Duff on Hospitality Law

This week’s Update features updates on several recently featured stories, including Booking.com’s ongoing payment and fraud challenges and new legislative efforts to limit junk fees.

• • OTAs Raise Issues with Airlines’ Aggressive Tactics.  Online travel agents, On the Beach and UK Holidaymakers, have raised objections with the UK’s Competition and Markets Authority (CMA) over the aggressive tactics of Ryanair (and other discount airlines) to push travelers to book direct.  According to the paper presented to the CMA and UK government, discount airlines are harming consumer choice by blocking sales of certain products (seat-only offerings), charging excessive OTA fees and delaying refunds.  The OTAs are asking the UK competition authority to mandate that airlines provide with fair access to products and services and create a code of conduct for airlines and their OTA partners.  Really?
    
    
  • Citi and Navan Announce Partnership.  Further to my comment in last week’s Update about the explosion of interest in small and medium businesses (SMB), Citi and Navan announced this past week a new partnership under which the parties will offer a travel and expense solution for Citi’s Commercial Bank cardholders.  For those companies that provide Citi cards to their employees, the new solution will provide services that rival competitors SAP Concur and Egencia.  With the deal, Citi will be well positioned to grow its commercial card member base by offering travel and expense services.  

For those of that attended the recent Georgetown hospitality law event, it was great seeing so many of you in person.  Have a great week everyone.

From the number of announcements this past week by travel industry members detailing their new online small and medium business initiatives, someone must have deemed last week “small and medium business week.” We’ve included a few of the more interesting announcements in this week’s Update.  Enjoy:

• • Google Trial Continues to Provide Interesting Insight into OTAs Online Advertising.  In last week’s Update, we featured the testimony of a senior Booking Holdings executive.  This week, we feature the testimony of a former senior Expedia executive.
    
    
  • Rival Platforms Form New Coalition to Fight Fake Reviews.  Much was written this past week about several prominent online platforms’ (including Booking.com, Expedia and Tripadvisor) newly announced coalition against fraudulent online reviews.  In this week’s Update, we include the story from the perspective of Seattle’s own, Geekwire.  The newly formed “Coalition for Trusted Reviews” is notable as it is one of the few instances (perhaps only) where three major online travel rivals come together for a common objective.  According to Amazon (which has been quite active pursuing fake reviews), the Coalition hopes to define best practices for hosting online reviews and to share effective methods for detecting and stopping fake reviews.  The Coalition next meets in December at a meeting organized by Amazon.
    
    
  • Booking.com’s Payment Challenges Lead to Class Action Lawsuit.  Over the past few weeks, we’ve featured several stories about Booking.com’s payment platform’s apparent delay in making much needed payments to hotels in Europe and Asia.  According to one operator in Japan, the payment delays still continue.  Now, a group of Japanese hoteliers are planning a class-action lawsuit against Booking.com.
    
    
  • How Much Do Hoteliers Really Pay Intermediaries?  According to industry consultant, Max Starkov, the amount for 2023 is a staggering $50 billion.  If you include the costs associated with corporate travel agents and traditional travel agencies in the total, Skift estimates the yearly total climbs to $75 billion.      

Resort fees garnered most of the industry’s headlines this past week as California’s governor signed legislation prohibiting hidden fees and the Federal Trade Commission finally released its proposed federal trade regulation – “Rule on Unfair or Deceptive Fees.”  The good news is that both laws appear to apply equally to suppliers and third party distribution platforms.  Highlights:

• • Hopper Terminates Its Supplier Contract with Booking.com.  As noted briefly in last week’s Update, Hopper has indeed terminated its supplier agreement with Booking Holdings.  In an effort to avoid the public fallout (including demands by several of its B2B customers) that occurred following Expedia’s termination of its supplier agreement with Hopper, Hopper elected to strike first and terminate before Booking could do so.  Until Skift broke news of the Booking contract’s termination, most were unaware that Hopper had such a contract.  Days following the Booking contract’s termination, Hopper announced its widespread layoffs, which according to recent reports, resulted in the complete shuttering of Hopper’s home rental offering and the loss of Hopper’s entire B2C team in APAC.  With these recent changes, Hopper’s ability to secure and maintain direct supplier relationships will be critical to its long term success. 

• • The True Value of Paid Search Advertising – At Least According to Booking.com.  And we thought the OTA giant was seeking to move away from paid search advertising.  Think again.  In testimony at the ongoing anti-trust trial against Google, Booking.com Senior Vice President and Chief Marketing Officer, Arjan Dijk, stated that the platform could not stay in business but for the traffic it receives from display advertising on the search engine.  When asked about the relationship between Google and Booking.com, Dijk noted that the relationship is completely one-sided, characterizing the relationship as a benevolent dictatorship. 

• • California Prohibits Hidden Fees.  As we reported a few weeks ago, California governor Gavin Newsom had options when considering how best to address so-called junk fees.  Of the two options awaiting signature – one focused on the hospitality industry and the other drafted more broadly to apply to any industry that features advertised or displayed pricing - the governor chose the broader option.  Effective July 1, 2024, the newly signed legislation prohibits the display of a price that does not include all mandatory fees and charges (excluding shipping charges and government imposed charges).  Note that the legislation does not require that the total price be the most prominently displayed – like other standards.  Under the California legislation, all advertised prices must reflect the “total” price.  The legislation applies equally to suppliers and their OTA counterparts and will require “total” pricing both for hotels located in California (regardless of whom might see the listing) and for hotels located outside California whose listings will be shown to California residents. 

Have a great week everyone.  For those of you attending next week’s hospitality law event in Washington D.C., I hope to see you there. 

This week’s Update features a variety of stories, including the latest on Hopper and its apparent ongoing transition.  Enjoy.

• • Expedia Expands B2B Network in Asia / Pacific.  This past week at its Explore 23: Connect Asia event, Expedia announced it had expanded its B2B network to include several new Asian companies.  While Optimized Distribution is only one of several business initiatives for Expedia, it remains an area of big investment.  Recently announced suppliers relying on the B2B redistribution platform include Dusit Hotels and COMO Hotels and Resorts. 
    
    
  • Hopper’s Latest:  Clicks, Job Cuts and New Termination.  Hopper continued to garner much of the industry’s attention this past week as the war of words between Hopper and Expedia continued (it was all about clicks and screens), Hopper announced significant job cuts and according to reports today (Sunday), Hopper announced the termination of another larger supplier (Booking.com).  As for the expressed concerns of Expedia CEO Peter Kern regarding the numbers of clicks or screens required to complete a booking on Hopper (and the resulting likelihood of customer confusion), we too noted similar concerns when recently reviewing the Hopper mobile app and booking process for one of our clients.  If you’ve never spent much time on the Hopper app, you should.  It is a vastly different experience.  Job cuts at Hopper were reported this past week by Canadian news publications – the cuts result in the loss of roughly a third of Hopper’s total work force (250 employees).  According to a Hopper spokesperson, the cuts were part of Hopper’s overall effort to boost its business (a/k/a reduce expenses and turn a profit) and focus on direct supplier connections.   Finally, reports issued this morning by Skift suggest that Hopper may have terminated its supplier agreement with Booking.com.  Look for more news on this latest change at Hopper in next week’s Update.
    
    
  • Potentially Landmark ADA Case Unlikely to Produce Much Needed Decision.  In oral arguments this past week, several of the U.S. Supreme Court justices indicated that they are unlikely to consider any further the potentially landmark ADA case challenging whether serial plaintiffs who have no intention of ever staying with their targeted defendants have legal standing to sue for ADA website violations.  Unfortunately, the plaintiff in the case (serial litigant, Deborah Laufer) voluntarily dismissed her claims against Acheson Hotels (in part, because her lawyer has been suspended for filing hundreds of ADA claims).  For those of us looking for some much needed direction and support in combating these types of serial litigants, the Supreme Court’s refusal to consider the case further is unfortunate. 

The EU Commission’s official decision to block Booking Holdings’ planned purchase of eTraveli (a decision that Booking has publicly criticized and committed to challenging) garnered much of the news this past week, as well as stories from Skift’s annual Skift Global Forum held in New York this past week.  Enjoy.

• • Effects of Expedia / Hopper Split Explained (by Hopper).  In an interview this past week at the Skift Global Forum, Hopper founder and CEO, Fred Lalonde, claimed that Expedia (not Hopper) suffered the ill effects of the sudden termination of the parties’ supply agreement.  According to Lalonde, concerns over competition led to Expedia’s decision, not Expedia’s purported consumer concerns.  Lalonde cited Hopper’s growing market share in flights (at the expense of Expedia) as support of his competition claims.  Any concerns that Hopper might have had about the loss of important hotel inventory may be short lived as Hopper also announced last week new hotel supplier deals with wholesalers Hotelbeds and WebBeds (on top of Hopper’s growing number of direct supplier contracts). 
    
    
  • EU Commission Officially Vetoes Booking’s Purchase of eTraveli.  The long awaited decision by the EU Commission regarding Booking Holdings’ proposed purchase of eTraveli finally arrived.  In short, the Commission believed that the acquisition would have further cemented Booking’s already dominant market position (60% market share) in hotel distribution in the EU.  With an enhanced flight offering (identified by the Commission as a major acquisition channel for prospective hotel guests), Booking would have been in a position to expand its travel ecosystem and thereby drive even more traffic to its platform (ultimately resulting in higher costs for hoteliers and consumers).  In rendering its decision, the Commission considered and ultimately rejected Booking’s proposed compromise – a so-called “carousel” whereby a Kayak powered menu of competing hotel offers from other OTAs would have been shown upon checkout by flight customers.  According to the Commission, the fact that the carousel would have been powered by a Booking Holdings company led to questions of transparency and possible discrimination.  As we have noted in prior Updates, Booking has publicly criticized the EU’s decisions (as late as last week at the Skift Global Form) and has vowed to fight the Commission’s decision.  More to come . . .  
    
    
  • Expedia’s “Fall Release 2023” to Feature a Number of Consumer Improvements.  According to recent announcements by Expedia, its planned fall release of updated products and features contains a little something for everyone.  Consumers will soon have the opportunity to converse (via ChatGPT) with Expedia’s brand apps (Expedia, Hotels.com and VRBO) about prospective properties’ amenities and services.  Conversational travel guides will also be made available to users of the Expedia and Hotels.com app.  Other new app features include “Trip Planner,” a new tool to allow travelers to plan group travel, and improved functionality for managing users’ loyalty program (“One Key”) accounts.