Stephen Dye v. Tamko Building Products, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: November 2, 2018
• Docket: 17-14052
• Status: Published

Opinion

Case: 17-14052 Date Filed: 11/02/2018 Page: 1 of 20

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-14052 ________________________

D.C. Docket No. 8:17-cv-00590-MSS-AEP

STEPHEN DYE, on behalf of themselves and all others similarly situated, DOUGLAS BOHN, on behalf of themselves and all others similarly situated,

Plaintiffs - Appellants,

versus

TAMKO BUILDING PRODUCTS, INC.,

Defendant - Appellee.

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(November 2, 2018) Case: 17-14052 Date Filed: 11/02/2018 Page: 2 of 20

Before TJOFLAT, MARCUS, and NEWSOM, Circuit Judges.

NEWSOM, Circuit Judge:

You’ve undoubtedly heard of—and for that matter probably accepted the

terms of—a “shrinkwrap” agreement, which binds a software (or small-electronics)

purchaser to an inside-the-box contract if she opens the product and retains it for

some specified time. In this cyber age, you’ve also almost certainly assented to the

terms of a “clickwrap” or “scrollwrap” agreement—for instance, by hitting “I

accept” when installing the latest operating system for your smartphone. This

case—not quite as hip but governed by the same basic principles—requires us to

determine the enforceability of what, for lack of a better label, we’ll call a

“shinglewrap” agreement.

Boiled to its essence, the question we must decide is this: Where a roofing-

shingle manufacturer displays on the exterior wrapping of every package of

shingles the entirety of its product-purchase agreement—including, as particularly

relevant here, a mandatory-arbitration provision—are homeowners whose roofers

ordered, opened, and installed the shingles bound by the agreement’s terms?

Applying Florida law, we conclude that the homeowners are bound—and must

therefore arbitrate any product-related claims that they allege against the

manufacturer. In particular, we hold (1) that the manufacturer’s packaging here

sufficed to convey a valid offer of contract terms, (2) that unwrapping and

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retaining the shingles was an objectively reasonable means of accepting that offer,

and (3) that the homeowners’ grant of express authority to their roofers to buy and

install shingles necessarily included the act of accepting purchase terms on the

homeowners’ behalf.

I

A

Tamko Building Products is a Missouri-based roofing company. 1 Its

“Heritage 30” shingles come with (appropriately) a 30-year limited warranty,

which is printed—in full—on the outside wrapper of every shingle package.

Although most of the warranty is set in ordinary Roman type, several key

portions—including those most significant to this appeal—are rendered in a more

conspicuous font. Each package wrapper, for instance, displays the all-capped

word “IMPORTANT” and warns the purchaser—again in all caps—to “READ

CAREFULLY BEFORE OPENING [THE] BUNDLE.” The wrapper further

explains (1) that the consumer must notify Tamko of any warranty-related claims

“within thirty (30) days following discovery of the problem with the Shingles” and

(2) that the warranty and other purchase terms are available not only on the face of

the wrapper itself but also on Tamko’s website and via a toll-free telephone

number.

1 Although the company’s logo reads “TAMKO,” we use “Tamko” for the sake of readability. 3 Case: 17-14052 Date Filed: 11/02/2018 Page: 4 of 20

As particularly relevant to this appeal, Tamko’s limited warranty contains a

mandatory-arbitration clause—which, significantly, is also printed in its entirety,

and in all caps, on the outside of every shingle wrapper. In pertinent part, that

clause states as follows:

MANDATORY BINDING ARBITRATION: EVERY CLAIM, CONTROVERSY, OR DISPUTE OF ANY KIND WHATSOEVER (EACH AN “ACTION”) BETWEEN YOU AND TAMKO (INCLUDING ANY OF TAMKO’S EMPLOYEES AND AGENTS) RELATING TO OR ARISING OUT OF THE PRODUCT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION, REGARDLESS OF WHETHER THE ACTION SOUNDS IN WARRANTY, CONTRACT, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.

The warranty further specifies that any action against Tamko must be arbitrated

individually rather than as part of a consolidated or class action:

ANY ACTION BROUGHT BY YOU AGAINST TAMKO WILL BE ARBITRATED (OR, IF ARBITRATION OF THE ACTION IS NOT PERMITTED BY LAW, LITIGATED) INDIVIDUALLY AND YOU WILL NOT CONSOLIDATE, OR SEEK CLASS TREATMENT FOR, ANY ACTION UNLESS PREVIOUSLY AGREED TO IN WRITING BY BOTH TAMKO AND YOU. 2

B

Enter Douglas Bohn and Stephen Dye. Both are Florida residents whose

homes are fitted with Tamko’s Heritage 30 shingles. Bohn hired Duffield Home

Improvements to install a new roof on his Middleburg, Florida home. After a few

2 There are actually two wrappers, two purchase agreements, and two arbitration provisions in the record here. Although the language of the agreements and their associated arbitration provisions differs ever so slightly, they are materially identical.

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years, he noticed that his shingles were crumbling and that asphalt granules were

shedding and collecting in his gutters. Similarly, Dye hired Tampa Roofing

Company to replace the roof on his house in Tampa, Florida. Shortly after

installation, Dye too noticed his shingles cracking and granules littering his patio.

Bohn and Dye filed a putative class action seeking damages and declaratory

relief on behalf of a class of building owners who had used Tamko shingles. Their

complaint alleged that Tamko manufactured its Heritage 30 shingles with less

asphalt than necessary to comply with industry standards and building codes,

which caused the shingles to crack and split. The complaint included claims for

breach of express and implied warranties, strict products liability, negligence, and

violations of the Florida Deceptive and Unfair Trade Practices Act. In response,

Tamko filed a motion to compel arbitration and an accompanying motion to

dismiss or stay court proceedings. Tamko contended that by unwrapping and

retaining its shingles the homeowners had accepted the terms of its purchase

agreement and were thus bound, pursuant to the agreement’s plain terms, to

arbitrate their claims.

The district court granted Tamko’s motion and dismissed the homeowners’

complaint. The court reasoned that the homeowners were bound to arbitrate

because through their roofers, whom they had hired to buy and install the shingles,

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they had accepted the terms of Tamko’s purchase agreement, including its

mandatory-arbitration provision. This appeal followed.

II

On appeal, we must determine whether Tamko’s warranty-emblazoned

shingle wrappers set forth a valid offer that gave purchasers an adequate

opportunity to assent to its terms—most notably, the mandatory-arbitration

clause—and, if so, whether the roofers, as the homeowners’ agents for the

purposes of purchasing and installing shingles, bound the homeowners to arbitrate

by unwrapping the shingle packages. We consider each issue in turn.3

First up, we consider whether the shingle wrappers conveyed a valid offer of

Tamko’s contract terms—in particular, that any product-related dispute must be

arbitrated rather than litigated. Of course they did, Tamko says, asserting that the

law is well-settled that opening and retaining a product constitutes acceptance of

terms printed on the product’s packaging. The homeowners, by contrast, contend

that consumers aren’t on notice that shingles come wrapped in purchase terms and

can’t assent to terms of which they are unaware. The nub of the dispute is whether

3 We review de novo the district court’s order granting Tamko’s motion to dismiss and compel arbitration. Bodine v. Cook’s Pest Control Inc., 830 F.3d 1320, 1324 (11th Cir. 2016) (citation omitted).

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Tamko’s shingle wrappers provide a reasonable opportunity for consumers to

review and accept the company’s terms of purchase.

Florida law provides the rules of decision here.4 Applying Florida law, we

recently held that “[a] valid contract—premised on the parties’ requisite

willingness to contract—may be ‘manifested through written or spoken words, or

inferred in whole or in part from the parties’ conduct.’” Kolodziej v. Mason, 774

F.3d 736, 741 (11th Cir. 2014) (quoting L & H Constr. Co. v. Circle Redmont, Inc.,

55 So. 3d 630, 634 (Fla. 5th Dist. Ct. App. 2011)); see also Fla. Stat. § 672.204(1)

(“A contract for sale of goods may be made in any manner sufficient to show

agreement, including conduct by both parties which recognizes the existence of

such a contract.”). Somewhat more specifically, courts applying Florida law have

clarified (1) that “[a] vendor, as master of the offer,” is free to “invite acceptance

by conduct” and in so doing to “propose limitations on the kind of conduct that

constitutes acceptance,” and (2) that a consumer may, in turn, “accept by

performing the acts the vendor proposes to treat as acceptance.” TracFone

Wireless, Inc. v. Pak China Grp. Co., 843 F. Supp. 2d 1284, 1298 (S.D. Fla. 2012)

4 Although the Federal Arbitration Act embodies an “emphatic federal policy in favor of arbitral dispute resolution,” KPMG LLP v. Cocchi, 565 U.S. 18, 21 (2011), this policy does not apply to the threshold question of whether there is “a valid agreement to arbitrate between the parties.” Bd. of Trs. of City of Delray Beach Police & Firefighters Ret. Sys. v. Citigroup Glob. Mkts., Inc., 622 F.3d 1335, 1342 (11th Cir. 2010) (quotations omitted). That question is governed instead by the “ordinary state-law principles that govern the formation of contracts.” Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325, 1329 (11th Cir. 2016) (quoting First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)). 7 Case: 17-14052 Date Filed: 11/02/2018 Page: 8 of 20

(quotations omitted); accord, e.g., Salco Distribs., LLC v. iCode, Inc., No. 8:05–

CV–642, 2006 WL 449156, at *2 & n.5 (M.D. Fla. Feb. 22, 2006) (quoting

ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1449 (7th Cir. 1996)).

These settled principles give rise to two fundamental inquiries: (1) Would “a

reasonable, objective person” have understood an offer as an “invitation to

contract,” and (2) did that person’s “words and acts, judged by a reasonable

standard, manifest an intention to agree?” Kolodziej, 774 F.3d. at 741–42

(quotation omitted). In considering these questions, a court must examine the

content of the offer, the circumstances in which the offer was made, and the

conduct of the parties—all the while keeping firmly in mind that “[t]he law

imputes to a person an intention corresponding to the reasonable meaning of his

words and acts.” Id. at 742 (quoting Lucy v. Zehmer, 84 S.E.2d 516, 522 (Va.

1954), “the classic case describing and applying what we now know as the

objective standard of assent”).

As particularly relevant here, courts applying Florida law have recognized

that a vendor’s prerogative to specify conduct that constitutes acceptance includes

inviting acceptance by unwrapping a product. Take, for instance, TracFone

Wireless, Inc. v. Pak China Group Co. Ltd., a shrinkwrap case cited extensively by

both parties. There, a cellphone manufacturer’s retail packaging displayed

“conspicuous language” specifically “restricting the use of the Phones for

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TracFone Prepaid Wireless service and prohibit[ing] the consumer from tampering

or altering the software or hardware in the Phone.” TracFone, 843 F. Supp. 2d at

1298. The language further stated that “[b]y purchasing or opening this package”

the consumer agreed to the manufacturer’s terms as printed on the wrapper and in

the enclosed user guide. Id. Applying Florida law, the court held that a

consumer’s act of opening the package constituted an acceptance of the

manufacturer’s terms, thereby creating a valid contract. Id. at 1298–99.

Management Computer Controls, Inc. v. Charles Perry Construction, Inc., 743

So. 2d 627 (Fla. 1st Dist. Ct. App. 1999), is similar. There, a computer-software

vendor sent a product to a customer with its licensing agreement affixed to the

outside of the box, which was itself sealed with an orange sticker warning that

“[b]y opening this packet, you indicate your acceptance of the [company’s] license

agreement.” Id. at 629. The court deemed this a valid offer and held that the

consumer “agreed to the terms of the license agreement by breaking the seal on the

software.” Id. at 631.

This case is cut from the same cloth. Tamko’s purchase terms were printed

in full on the exterior of every package of shingles, accompanied by text alerting

purchasers of an “IMPORTANT” message that they should “READ CAREFULLY

BEFORE OPENING [THE] BUNDLE.” The agreement required consumers to

notify Tamko “within thirty (30) days following discovery of the potential problem

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with the Shingles,” and further—most importantly here—featured an all-caps,

mandatory-arbitration clause.5 As in the shrinkwrap cases, Tamko’s packaging

provided conspicuous notice of its offer—something a reasonable, objective person

would understand as an invitation to contract. See Kolodziej, 774 F.3d at 741. For

the homeowners’ part, opening and retaining the shingles was the (quite ordinary,

reasonable) conduct from which their assent can be “inferred.” See id.

The homeowners acknowledge that Florida law recognizes “shrinkwrap”

contracting but contend that the nature of the product here calls for a different

analysis. It’s a fair point. Software packaging of the sort typically involved in a

shrinkwrap case is fairly small, usually delivered directly to (and sometimes

retained by) the end user, and often includes at least some notice of terms printed

both on the outside and inside of the package. By contrast, shingle packages are

large and unwieldy, are often delivered to contractors rather than end users, are

quite unlikely to be kept following installation, and in this case sported terms

5 The homeowners assert, for the first time on appeal, that this Court needn’t reach the issue of assent (or agency, see infra) because Tamko failed to provide the district court sufficient evidence of its shingle wrapper, leaving the court unable to evaluate whether the purchase terms were conspicuous enough to provide sufficient notice of the offer. In particular, the homeowners contend that a Tamko employee’s affidavit, which describes and reproduces the purchase agreement—including the arbitration provision—isn’t good enough, and that either an actual shingle wrapper or a photograph was necessary. The homeowners did not, however, dispute the sufficiency (or form) of the evidence in the district court, but rather have been arguing the merits of assent (and agency) all along. Absent special circumstances, which we conclude do not exist here, we will not address an argument raised for the first time on appeal. See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1335 (11th Cir. 2004).

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printed only once on the outer wrapping. These differences matter, the argument

presumably goes, because Florida law tasks courts with determining whether “a

reasonable, objective person” would have understood Tamko’s packaging as “an

invitation to contract.” Kolodziej, 774 F.3d at 741. And it’s just not clear that

consumers have the same realistic opportunity to review shingle (or floorboard,

siding, or tile) packaging as they would software packaging.

To be sure, there are distinctions between small-box and big-box items, but

those distinctions neither alter the underlying principles nor require a different

result. Indeed, they arguably cut in different ways. On the one hand, for instance,

it’s surely true that a consumer (or his agent—more on that below) is less likely to

keep shingle packaging than software packaging after unwrapping the product. On

the other hand, one of the things that has historically made shrinkwrap cases tricky

is that the full purchase terms “are typically provided inside the packaging of

consumer goods,” while the outer packaging bears only a notice or excerpt of those

terms—leading courts to hold that valid acceptance occurs not upon purchase or

opening, but rather only upon the purchaser’s “failure to return the product after

reading, or at least having a realistic opportunity to read, the terms and conditions

of the contract included with the product.” Schnabel v. Trilegiant Corp., 697 F.3d

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110, 121–22 (2d Cir. 2012) (emphasis added).6 Here, by contrast—in the

quintessential belt-and-suspenders move—Tamko has emblazoned its entire

purchase-agreement (complete with terms, warnings, and the all-important

arbitration clause) in haec verba on the outside of every package of shingles. No

hidden terms—no buried treasure.

Moreover, and in any event, that big-box items come with purchase terms

and conditions should hardly come as a surprise to modern consumers. Post-

purchase, acceptance-by-retention warranties are ubiquitous today—think

furniture, home appliances, sporting goods, etc. It’s not only objectively

reasonable to assume that such items come with terms and conditions, it’s also

eminently reasonable to assume that by opening and retaining those items a

consumer necessarily accepts the accompanying terms and conditions. See

Kolodziej, 774 F.3d at 742 (“[T]he law imputes to a person an intention

6 While shrinkwrap cases generally consist of “[n]otice on the outside, terms on the inside, and a right to return the software for a refund if the terms are unacceptable,” Nicosia v. Amazon.com, Inc., 834 F.3d 220, 232 (2d Cir. 2016) (quotation omitted), in some instances shrinkwrap offers further require consumers to click “accept” upon installing the software itself, see, e.g., Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 428 (2d Cir. 2004) (characterizing shrinkwrap licenses as involving (1) “notice of a license agreement on product packaging,” (2) “presentation of the full license on documents inside the package,” and (3) “prohibited access to the product without an express indication of acceptance”); ProCD, 86 F.3d at 1450–53 (requiring consumer to click a button indicating acceptance of terms during software installation, in addition to providing notice on the box and terms inside the box). And in still other shrinkwrap cases, terms are printed in full on the exterior of the packaging, as in the case before us today. See, e.g., Mgmt. Comput. Controls, 743 So. 2d at 629 (licensing agreement affixed to outside of the box, which was also sealed with an orange “notice” sticker).

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corresponding to the reasonable meaning of his words and acts.” (quotations

omitted)).

Indeed, this expectation—and with it, fair notice—has been building for

some time. More than 20 years ago, in Hill v. Gateway 2000, 105 F.3d 1147 (7th

Cir. 1997), the Seventh Circuit rejected a suggestion that its earlier decision in

ProCD, Inc. v. Zeidenberg, 86 F.3d 1447 (7th Cir. 1996)—the seminal case on

shrinkwrap contracts—applied only to software, for precisely this reason. See Hill,

105 F.3d at 1149 (“ProCD is about the law of contract, not the law of software.”).

The Hill court explained that “[p]ractical considerations support allowing vendors

to enclose the full legal terms with their products,” employing a “simple approve-

or-return” model in place of a “costly and ineffectual” requirement that sellers

narrate their terms of purchase “telephonic[ally].” Id. When it comes to

warranties and other purchase terms, the Hill court explained, “[c]ompetent adults

are bound by such documents, read or unread.” Id; see also id. at 1148 (“A

contract need not be read to be effective; people who accept [the contract] take the

risk that the unread terms may in retrospect prove unwelcome.”).

All of that applies a fortiori two decades hence, in the age of Amazon Prime.

As fewer and fewer purchases are consummated face to face, and more and more

are made online, consumers should (and must) know that vendors will often

employ a “simple approve-or-return” model, enclosing their full legal terms with a

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product at shipment. Indeed, the sort of “costly and ineffectual” telephonic

recitation of terms that the Hill court posited is a vanishingly small exception to the

norm. 7 Really, how often does the modern consumer, following a large purchase,

call a vendor to sit through a verbal oration of warranty terms? Or insist on

signing and returning a form to convey acceptance of her latest online purchase,

instead of just, oh, say, keeping it?

That’s not to imply that consumers can’t choose to seek out purchase terms

by other means should they so choose. Indeed, one key reason that the Hill court

rejected the “I-didn’t-read-it” excuse was that consumers could discover the terms

of their desired purchases in one of several ways, such as by “ask[ing] the vendor

to send a copy before deciding whether to buy,” by “consult[ing] public sources

(computer magazines, the Web sites of vendors),” or by “inspect[ing] the

documents after the product’s delivery.” 105 F.3d at 1150. And of course, as we

have emphasized, the same is true here—Tamko’s purchase terms were available

not only on its packaging but also on its website and over the phone, such that a

diligent consumer could easily have discovered and reviewed them before or after

purchase.

At the end of the day, the point is simply this: modern consumers are on

notice that products come with warranties and other terms and conditions of

7 So much so that the author of today’s opinion doesn’t even know what the Seventh Circuit was talking about. A “telephonic recitation” of warranty terms?

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purchase. And they are free to research (or not), request (or not), and read (or not)

those terms before unwrapping their purchases. As to the case before us, Florida

law makes clear that providing conspicuously printed product packaging is an OK

way to convey purchase terms. Florida consumers who purchase, open, and retain

a product are thus bound in accordance with warranty terms conspicuously printed

on that product’s packaging, whether they actually take the time to read them or

not. 8

We can summarize using what this Court has referred to as the “million-

dollar question” in evaluating assent: “What did the part[ies] say and do?”

Kolodziej, 774 F.3d at 743. By conspicuously printing its purchase terms on its

shingle wrappers, Tamko made a valid offer in accordance with Florida law. As

master of that offer, Tamko was free to invite acceptance by specified conduct, and

it did—inviting consumers to accept by opening the shingles and retaining them

for more than 30 days. By doing exactly this, the homeowners here “accept[ed] by

performing” the acts that Tamko “propose[d] to treat as acceptance,” thus

“manifest[ing] an intention to agree.” TracFone, 843 F. Supp. 2d at 1298;

Kolodziej, 774 F.3d at 742. We therefore hold that Tamko made a valid offer— 8 This accords with the basic proposition—embraced by Florida courts—that “one who signs a written instrument without reading it with care” is, in most cases, “bound in accordance with its written terms.” All Fla. Sur. Co. v. Coker, 88 So. 2d 508, 510 (Fla. 1956). Although this appeal concerns unwrapping rather than signing, the principle holds true. See Hill, 105 F.3d at 1149 (speculating that even an oral recitation of terms “would not avoid customers’ assertions (whether true or feigned) that the clerk did not read term X to them, or that they did not remember or understand it”).

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again, including an offer to arbitrate, rather than litigate, all product-related

claims—and that its offer was accepted.

Hang on just a minute, the homeowners contend: Even if this was a valid

means of making an offer, they didn’t accept it—their roofers did. After all, the

homeowners say, they never saw the shingle packaging and thus never had a

reasonable opportunity to consider Tamko’s purchase terms—arbitration clause

included—so they can’t possibly be bound by them. Attributing the roofers’

acceptance to them would be, the homeowners assert, an “ill-advised” and

“unsupported” expansion of agency law. We disagree. Imputing the roofers’

notice and acceptance of Tamko’s purchase terms to the homeowners requires no

expansion, but rather fits squarely within established agency-law principles and

precedent.

Let’s start with the basics. “[A]n agency relationship requires (1) the

principal to acknowledge that the agent will act for it; (2) the agent to manifest an

acceptance of the undertaking; and (3) control by the principal over the actions of

the agent.’” Franza v. Royal Caribbean Cruises, Ltd., 772 F.3d 1225, 1236 (11th

Cir. 2014) (quotation omitted). Importantly here, we have further held—applying

Florida law—that a grant of agency authority also necessarily implies “the

authority to do acts that are ‘incidental to it, usually accompany it, or are

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reasonably necessary to accomplish it.’” Bd. of Trs. of City of Delray Beach Police

& Firefighters Ret. Sys. v. Citigroup Glob. Mkts., Inc., 622 F.3d 1335, 1342–43

(11th Cir. 2010) (quoting 2 Fla. Jur.2d Agency & Employment § 47 (2005)).9 As

examples of this “incidental-to” authority, Florida courts have held, for example,

that real-estate agents charged with selling property have authority to purchase

surveying services on behalf of their principals, Bradley v. Waldrop, 611 So. 2d

31, 32–33 (Fla. 1st Dist. Ct. App. 1992), and “to make representations concerning

the description and characteristics of the property to be sold,” Outlaw v.

McMichael, 397 So. 2d 1009, 1010 (Fla. 1st Dist. Ct. App. 1981).

This case is similar. Neither party seriously disputes that the roofers were

the homeowners’ agents for purposes of purchasing and installing shingles. Both

homeowners expressly delegated those tasks to their roofers, their roofers accepted

those tasks by signing contracts, and the homeowners maintained control over their

roofers’ completion of those tasks pursuant to those contracts. See Franza, 772

F.3d at 1236. The question, then, is whether accepting Tamko’s purchase terms—

including an arbitration provision—was “incidental to,” “usually accompany[ing],”

or “reasonably necessary to accomplish” the purchase and installation of the

shingles. See Delray Beach, 622 F.3d at 1342–43.

9 See also Restatement (Third) of Agency § 2.02 cmt. d (Am. Law. Inst. 2006) (“If a principal’s manifestation to an agent expresses the principal’s wish that something be done, it is natural to assume that the principal wishes, as an incidental matter, that the agent take the steps necessary and . . . proceed in the usual and ordinary way[.]”).

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The homeowners admit that they contracted with their roofers to buy

shingles, and even that the roofers might have known that by opening the shingles,

they—i.e., the roofers—were entering into an agreement with Tamko. But the

homeowners dispute that this necessarily means that the roofers accepted Tamko’s

purchase terms—including, as we keep saying, the arbitration clause—on the

homeowners’ behalf. Had they made clear that their roofers could enter into

binding contracts on their behalf, the homeowners contend, that grant might have

encompassed agreeing to the arbitration provision. But, they say, a “circumscribed

contract . . . to buy and install shingles does not bring with it the authority to enter

into any other contract whatsoever regarding those shingles.”

We think the homeowners are missing the point. Accepting the purchase

terms is not “any other contract . . . regarding those shingles”—it is the contract

regarding those shingles. Purchasing a product necessarily and by definition

encompasses accepting the terms of that purchase. The homeowners here

expressly delegated to their roofers the task of purchasing shingles, and yet they

now contest terms—in particular, those requiring mandatory arbitration—that are

part and parcel of that purchase. In the language of our precedent, accepting

purchase terms is “incidental to,” “usually accompany[ing],” and “reasonably

necessary to” the act of purchasing. And Florida law is clear that, in this respect at

least, arbitration terms are no different from any others: “[A]n agent can bind

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a principal to an arbitration agreement just like any other contract.” Fi–Evergreen

Woods, LLC v. Estate of Robinson, 172 So. 3d 493, 497 (Fla. 5th Dist. Ct. App.

2015). 10

Even aside from our “incidental-to” precedent, it is axiomatic under Florida

law—and more generally—that knowledge or notice that an agent acquires while

acting within the course and scope of his authority is generally imputed to his

principal. See, e.g., Chang v. JPMorgan Chase Bank, N.A., 845 F.3d 1087, 1095

(11th Cir. 2017); Restatement (Third) Of Agency § 5.03 (“For purposes of

determining a principal’s legal relations with a third party, notice of a fact that an

agent knows or has reason to know is imputed to the principal if knowledge of the

fact is material to the agent’s duties to the principal[.]”). Here, Tamko’s purchase

terms were printed on the shingle packaging, which the homeowners agree their

roofers opened. Because the notice that their roofers acquired while acting within

the scope of their authority to purchase and install the shingles is properly imputed

to them, the homeowners cannot now plead ignorance of the offer’s existence.

To summarize, then, acceptance of Tamko’s purchase terms—arbitration

clause and all—was incidental to, and reasonably necessary to accomplish, the 10 To the extent that the homeowners argue that their roofers may bind them to some purchase terms, but not those pertaining to arbitration, the contention is foreclosed by recent Supreme Court precedent. See Kindred Nursing Ctrs. Ltd. P’ship v. Clark, 137 S. Ct. 1421, 1425 (2017) (confirming that arbitration agreements may not be singled out for unfavorable treatment); see also Fi–Evergreen Woods, 172 So. 3d at 497 (“There is no special rule requiring the principal to independently waive the right to a jury trial or expressly and separately acknowledge or agree that the agent is also authorized to waive a jury trial on his or her behalf.”).

19 Case: 17-14052 Date Filed: 11/02/2018 Page: 20 of 20

homeowners’ express grant of agency authority to their roofers to purchase and

install shingles, and in any event, the roofers’ notice of the terms printed on the

shingle wrappers is properly imputed to the homeowners.

III

As “master of the offer,” Tamko invited purchasers to accept its contract

terms by opening and retaining the shingles—a reasonable means of acceptance-

by-conduct under Florida law. The homeowners, through their roofer agents,

validly accepted those terms—Tamko’s binding arbitration provision included.

We therefore affirm the district court’s decision to grant Tamko’s motion to

compel arbitration and to dismiss the homeowners’ complaint.

AFFIRMED.