Duff on Hospitality Law

Happy New Year! We are once again providing a roundup of some of the major developments and trends in the online travel industry that caught our attention this past year. Wishing everyone a successful 2024. 

- Greg Duff

This past week was dominated by stories regarding AI’s application and use in the travel industry (we’ve included only one of those stories) and recent activity on resort fees (two stories this week). Some highlights include:

• • U.S. Supreme Court Disappoints Those Seeking Clarity on Website Accessibility Standing.  Although the court noted in its opinion that the issue of standing remains “very much alive,” the court’s decision on Tuesday finding that the much discussed website accessibility case was moot (and therefore not subject to review by the court) disappointed many.  Will the court’s comments have a chilling effect on future frivolous claims, only time will tell.
    
    
  • Booking Holdings Appeals ETraveli Veto.  In a move that should surprise no one, Booking Holdings has formally appealed the EU Commissions’ veto of Booking’s planned ETraveli acquisition.  Recall that the Commission blocked the planned acquisition on the grounds that the acquisition in one vertical (flights) would further strengthen its already dominant position in another vertical (hotels).  Booking is challenging the Commission’s decision on the grounds that (a) the Commission’s application of the so-called “conglomerate” theory of harm was an unwarranted departure from its well-established merger practices and (b) the Commission’s comparison of the factual situation if the merger went through versus it not going through was entirely wrong.  We will keep you apprised as the case moves forward.
    
    
  • Resort Fee Update – Hilton Sued and Yet Another Bill Proposed in Congress.  Travelers United is at it again.  This time Hilton (after Hyatt and Sonesta) is the subject of proposed class action litigation brought by the group over resort fee disclosures.  Congress is also at it again.  Members of the House of Representatives introduced bi-partisan legislation this past week prohibiting hotels, short term rentals and distribution platforms from excluding mandatory fees from rates whenever they are marketed or displayed.  The American Hotel and Lodging Association announced last week that it supported the legislation applauding the single standard approach across all booking channels.  This latest proposal joins two other proposed bills – The Hotel Fees Transparency Act and the Junk Fee Prevention Act.  We will continue to monitor all three pieces of legislation, which most view (at least today) as having little chance of passage. 

Our weekly Online Travel Update for the week ending December 1, 2023, is below.  This week’s Update features of variety of stories – resort fees, potential new EU traveler regulations and Ryanair’s continued pursuit of OTAs.  Enjoy.

• • New Traveler Rights Proposed in EU. Privacy and data security, competition and now, traveler rights . . .  Our friends at the EU Commission have been busy.  The latest from the EU Commission proposes changes to existing traveler regulations, including free air travel for those accompanying persons with disabilities, deposit limitations on package travel and guaranteed refunds for expired travel vouchers.  We will continue to keep an eye on these proposed changes in the months ahead. 
  • Add Massachusetts to List of States Seeking to Regulate So-Called Junk Fees. Not to be outdone by her contemporaries in California, Massachusetts Attorney General Andrea Joy Campbell announced this past week new regulations requiring hoteliers (and others) to display the “true” price of a night’s stay.  The proposed regulations will now be the subject of a public hearing on December 20, after which the AG can decide whether to move forward with putting the regulations into effect with or without changes coming out of the public comments.  My bet is on the rules becoming effective. 
  • Ryanair’s War with OTAs Continues. In the latest salvo in the ongoing war between Ryanair and OTAs, Ryanair’s CEO called out those OTAs that allegedly charge travelers “unjustified fees and charges.”  OTAs making the illustrious list include Kiwi.com, lastminute.com, Opodo and eDreams.  Ryanair went on to accuse the UK’s Civil Aviation Authority (CAA) and Competition and Markets Authority (CMA) of ignoring OTAs’ “rampant internet piracy and anti-consumer mis-selling.”  Earlier this year, some of the largest OTAs (Expedia and Booking.com) sent letters to these same UK authorities accusing Ryanair of “invasive, unnecessary and unfair treatment” of their customers.  So, what’s the real motivation behind these complaints by Ryanair?  Is it simply a bizarre form of direct booking campaign?   Or is someone finally drawing a line with certain OTAs and calling out their practices?  Are there lessons here for hoteliers?
  • Who Says Amazon Isn’t into Travel?  Just ask American Airlines, IHG, Choice and Carnival Cruise Lines, all of which participated in Amazon’s self-proclaimed first-ever Cyber Week Travel Deals.  Users interested in the marketed offers were re-directed to the applicable supplier’s website to complete the booking.   

With the U.S. holiday, this past week was definitely a quiet one.  Enjoy.

• • Stories Continue to Emerge About Booking.com’s Ongoing Fraud Challenges.  For several weeks now, we’ve included several stories about Booking.com users being asked (fraudulently) to provide bank card details to preserve their previously made bookings.  To date, most of these stories have come out of Asia.  Now we have a story out of the UK, where Booking.com users are now receiving emails from Booking.com encouraging them to cancel their cards because of suspicious activity.  To date, Booking.com has blamed the systems of their supplier partners for the apparent fraud.  That may now be changing.
    
    
  • Hubli Offers Real Time Meeting and Event Inventory. Those of you who have seen my group sales presentations know that I dedicate a portion of the presentations to online meetings and events.  I remain convinced that one of the large leisure booking platforms will one day master group bookings – either through its own in-house creation or acquisition of another smaller niche player.  While the large leisure platforms remain on the sidelines, the smaller platforms press ahead with their own solutions.  This week, Hubli announced that it has launched direct API connectivity (“Venue Connect”) that allows properties to offer real-time meeting and event inventory.  According to Hubli founder and CEO, Ciaran Delaney, Hubli is already working to build direct connections with several supplier partners.

After a few incredibly busy weeks in online travel, this past week was relatively quiet.  Enjoy.

• • Booking.com Launches Cruises in the U.S.  For years now, we’ve featured stories in our weekly Update detailing the many challenges of booking cruises online.  The multitude of available sailings, cabins, pre and post accommodations, excursions, etc. were always referenced when explaining why cruises would never fit well on traditional online booking platforms.  Booking.com seems committed to change that.  Last week, Booking.com began offering cruises to U.S. users through a white label cruise site with cruise agency, World Travel Holdings.  A similar partnership with Priceline already exists.  Users of the new platform will be able to select from over 10,000 sailings, and customers booking on the new platform will find exclusive offer and be eligible to receive shipboard credits of up to $1000 (depending on amount spent to book the cruise).  World Travel Agents will handle the bookings (which will be made via phone), customer service and customer emails. 
    
    

• • Airbnb May Look (Again) to Hotels to Fill Accommodations Demand.  Faced with a regulatory crackdown that has slashed the number of its NYC rental listings, Airbnb may soon turn to boutique hotels to fill the gaps.  Airbnb CEO, Brian Chesky, reported in last week’s earnings call that boutique hotels presented “a real opportunity” for addressing the recent regulatory changes.  Readers of our Update will recall that Airbnb went down this hotel road before – even going so far as to create a special category for hotels on its platform- but that it ultimately dropped the effort with the onset of the pandemic.  Since that time, it has been difficult to discern whether Airbnb viewed hotels as a real opportunity.  We will have to wait and see whether this latest effort by Airbnb is different than the past. 

For those of you who I saw in Long Beach this past week at the HSMAI Sales Forum, it was great to see you. 

It is earnings season, which makes for a longer Update than usual:

• • Expedia Enjoys Strong Third Quarter Results.  While I am still working my way through the recent Expedia Group earnings call transcript, news of the recent quarter has been uniformly positive.  Expedia reported strong results (quarterly records in both revenue and EBITDA and a third quarter record in gross hotel bookings ($18.5 billion)) and even stronger results for its growing B2B business ($995 million in revenue, up 26% year over year and a quarterly record).  During the third quarter earnings call, Expedia CEO, Peter Kern, was optimistic about the prospects for the platform’s business now that its unified loyalty program OneKey and technology platform is complete.
    
    
  • Booking Holdings Also Enjoys a Strong Third Quarter.  Expedia’s largest competitor, Booking Holdings, also enjoyed a record third quarter.  Booked room nights and gross booking value ($39.8 billion) set new quarterly records.  Beyond hotel room accommodations, flights featured prominently in Bookings’ third quarter results with the platform selling 9 million flights during the quarter.
    
    
  • Google’s Anti-Trust Trial:  The Gift That Keeps Giving.  Over the past month, we have featured multiple stories detailing the testimony of various OTA executives at the ongoing Google anti-trust trial.  This past week, the comments of Expedia Group Chairman (and outspoken spokesman), Barry Diller, surfaced in the ongoing proceedings.  According to the reports, the comments were made by Diller back in 2019 when he claimed that he was “on the edge of a revolt” over Google’s increased monetization (e.g., paid display advertising) of its search results.  According to Diller, the increasing numbers of paid ads was punitive to Expedia and anyone else relying on a level search playing field. 
    
    
  • Another Week and Another Story on Scammers Leveraging Booking.com’s Messaging Platform.  This week’s story comes to us from Singapore.
    
    
  • IHG’s Attribute Based Bookings Are Here.  While IHG’s effort to offer guests attribute-based booking functionality has long been the subject of industry reports (including our own Update), it appears that the functionality is now available, with new functions coming.  Through the IHG app, guests can now book rooms based on their location and view.  IHG hotels will soon also be able to offer add-ons (e.g., prepaid parking, food and beverage credits) to guests booking on the app.  According to IHG, offering these attributes presents an entirely new revenue opportunity for its properties.  It will be interesting to watch how third party platforms respond to attribute based bookings and pricing, which present an entirely new meaning to rate and availability parity.

Have a great week everyone. For those of you attending next week’s HSMAI Sales Leader Conference in Long Beach, I hope to see you there.  I will be presenting at the sales leader roundtable.

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.