Duff on Hospitality Law

We lead off this week’s Update again with a story regarding ongoing regulatory activity in the EU. Enjoy.

European Commission Close to Wrapping up its Multi-Year Pricing Probe into Meliá Hotels and Tour Operators
(“Meliá Hotels' EU pricing probe heads to conclusion,” MLex Insight on Feb 7, 2020)
All indications signify that the European Commission is close to completing its multi-year pricing investigation into European tour operator pricing. The investigation is the result of an effort that began in May 2015 when the Commission announced a broad review of the online distribution of goods and services. In February 2017, the Commission focused its efforts on probes into (a) retail price maintenance efforts by electronics manufacturers and (b) the systematic partitioning of the EU market by both video game publishers and tour operators (and certain hotel partners like Meliá Hotels). As for tour operators, the Commission was focused on allegations that some of the largest European tour operators (Thomas Cook and TUI) and/or hotel groups were using geo-blocking technology to restrict access to certain discounted rates to residents in certain EU countries while providing those rates to residents in other EU countries (i.e. location-based discrimination). The announcement that regulators were prepared to discuss the results of their probe last week signals a likely end to the Commission’s investigation and upcoming announcement of enforcement remedies.

Luxury-Goods Makers Making the Case for Permissible Distribution Controls
(“New EU online-sales rules should step up fight against free-riders, luxury-goods makers say,” MLex Insight on Jan 31, 2020)
Why, you might ask, are we leading with a story on luxury-goods makers’ fight for permissible distribution controls in the EU? In short, because the same EU regulations and European Commission (EC) decisions applying those regulations that affect luxury-goods makers’ ability to govern the online distribution of their products by third parties are (rightly or wrongly) finding their way into the lodging industry. If you’re not already familiar with the Vertical Block Exemption Regulation (VBER) or the European Commission decisions in Coty or Guess, you may soon be. While there are both factual and legal arguments as to why the VBER and related EC decisions are not applicable to hotel distribution, distributors and wholesalers operating in the EU are increasingly relying on the VBER and related decisions to reject efforts by hoteliers to avoid the display of their properties on certain troublesome distribution platforms, to impose industry standard keyword restrictions or to require the purchase of negative keywords. Luxury-goods makers, which fear the inability to control the method and manner of online distribution of their luxury products on well-known discount platforms such as Amazon and Alibaba, have taken up the fight in favor of updating the VBER and its anti-trust exemptions permitting certain sales tactics.

This week’s Update features a recent Skift story that tries to answer a question that I know many of you have asked...What’s Barry Diller’s next move with Expedia? Enjoy.

Expedia Group’s Trivago Found to Have Misled Consumers
(“Trivago's 'cheapest' hotel-room offer misled consumers, Australian court finds,” MLex Insight on Jan 20, 2020)
In a ruling issued last week, the Australian Federal Court found that Trivago breached Australian Consumer Law by making misleading statements about rates on its website and in television advertising. While Trivago claimed to provide travelers information on hotels with the lowest hotel rates, the Court found that instead, Trivago provided travelers with rates for hotels that paid Trivago the highest click-through fees. The Court further found (like regulators in many other countries) that Trivago’s use of strike-through pricing gave travelers false impressions as to the relative value of the advertised rate.  According to the Australian Competition & Consumer Commission (the Australian regulator that brought the clams), the Court’s decision “…sends a strong message to comparison websites and search engines that if ranking or ordering of results is based or influenced by advertising, they should be upfront and clear with consumers…”

This week’s Update features a number of stories on growing online travel platforms – including the launch of an entirely new travel application and the possible resurrection of an old familiar travel application.

Blackrock Embraces Hotel Technology Space
(“SiteMinder Gets Funding Boost as Financial Titan BlackRock Bets on Hotel Tech,” Skift Travel News, January 16, 2020)
Another billion-dollar unicorn is possibly in the making. Last week, Blackrock, the world’s largest money manager, led an investment round in channel manager, SiteMinder, that values SiteMinder at a staggering $750 million. To put this in perspective, SiteMinder reported revenues of only $67 million in its most recent fiscal year that ended on June 30, 2019. To justify such a large valuation (and Blackrock’s bet on the channel manager), SiteMinder will need to find a variety of new products and services to offer its existing and prospective hotel customers. So why SiteMinder? Why now? Is Blackrock’s embrace of this relatively small channel manager an anomaly or the sign of more things to come?

Russian Investigators Looking into Booking.com’s Practices
(“Russian competition watchdog opens investigation into Booking.com,” Reuters on Dec. 30, 2020)
On Monday, December 30, Russia’s Federal Anti-Monopoly Service (FAS) announced that it was launching an investigation into Booking.com and its practices. According to the announcement, Booking.com is alleged to require rate parity among the distributions channels used by Russian hotels participating on the distributor’s platform. If found to have violated Russian anti-monopoly laws, Booking.com faces penalties of 1-15 percent of its Russian revenue.

With 2020 now upon us and 2019 in the rearview mirror, I thought this would be a good time to take a look back at the stories (and the themes that the stories represent) we covered in 2019 that I believe will have the largest impact on hotel owners and operators in 2020 and beyond. I hope that you will enjoy.

Our holiday-abbreviated OTA & Travel Distribution Update is below. Happy Holidays.

Booking.com Agrees to EU Demands to Change Travel Offers
Reuters Technology on Dec 20, 2019
The European Commission said that Booking.com had committed to end “manipulative techniques” on its travel site, such as time-limits for making bookings.

Booking.com Building Connected Travel with Google Nest
Phocus Wire on Dec 20, 2019
Booking.com and Google Nest say guests and hosts are looking for more safety and security features when staying in private accommodations with smart technology potentially filling gaps.

What Barry Diller Told Anxious Expedia Workers About the Future
Skift Travel News on Dec 20, 2019
Expedia Group Chairman Barry Diller flew to Seattle to rally the troops. His message to all the employees around the world was, in essence, the sun will rise tomorrow at the travel giant. Impatient investors aren’t quite as sure. No, you’re not going to see Barry Diller sweat.

CCPA: Hotel Loyalty Programs, Data Retention and the Brave New World of Privacy
Hospitality Net - Latest Industry News on Dec 20, 2019
The California Consumer Privacy Act (the "CCPA" or the "Act") is a piece of consumer privacy legislation which was signed by California Governor Jerry Brown on June 28, 2018, and goes into effect on January 1, 2020.

South Korean Competition Authority Takes a Hard Look at Parity
(“Comment: Use by online-travel agencies of MFN clauses under study by South Korean antitrust watchdog,” MLex Insight on Dec 5, 2019)
South Korea’s Fair Trade Commission (KFTC) is rumored to be considering possible antitrust enforcement action against the distributors Booking.com and Agoda over their use of contract rate parity provisions. An investigation of the distributors’ practices is currently under way, and the results of the investigation are expected to be released later this month. Also, under consideration are the market implications of broad versus narrow parity requirements. Stay tuned for further updates.

It should come as no surprise that stories detailing the unexpected resignations of Expedia’s top two senior executives are featured prominently in this week’s Update. Rather than just recirculating the usual industry reports, we thought we might offer a more localized (and detailed) view of the resignations. Oh yeah, we also decided to throw in a story about another Pacific Northwest company’s expansion of its closely watched travel experiment. Enjoy.

Okerstrom and Pickerill Out
(“Expedia’s two top execs pushed out as chairman Diller asserts control,” Seattle Times on Dec 5, 2019)
By all accounts we’ve seen, last week’s resignations of Expedia Group CEO Mark Okerstrom and CFO Alan Pickerill came as a complete surprise. What led to the sudden departures? Expedia Group’s dismal third quarter financial results? Differing perspectives on Expedia Group’s go-forward strategies? I’m not sure we will ever know all of the reasons for the resignations. A copy of Expedia Group Chairman Barry Diller’s text to Expedia Group employees immediately following the resignations is included in our Geekwire report. For now, Expedia Group will be led by Diller and Expedia Group Board Vice Chairman, Peter Kern. What this all means for Expedia Group’s hotel supplier partners is unclear, though if asked to speculate (which is all anyone can do at this point), I’d offer that it might be rough going in the near term. While Cyril Ranque appears to still be President of Expedia Group’s lodging partner services, it isn’t clear whether Ranque or even his role within the Expedia Group organizational chart will remain. Even if Ranque retains his position long term, we have no idea what influence Diller’s presence might have on Ranque and his approach to suppliers. We know firsthand that Okerstrom often got personally involved in the negotiation of key lodging partner agreements, and whether Diller is prepared to play a similar role (or even if not playing that role, how Diller might view Expedia Group’s supplier partners and the more moderate “cooperative” approach to key supplier partner relationships exhibited under Okerstrom’s leadership) is unknown. Buckle up everyone.

Need a Recipe? Ask Airbnb
(“Introducing ’Cooking‘ on Airbnb Experiences,” Hospitality Net - Latest Industry News on Nov 26, 2019)
Last Monday, Airbnb introduced “Cooking” on Airbnb Experiences. The new category of experiences allows travelers to book non-traditional experiential cooking classes hosted by families, farmers and other local hosts. The experiences category also provides access to more than 3,000 global family recipes vetted by Slow Food, a grassroots organization dedicated to preserving local foods and customs.