“All Issues Are for the Arbitrator”: Lamonaco v. Experian and the Eleventh Circuit’s Express Recognition that Waiver Can Be Validly Delegated

1. Introduction

Lamonaco v. Experian Information Solutions, Inc., No. 24-11270 (11th Cir. July 3, 2025) squarely addresses two recurring flash-points in modern arbitration litigation: (1) what quantum of proof is needed to show assent to a click-wrap arbitration agreement, and (2) who—judge or arbitrator—decides whether a party’s litigation conduct has waived its right to compel arbitration. Plaintiff-appellee Carmen Clavell Lamonaco sued Experian under the Fair Credit Reporting Act (“FCRA”) after an allegedly fraudulent auto loan appeared on her credit report. Experian moved to compel arbitration under click-wrap Terms of Use (“TOU”) that contained both a broad arbitration clause and a “delegation clause” assigning all arbitrability issues, including waiver, to the arbitrator. The district court denied the motion, finding (a) no valid agreement and (b) waiver by litigation conduct. The Eleventh Circuit reversed.

2. Summary of the Judgment

  • Existence of Agreement: Experian’s unrebutted declaration, screenshots, and TOU satisfied its burden of proving a valid click-wrap agreement under Florida law.
  • Delegation Clause Enforced: The TOU unmistakably delegated waiver and other gateway issues to the arbitrator; therefore, the district court lacked authority to rule on waiver.
  • Disposition: Reversed and remanded with instructions to grant Experian’s motion to compel arbitration.

3. Analysis

3.1 Precedents Cited and Their Influence

  1. Bazemore v. Jefferson Capital Sys., LLC, 827 F.3d 1325 (11th Cir. 2016) – Established the summary-judgment-like framework for challenges to contract formation under FAA § 4. The district court relied on Bazemore, but the panel distinguished it because Experian’s evidentiary showing was far stronger than the “woefully inadequate” record in Bazemore.
  2. Rent-A-Center v. Jackson, 561 U.S. 63 (2010); Henry Schein, Inc. v. Archer & White, 586 U.S. 63 (2019); Coinbase, Inc. v. Suski, 602 U.S. 143 (2024) – Supreme Court trilogy mandating that courts “respect clear and unmistakable delegation clauses.” These cases underpin the panel’s conclusion that waiver can be delegated.
  3. Grigsby & Assocs. v. M Sec. Inv., 664 F.3d 1350 (11th Cir. 2011) – Origin of the Eleventh Circuit’s presumption that courts decide waiver. The panel clarifies that the presumption is defeasible by contract.
  4. Attix v. Carrington Mortg. Servs., 35 F.4th 1284 (11th Cir. 2022) and Terminix Int’l v. Palmer Ranch, 432 F.3d 1327 (11th Cir. 2005) – Recognize enforceability of delegation clauses in this Circuit.
  5. Florida contract cases (Dye v. Tamko, MetroPCS v. Porter) – Provide state-law rules of assent applied by the panel.

3.2 Legal Reasoning

a) Burden of Proving a Click-Wrap Agreement

Applying FAA § 4 and Florida law on mutual assent, the Court held that Experian’s declaration, screenshots, and TOU made it “more likely than not” that Lamonaco clicked “submit” beneath a conspicuous reference to the Terms of Use—classic click-wrap acceptance. Because Lamonaco offered no contrary evidence, there was no “genuine dispute of material fact,” eliminating the need for a § 4 evidentiary hearing.

b) Delegation of Waiver

Although Grigsby assigns waiver questions to courts by default, the panel emphasized that arbitration is contractual. Here, the parties expressly agreed that “all issues … including whether [either party] … waived the right to arbitrate” are for the arbitrator. Under Rent-A-Center, Schein, and Coinbase, such clear language strips the court of power to decide waiver—unless the delegation itself is specifically challenged, which Lamonaco did not do.

c) Distinguishing the Best Evidence Rule Argument

The best-evidence rule (FRE 1002) applies to proving the content of a document, not to proving the fact of online enrollment. Williams’s declaration therefore stood unscathed.

3.3 Likely Impact on Future Cases

  • Delegation of Waiver Now Beyond Doubt in the 11th Circuit: Parties can contractually channel waiver disputes to the arbitrator, extinguishing the Grigsby presumption.
  • Higher Evidentiary Bar for Opponents of Click-Wrap: Unrebutted, detail-rich declarations with screenshots will suffice; plaintiffs must present actual counter-evidence or face compelled arbitration.
  • Litigation Strategy: Defendants need not fear that short-term participation in the suit (answering, Rule 26 disclosures) will forfeit arbitration so long as the delegation clause covers waiver.
  • Drafting Implications: Businesses should consider inserting explicit language delegating waiver (and other gateway issues) to the arbitrator, mirroring the Lamonaco wording.
  • Forum-selection & Access to Justice Concerns: By channeling more gateway disputes into arbitration, consumers may find it harder to keep statutory claims in court—raising renewed policy debates.

4. Complex Concepts Simplified

Federal Arbitration Act (FAA)
A 1925 statute requiring courts to enforce written arbitration agreements and to stay or dismiss lawsuits filed contrary to them.
Click-Wrap Agreement
Online contract where a user manifests assent by clicking a button near a notice linking to the terms.
Delegation Clause
Provision within an arbitration agreement that assigns “gateway” issues (e.g., validity, scope, waiver) to the arbitrator instead of the court.
Waiver (by Litigation Conduct)
Loss of the contractual right to compel arbitration by engaging in actions inconsistent with that right (e.g., extensive litigation).
Summary-Trial Mechanism (FAA § 4)
If the making of the arbitration agreement is “in issue,” the court must conduct a fast, summary bench trial to resolve the factual dispute.

5. Conclusion

Lamonaco v. Experian cements two principles in Eleventh Circuit jurisprudence. First, a defendant can meet its FAA burden through a well-supported, unrebutted declaration establishing assent to click-wrap terms. Second, and more significantly, waiver is not an unalterable judicial prerogative; parties may “contract around” Grigsby’s presumption and delegate waiver to the arbitrator, and courts must honor that choice. In the growing landscape of consumer arbitration, Lamonaco provides a clear roadmap for both corporate drafters and litigators—strengthening the primacy of contractual text under the FAA and narrowing the gateways through which parties may keep disputes in court.