Duff on Hospitality Law

Fall has definitely arrived here in the Pacific Northwest. This week’s OTA & Travel Distribution Update is below and features stories on TripAdvisor, Booking.com, Vacasa and the soon-to-be-effective, Strong Customer Authentication (SCA). Enjoy.

TripAdvisor Continues to Defend Claims of Fake Reviews
("TripAdvisor defends itself against claim that up to one in seven reviews might be fake," CNN Recent News on Sep 6, 2019)
It seems that every few months we hear claims that some material portion of TripAdvisor’s many guest reviews are suspect. The latest claim comes from UK consumer group Which? Travel, which claims that 1 in 7 reviews for the 10 top ranked hotels in 10 global destinations is fake. According to Which? Travel, it evaluated nearly 250,000 reviews for the top ranked hotels and found “blatant hallmarks” of fake reviews. What is perhaps most troubling about this latest claim, is that many of hotels identified by Which? Travel as benefitting from these allegedly fake reviews had been previously identified by TripAdvisor as using fake reviews within the past year (and in some cases, even penalized for the reviews). Hotels located in the Middle East and Las Vegas were identified as likely being some of the worst culprits.

Ettsa demands Europe-wide harmonisation of hotel booking rules
Travel Weekly (UK) - News on Aug 30, 2019
The European technology and Travel Services Association (Ettsa) has demanded EU regulators enforce tighter standards “on all players” in the accommodation-booking sector. Ettsa welcomed new standards imposed on the sector by the UK Competition and Markets Authority (CMA) which come into force on September 1.

With summer coming to an end, I anticipate a healthy dose of Update worthy items in the weeks ahead. 

The Sabre/FareLogix Saga Continues to Unfold
Last week we featured a story detailing the US Justice Department’s planned litigation against Sabre should it carry through with its announced plans to close its FareLogix acquisition last week.  By now, everyone knows that the Justice Department made good on its promise and has likely read the dozens of stories detailing the many factual allegations behind the claims.  We’ve included a copy of the Justice Department’s complaint for those interested in seeing first-hand the Justice Department’s apparent new approach to anti-trust enforcement where dominant industry members seek to “stamp out” their upstart (and potentially disruptive) competitors. 

Sabre Likely to Face Anti-Trust Challenge
("DOJ Poised to Sue to Block Sabre’s Deal for Farelogix," Bloomberg News on Aug 16, 2019)
Following up on a story we featured back in April...According to reports coming out of the U.S. Justice Department, the anti-trust division is prepared to file suit as early as Monday to put a stop to Sabre’s planned acquisition of Farelogix, which is scheduled to close Wednesday.  As noted in our previous stories, opponents of the proposed acquisition fear that Sabre (purveyor of legacy GDS systems) is seeking to acquire Farelogix (purveyor of new technology) simply to quash the upstart competitor. 

Sabre Vows To Fight EU Allegations
("Sabre will 'vigorously defend against any allegations' of rule-breaking in EU probe," MLex Insight on Aug 2, 2019)
In its recent US securities filing, Sabre has pledged to “vigorously defend against any allegations of anti-competitive activity” by the European Commission in connection with the Commission’s anti-trust probe of both Sabre and its primary competitor, Amadeus.  Since November last year, the European Commission has been investigating the two market leaders’ contracts, focusing specifically on whether the contracts contain provisions preventing airlines from providing more information to rivals’ distribution systems or even prohibiting use of rival distribution systems.  According to questionnaires sent to airlines earlier this year as part of the investigation, the European Commission is trying to determine the significance of the two companies on ticket distribution and whether that significance influences their pricing and contracting practices. 

This past week was relatively quiet in the distribution world as evidenced by the few stories below.  Enjoy.

Booking.com Relaxes Keyword Restrictions on Its Trademarks
("Booking.com relaxes keyword bidding clause with hotels," Phocus Wire on Jul 22, 2019)
In a purported effort to comply with a recent unidentified ruling in the EU, Booking.com sent notices to many of its hotel suppliers this past week advising them that existing contract restrictions prohibiting the suppliers from bidding on Booking.com’s keywords (e.g., Booking.com) were being removed.  While the change may make for interesting headlines, it is doubtful that many suppliers will race to their nearest search engine to begin bidding on Booking.com’s keywords.  Unfortunately, suppliers should expect to hear a lot more about this change and Booking.com’s need for reciprocity while negotiating critical keyword protections on their valued marks in the future.

This week’s Update includes additional background information regarding the ongoing resort fee saga, which many of you requested.  Enjoy.

Resort Fees – Part Two
Many of you have reached out over the past week to ask for more information on the pending litigation targeting Marriott and the events that led up to the claims.  We’ve attached copies of the Marriott complaint as well as the FTC report on resort fees that was issued back in January 2017.  Please let us know if anyone has questions or would like more information.   

This week’s Update features a variety of topics – OTAs, short-term rentals and loyalty.  Enjoy. 

The Rising Importance of Metasearch
("How metasearch became the most important marketing channel in travel," Phocus Wire on Jul 10, 2019)
Online marketing spend data reported this past week by European-based Mirai demonstrates the growing influence of metasearch.  Highlights from the report include the following.

• Prior to 2017, keyword-based display advertising on Google, Bing and other search engines captured the majority of online marketing investments. 
• That phenomenon changed in 2017, when investments in metasearch for the first time exceeded traditional display advertising.  Since that time, the amount of investment in metasearch has continued to grow. 
• Among the many available travel-oriented metasearch platforms, Google (Google Hotel Ads) is the clear favorite (75% of metasearch investment).  Google’s success can be attributed to its ever evolving (and improving product), the subtle integration of search and Google Hotel Ads and the ever-expanding influence of Book on Google.

This week’s travel-shortened OTA & Travel Distribution Update features two stories detailing two recently announced unique partnerships, one between Accor and Air-France / KLM and the other between Expedia and Lufthansa.  We also update the status on Booking.com’s continually evolving plans to charge commissions on resort fees and other similar service charges. Enjoy.

This week’s Update highlights two additional countries’ efforts to investigate alleged abuses by powerful global online platforms, including widely used online travel platforms.  Enjoy. 

Indian and South Korean Regulators Examine Practices of Online Platforms
("Competition issues in e-commerce the focus of study by Indian antitrust regulator," MLex Insight on Jun 28, 2019) 
Regulators in India and South Korean separately announced plans last week to study the practices of global ecommerce platforms (including those serving the travel industry) and their effect on local competition.  Both studies include examinations of the relevant markets and the business models and practices, including contracting practices, of the largest players.  Initial results of these studies are expected as early as the end of August.