representative at least three business days before the hearing where that
representative will first appear in the case. lt will be considered proper notice if
a representative files the arbitration demand or answer or responds for a party
during the course of the arbitration.

While parties do not need an attorney to participate in arbitration, arbitration is
a final, legally-binding process that may impact a party's rights. As such, parties
may want to consider consulting an attorney.
September
, 201
4. cost of Arbtration Effective September 1, 201 4.
CONSUMHR ARBITRATION
RUI,F5
21
R-2, Setting the Date, Time, and Place (the physical site of the hearing within
the designated locale) of l-"learing
The arbitrator will set the date, time, and place for each hearing within the locale
as determined in R-1 1. A hearing may be by telephone or in person' For their
part, the parties commit to
(1) respond promptly to the arbitrator when he or she asks what dates the parties
are available
to have the hearings;
(2) cooperate in the scheduling of the hearing on the earliest possible date;
(3) follow the hearing schedule set up by the arbitrator.
and
The AAA will send a notice of the hearing to the parties at least 10 days before
the hearing date, unless the parties agree to a different time frame.
R-27.
Written Record of Hearing
(a) lf a party wants a written record of the hearing, that party must make
such
arrangement directly with a stenographer (court reporter) and notify the opposing
parties, the AAA, and the arbitrator of these arrangements at least three business
days before the hearing. The party or parties who request the written record shall
pay the cost of the service.
(b) No other type of recording will be allowed
unless the parties agree or the
arbitrator directs a different form of recording.
(c) The arbitrator may
resolve disputes between the parties over who will pay the
costs of the written record or other type of recording'
(d) The parties can agree or the arbitrator may decide that the transcript (written
record) isthe official record of the hearing. lf it isthe official record of the hearing,
the transcript must be given to the arbitrator and made available to all the parties
so that it can be reviewed. The date, time, and place of the inspection will be
decided by the arbitrator.

R-28, lnterpreters
lf a party wants an interpreter present for any part of the processr that party must
make arrangements directly with the interpreter and shall pay for the costs of the
service.
22
ARBITRATION RULES
Amercan Arbitration Association
R-29. Documents-Only Procedure
Disputes may be resolved by submission of documents and without in-person or

telephonic hearings, For cases being decided by the submission of documents
only, the Procedures for the Reso/ution of Disputes through Document
Submission (found at the end of these Rules) shall supplement these Rules. These
Procedures will apply where no disclosed claims or counterclaims exceed $25,000
(see R-1(g)), unless any party requests an in-person or telephonic hearing or the
arbitrator decides that a hearing is necessary.
RutesAmended and Effective September 1,2014. Cost ofArbtraton Effective September 1.2014.
CNSUMER ARBITRATION RUI".S
23
Hearing Procedures
R-30.
Attendance at l-learings
The arbitrator and the AAA will keep information about the arbitration private
except to the extent that a law provides that such information shall be shared or
made public. The parties and their representatives in the arbitration are entitled
to attend the hearings. The arbitrator will determine any disputes over whether
a non-party may attend the hearing.
R-31. Oaths
Before starting the hearing, each arbitrator may take an oath of office and, if
required by law, shall do so. lf the arbitrator determinesthatwitnesses shalltestify
under oath, then the arbitrator will direct the oath be gven by a duly-qualified
person.
R-32. Conduct of Proceedings
(a) The claimant must present evidence to support its claim. The respondent must
then present evidence to support its defense, Witnesses for each parly also rnust
answer questions from the arbitrator and the opposing party. The arbitrator may
change this procedure as long as each party has the right to be heard and is
given a fair opportunity to present its case,
(b) When the arbitrator decides it is appropriate, the arbitrator may also allow the
parties to present evidence in alternative ways, including web conferencing,
lnternet communication, and telephonic conferences. All procedures must provide
the parties with a full and equal opportunity to present any evidence that the
arbitrator decides is material and relevant to deciding the dispute. lf the alternative
ways to present evidence involve witnesses, those ways may include that the
witness submit to direct and cross-examination questioning.
(c) The arbitrator will
use his or her discretion to resolve the dispute as quickly as

possible and may direct the parties to present the evidence in a certain order,
or may split the proceedings into multiple parts and direct the parties in the
presentation of evidence.
(d) The hearing generally will not exceed one day. Howeve if a party shows good
cause, the arbitrator may schedule additional hearings within seven calendar days
after the initial day of hearing.
(e) The parties may agree in writing to waive oral hearings.
21,
ARBITRATION RULES
Ame.can Arbitration Association
R-33, Dispostive Motions
The arbitrator may allow the filing of a dispositive motion if the arbitrator
determines that the moving party has shown substantial cause that the motion
is likely to succeed and dispose of or narrow the issues in the case.
R-34. Evidence
(a) The parties may offer relevant and material evidence and must produce any
evidence the arbitrator decides is necessary to understand and decide the
dispute. Following the legal rules of evidence shall not be necessary. All evidence
should be taken in the presence of the arbitrator and all of the parties, unless any
of the partes is absent, in default, or has waived the rightto be present.
(b) The arbitrator shall determine what evidence will be admitted, what evidence
is
relevant, and what evidence is material to the case. The arbitrator may also
exclude evidence that the arbitrator decides is cumulative or not relevant.
(c) The arbitrator shall consider applicable principles of legal privilege,
such as those
that involve the confidentiality of communications between a lawyer and a client.
(d) An arbitrator or other person authorized by law to subpoena witnesses or

documents may do so on the request of any party or on the arbitrator's own
determination. lf a party requests the arbitrator sign a subpoena, that party shall
copy the request to the other parties in the arbitration at the same time it is
provided to the arbitrator.
R-35. Evdence by Affidavit and Post-Hearing Filing of Documents or Other
Evidence
(a) The arbitrator may receive and consider the evidence of witnesses by
declaration or affidavit rather than in-person testimony but will give this evidence
only such credence as the arbitrator decides is appropriate. The arbitrator will
consider any objection to such evidence made by the opposing party,
(b) lf the parties agree or the arbitrator decides that documents or other evidence
need to be submitted to the arbitrator after the hearing, those documents or
other evidence will be filed with the AAA so that they can be sent to the arbitrator.
All parties will be given the opportunity to review and respond to these documents
or other evidence.
R-3. lrrspection or lnvestigatiorr
An arbitrator finding it necessary to inspect property or conduct an investigation

in connection with the arbitration will request that the AAA inform the parties.
The arbitrator will set the date and time of the inspection and investigation, and
Rutes Amended and Effective Septem
ber
1, 201 4,
Cost of Arbtration Effective September 1,
20'1
4.
CONSUMER ARBITRATION RUI",Es
25
the AAA will notify the parties, Any party who would lil<e to be present at the
inspection or investigation may attend, lf one or all parties are not present atthe
inspection or investigation, the arbitrator will mal<e an oral or written report to
the parties and allow them an opportunity to comment.
R-37. lnter-irn Measures (a preliminary decision made by the arbitrator involving
part or all of the issue(s) in dispute in the arbitration)
(a) The arbitrator may grant whatever interim measures he or she decides
are
necessary, including granting an injunction and ordering that property be
protected.
(b)
Such interim measures may take the form of an interim award, and the arbitrator
may require a security payment for the costs of such rneasures.
(c) When making
a decision on an interim measure, the arbitrator may grant any
remedy, relief, or outcome that the parties could have received in court.
(d) A party to an arbitration agreement under these
Rules rnay instead file in state

the
court for this type of relief,
Applying
to
or federal court for interim relief,
including temporary restraining orders, is consistent with the agreement to
arbitrate and will not be considered a waiver of the right to arbitrate,
R-38. Postponements
The arbitrator may postpone any hearing
(a)
if requested by a party, and the party shows good cause for the postponement;
(b)
if all parties agree
to
a postponement;
(c) on his or her own decision,

R-39.
Arbitration in the Absence of a Party or Representative
The arbitration may proceed even if any party or representative is absent, so

long as proper notice was given and that party or representative fails to appear
or obtain a postponement from the arbitrator. An award cannot be made only
because of the default of a party. The arbltrator shall requre the party who
participates in the hearing to submit the evidence needed by the arbitrator to
make an award.
26
ARBITRATION RULES
Conclusion of the Hearing

R-40. Closing of l-le aring
The arbitrator must specifically ask all parties whether they have any further
proofs to offer or witnesses to be heard. When the arbitrator receives negative
replies or he or she is satisfied that the record is complete, the arbitrator will
declare the hearing closed.
lf briefs or other written documentation are to be filed by the parties, the hearing
shall be declared closed as of the final date set by the arbitrator. Absent
agreement of the parties, the time that the arbitrator has to make the award
begins upon the closing of the hearing. The AAA may extend the time limit for
the rendering of the award only in unusual and extreme circumstances.
R-4'1. Reopening
of
l""learing
lf a party requests, or if the arbitrator decides to do so, the hearing may be

reopened at any time before the award is made. lf reopening the hearing would
prevent the making of the award within the specific time agreed on by the parties
in the contract(s) out of which the controversy has arisen, the matter may not
be reopened unless the parties agree on an extension of time. lf the arbitrator
reopens the hearing, he or she shall have 30 days from the closing of the
reopened hearing within which to make an award.

R-42.
Time of Award
The award shall be issued promptly by the arbitrator and, unless the parties agree
differently or the law indicates a different time frame, no later than 30 calendar
days from the date the hearing is closed, or, if the case s a documents-only
procedure, 14 calendar days from the date the arbitrator set for his or her receipt
of the final statements and proofs. The AAA may extend the time limit for the
rendering of the award only in unusual and extreme circumstances.
R-43. Form of Award
(a) Any award shall be in writing and executed in the form and manner required
by law.
(b) The award shall provide the concise written reasons for the decision
unless the
award
shall be
the
form
of
the
parties all agree otherwise. Any disagreements over
decided by the arbitrator,
RulesAmended and Effective September 1.2014. Cost ofArbitration Effective September 1,2014
CONSUMFR ARBITRATION RUI,HS
27
(c)
The AAA may choose to publish an award rendered under these Rules; however,
the names of the parties and witnesses will be removed from awards that are
published, unless a party agrees in writing to have its name included in the award
R-44. Scope of Award
(a) The arbitrator may grant any remedy, relief, or outcome that the parties could
have received in court, including awards of attorney's fees and costs, in
accordance with the law(s) that applies to the case.
(b)
ln addition to a final award, the arbitrator may make other decisions, including
nterim, interlocutory, or partial rulings, orders, and awards. ln any interim,
interlocutory, or partial award, the arbitrator may assess and divide up the fees,
expenses, and compensation related to such award as the arbitrator decides is
appropriate, subject to the provisions and limitations contained in the Costs of
Arbitration section.
(c) The arbitrator
may also allocate compensation, expenses as defined in sections (v)

and (vii) of the Costs of Arbitration section, and administrative fees (which include
Filing and Hearing Fees) to any party upon the arbitrator's determination that the
party's claim or counterclaim was filed for purposes of harassment or is patently
frivolous.
(d)
ln the final award, the arbitrator shall assess the fees, expenses, and compensation
provided in Sections R-4, R-5, and R-7 in favor of any party, subject to the provisions
and limitations contained in the Costs of Arbitration section.
R-45.
Award upon Se'ttlement
lf the parties settle their dispute at any point during the arbitration and at the
parties' request, the arbitrator may lay out the terms of the settlement in a
"consent award" (an award drafted and signed by the arbtrator that reflects the
settlement terms of the parties). A consent award must include a division of the
arbitration costs, including administrative fees and expenses as well as arbitrator
fees and expenses. Consent awards will not be made available to the public per
Rule 43(c) unless the parties agree otherwise.
R-4. Delivery of Award
to Parties
Parties shall accept as notice and delivery of the award the placing of the award
or a true copy thereof in the mail addressed to the parties or their representatives
at the last known addresses, personal or electronic service of the award, or the
filing of the award in any other manner that is permitted by law.
28
ARBITRATION RULES
R-47, Modification of Award for Clerical, Typographical, or Mathematical rrors
(a) Within 20 days after the award
transmitted, any party, upon notice to the

opposing parties, may contact the AAA and request that the arbitrator correct
any clerical, typographical, or mathematical errors in the award. The arbitrator
has no power to re-determine the merits of any claim already decided.
is
(b) The opposing parties shall be given
10 days
to respond to the request. The
arbitrator shall make a decision on the request within 20 days after the AAA
transmits the request and any responses to the arbitrator.
(c) lf applicable law provides a different procedural time frame, that procedure
shall
be followed.
Rutes Amended and Effective 9eptem ber
, 201 4.
'1,
2014
CONSUMER ARBITRATION RULES
29
Post Hearing
R-48. Release of Documents forJridicial Proceedings
The AAA shall give a party certified copies of any records in the AAA's possession
that may be required in judicial proceedings relating to the arbitration, except for
records determined by the AAA to be privileged or confidential. The party will
have to pay a fee for this service.
R-49.
Applications to Court ancj xclusion of Liability
(a) No court
or judicial proceeding by a party relating to the subject matter of the

arbitration shall be deemed a waiver of the party's right to arbitrate.
(b) Neither the AAA nor
any arbitrator in a proceeding under these Rules is a
necessary or proper party in judicial proceedings relating to the arbitration.
30
(c)
to an arbitration under these Rules shall be deemed to have consented

that judgment upon the arbitration award may be entered n any federal or state
court having jurisdiction thereof.
(d)
to an arbitration under these Rules shall be deemed to have consented

that neither the AAA, AAA employees, nor any arbitrator shall be liable to any
party in any action for damages or injunctive relief for any act or omission in
connection with any arbitration under these rules.
(e)
to an arbitration under these Rules may not call the arbitrator, the AAA, or
any AAA employee as a witness in litigation or any other proceeding relating to
the arbitration. The arbitrator, the AAA, and AAA employees are not competent
to and may not testify as witnesses in any such proceeding.
Parties
Parties
Parties
ARBITRATION RULES
GeneraI Procedu ra L Rutes

R-50. Waiver
of Rules
lf a party knows that any of these Rules have not been followed, it must object in
writing before proceeding with arbitration or it will lose its right to object that the
rule has not been followed,
R-51. Extensions clf Time
The parties rnay agree to change any period of time provided for in the Rules,
except that any such modification that negatively affects the efficient resolution
of the dispute is subject to review and approval by the arbitrator. The AAA or the
arbitrator may for good cause extend any period of time in these Rules, except
as set forth in R-42, The AAA will notify the parties of any extension.
R-52. Serving of Notice and AAA and Arbitrator Communications
(a) Any papers or notices necessary for the initiation or continuation of an arbitration
under these Rules, or for the entry of judgment on any award made under these
Rules, may be served on a party by mail or email addressed to the party or its
representative at the last-known address or by personal service, in or outside the
state where the arbitration is to be held, provided that reasonable opportunity to
be heard with regard to the dispute is or has been granted to the party.
(b) The AAA, the arbitrator, and the parties also may
use overnight delivery, electronic

(email)
(fax),
mail
to give the notices required
or
electronic
facsimile transmission
by these rules. Where all parties and the arbitrator agree, notices may be sent by
other methods of communication.
(c)
Unless directed differently by the AAA or by the arbitrator, any documents and all
written communications submitted by any party to the AAA or to the arbitrator
also shall be sent at the same time to all parties to the arbitration.
(d) A failure to provide the other parties with copies of communications made to the
AAA or to the arbitrator may prevent the AAA or the arbitrator from acting on any
requests or objections contained within those communications.
(e) A party and/or someone acting on behalf of a party cannot have any
communications with an arbitrator or a potential arbitrator about the arbitration
outside of the presence of the opposing party. All such communications shall be
conducted through the AAA.
(f)
The AAA may direct that any oral or written communications that are sent by a
party ortheir representative shall be sent in a particular manner. The failure of a
party or its representative to do so may result in the AAA's refusal to consider the
issue raised in the communication.
Rules Amended and Effective geptember 1. 201 4. Cost of Arbitraton Effective September
, 201 4
CONSUMER ARBITRATIN RUI"
FS
31
R-53. lnterpretation anrJ Application of Rules
The arbitrator shall interpret and apply these Rules as they relate to the arbitrator's
powers and duties. When there is more than one arbitrator and a difference
arises among them concerning the meaning or application of these Rules, it shall
be decided by a majority vote. lf that is not possible, either an arbitrator or a
party may refer the question to the AAA for final decision. All other Rules shall
be interpreted and applied by the AAA.
R-54'.
Rerledies for Norrpayrnent
(a) lf arbitrator compensation or administrative
charges have not been paid in full,

the AAA may inform the parties so that one of them may forward the required
payment.
(b) Once the AAA informs the parties that payments have not been received, a party
may request an order from the arbitrator directing what measures might be taken
in light of a party's nonpayment,
Such measures may include limiting a party's ability to assert or pursue its claim.
However, a party shall never be precluded from defending a claim or counterclaim.
The arbitrator must provide the party opposing a request for relief with the
opportunity to respond prior to making any determination. ln the event that the
arbitrator grants any request for relief that limits any party's participation in the
arbitration, the arbitrator will require the party who is making a claim and who has
made appropriate payments to submit the evidence required to make an award.
(c) Upon receipt of information from the AAA that full payments
have not been

received, the arbitrator, on the arbitrator's own initiative, may order the suspension
of the arbitration, lf no arbitrator has yet been appointed, the AAA may suspend
the proceedings,
(d)
lf arbitrator compensation or AAA administrative fees remain unpaid after a

determination to suspend an arbitration due to nonpayment, the arbitrator
has the authority to terminate the proceedings, Such an order shall be in writing
and signed by the arbitrator. The impact of the termination for nonpayment of
the Consumer Clause Registry fee is the removal from the "Registered" section of
the Registry.
R-55. Declinin7 or Ceasing Arh;itration
The AAA in its sole discretion may decline to accept a Demand for Arbitration
or stop the administration of an ongoing arbitration due to a party's improper
conduct, including threatening or harassing behavior towards any AAA staff,
an arbitrator, or a party or party's representative.
32
ARBITRATION RULES
American Arbitration Associaton
Costs of Arbitration IincLuding AAA Administrative Fees].

Arbitrator compensation is not included as part of the administrative fees
charged by the AAA, Arbitrator compensation is based on a rate established
by the AAA as set forth below. lf a Preliminary Management Hearing is held by
the arbitrator, the arbitrator is entitled to one-half the arbitration compensation
rate for a full hearing day or a documents-only hearing. Once evidentiary
hearings are held, the arbitrator is entitled to the full-day rate of compensation.
The business shall pay the arbitrator's compensation unless the consumer, post
dispute, voluntarily elects to pay a portion of the arbitrator's compensation.
Arbitrator compensation, expenses as defined in sections (v) and (vii) below, and
administrative fees (which include Filing and Hearing Fees) are not subject to
reallocation by the arbitrator(s) except as may be required by applicable law or
upon the arbitrator's determination that a claim or counterclaim was filed for
purposes of harassment or is patently frivolous,
*
of the California Code of Civil Procedure, consumers with a gross monthly incorne of
of the federal poverty guide/ines are entitled to a waiver of arbitration fees and costs, exc/usive
of arbitrator fees. This law applies to all consumer agreements subiect to the Californa Arbitration Act, and to
all consumer arbtrations conducted n Californa. lf you believe that you meet these requrements, you must
submit to the AAA a declaration under oath regarding your monthly income and the number of persons in your
household. Please contact the AAA at 1-800-778-7879, f you have any questions regarding tle waiver of
Pursuant to Section 1284.3
less than 300%
administrative fees. (Effective January 1, 2003)
IT{.PRSON
Iil.PERSON
PARTY
Consumer
DSK
ON
ARBITRATION
TELEPHOIIIC
Filing Fee
Business
Filing Fee - $200

(nonrefundable)
Filing Fee
$1500
Arbitrator Compensation
$750 per case
$'1
500 per hearing day
RutesAmended and Effective September 1,2014. Cost ofArbtration Effective September 1,2014
l-learing Fee
- $500
OR
I'IORF ARBITRATORS
- $1500
Hearirrg Fee
TELEPHOI{IC
l{EARltlO - THREE
Filing Fee - $200

(nonrefundable)
(nonrefundable)
HEARING
SII{GLE ARBITRATOR
Filing Fee - $200
Filing Fee
OR
$2000
$500
$1500 per hearing day per
arbitrator
ONSUMER ARBITRATION RUI.S
33
(i) Filing Fees
ln cases before a single arbitrator, a nonrefundable filing fee capped in the

amount of $200 is payable in full by the consumer when a case is filed, unless the
parties' agreement provides that the consumer pay less. A partially refundable
fee in the amount of $1,500 is payable in full by the business, unless the parties'
agreement provides that the business pay more. This fee is due from the
business once the consumer has met the filing requirements.
ln cases before three or more arbitrators, a nonrefundable filing fee capped in
the amount of $200 is payable in full by the consumer when a case is filed, unless
the parties' agreement provides that the consumer pay less. A partially refundable
fee in the amount of $2,000 is payable in full by the business, unless the parties'
agreement provides that the business pay more, This fee is due from the
business once the consumer has met the filing requirements.
There shall be no filing fee charged for a counterclaim
The AAA reserves the right to assess additional administrative fees for services
performed by the AAA beyond those provided for in these Rules and which may
be required by the parties' agreement or stipulation.

(ii) Neutral Arbitrator's Compensatictn
Arbitrators serving on a case with an in-person or telephonic hearing will receive

compensation at a rate of $1500 per day.
Arbitrators serving on a case with a desl< arbitration/documents-only hearing will
receive compensation at a rate of $750 per case.
The AAA reserves the right to raise the daily or per-case arbitrator compensation
rate because of the complexity of the case or for processes and procedures
beyond those provided for n these Rules and which may be required by the
parties' requests, agreement, or stipulation (1) at the time of the AAA's initiation
of the case; (2) upon the addition of a new party; (3) when a change of claim is
made and, if necessary, approved by the arbitrator(s); (4) or if circumstances arise
during the course of the case due to the complexity of issues and submissions
by the parties, Any determination by the AAA on compensation rates is in the
sole discretion of the AAA and such decision is final and binding on the parties
and arbitrator.
31,
ARBITRATION RULES
(ii) Refund Schedule
Once the claimant has met the filing requirements, refunds to the business will
be calculated as follows:
a
if the case is settled or withdrawn within 30 calendar days, 50% of the filing
fee will be refunded to the business.
However, no refund of the filing fee will be made once an arbitrator has been
appointed and no refunds will be made on awarded cases. The date the claimant's
filing requirements are met is the date used to calculate any refund of filing fees.
lf the matter is settled or withdrawn prior to receipt of filing fees from the
business, the AAA will bill the business in accordance with this refund schedule.
(iv) Hearing Fees
For telephonic hearings or in-person hearings held, an additional administrative
fee of $500 is payable by the business,

There is no AAA hearing fee for the initial Administrative Conference (see R-10)
(v) Hearing Roon'r Rental
The hearing fees described above do not cover the rental of hearing rooms.
The AAA maintains rental hearing rooms in most offices for the convenience of
the parties, Check with the administrator for availability and rates. Hearing room
rental fees will be borne by the business.
(v)Abeyance Fee
Parties on cases held as inactive for one year will be assessed an annual
abeyance fee of $300. lf a party refuses to pay the assessed fee, the opposing
party or parties may pay the entire fee on behalf of all parties, otherwise the
matter will be administratively closed. All filing requirements, including payment
of filing fees, must be met before a matter may be placed in abeyance.

(vii) Expenses
All expenses of the arbitrator, including required travel and other expenses, and
any AAA expensesr as well as the costs relating to proof and witnesses produced
at the direction of the arbitrator, shall be borne by the business.
Rules Amended and Effective September 1 , 201 4. Cost of Arbtration Effectve September
, 201 4
CI]NSUMER ARBITRATIN RUI.-ES
35
(viii) Consumer Clause Revew and Registry Fee
Please note that all fees described below are nonrefundable.

Businesses with arbitration clauses contained in their consumer agreements
should submit their clause prior to September 1, 2014. The clause review and
Registry fee submitted to the AAA at any time within the 2014 calendar year is
$50, which represents the cost of reviewing the clause and maintaining that
clause on the Registry through 2015, A yearly Registry fee of $500 will be charged
to maintain each clause on the Registry for each calendar year thereafter,
For businesses submitting a clause at any time within the 2015 calendar year, the
cost of reviewing the clause and maintaining that clause on the Registry is $500.
A yearly Registry fee of $500 will be charged to maintain each clause on the
Registry for each calendar year thereafter.
lf the AAA receives a demand for consumer arbitration from an arbitration clause
that was not previously submitted to the AAA for review and placement on the
Registry, the business will incur an additional $250 fee to conduct an expedited
review of the clause.
Any subsequent changes, additions, deletions, or amendments to currently
registered arbitration agreement must be resubmitted for review and a review
fee of $500 will assessed at that time.
ARBITRATION RULES
Amercan Arbitraton Association
Procedures for ihe Resolution of Disputes through Document

Submission
D-1. Applicability
(a)
ln any case, regardless of claim size, the parties may agree to waive in-person/
telephonic hearings and resolve the dispute through submission of documents
to one arbitrator. Such agreement should be confirmed in writing no later than
the deadline for the filing of an answer.
(b) Where no disclosed claims or counterclaims exceed
$25,000, the dispute shall

be resolved by these Procedures, unless a party asks for a hearing or the arbitrator
decides that a hearing is necessary.
(c) lf one party
the Procedures for the Reso/ution of Disputes

through Document Submisslon (Procedures) and the opposing party is
unresponsive, the arbitrator shall have the power to determine whether to
proceed under the Procedures. lf both parties seek to use the Procedures after
the appointment of an arbitrator, the arbitrator must also consent to the process.
makes a request
to
use
(d) When parties agree to these Procedures, the procedures in Sections D-1 through
D-4 of these Rules shall supplement other portions of these rules which are not in
conflict with the Procedures.
D-2. Prelinrinary Managervrerrt l-"learing
Within 14 calendar days of confirmation of the arbitrator's appointment, the

arbitrator shall convene a preliminary management hearing, via conference call,
video conference, or internet, to establish a fair and equitable procedure for the
submission of documents, and, if the arbitrator deems appropriate, a schedule
for one or more telephonic or electronic conferences.
D-3. Rernoval from the Procedurcs
(a) The arbitrator
to remove the case from the Procedures if the

arbitrator determines that an in-person or telephonic hearing is necessary.
(b) lf the parties
has the discretion
to in-person or telephonic hearings after a previous agreement

to proceed under the Procedures, the arbitrator shall conduct such hearings.
lf a party seeks to have in-person or telephonic hearings after agreeing to the
Procedures, but there is not agreement among the parties to proceed with
agree
in-person or telephonic hearings, the arbitrator shall resolve the issue after the
parties have been given the opportunity to provide their respective positions
on the issue.
Rutes Amended and Effective September
, 20'l
4. Cost of Arbitraton Effective September 1, 201 .
CNStJMR ARBITRATION
RUI'TS
37
D-4, Time of Awarcj
(a) The arbitrator shall establish the date for either final written submissions or a final
telephonic or electronic conference. Such date shall operate to close the hearing,
and the time for the rendering of the award shall commence on that day as well.
(b) The arbitrator shall render the award within
14 calendar days from
the date the
hearing is closed,
(c) The award is subject to all other provisions of these
38
ARBITRATION RULES
Rules that pertain
to awards.
Glossary of Terms
Administrator
The Administrator's role is to manage the administrative aspects of the arbitration,
such as the appointment of the arbitrator, to mal<e preliminary decisions about
where hearings might take place, and to handle the fees associated with the
arbitration. As Administrator, however, the Administrator does not decide the

merits of a case or make any rulings on issues such as what documents must be
shared with each side. Because the Administrator's role is only administrative,
the Administrator cannot overrule or change an arbitrator's decisions or rulings.
The Administrator will comply with any court orders issued from litigation
involving the parties to the dispute.
ADR Agreement
An ADR Agreement is an agreement between a business and a consumer to

submit disputes to mediation, arbitration, or other ADR processes.
ADR Process
An ADR (Alternative Dispute Resolution) Process is a method of resolving a
dispute other than by court litigation. Mediation and Arbitration are the most
widely used ADR processes.
ADR Program
An ADR Program is any program or service set up or used by a business to
resolve disputes out of court.
Arbitration
ln arbitration, the parties submit disputes to an impartial person (the arbitrator)
for a decision. Each party can present evidence to the arbitrator. Arbitrators do
not have to follow the Rules of Evidence used in court.
Arbitrators decide cases with written decisions or "awards," An award is usually

binding on the parties. A court may enforce an arbitration award and the court's
review of arbitration awards is limited.
September
1. 201 4.
, 201 4,
CONSUMER ARBITRAION RUI-FS
39
Arbitration Agreement
An arbitration agreement is a contract between parties to settle their disputes
by binding arbitration. lt is typically found in the parties' contract in a section
entitled "Arbitration" or "Dispute Resolution." lt gives the parties information
about how they are choosing to settle any disputes that they might have.
Ark-:itrator
Arbitrators are neutral and independent decision malcers who are not employees
of the administrator. Except where the parties to a case reach their own
settlement, the Arbitrator will mal<e the final, binding decision on the dispute
and render it in writing, called the Award. The Arbitrator makes all the procedural
decisions on a case not made by the administrator or not decided jointly by the
parties. The Arbitrator may grant any remedy, relief, or outcome that the parties
could have received in court, including awards of attorney's fees and costs, in
accordance with the law(s) that applies to the case.
Once appointed to a case, an Arbitrator may not be removed by one party
without the other party's consent or unless the administrator determines an
Arbitrator should be removed and replaced by another Arbitrator chosen by the
administrator in a manner described in these Rules.
Case Administrator
The Case Administrator is the AAA's employee assigned to handle the

administrative aspects of the case, He or she does not decide the case. He or
she manages the case's administrative steps, such as exchanging documents,
matching schedules, and setting up hearings. The Case Administrator is the
parties'contact point for almost all aspects of the case outside of any hearings
Claimant
A Claimant is the party who files the claim or starts the arbitration. Either the
consumer or the business may be the Claimant.
Demand for Arbitration (also referred to as "Demand")
The written document created by the claimant that informs the respondent that
it wishes to arbitrate a dispute. This document provides basic information about
the dispute, the parties involved and what the claimant wants as a result of the
arbitration,
I,O
ARBITRATION RULES
f)ocu me nts-O
ly Arbitration
ln a Documents-Only Arbitraticln, the parties submit their arguments and

evidence to the arbitrator in writing. The arbitrator then makes an award based
only on the documents. No in-person or telephone hearing is held,
lndependent ADR lnstitution

An lndependent ADR lnstitution is an organization that provides independent
and impartial administration of ADR programs for consumers and businesses.
The American Arbitration Association is an lndependent ADR lnstitution.
ln-Person Hearing
During an ln-Person Hearing, the parties and the arbitrator meet in a conference
room or office and the parties present their evidence in a process that is
similarto going to court. However, an ln-Person Hearing is not as formal as going
to court,
Mediation
ln Mediation, an impartial person (the mediator) helps the parties try to settle
their dispute by reaching an agreement together, A mediator's role is to help
the parties come to an agreement. A mediator does not arbitrate or decide
the outcome.
Neutral
A "Neutral" is a mediator, arbitrator, or other independent, impartial person

selected to serve as the independent third party in an ADR process.
Party
The party is the person(s) or business that is involved in the dispute in the
arbitration process. Usually, these are the people or businesses that have an
arbitration agreement between them that specifies that a dispute should be
resolved by arbitration.
September
1, 201 4.
Cost of Arbitraton Effective September 1, 2014.
CONSUMHR ARBITRATION RUI"FS
41
Parties
Parties are all the separate individuals, businesses, or organizations involved in
the arbitration.
Opposing Party
The opposing party is the other party that is on the opposite side of the
arbitration from you, lf you are the claimant, the Opposing Party is the
respondent. lf you are the respondent, the Opposing Party is the claimant. lf you
are the consumer, the Opposing Party is the business. lf you are the business,
the Opposing Party is the consumer.
Respondent
The respondent is the party against whom the claim is filed, lf a Respondent
states a claim in arbitration, it is called a counterclaim. Either the consumer or
the business may be the Respondent.
Telephone l"learing
ln a Telephone Hearing, the parties have the opportunity to tell the arbitrator
about their case during a conference call, They also present their evidence to
the arbitrator during the call. Often this is done after the parties have sent in
documents for the arbitrator to review.
r,2
ARBITRATION RULES
2014 American ArL:tration llssociationc, lnc. AII rights reserved. Ihese rules are The copydghted property of the
Anterican Arbitration Association (AAA) and are ntended to be used in conjunction wth the AAA'S administrative sevices.
Any unauthorized use or modfication of these rules may violate copyright \aws and other applicable laws.
P/ease contact 800.778.7879 or websitemail@adt.rg
for addtonal informatiot.
AunnlcN ARnmnarloru AssocrannoN"'
800.778.787? I websitemait@adr.org I adr.org
I
2
J
4
5
6
7
UNITET} STATES DISTRICT COURT
MIAMI
l0
DTVTSTON
CASE NO. 15.CV.20353.DPG
l1
t2
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JOSE AGUIRRE,
l4
Plaintiff,
15
vs.
16
17
RAFTKINGS, [NC.
l)efendant"
l8
19
20
,l
DECLARATTON OF TrM,pnNT rN SUpPORT OF
22
DEFENDANT DRAFTKINGS" rNC.'S PETITION TO COMPEL ARBITRATTON
23
AND DISMISS PROCEEDINGS
24
75
26
27
28
Glbson. Dun &
Crutchsr LLP
DNCL.A.RATION OF TTM ENT
I
2
a
I, Tirn Dent, declare and state as follows:
I am the Chief Financial Oftcer
at DraftKings, Inc.
knowledge of the facts set forth in this Declaration and
competently testify to these facts.
2.
if called
("DraftKings"). I have personal
as a witness,
I could and would
Attached as Exhibit A is a true and correct copy of DraftKings' Terms of Use that
were in effect as of August 12,201.4, and which have been publicly available and accessible on the
DraftKings webste (even without registering for a DraftKings account) since that date.
3.
Before making a deposit or entering any fantasy sports contests, all DraflKings
t0
customers are required to establish an account by registering with DraftKings thlough a'oSign Up"
ll
webpage that requires all first-time customers to signify their agreement to the Terms of Use and
12
Privacy Policy, This version of the webpage has been in use at least since August 12,2A14. A screen
13
shot of an example of this "Sign Up" webpage appears below:
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4,
On the
"sign Up" weage, all customers
are required to
click the box
ool
agree to the
Terms of Use and the Privacy Polioy" before establishing an account with DraftKings. As depicted
above, the phrase 'oTerms of Use" appears in green text and is a hyperlink. Upon clicking this
ooTerms
of Use" (as
hyperlink, customers are immediately directed to a webpage that presents the
mentioned earlier, a complete copy of which is attached as Exhibit A).
5.
A customer cannot register or access DraftKings' service unless he first clicks the box
Tems of Use and the Privacy Policy." If the customer fails to click that box, the
'oI agree to the
webpage
seenshot oflan example of this webpage appears below, with email information redacted:
will reload,
and the customer is asked to "Please accept the Terms
& Conditions." A
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6.
After the customer has entered his desired username, email address, password,
country, state, and clicked the boxes that (1) signify his agreement to the Terms of Use and Privacy
Policy and (2) confirm that he is at least l8 years of age, he can click the button "Register" to
complete his user profile, establish his accounto and use DraftKings' services.
Attached as Exhibit B is a true and conect screenshot of DraftKings' account records
fbr plaintifTJose Aguine, which are kept in a database used to house oustomer account information as
part of DraftKings' regular and ordinary business record-keeping practices. (Plaintifs non-public
personally identifable information has been redacted to ensure his privacy.) DraftKings' account
records reflect that Mr. Aguirre created an account, and thus clicked the box
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agree to the Terms of.
Use and the Privacy Policy," on January 21,2015 at 2:01 p.m.
8.
A customer may, at any point, withdraw his deposit money from his DraftKings
will credit back the original deposit amount with
t7
account at no cost or penalty. DraftKirrgs
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payment methods used when depositing, ancl should any funds remain, DraftKings allows the
l4
customer to choose where those lunds get sent. A soreenshot of an example of this webpage appers
ls
below, with personal infbnnation redacted:
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Once the customer completes the rvithdrawal request, a pop-up winclow
will
appear
confirnring the ustomer's desire to withclraw his fluncls li'om his DraflKings account. At the bottom
of. the
Withdrawal Request." Further, the "Double Your Deposit" pt"omotion is mentiotred in the pop-Llp
o'enter
ancl play more contests to unlock yoltr
window, reminding the customer that he need only
bonus." A screen shot o1'an example o1'this webpage appears below (personal infbrmation redacted)
o'Culccl
pop-up window therc are two cliflrent-colorecl buttons: "Conlirm Withdrawal," arld
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he
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18
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l9
with personal infbrmation redacted:
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Gibson. Dunn &
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$25.00
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The customer
will
also receive an email confirmation with a confirmation number
from DraftKings that his "request for a Withdrawal in the amount of'[X] dollars has been received
and your payment is pencli:ng processing."
below, with personal information redacted:
!;,:;i,.i1:'1,r'.,i'.:
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Stay connectd for nws on contest

anrouncements, speclals and excluslvesl
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75
I declare under penalty of perjury under the laws of the United States of America that the
foregoing is true and con'ect. Executed this
lL
day of May, 2015 at
26
27
28
Tim Dent
Gibson, Ounn &
Crulcr LLP
ll,'l3pn4
E.XHIBIT A
(Last Updated 811212014)
IMPORTANT LEGAL NOTICE REGARDING TRMS OF USE OF DRAFTKINGS

IMPORTANT! PLEASE CAREFULLY READ THESE TERMS OF USE BEFORE USING DRAFTKINGS, AS THEY
AFFECT YOUR LEGAL RIGHTS AND OBLIGATIONS.
USER AGREEMENT
DraftKings owns and operates the Website that links to these Terms of Use. We are pleased to offer you access to
our Website and the ability to participate in our fantasy sports contests of skill, other content, products, services, and
promotions (collectively the "services") that we may provide from our Website, subject to these Terms of Use (the
"Terms of Use"), our privacy policy (the "Privacy Policy") and the Official Rules and Regulations for the applicable
contests and promotions (the "Rules" or "Rules and Scoring," and together with the Terms of Use and the Privacy
Policy, the "Agreements").
CONSIDERATION
You agree to these Terms of Use by accessing or using the Website, registering for Services offered on the Website,
or by accepting, uploading, submitting or downloading any information or content from or to the Website. lF YOU DO
NOT AGREE TO BE BOUND BY ALL OF THESE TERMS OF USE, DO NOT USE THE WEBSITE. ThESE TETMS Of
Use constitute a legal agreement between you and DraftKings, and shall apply to your use of the Website and the
Services even after termination.
ELIGIBILITY
You must be at least 18 years of age to open an account, participate in contests, or win prizes offered by the
Website. ln jurisdictions, territories, and locations where the minimum age for permissible use of the Website is
greater than 18 years old, you must meet the age requirement in your local jurisdiction or territory. You must be at
least 19 years of age at time of contest registration if you are a legal resident of Alabama or Nebraska. Legal
residents physically located in any of the 50 states and Washington DC, excluding Arizona, lowa, Louisiana,
Montana, and Washington are eligible to open an account and participate in contests offered by the Website. Legal
residents of Arizona, lowa, Louisiana, Montana, and Washington (the "Excluded States") are ineligible for prizes
offered by the Website. Residents of the Excluded States are eligible to open and maintain accounts on the Website
for use only in games that do not offer prizes. Legal residents of Canada are eligible to open an account and
participate in contests offered by the Website.
You may establish only one account per person to participate in the Services offered on the Website. ln the event
DraftKings discovers that you have opened more than one account per person, in addition to any other rights that
DraftKings may have, DraftKings reserves the right to suspend or terminate any or all of your accounts and terminate,
withhold or revoke the awarding of any prizes. You are responsible for maintaining the confidentiality of your login
names and passwords and you accept responsibility for all activities, charges, and damages that occur under your
account. lt shall be a violation of these Terms of Use to allow any other person to use your account to participate in
any contest. lf you have reason to believe that someone is using your account without your permission, you should
contact us immediately. We will not be responsible for any loss or damage resulting from your failure to notify us of
unauthorized use. lf we request registration information from you, you must provide us with accurate and complete
information and must update the information when it changes.
"Authorized Account Holder" is defined as the natural person 18 years of age or older who is assigned to an e-mail
address by an lnternet access provider, on-line service provider, or other organization (e.9., business, education
institution, etc.) that is responsible for assigning e-mail addresses for the domain associated with the submitted e-mail
address for registration on the Website. By inputting a payment method to participate in real money contests, lhe
Authorized Account Holder hereby affirms that the Authorized Account Holder is the lawful owner of the payment
method account used to make any deposit(s) on the Website. lt shall be a violation of these Terms of Use for any
Authorized Account Holder to submit payment using any payment method that is not owned by the Authorized
Account Holder,
DraftKings employees may use the Website, and will from time to time do so for the purpose of testing the site user
experience, socializing and competing with customers to build community, and other reasonable and fair uses at the
discretion of Draft Kings.
CONTEST NTRY
Users will be able to visit the Website and view the games available for entry (the "Contests"). Each individual
Contest that is not free to enter has an entry fee listed in US dollars. When you select to participate in a Contest and
complete the entry process, the listed amount of US dollars will be debited from your DraftKings account.
REFUND POLICY
All payments are final. No refunds will be issued. ln the event of a dispute regarding the identity of the person
submitting an entry, the entry will be deemed submitted by the person in whose name the account was registered.
CONDITIONS OF PARTICIPATON
By entering a Contest, entrants agree to be bound by these Rules and the decisions of DraftKings, which shall be
final and binding in all respects, The Company, at its sole discretion, may disqualify any entrant from a Contest,
refuse to award benefits or prizes and require the return of any prizes, if the entrant engages in conduct the Company
deems to be improper, unfair or otherwise adverse to the operation of the Contest or is in any way detrimental to
other entrants. lmproper conduct includes, but is not limited to:
.
o
.
.
o
.
.
.
.
Falsifylng personal information required to enter a Contest or claim a ptize;

Engaging in any type of financial fraud including unauthorized use of credit instruments to enter a Contest
or claim a prizei
Colluding with any other individual(s) or engaging in any type of syndicate play;
Any violation of Contest rules or the Terms of Use;
Accumulating points or prizes through unauthorized methods such as automated scripts, bots, or other
automated means;
Using automated means (including but not limited to harvesting bots, robots, parser, spiders or screen
scrapers) to obtain, collect or access any information on the Website or of any User for any purpose.
Any type of bonus abuse, abuse of the refer-a-friend program, or abuse of any other offers or promotions;
Tampering with the administration of a Contest or trying to in any way tamper with the computer programs
or any security measure associated with a Contest;
Obtaining other entrants information and spamming other entrants; or
Abusing the Website in any way.
Users further acknowledge that the forfeiture and/or return of any prize shall in no way prevent DraftKings from
pursuing criminal or civil proceedings in connection with such conduct.
By entering into a Contest or accepting any prize, entrants, including but not limited to the winner(s), agree to
indemnify, release and to hold harmless DraftKings, its parents, subsidiaries, affiliates and agents, as well as the
officers, directors, employees, shareholders and representatives of any of the foregoing entities (collectively, the
"Released Parties"), from any and all liability, claims or actions of any kind whatsoever, including but not limited to
injuries, damages, or losses to persons and property which may be sustained in connection with participation in the
Contest, the receipt, ownership, use or misuse of any prize or while preparing for, participating in and/or travelling to
or from any prize related activity, as well as any claims based on publicity rights, defamation, or invasion of privacy.
DraftKings may, in its sole and absolute discretion, require an Authorized Account Holder to execute a separate
release of claims similar to the one listed above in this Paragraph as a condition of being awarded any prize or
receiving any payout.
DraftKings is not responsible for: any incorrect, invalid or inaccurate entry information; human errors; postal
delays/postage due mail; technical malfunctions; failures, including public utility or telephone outages; omissions,
interruptions, deletions or defects of any telephone system or network, computer online systems, data, computer
equipment, servers, providers, or software (including, but not limited to software and operating systems that do not
permit an entrant to participate in a Contest), including without limitation any injury or damage to any entrant's or any
other person's computer or video equipment relating to or resulting from participation in a Contest; inability to access
the Website, or any web pages that are part of or related to the Website; theft, tampering, destruction, or
unauthorized access to, or alteration of, entries and/or images of any kind; data that is processed late or incorrectly or
is incomplete or lost due to telephone, postal issues, computer or electronic malfunction or traffic congestion on
telephone lines or transmission systems, or the lnternet, or any service provider's facilities, or any phone site or
website or for any other reason whatsoever; typographical, printing or other errors, or any combination thereof.
DraftKings is not responsible for incomplete, illegible, misdirected or stolen entries. lf for any reason a Contest is not
capable of running as originally planned, or if a Contest, computer application, or website associated therewith (or
any portion thereof) becomes corrupted or does not allow the proper entry to a Contest in accordance with the Terms
of Use or applicable Contest rules, or if infection by a computer (or similar) virus, bug, tampering, unauthorized
intervention, actions by entrants, fraud, technical failures, or any other causes of any kind, in the sole opinion of
DraftKings corrupts or affects the administration, security, fairness, integrity, or proper conduct of a Contest, the
Company reserves the right, at its sole discretion, to disqualify any individual implicated in such action and/or to
cancel, terminate, extend, modify or suspend the Contest, and select the winne(s) from all eligible entries received. lf
such cancellation, termination, modifcation or suspension occurs, notification will be posted on the Website.
ANY ATTEMPT BY AN ENTRANT OR ANY OTHER INDIVIDUAL TO DELIBERATELY DAMAGE THE WEBSITE OR
UNDERMINE THE LEGITIMATE OPERATION OF ANY CONTEST IS A VIOLATION OF CRIMINAL AND/OR CIVIL
LAWS AND SHOULD SUCH AN ATTEMPT BE MADE, DRAFTKINGS RESERVES THE RIGHT TO SEEK
DAMAGES AND OTHER REMEDIES FROM ANY SUCH PERSON TO THE FULLEST EXTENT PERMITTED BY
LAW.
All entries become the property of DraftKings and will not be acknowledged or returned.
To be eligible to enter any contest or receive any prize, the Authorized Account Holder may be required to provide
DraftKings with additional documentation and/or information to verify the identity of the Authorized Account Holder,
and to provide proof that all eligibility requirements are met. ln the event of a dispute as to the identity or eligibility of
an Authorized Account Holder, DraftKings will, in its sole and absolute discretion, utilize certain information collected
by DraftKings to assist in verifoing the identity and/or eligibility of such Authorized Account Holder.
Participation in each Contest must be made only as specifed in the Terms of Use. Failure to comply with these
Terms of Use will result in disqualification and, if applicable, prize forfeiture.
Where legal, both entrants and winner consent to the use of their name, voice, and likeness/photograph in and in
connection with the development, production, distribution and/or exploitation of any Contest or the Website. Winners
agree that from the date of notification by DraftKings of their status as a potential winner and continuing until such
time when DraftKings informs them that they no longer need to do so that they will make themselves available to
DraftKings for publicity, advertising, and promotion activities.
DraftKings reserves the right to move entrants from the Contests they have entered to substantially similar Contests
in certain situations determined by DraftKings in its sole discretion.
CONTEST PRIZS AND PROMOTIONS

Prizes will only be awarded if a Contest is run. We reserve the right to cancel Contests at any time. ln the event of a
cancellation, all entry fees will be refunded to the customer except as specifically provided in these Terms of Use.
Guaranteed prizes are offered in connection with some of the Contests offered by the Website. Each Contest or
promotion is governed by its own set of official rules. We encourage you to read such Contest and promotions Rules
before participating.
OTHER LEGAL RESTRICTIONS

CONTEST OF SKILL
Contests offered on the Website are contests of skill. Winners are determined by the objective criteria described in
the Contest deadline, roster, Rules, scoring, and any other applicable documentation associated with the Contest.
From all entries received for each Contest, winners are determined by the individuals who use their skill and
knowledge of relevant sports information and fantasy sports rules to accumulate the most points according to the
corresponding scoring rules. The Website and Contests may not be used for any form of illicit gambling.
CONTEST STATISTICS AND LIV SCORING

To the extent that we offer'live' statistics during gameplay, all 'live' statistics and other information provided through
the DraftKings Website and related information sources are unofficial. Live sports statistics and their respective
components are offered for informational and/or entertainment purposes only and are not used to determine the
results of our Contests. While DraftKings and the third parties used to provide the DraftKings Services use
reasonable efforts to include accurate and up-to-date information, neither DraftKings nor its third party providers
warrant or make any representations of any kind with respect to the information provided through the DraftKings
Website and related information sources. DraftKings and its third party providers shall not be responsible or liable for
the accuracy, usefulness, or availability of any information transmitted or made available via the DraftKings Website
and related information sources, and shall not be responsible or liable for any error or omissions in that information.
CONTEST RESULS
Contest results and prize calculations are based on the final statistics and scoring results at the completion of the last
professional sports game of each individual Contest. Once Contest results are reviewed and graded, prizes are
awarded. The scoring results of a Contest will not be changed regardless of any official statistics or scoring
adjustments made by the leagues at later times or dates, except in DraftKings' sole discretion.
DraftKings reserves the right, in its sole and absolute discretion, to deny any contestant the ability to participate in
head{o-head contests for any reason whatsoever. Further, DraftKings may, in its sole and absolute discretion,
invalidate any head-to-head contest result for the purposes of preventing abusive and/or any unfair or potentially
unlawful activity, or in the event that there is a risk of any such abusive, illegal, or unfair activity.
PRIZES
At the conclusion of each Contest, prizes will be awarded by 12:00 NOON EST on the following day except in
circumstances where technical failure or other reasons prevent such timely payout. Contest prizes are listed in our
prize table list. Prizes won are added to the winning participants account balance. ln the event of a tie, prizes are
divided evenly amongst the participants that have tied.
PRIZE TABLES
Contest prize payouts will be published with the creation of each new contest. DraftKings reserves the right, in its sole
discretion, to cancel or suspend the contests (or any portion thereof) should virus, bugs, unauthorized human
intervention, or other causes corrupt administration, security, fairness, integrity or proper operation of the contest (or
any portion thereof) warrant doing so. Notification of such changes may be provided by DraftKings to its customers
but will not be required.
PAYMENT AND WITHDRAWAL OF PRIZES

Winners are posted on the Website.
Entrants may withdraw their cash prize awards as well as cash deposits by using the "Withdrawal" option on the
Website. Entrants may be requested to complete an affidavit of eligibility and a liability/publicity release (unless
prohibted by law) and/or appropriate tax forms and forms of identification including but not limited to a Driver's
License, Proof of Residence, and/or any information relating to payment/deposit accounts as reasonably requested
by DraftKings in order to complete the withdrawal of prizes. Failure to comply with this requirement may result in
disqualification and forfeiture of any prizes. Disqualification or forfeiture of any prizes may also occur if it is
determined any such entrant did not comply with these Terms of Use in any manner.
Checks for withdrawal requests are processed within 14 business days, and are sent via U.S. Mail. Promotional
deposits, credits, and other bonuses may not be withdrawn from a DraftKings account unless appropriate terms of the
promotion are achieved first by the user.
All taxes associated with the receipt of any prize are the sole responsibility of the winner. ln the event that the
awarding of any prizes to winners of Contests is challenged by any legal authority, DraftKings reserves the right in its
sole discretion to determine whether or not to award such prizes.
No substitution or transfer of prize is permitted, except that DraftKings reserves the right to substitute a prize of equal
value or greater if the advertised prize is unavailable. All prizes are awarded "as is" and without warranty of any kind,
express or implied (including, without limitation, any implied warranty of merchantability for a particular purpose).
Any withdrawal requests, after approved by DraftKings, will be credited back to the same credit card or method of
payment used to deposit funds on the Website. DraftKings will only release withdrawals to a different credit card or
other payment method other than that which was used to make deposit(s) after the aggregate amount of such
deposit(s) has already been released back to the credit card(s) or payment method(s) used for the deposit(s).
TERMINATION AND FFECT OF TERMINATION

ln addition to any other legal or equitable remedy, DraftKings may, without prior notice, immediately revoke any or all
of your rights granted hereunder. ln such event, you will immediately cease all access to and use of the DraftKings
Website. DraftKings may revoke any password(s) and/or account identification issued to you and deny you access to
and use of the Website. Any such action shall not affect any rights and obligations arising prior thereto. All provisions
of the Terms of Use which by their nature should survive termination shall survive termination, including, without
limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
DISCLAIMER OF WARRANTIES
THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, SOFTWARE, AND FUNCTIONS MADE
AVAILABLE ON OR ACCESSED THROUGH OR SENT FROM THE WEBSITE, ARE PROVIDED ''AS IS,'' ''AS
AVAILABLE," AND "WITH ALL FAULTS.'' TO THE FULLEST EXTENT PERMISSIBLE BY LAW, THE COMPANY
AND ITS PARENTS, SUBSIDIARIES AND AFFILIATES MAKE NO REPRESENTATION OR WARRANTIES OR
ENDORSEMENTS OF ANY KIND WHATSOEVER (EXPRESS OR IMPLIED) ABOUT: (A) THE WEBSITE; (B) THE
CONTENT AND SOFTWARE ON AND PROVIDED THROUGH THE WEBSITE; (C) THE FUNCTIONS MADE
ACCESSIBLE ON OR ACCESSED THROUGH THE WEBSITE; (D) THE MESSAGES AND INFORMATION SENT
FROM THE WEBSITE BY USERS; (E) ANY PRODUCTS OR SERVICES OFFERED VIA THE WEBSITE OR
HYPERTEXT LINKS TO THIRD PARTIES; AND/OR (F) SECURITY ASSOCIATED WITH THE TRANSMISSION OF
SENSITIVE INFORMATION THROUGH THE WEBSITE OR ANY LINKED SITE. THE COMPANY DOES NOT
WARRANT THAT THE WEBSITE, ANY OF THE WEBSITES' FUNCTIONS OR ANY CONTENT CONTAINED
THEREIN WILL BE UNINTERRUPTED OR ERROR-FREE; THAT DEFECTS WILL BE CORRECTED; OR THAT
THE WEBSITES OR THE SERVERS THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER
HARMFUL COMPONENTS.
THE COMPANY DOES NOT WARRANT THAT YOUR ACTIVITIES OR USE OF THE WEBSITE IS LAWFUL IN ANY
PARTICULAR JURISDICTION AND, IN ANY EVENT, THE COMPANY SPECIFICALLY DISCLAIMS SUCH
WARRANTIES. YOU UNDERSTAND THAT BY USING ANY OF THE FEATURES OF THE WEBSITE, YOU ACT AT
YOUR OWN RISK, AND YOU REPRESENT AND WARRANT THAT YOUR ACTIVITIES ARE LAWFUL IN EVERY
JURISDICTION WHERE YOU ACCESS OR USE THE WEBSITE OR THE CONTENT. FURTHER, THE COMPANY
AND ITS PARENTS, SUBSIDIARIES AND AFFILIATES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES
INCLUDING, WITHOUT LIMITATION, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR

PURPOSE, AND TITLE.
THE COMPANY, ITS PARENTS, SUBSIDIARIES AND AFFILIATES, AND THE DIRECTORS, OFFICERS,
EMPLOYEES, AND OTHER REPRESENTATIVES OF EACH OF THEM, SHALL NOT BE LIABLE FOR THE USE
OF THE WEBSITE INCLUDING, WITHOUT LIMITATION, THE CONTENT AND ANY ERRORS CONTAINED
THEREIN. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER
WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO THE EXTENT SUCH JURISDICION'S LAW
IS APPLICABLE TO THIS AGREEMENT.
LIMITATION OF LIABILITY
YOU UNDERSTAND AND AGREE THAT THE COMPANY LIMITS ITS LIABILITY IN CONNECTION WITH YOUR
USE OF THE WEBSITE AS SET FORTH BELOW: UNDER NO CIRCUMSTANCES SHALL THE COMPANY, ITS
PARENTS, SUBSIDIARIES, OR AFFILIATES, OR THE DIRECTORS, OFFICERS, EMPLOYEES, OR OTHER
REPRESENTATTVES OF EACH OF THEM (COLLECT|VELY, THE "COMPANY ENTTT|ES AND INDIVIDUALS"), BE
LTABLE TO yOU FOR ANy LOSS OR DAMAGES OF ANY KrND (TNCLUDING, WITHOUT LTMTTATTON, FOR ANY
SPECIAL, DIRECT, INDIRECT, INCIDENTAL, EXEMPLARY, ECONOMIC, PUNITIVE, OR CONSEQUENTIAL
DAMAGES) THAT ARE DTRECTLY OR TNDTRECTLY RELATED TO (1) THE WEBSTTE, THE CONTENT, OR YOUR
UPLOAD INFORMATION; (2) THE USE OF, INABILITY TO USE, OR PERFORMANCE OF THE WEBSITE; (3) ANY
ACTION TAKEN IN CONNECTION WITH AN INVESTIGATION BY THE COMPANY OR LAW ENFORCEMENT
AUTHORITIES REGARDING YOUR USE OF THE WEBSITE OR CONTENT;(a) ANY ACTION TAKEN lN
CONNECTION WITH COPYRIGHT OWNERS; OR (5) ANY ERRORS OR OMISSIONS lN THE WEBSITE'S
TECHNICAL OPERATION, EVEN IF FORESEEABLE OR EVEN IF THE COMPANY ENTITIES AND INDIVIDUALS
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES WHETHER IN AN ACTION OF CONTRACT,
NEGLTGENCE, STRTCT L|ABtLtTy TORT (TNCLUDtNG, WTTHOUT LTMTTATTON, WHETHER CAUSED lN WHOLE
OR IN PART BY NEGLIGENCE, ACTS OF GOD, TELECOMMUNICATIONS FAILURE, OR THEFT OR
DESTRUCTTON OF THE WEBSTTE). tN NO EVENT WrLL THE COMPANY ENTtTtES AND tNDIVIDUALS BE
LIABLE TO YOU OR ANYONE ELSE FOR LOSS OR INJURY, INCLUDING, WITHOUT LIMITATION, DEATH OR
PERSONAL INJURY. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO
EVENT SHALL THE COMPANY ENTITIES AND INDIVIDUALS TOTAL LIABILITY TO YOU FOR ALL DAMAGES,
LOSSES, OR CAUSES OF ACTION EXCEED ONE HUNDRED DOLLARS ($1OO. THE COMPANY ENTITIES AND
INDIVIDUALS ARE NOT RESPONSIBLE FOR ANY DAMAGE TO ANY USER'S COMPUTER, HARDWARE,
COMPUTER SOFTWARE, OR OTHER EQUIPMENT OR TECHNOLOGY INCLUDING, WITHOUT LIMITATION,
DAMAGE FROM ANY SECURITY BREACH OR FROM ANY VIRUS, BUGS, TAMPERING, FRAUD, ERROR,
OMISSION, INTERRUPTION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER LINE OR
NETWORK FAILURE OR ANY OTHER TECHNICAL OR OTHER MALFUNCTION. YOUR ACCESS TO AND USE
OF THIS WEBSITE IS AT YOUR RISK. IF YOU ARE DISSATISFIED WITH THE WEBSITE OR ANY OF THE
CONTENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESSING AND USING THE
WEBSITE OR THE CONTENT. YOU RECOGNIZE AND CONFIRM THAT IN THE EVENT YOU INCUR ANY
DAMAGES, LOSSES OR INJURIES THAT ARISE OUT OF THE COMPANY'S ACTS OR OMISSIONS, THE
DAMAGES, IF ANY, CAUSED TO YOU ARE NOT IRREPARABLE OR SUFFICIENT TO ENTITLE YOU TO AN
INJUNCTION PREVENTING ANY EXPLOITATION OF ANY WEBSITE OR OTHER PROPERTY OWNED OR
CONTROLLED BY THE COMPANY AND/OR ITS PARENTS, SUBSIDIARIES, AND/OR AFFILIATES OR YOUR
UPLOAD INFORMATION, AND YOU WILL HAVE NO RIGHTS TO ENJOIN OR RESTRAIN THE DEVELOPMENT,
PRODUCTION, DISTRIBUTION, ADVERTISING, EXHIBITION OR EXPLOITATION OF ANY COMPANY WEBSITE
OR OTHER PROPERTY OR YOUR UPLOAD INFORMATION OR ANY AND ALL ACTIVITIES OR ACTIONS
RELATED THERETO. BY ACCESSING THE WEBSITE, YOU UNDERSTAND THAT YOU MAY BE WAIVING
RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED.
ACCORDINGLY, YOU AGREE TO WAIVE THE BENEFIT OF ANY LAW, INCLUDING, TO THE EXTENT
APPLICABLE, CALIFORNIA CIVIL CODE SECTION 1542,THAT OTHERWISE MIGHT LIMIT YOUR WAIVER OF
SUCH CLAIMS.
INTELLECTUAL PROPERTY RIGHTS

The content on the Website, including without limitation, the text, software, scripts, graphics, photos, sounds, music,
videos, interactive features and the like and the trademarks, service marks and logos contained therein (the
"lntellectual Property"), are owned by or licensed to DraftKings, subject to copyright and other intellectual property
rights under United States and foreign laws and international conventions. Content on the Website is provided to you
AS lS for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted,
broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior
written consent of the respective owners. DraftKings reserves all rights not expressly granted in and to the Website
and the lntellectual Property. You agree to not engage in the use, copying, or distribution of any of the lntellectual
Property other than expressly permitted herein. lf you download or print a copy of the lntellectual Property for
personal use, you must retain all copyright and other proprietary notices contained therein. You agree not to
circumvent, disable or othenruise interfere with security related features of the Website or features that prevent or
restrict use or copying of any lntellectual Property or enforce limitations on use of the Website or the lntellectual
Property therein.
Some of the Services may allow you to submit or transmit audio, video, text, or other materials (collectively, "User
Submissions") to or through the Services. When you provide User Submissions, you grant to DraftKings, its parents,
subsidiaries, affiliates, and partners a non-exclusive, worldwide, royalty-free, fully sublicenseable license to use,
distribute, edit, display, archive, publish, sublicense, perform, reproduce, make available, transmit, broadcast, sell,
translate, and create derivative works of those User Submissions, and your name, voice, likeness and other
identifying information where part of a User Submission, in any form, media, software, or technology of any kind now
known or developed in the future, including, without limitation, for developing, manufacturing, and marketing products.
You hereby waive any moral rights you may have in your User Submissions.
ln addition, you agree that any User Submissions you submit shall not contain any material that is, in the sole and
absolute discretion of DraftKings, inappropriate, obscene, vulgar, unlawful, or otherwise objectionable (hereinafter,
"Prohibited Content"). Posting of any Prohibited Content, in addition to any and all other rights and remedies available
to DraftKings, may result in account suspension or termination.
We respect your ownership of User Submissions. lf you owned a User Submission before providing it to us, you will
continue owning it after providing it to us, subject to any rights granted in the Terms of Use and any access granted to
others. lf you delete a User Submission from the Services, our general license to that User Submission will end after
a reasonable period of time required for the deletion to take full effect. However, the User Submission may still exist
in our backup copies, which are not publicly available. lf your User Submission is shared with third parties, those third
parties may have retained copies of your User Submissions. ln addition, if we made use of your User Submission
before you deleted it, we will continue to have the right to make, duplicate, redistribute, and sublicense those preexisting uses, even after you delete the User Submission. Terminating your account on a Service will not
automatically delete your User Submissions.
We may refuse or remove a User Submission without notice to you. However, we have no obligation to monitor User
Submissions, and you agree that neither we nor our parents, subsidiaries, affiliates, employees, or agents will be
liable for User Submissions or any loss or damage resulting from User Submissions.
Except as provided in the Privacy Policy, we do not guarantee that User Submissions will be private, even if the User
Submission is in a password-protected area. Accordingly, you should not provide User Submissions that you want
protected from others.
You represent and warrant that you have all rights necessary to grant to DraftKings the license above and that none
of your User Submissions are defamatory, violate any rights of third parties (including intellectual property rights or
rights of publicity or privacy), or violate applicable law.
ARBITRATION, CONSENT TO JURISDICTION IN MASSACHUSETTS, ATTORNEY'S FES
Any and all disputes, claims or controversies arising out of or relating to this Agreement, the breach thereof, or any
use of the Website (including all commercial transactions conducted through the Website) ("Claims"), except for
claims filed in a small claims court that proceed on an individual (non-class, non-representative) basis, shall be
settled by binding arbitration before a single arbitrator appointed by the American Arbitration Association ("AA4") in
accordance with its then governing rules and procedures, including the Supplementary Procedures for ConsumerRelated Disputes, where applicable. ln agreeing to arbitrate all Claims, you and DraftKings waive all rights to a trial by
jury in any action or proceeding involving any Claim. The arbitration shall be held in Suffolk County, Massachusetts,
and judgment on the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. This
arbitration undertaking is made pursuant to and in connection with a transaction involving interstate commerce, and
shall be governed by and construed and interpreted in accordance with the Federal Arbitration Act at g U.S,C.
Section 1, et seq. This arbitration provision shall survive termination of this Agreement. Subject to the limitations set
forth below, the arbitrator shall have authority to award legal and equitable relief available in the cous of the
Commonwealth of Massachusetts, provided that:
The arbitrator shall not have authority to award punitive damages; and
Any and allclaims shall be arbitrated on an individual basis only, and shall not be consolidated or joined with or in
any arbitration or other proceeding involving a Claim of any other party. You and DraftKings agree that the arbitrator
shall have no authority to arbitrate any Claim as a class action or in any other form other than on an individual basis.
For any Claims that are not subject to arbitration: (a) the exclusive jurisdiction and venue for proceedings involving
Claims shall be the courts of competent jurisdiction sitting within Suffolk County, Massachusetts (the "Forum"), and
the parties hereby waive any argument that any such court does not have personal jurisdiction or that the Forum is
not appropriate or convenient; (b) you and DraftKings waive any and all rights to trial by jury with respect to any
Claims.
ln the event that either party initiates a proceeding involving any Claim other than an arbitration in accordance with
this Section, or initiates a proceeding involving a Claim under this Section other than in the Forum, the other party
shall recover all attorneys' fees and expenses reasonably incurred in enforcing this Agreement to arbitrate and the
Forum to which the parties have herein agreed.
MISCELLANEOUS
These Terms of Use shall be governed by the internal substantive laws of the Commonwealth of Massachusetts,
without respect to its conflict of laws principles. Any claim or dispute between you and DraftKings that arises in whole
or in part from the Terms of Use, the Website or any Contest shall be decided exclusively by a court of competent
jurisdiction located in Suffolk County, Massachusetts.
Nothing in the Terms of Use shall create or confer any rights or other benefits in favor of any third parties except as
specifically provided herein. By participating in any Contest on the Website, you agree to indemnify, protect, defend
and hold harmless DK, its parents, subsidiaries, affiliates and divisions, and their respective directors, officers,
employees, agents and representatives (the "DK Entities"), from and against any and all third party claims, liabilities,
losses, damages, injuries, demands, actions, causes of action, suits, proceedings, judgments and expenses,
including reasonable attorneys' fees, court costs and other legal expenses including, without limitation, those costs
incurred at the trial and appellate levels and in any bankruptcy, reorganization, insolvency or other similar
proceedings, and any other legal expenses (collectively, "Claims") arising from or connected with your use of the
Website, any payment methods used, any funding of your account, and/or your participation in any Contest. The
Website may contain links to third party websites that are not owned or controlled by DraftKings. DraftKings has no
control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party websites.
ln addition, DraftKings will not and cannot censor or edit the content of any third-party site. By using the Website, you
expressly relieve DraftKings from any and all liability arising from your use of any third-party website. Accordingly, we
encourage you to be aware when you leave the Website and to read the terms and conditions and privacy policy of
each other website that you visit.
Nothing in the Terms of Use shall create or be deemed to create a partnership, agency, trust arrangement, fiduciary
relationship or joint venture between you and DraftKings.
No professional or amateur sports league or any team associated with any professional or amateur sports league is
associated with DraftKings or in any way affiliated or associated with the Contests.
Third-party online publishers that refer users to the DraftKings website shall not be responsible or liable for the
DraftKings website or any of the content, software, or functions made available on, or accessed through, or sent from,
the DraftKings website.
lf any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such
provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force
and effect.
No waiver of any term of these Terms of Use shall be deemed a further or continuing waiver of such term or any
other term, and DraftKings' failure to assert any right or provision under these Terms of Use shall not constitute a
waiver of such right or provision.
DraftKings reserves the right to amend these Terms of Use at any time and without notice, and it is your responsibility
to review these Terms of Use for any changes. lf you continue to use the Services after we change the Terms of Use,
you accept all changes. The failure of DraftKings to comply with any provision of these Terms of Use due to an act of
God, hurricane, war, fire, riot, earthquake, terrorism, act of public enemies, actions of governmental authorities
outside of the control of the Company (excepting compliance with applicable codes and regulations) or other force
majeure event will not be considered a breach of these Terms of Use.
DRAFTKINGS AND OTHER TRADEMARKS CONTAINED ON THE WEBSITE ARE TRADEMARKS OR
REGISTERED TRADEMARKS OF DRAFTKINGS IN THE UNITED STATES AND/OR OTHER COUNTRIES. THIRD
PARTY TRADEMARKS, TRADE NAMES, PRODUCT NAMES AND LOGOS MAY BE THE TRADEMARKS OR
REGISTERED TRADEMARKS OF THEIR RESPECTIVE OWNERS. YOU MAY NOT REMOVE OR ALTER ANY
TRADEMARK, TRADE NAMES, PRODUCT NAMES, LOGO, COPYRIGHT OR OTHER PROPRIETARY NOTICES,
LEGENDS, SYMBOLS OR LABELS ON THE WEBSITE.
MOBILE APPLICATION
These Terms of Use shall also apply to the use of the DraftKings Mobile Application. These Terms of Use are
intended to be in addition to the End User License Agreement (found here: https://www.apple.com/legal/internetservices/itunes/appstore/dev/stdeula/) for the Mobile Application, and to the extent any of these Terms of Use conflict
with the End User License Agreement, these Terms of Use shall be deemed to apply and the conflicting provision in
the End User License Agreement shall not be applicable. Any reference to the Website in these Terms of Use shall
also be deemed to include the Mobile Application.
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93

DraftKings' Motion To Compel Arbitration

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Case 1:15-cv-20353-DPG Document 15 Entered on FLSD Docket 06/02/2015 Page 1 of 19

UNITED STATES DISTRICT COURT

DEFENDANT'S MOTION Ai\D MEMORANDUM OF LAW IN SUPPORT OF MOTION

Case 1:15-cv-20353-DPG Document 15 Entered on FLSD Docket 06/02/2015 Page 2 of 19

INTRODUCTION AND SUMMARY OF ARGUMENT

Disregarding His Agreement To Arbitrate, Plaintiff Improperly Pursued His

Plaintiff Must Arbitrate His Claims Against DraftKings On An Individual

The Written Arbitration Provision Is Valid....

All Of Plaintiff s Claims Fall Within The

Scope Of The Arbitration

DraftKings Has Not Waived Its Right To Arbitrate.....................

Plaintiff Cannot Avoid His Agreement To Arbitrate...

The Arbitration Provision Is Not

The Requirement To Proceed On An Individual Basis In Arbitration Is

The Court Should Dismiss The Complaint As

All Claims Are Subject To

DraftKings Should Be Awarded Its Attomeys' Fees And Expenses Incurred In

Case 1:15-cv-20353-DPG Document 15 Entered on FLSD Docket 06/02/2015 Page 3 of 19

Am. Express v. Italian Colors Restaurant,

Cruz v. Cingular Wireless, LLC,

Curbelo v. Autonation Benefits Co.,

Dean \ltter Reynolds, Inc. v. Byrd,

Fteja v. Facebook, Inc.,

Hemispherx Biopharma, Inc. v. Johannesburg Consol. Invs.,

Ibrahim v. Morton's Restaurant Grp, Inc.,

Lambert v. Austin Ind.,

LexisNexis Risk Solutions FL, Inc. v. Spegel,

Maldonado v. Mqttress Firm, Inc.,

Manard v. Knology, Inc.,

H. Cone Mem'l Hosp. v. Mercury Const. Corp.,

Case 1:15-cv-20353-DPG Document 15 Entered on FLSD Docket 06/02/2015 Page 4 of 19

Pendergast v. Sprnt Nextel Corp.,

Perera v. H&R Block Eastern Enter., Inc.,

Shearson/Am. Express, Inc. v. McMahon,

Stolt-Nielsen v. Animalfeeds Int'l Corp.,

Swift v. Zynga Game Netuvork, Inc.,

Unted States v. Faris,

Vernon v. Qwest Commc'ns Intern., Inc.,

Case 1:15-cv-20353-DPG Document 15 Entered on FLSD Docket 06/02/2015 Page 5 of 19

MOTION AND MEMORANDUM OF LAW

et seq.), for an order compelling individual

INTRODUCTION AND SUMMARY OF ARGUMENT

an opportunity to enter online fantasy sports contests by registering to use

("AAA"). (Dent Decl. Ex. A (Terms of Use) at 4.) DraftKings

arbitrate this dispute as the parties agreed.

Cir. 2011) (the Federal Arbitration Act

written agreements to arbitrate

petition to compel. See lbrahim v. Morton's Restaurant Grp,.[zc., No. 04-20554,2005 WL

Case 1:15-cv-20353-DPG Document 15 Entered on FLSD Docket 06/02/2015 Page 6 of 19

A (Terms of Use) at 5.)

expenses incurred to bring this petition.

31-32.) To use the DraftKings website and make this deposit,

Case 1:15-cv-20353-DPG Document 15 Entered on FLSD Docket 06/02/2015 Page 7 of 19

This arbitration undertaking is made pursuant to and in connection with a

DraftKings on January 21,2015. Qd.,Ex.B.)

Disregarding His Agreement To Arbitrate, Plaintiff Improperly Pursued His

61.) More specifically, Plaintiff challenges DraftKings' offers to double

DraftKings vigorously disputes Plaintiffs' allegations. DraftKings plainly describes the

Case 1:15-cv-20353-DPG Document 15 Entered on FLSD Docket 06/02/2015 Page 8 of 19

After filing his Complaint, Plaintiff sent DraftKings

waive service of process.

Plaintift however, refused DraftKings'

request to arbitrate, and proceeded to reiterate his request