Duff on Hospitality Law

Our weekly client OTA & Travel Distribution Update for the week ending May 11, 2018 is below. This week’s Update features a variety of stories, including the third installment in our six-part series dissecting recent anti-trust allegations against hoteliers arising out of their keyword activities. I hope you enjoy.

Keyword Restrictions – Part III:  Vertical vs. Horizontal Restraints on Trade
("Keyword Restrictions - Part III: Vertical vs. Horizontal," GSB Client Update, May 11, 2018)
In the third installment of our six-part series critiquing recent articles (and litigation) questioning hoteliers’ keyword practices, my colleague, Don Scaramastra, next examines the critical difference between alleged agreements among hotel companies regarding their use of keywords (horizontal) versus agreements between hotel companies and their various downstream distribution channels (vertical).  

My OTA & Travel Distribution Update for the week ending Friday, May 4, 2018 is below. Not a lot of news this week, hence the abbreviated Update.

AHLA: $5.2 Billion Spent in Fraudulent and Misleading Hotel Bookings
Hotel Business - News, May 3, 2018
New research from the American Hotel & Lodging Association (AHLA) suggests that online booking scams and fraudulent and misleading travel websites and companies continue to mislead and confuse consumers.

This week’s OTA & Travel Distribution Update for the week ending April 27, 2018 is below. This week’s Update features a wide variety of stories. I hope you enjoy.

Keyword Restrictions – Part II:  1-800 Contacts Case
("Keyword Restrictions - Part II: Complaints Based on the 1-800 Contacts Case: Visionary or Near Sighted," GSB Newsroom, April 27, 2018)
In the second installment of our six-part series critiquing recent articles (and litigation) questioning hoteliers’ keyword practices, Don Scaramastra next takes a close look at the FTC’s administrative proceeding against online contact retailer, 1-800 Contacts, and whether the proceeding – as frequently asserted – prohibits hoteliers from seeking to restrict distributors’ use of hoteliers’ keywords. Putting aside the much publicized anti-trust litigation against hoteliers, we’ve seen increasing use of the 1-800 Contacts case by wholesalers and distributors as authority for refusing requested keyword protections and/or ceasing trademark abuses.

Our weekly client OTA & Travel Distribution Update for the week ending April 20, 2018 is below. This week’s Update features a number of stories on the emerging tours and activities space. I also included the first installment of our own detailed look at recent complaints (and now litigation) raised against hoteliers regarding their keyword contracting practices. A huge thanks to my colleague, Don Scaramastra, for digging into this much-publicized anti-trust issue.

Keyword Restrictions:  What Exactly Is the Problem?
("Keyword Restrictions Part I: Restrictions on Keyword Advertising by OTAs: What Exactly Is the Problem?", GSB Client Update, April 20, 2018)
In the first installment of our six-part series critiquing recent articles (and litigation) questioning hoteliers’ keyword practices, my colleague, Don Scaramastra, attempts to define the “problem.” We hope you enjoy.

Australian Authorities Confirm Renewed Interest in Parity Provisions
("Online Booking Clauses Still Cause for Concern for Australian Competition Authority," MLex, April 11, 2018) (subscription required)
Speaking at the ABA’s Antitrust Law 2018 Spring Meeting in Washington D.C. last week, commissioner Roger Featherstone of Australia’s Competition and Consumer Commission (ACCC) confirmed that the regulator is re-examining the previously adopted “narrow” approach to parity in Australia. Featherstone’s comments come only weeks after we first reported that the ACCC was re-considering its previously announced position.

This week’s OTA & Travel Distribution Update for the week ending April 6, 2018 is below. A variety of stories are featured in this week’s Update, including an interesting follow up story on Red Lion’s somewhat unique (and hard to understand) approach to loyalty. I hope you enjoy.

Price-Fixing Fines Imposed Against FlightCentre
("Flight Centre’s $9 million fine renews Australian tensions over court-set antitrust penalties," MLex, April 4, 2018) (subscription required)
Some time ago we featured a series of stories about the somewhat unprecedented approach by the Australian Competition & Consumer Commission (ACCC) to rate parity commitments found in contracts between several international airlines and their distributor, FlightCentre. You might recall that the commitments were found by the ACCC to violate Australian anti-trust laws because the parties were determined to be “competitors” and not principals / agents as argued by the airlines and FlightCentre. This past week, the Australian Federal Court finally concluded the matter by imposing fines of $9.25 million against FlightCentre.

This week’s OTA & Travel Distribution Update for the week ending March 30, 2018 is below. This week’s Update features a heavy dose of OTA updates.

Brazilian Anti-trust Authorities Adopt Narrow Approach to Rate Parity
("Booking Sites Agree To Nix Hotel Pricing Limits In Brazil," Law360 - Technology, March 29, 2018) (subscription required)
Just as we reported last week that Australian competition authorities were re-thinking the previously adopted “narrow” approach to parity, another country signs on to the same approach. Last week, the Brazilian Administrative Council for Economic Defense (CADE) announced that it had reached agreement with Booking.com and Expedia to limit their use of so-called broad rate parity and instead impose only narrow rate parity. According to announcement, the settlement agreement is expected to increase competition in the online travel sector benefitting both hotels and consumer. Someone might want to share with the CADE authorities the results of the investigation conducted last year by the UK’s Competition and Markets Authority (which concluded, among other things, that hoteliers were generally unaware of (or afraid to use) the pricing opportunities afforded under narrow parity) or the basis of the Australian authorities’ conclusion that narrow parity was ineffective in trying to improve competition.

Our weekly OTA & Travel Distribution Update is below. This week’s Update features a number of familiar stories.

Australian Competition Authorities Re-Think “Narrow” Parity
("Narrow and wide parity clauses have same effects, ACCC chief says, amid renewed probe of online travel agents," Add source, March 23, 2018)
In comments at a recent anti-trust conference, Rod Sims, Chair of the Australian Competition and Consumer Commission (ACCC), noted that the widely-accepted “narrow” parity commitments offered by Booking.com and Expedia to resolve the ACCC’s earlier grievances were having the same effect on hoteliers as their broader predecessors. Sims’ comments come as Australian authorities continue their re-examination of the distributors’ practices, which began following the Australian Supreme Court’s ruling that airlines and distributors were competitors (and not principals and agents as claimed). According to Sims, the ACCC was disappointed to learn that hoteliers did not want to take advantage of the offline pricing opportunities afforded hoteliers under the narrow parity compromise.

This week’s abbreviated OTA & Travel Distribution Update is below and features stories on the biggest distribution players – Ctrip, Booking.com, and yes, Airbnb. Enjoy.

Ctrip’s Earnings Slip Following Regulatory Intervention (and that certain daycare video)
("China's Ctrip Blames Scandal, Business Curbs for Sales Shortfall," Bloomberg News, March 15, 2018)
Shares in Ctrip.com International Ltd. fell last week following release of the company’s forecast of 9-11% sales growth instead of the 16% forecasted by analysts. Ctrip’s reported fourth quarter revenues also declined. According to Ctrip, the declines were the result of both (a) regulators banning Ctrip’s automatic (and possibly misleading) bundling of air tickets and travel insurance (something we’ve written about previously) and (b) the now viral video showing daycare workers at a Ctrip employee daycare center abusing the children by, among other things, feeding the children wasabi.

This week’s OTA & Travel Distribution Update is below and is full of interesting stories. Enjoy.

Trivago’s Strikethrough Pricing Subject to AU Scrutiny [METASEARCH]
("Trivago flags Australian regulatory concerns over ‘strike-through’ pricing," MLex, March 7, 2018) (subscription required)
Trivago’s most recent SEC filing included an interesting note regarding its strikethrough pricing practices. According to the filing, the Australian Competition & Consumer Commission (ACCC) has requested documentation from Trivago regarding its practices. Although Trivago’s filing provides little detail about the investigation (and the ACCC has refused to comment), the ACCC’s actions raise some interesting questions about the widely used practice – one that has been subject to industry concern in the past. Whether the ACCC limits its investigation to Trivago or expands it to include other price comparison websites or distribution platforms will be interesting to watch.