Duff on Hospitality Law

Happy New Year! We are once again providing a roundup of some of the major developments and trends in the online travel industry that caught our attention this past year. Wishing everyone a successful 2024. 

- Greg Duff

This past week was dominated by stories regarding AI’s application and use in the travel industry (we’ve included only one of those stories) and recent activity on resort fees (two stories this week). Some highlights include:

• • U.S. Supreme Court Disappoints Those Seeking Clarity on Website Accessibility Standing.  Although the court noted in its opinion that the issue of standing remains “very much alive,” the court’s decision on Tuesday finding that the much discussed website accessibility case was moot (and therefore not subject to review by the court) disappointed many.  Will the court’s comments have a chilling effect on future frivolous claims, only time will tell.
    
    
  • Booking Holdings Appeals ETraveli Veto.  In a move that should surprise no one, Booking Holdings has formally appealed the EU Commissions’ veto of Booking’s planned ETraveli acquisition.  Recall that the Commission blocked the planned acquisition on the grounds that the acquisition in one vertical (flights) would further strengthen its already dominant position in another vertical (hotels).  Booking is challenging the Commission’s decision on the grounds that (a) the Commission’s application of the so-called “conglomerate” theory of harm was an unwarranted departure from its well-established merger practices and (b) the Commission’s comparison of the factual situation if the merger went through versus it not going through was entirely wrong.  We will keep you apprised as the case moves forward.
    
    
  • Resort Fee Update – Hilton Sued and Yet Another Bill Proposed in Congress.  Travelers United is at it again.  This time Hilton (after Hyatt and Sonesta) is the subject of proposed class action litigation brought by the group over resort fee disclosures.  Congress is also at it again.  Members of the House of Representatives introduced bi-partisan legislation this past week prohibiting hotels, short term rentals and distribution platforms from excluding mandatory fees from rates whenever they are marketed or displayed.  The American Hotel and Lodging Association announced last week that it supported the legislation applauding the single standard approach across all booking channels.  This latest proposal joins two other proposed bills – The Hotel Fees Transparency Act and the Junk Fee Prevention Act.  We will continue to monitor all three pieces of legislation, which most view (at least today) as having little chance of passage. 

Our weekly Online Travel Update for the week ending December 1, 2023, is below.  This week’s Update features of variety of stories – resort fees, potential new EU traveler regulations and Ryanair’s continued pursuit of OTAs.  Enjoy.

• • New Traveler Rights Proposed in EU. Privacy and data security, competition and now, traveler rights . . .  Our friends at the EU Commission have been busy.  The latest from the EU Commission proposes changes to existing traveler regulations, including free air travel for those accompanying persons with disabilities, deposit limitations on package travel and guaranteed refunds for expired travel vouchers.  We will continue to keep an eye on these proposed changes in the months ahead. 
  • Add Massachusetts to List of States Seeking to Regulate So-Called Junk Fees. Not to be outdone by her contemporaries in California, Massachusetts Attorney General Andrea Joy Campbell announced this past week new regulations requiring hoteliers (and others) to display the “true” price of a night’s stay.  The proposed regulations will now be the subject of a public hearing on December 20, after which the AG can decide whether to move forward with putting the regulations into effect with or without changes coming out of the public comments.  My bet is on the rules becoming effective. 
  • Ryanair’s War with OTAs Continues. In the latest salvo in the ongoing war between Ryanair and OTAs, Ryanair’s CEO called out those OTAs that allegedly charge travelers “unjustified fees and charges.”  OTAs making the illustrious list include Kiwi.com, lastminute.com, Opodo and eDreams.  Ryanair went on to accuse the UK’s Civil Aviation Authority (CAA) and Competition and Markets Authority (CMA) of ignoring OTAs’ “rampant internet piracy and anti-consumer mis-selling.”  Earlier this year, some of the largest OTAs (Expedia and Booking.com) sent letters to these same UK authorities accusing Ryanair of “invasive, unnecessary and unfair treatment” of their customers.  So, what’s the real motivation behind these complaints by Ryanair?  Is it simply a bizarre form of direct booking campaign?   Or is someone finally drawing a line with certain OTAs and calling out their practices?  Are there lessons here for hoteliers?
  • Who Says Amazon Isn’t into Travel?  Just ask American Airlines, IHG, Choice and Carnival Cruise Lines, all of which participated in Amazon’s self-proclaimed first-ever Cyber Week Travel Deals.  Users interested in the marketed offers were re-directed to the applicable supplier’s website to complete the booking.