Duff on Hospitality Law

The first installment of our weekly OTA & Travel Distribution Update for 2018 is below. A mix of stories in this week’s Update.

Airbnb Avoids Liability for Lease Violations [SHORT-TERM RENTALS]
("Airbnb Ducks Apartment Managers’ Beef Over Rentals," Courthouse News, January 3, 2018)
A California federal district court dismissed last week a class action brought against Airbnb by a collection of Southern California apartment management companies. According to the companies, Airbnb encouraged tenants in their buildings to violate the short-term rental prohibitions in the tenants’ lease agreements (which identified by name, Airbnb) and created an unsafe environment for their full-time residential tenants. Relying on Section 230 of the federal Communications Decency Act (CDA) (the sometimes controversial federal statute that protects internet service providers and other online platforms from liability for unlawful content or activities posted or conducted via their services), the court dismissed the claims stating that Airbnb was not responsible for the actual listing information posted by tenants on the Airbnb website – even if it was in breach of the tenants’ underlying lease obligations. According to the court, the services provided by Airbnb and the content required by Airbnb to be posted to provide those services did not make Airbnb an information content provider and therefore exclude Airbnb from the protections of the CDA.

Happy New Year from Seattle . . .  I hope all of you enjoyed the holidays. Our final, year-end OTA & Travel Distribution Update for the week ending December 29, 2017 is below.

Scrutiny Grows Over OTA’s and Hotelier’s (and now Google’s) Keyword Practices [OTA]
("Google is making it harder for travelers to find the best prices, the Wall Street Journal charges," Business Insider, December 28, 2017)
Two weeks ago we included a story from Skift detailing the misguided (in our humble opinion) allegations by Washington D.C.-based investigative news service, The Capital Forum, regarding the allegedly collusive keyword practices of large hoteliers and OTAs. According to the allegations, contractual provisions found in most large distribution agreements limiting the parties’ ability to purchase keywords containing each other’s valuable trademarks harm consumers by limiting competing distribution channels’ and hoteliers’ ability to market themselves. Now comes a story from the Wall Street Journal adding Google to the collusive mix.

This week’s OTA & Travel Distribution Update for the week ending December 22, 2017 is below. An interesting mix of stories in this penultimate Update for 2017. I hope everyone has a great holiday and successful 2018.

FTC Settles Claims Against Fraudulent Travel Websites [OTA]
("Hotel Room Resellers Settle FTC Charges That They Misled Consumers," Federal Trade Commission Consumer Protection Press Releases, December 22, 2017)
By now, everyone should be familiar with the ongoing efforts of the American Hotel & Lodging Association (AH&LA) to call out and put an end to the misleading practices of certain travel websites that hold themselves out as being affiliated with a particular hotel or hotel chain. These efforts appear to be having some success. This past week, the Federal Trade Commission (FTC) announced a settlement with Reservation Counter, LLC (and its parent companies) over the travel websites’ distribution practices. According to the FTC’s complaint, the websites’ display ads, websites and call centers gave travelers the impression that they were dealing directly with the listed hotel. Additional allegations focused on the websites’ failure to provide travelers inadequate notice regarding loyalty program participation, applicable cancellation policies and payment terms. The settlement reached by the FTC prohibits the websites from, among other things, using any hotel name or logo in any search engine display ad, URL, website or other advertising in a misleading way. The settlement order also requires the websites to disclose to callers that they have reached an independent, third-party travel agency, not the advertised hotel.

This week’s Update for the week ending December 15, 2017 is below. Nothing too earth shattering this week.

Google Now Featuring Travel Packages [METASEARCH]
("Google now offers discounted tours and activities for bundling vacation packages," The Verge, December 14, 2017)
With each passing week, Google seems to introduce yet another new feature for those using the search engine (a/k/a metasearch site) to search travel related products and services. Google’s latest features allow travelers to (1) evaluate whether flights or hotels should be booked now or later, (2) track changes to hotel room rates via email and (3) search, book and package with other travel components (via a third party provider) tours and activities. Anyone still doubting whether Google has big plans for travel?

This week’s OTA & Travel Distribution Update for the week ending December 8, 2017 is below. OTA powerhouses, Expedia and Booking.com, feature prominently in this week’s Update.

Expedia Seeks to Leverage Legacy PMS Platforms [OTA]
("Expedia sets sights on legacy tech with ambitious ‘travel platform’ for hotels," Tnooz News Feed, December 7, 2017)
At this year’s annual Expedia Travel Partner Conference, Expedia made clearer than ever its ambition to become a technology solutions provider to the lodging industry, not just a booking engine. In a series of presentations at the Conference, Expedia executives discussed the three pillars of the “Expedia Travel Platform” – operations (Expedia’s modern version of a PMS via ALICE), revenue (Expedia’s existing revenue management platform, Rev+) and data (data gleaned from the millions of transactions processed on its suppliers’ behalf). Interestingly, Expedia’s access to data and its well-known data practices may prove to be the biggest differentiator between Expedia’s products and the products and solutions of its more traditional competitors, many of which never imposed such practices with their customers. It will be interesting to see how many hoteliers will be willing to turn their hearts and souls over to a company that for years has been characterized by the industry as the devil.

A new statewide leave law that has taken many employers by surprise

In November 2016, Washington voters passed Initiative 1433, best known for increasing Washington’s minimum wage to one of the highest in the nation. However, I-1433 also included a requirement for statewide paid sick leave (“PSL”) for non-exempt employees that has caught many employers by surprise.

The PSL law becomes effective on January 1, 2018, and the Department of Labor and Industries (“L&I”) just published final administrative rules about the law’s requirements. All Washington employers need to review these requirements and take action to ensure compliance.

Our weekly OTA & Travel Distribution Update for the week ending December 1, 2017 is below. This week’s Update features a variety of distribution stories as well as a report on the latest rankings of the large hotel loyalty programs.

Ryanair Tires of Expedia’s Unauthorized Scraping [OTA]
("Ryanair sues Expedia, accusing online travel giant of illegally scraping its site to sell flights," GeekWire, December 1, 2017)
European discount airline, Ryanair, brought suit last week against Expedia in Washington Federal District Court alleging, among other things, that Expedia repeatedly scraped information off Ryanair’s website and then used that information to sell the airline’s tickets (at times, at fares greater than those available directly through Ryanair), all without Ryanair’s approval and in contradiction to Ryanair’s express requests. A copy of Ryanair’s District Court complaint is available. According to the complaint, Expedia’s actions constitute a violation of the federal Computer Fraud and Abuse Act, which prohibits the use of certain computers without authorization (or exceeding authorized access). Those that follow Expedia’s periodic disputes with its suppliers will recall that Expedia and Ryanair were parties to a 2008 lawsuit over the unraveling of the parties’ package partnership. Rumors of this latest skirmish surfaced earlier this year in February.  We will continue to monitor this litigation as it proceeds further and will provide periodic updates.

This week’s Update for the shortened week ending Wednesday, November 22, is below.

Ctrip Launching English-Language Booking Platform [OTA]
("Ctrip Relaunches Trip.com as Its English Language Travel Agency Brand," Skift Travel News, November 20, 2017)
Ctrip, often referred to as one of the big three global online travel agencies, rolled out last week its English language booking engine. On the heels of its acquisition of Trip.com (the former S.F. based trip recommendation start up), Ctrip has relaunched Trip.com as its booking platform for English speaking travelers. In conversations this past summer, Ctrip executives hinted at plans to incorporate online bookings into its traditional metasearch platform. While Skyscanner already provides limited direct booking capabilities, Trip.com may ultimately become the platform that Ctrip uses to combine the businesses on a global platform.

This week’s OTA & Travel Distribution Update is below and features stories on both traditional OTAs and short-term rentals. Enjoy.

TripAdvisor to Add Questionable Guest Warnings (METASEARCH / OTA]
("TripAdvisor to flag hotels with reports of sexual assault," BBC News - Technology, November 9, 2017)
Much has been written this past week about TripAdvisor’s recently announced decision to include conspicuous warnings on its website listing about properties reported by reviewers to present health and personal safety concerns. The decision comes after an investigation by the Milwaukee Sentinel that found that TripAdvisor had removed repeatedly (and without explanation) a reviewer’s post regarding her alleged assault by an employee at a Mexican resort property. According to TripAdvisor, decisions whether to add such warnings about properties will be made by a group of unidentified TripAdvisor employees. One can only hope that these employees conduct appropriate investigations (including affording suspected properties due process to respond to these devastating allegations) before posting these “scarlet letter” warnings.

This week’s OTA & Travel Distribution Update for the week ending November 10, 2017 is below. Senator Kobuchar’s recent request for an DOJ and FTC investigation into OTAs’ purportedly anti-competitive practices leads this week’s Update.

U.S. Following UK’s Footsteps by Launching Probe into OTAs’ Anti-Competitive Practices?  [OTA]
("Sen. Klobuchar Urges Online Travel Agency Antitrust Probe," Hotel Online, November 7, 2017)
On Tuesday last week, Senator Amy Kobuchar (D-Minn.) wrote a letter to the Department of Justice and Federal Trade Commission seeking an examination of online travel agents’ practices that can be “detrimental to consumer welfare.” According to Kobuchar, the concerns that lead the UK’s Competition and Markets Authority (CMA) to re-open its investigation into OTAs’ practices just weeks ago (see our prior story) warrant a similar examination here in the U.S. Kobuchar’s letter comes 8 months after raising similar concerns (along with Senator Jerry Moran (R-Kan.)) with the Department of Transportation, only to be told by the DOT that its existing travel consumer protection policies were sufficient to address the Senators’ concerns.