In this week’s article we examine the consequences of a traveler’s failure to redeem a purchased package vacation before its expiration date and whether a refund of the purchase price is due and owing. In Krinsk v. Luxury Link, LLC, 2015 WL 5554669 (Cal. App. 2015) the Court held that the consumer’s failure to timely use “a Luxury Link vacation package for three nights at the Inn and Spa at Loretto in Santa Fe, New Mexico” resulted in a forfeiture of the purchase price with no refund due and owing.
Travel Law Update
Terror Targets Update
In Arango & Yeginsu, Turkey Blames Kurdish Militia for Ankara Attack, Challenging U.S., nytimes.com (2/18/2016) it was noted that “In blaming a Syrian Kurdish militia supported by the United States for a deadly car bombing in Ankara, Turkey added new urgency on Thursday to a question its president recently posed to the Obama administration: Are you on the side of a NATO ally – Turkey – or its enemies?”; 28 killed, 45 wounded in Ankara explosion, eturbonews.com (2/17/2016).
In Somalia’s Islamist terror group claims responsibility for plane bombing, eturbonews.com (2/13/2016) it was noted that “Somalia’s al Shabaab terrorists said on Saturday they were responsible for a blast that punched a hole in the fuselage of a plane last week that the government said was caused by a bomb meant to kill everyone on board”.
Zika And Dengue: Be Afraid
In Steinmetz, Dengue fever and Zika emergency: Should you travel to Hawaii?, eturbonews.com (2/13/2016) it was noted that “Hawaii Governor David Ige signed an emergency proclamation Friday as a preventative measure against mosquito borne illnesses that include dengue fever and Zika. This follows the recent decision of (CDC) to open its emergency operations center at Level 1 to prepare for and mitigate the Zika risk”; Jacobs, Brazil Pushes Public to Do Its Part in Fighting Zika Spread, nytimes.com (2/14/2016) it was noted that “Nearly a quarter of a million soldiers, sailors and other military personnel began fanning through Brazilian cities over the weekend as part of an ambitious campaign to combat the mosquitoes that are spreading Zika, the virus believed to be linked to a surge of infants born with severe brain damage”; Taverns, Prepare for ‘Guerrilla Welfare’ With Zika-Carrying Mosquitoes, Experts Warn, nytimes.com (2/12/2016) it was noted that “Nearly a year after the first cases of Zika were diagnosed in Brazil, the virus, which is suspected to cause birth defects and other neurological problems, is bearing down on American shores. It is already in Puerto Rico and the United States Virgin Islands. There have been more than 50 cases of Americans infected abroad, and most experts believe that by summer, the continental United States will have some of its own homegrown cases, meaning that domestic mosquitoes will have the virus”.
Cuba Daily Flights
In United States and Cuba sign arrangement restoring scheduled air service, eturbonews.com (2/16/2016) it was noted that “The new arrangement provides each country with the opportunity to operate up to 20 daily round trip flights between the United States and Havana. The arrangement also provides each country with the opportunity to operate up to 10 daily round trip flights between the United States and each of Cuba’s nine other international airports…The arrangement does not limit charter services, meaning that no DOT allocation procedures are needed and charter flights can continue as before”.
In Bromwich, Airbnb Purged New York Listings to Create a Rosier Portrait, Report Says, nytimes.com (2/11/2016) it was noted that “In December, Airbnb released a trove of data that showed about 95 percent of its hosts in New York City were playing by the rules. But an independent report released Wednesday cast a shadow on that rosy picture, claiming that the company ‘misled the media and the public’ by removing more than 1,000 listings from its site in November before making available the data. Murray Cox, one of the co-authors of the report, describes the site he founded, Inside Airbnb, as a tool for exploring the company’s impact on residential communities. The report portrays the December release as a cynical attempt to garner good press, and says that listings of multiple homes by hosts on the site have already begun to proliferate again, just months after the purge”.
Uber Settles Safety Class Action
In Graham, Uber Settles Class Actions Safety Claims, therecorder.com (2/11/2016) it was noted that “The on-demand ride service (Uber) has agreed to pay $28.5 million to settle two San Francisco class actions over the way it advertises its services. Uber announced on its website Thursday that it is asking U.S. District Judge Jon Tigar for approval to settle Philliben v. Uber and Mena v. Uber. The cases were brought by Uber passengers over the company’s ‘safe ride fee’ which Uber claimed went to support its ‘industry leading’ background-check process…The company said on its website Thursday that as part of the settlement Uber has agreed to rename the ‘safe ride fee’ a ‘booking fee’ and apply it to both safety and operational costs. ‘This is similar to the approach that Lyft has taken’, the company noted”.
China Bans Glacier Tourism
In China’s Xinjiang bans glacier tourism, eturbonews.com (2/13/2016) it was noted that “Tourists are to be banned from visiting the 22,698 square km of glaciers in the northern part of China’s autonomous region of Xinjiang, within four years after causing ‘inestimable’ erosion and other damage, Chinese media reports. Officials in the region have called on all other nations with glaciers that lie along the ancient Silk Road route to support the ban by 2020 to help preserve the glaciers, the Xinjiang government news portal Ts.cn reported”.
In Timeshares Come Of Age, Watch, Comment, Share & More at ConsumerReports.org p. 49 (March 1, 2016) it was noted that “The industry got off to a rocky reputational start in the U.S. in 1974, when developers capitalized on the concept to unload unsold condos during an era of over development, high interest rates, and soaring energy costs. Sneaky come-ons in the form of free show tickets, three-night getaways and all-you-eat buffets lured attendees into multi-hour presentations complete with high-pressure sales tactics. And the offering was very inflexible: a fixed week, in a fixed unit, at a fixed location during the calendar year…But the industry has become much more consumer-friendly and transparent, insiders insists, largely because major hospitality chains-such as Disney, Four Seasons, Hilton, Hyatt, Marriott, Ritz-Carlton, Starwood and Wyndham-are among the big players”.
Fake Reviews Again
In Morran, Is Amazon Doing Anything To Fight Latest Wave Of Fake, Paid-For Reviews?, consumerist.com (2/8/2016) it was noted that “Since Amazon began allowing customers to post reviews on product pages, various waves of bogus reviewers have attempted to game the system by posting fictitious or dishonest write-ups. While Amazon has recently taken legal action against people paid to write fake reviews for products, and the site has a ban on most forms of ‘paid’ reviews, there’s a new crop of compensated reviewers who are receiving free or discounted products in exchange for then writing ‘honest’ reviews. But some of these users are writing dozens of reviews a day, sometimes for products they couldn’t possibly have tried”.
Unlimited Domestic Flights
In Hill, How to get unlimited flights for under $2,000, marketwatch.com (2/18/2016) it was noted that “If you want to spend a month jet-setting around the U.S. as often as you like- for the cost of one first-class plane ticket-a host of new services can help you take flight. But beware: There are plenty of catches. In the past few years, a number of companies have begun offering unlimited flights for a single monthly fee. Typically, these services cost about $2,000 a month-most of these companies offer private jet flights, though one offers commercial flights-around a certain region of the country, though nationwide options exist as well”.
Travel Law Article: The Krinsk Case
As noted by the Court “Plaintiff purchased a vacation package from defendant Luxury Link, LLC (Luxury Link), but failed to redeem it within the time period contained in Luxury Link’s solicitation and confirmed in Luxury Link’s acceptance of plaintiff’s bid. In his class action complaint, plaintiff alleges six causes of action based on Luxury Link’s refusal to provide a refund or to apply a credit or other adjustment for a different vacation package…we agree with Luxury Link that plaintiff’s complaint fails to state facts sufficient to constitute a cause of action”.
“On its website, Luxury Link describes its business as offering ‘’luxury vacation deals…at a substantial savings-up to 65% off’ by ‘partnering with the world’s most extraordinary hotels, resorts, villas and cruise lines.” At issue in plaintiff’s claim is a Luxury Link vacation package for three nights at the Inn and Spa at Loretto (Loretto) in Santa Fe, New Mexico (Loretto package). Plaintiff paid Luxury Link ‘$1,042.00 plus a $40.00 ‘handling fee “for the Loretto package, based on Luxury Link’s initial ‘base price’ and a bidding process on Luxury Link’s Web site that plaintiff compares to an auction. More specifically at issue is the allegation that ‘plaintiff’s [Loretto] package purportedly expired on May 12, 2011′.”
No Show, No Refund
“Plaintiff does not allege either that he did not know the date of expiration prior to bidding on the Loretto package or that the amount of time during which the package was valid was unreasonably short. He alleges only that, after he purchased the Loretto package, he was ‘unable to use’ it prior to its May 12, 2011 expiration, the Luxury Link ‘refused to allow [p]laintiff to negotiate a vacation package extension with the vacation facility’ and that Luxury Link’s refusal to provide him with a ‘refund, repricing, credit or other adjustment’ is ‘illegal conduct’ Plaintiff further contends that Luxury Link’s agreement is a contract of adhesion, and that, by keeping the money plaintiff paid for the Loretto package without providing him additional consideration, Luxury Link effected an ‘improper forfeiture’ of his funds. Because the amount of this alleged forfeiture (#1,082) has no reasonable relationship to any actual damages Luxury Link may have incurred, plaintiff continues, the funds Luxury Link kept are illegal punitive damages”.
“Based on these allegations, plaintiff alleges six causes of action against Luxury Link: (1) a violation of (California) Civil Code section 1671 which provides that, upon the requisite showing, a liquidated damages ;provision in a contract is void; (2) a violation of Civil Code section 1670.5, which deals with potential court action upon the finding that a term of a contract is unconscionable; (3) breach of contract, including specifically breach of the implied contract of good faith and fair dealing; (4) violations of California’s Unfair Competition Law (UCL)…which provides for remedies upon a sufficient showing of an unfair, unlawful and fraudulent business act or practice; (5) violation of California’s False Advertising Law (FAL)…which provides for remedies to consumers upon a sufficient showing of untrue or misleading advertisements; and (6) violations of California’s Consumer Legal Remedies Act (CLRA)…which provides for remedies to consumers upon a sufficient showing of unfair or deceptive actions or unfair methods of competition in the sale of goods or services”.
On The Merits
“Given the procedural posture of this appeal, we must accept plaintiff’s allegations regarding the terms of the agreement…Luxury Link solicited plaintiff ‘’to ‘bid’ (as the term is used at auction)’ on the Loretto package, having posted a ‘base price’ in the solicitation. Luxury Link’s advertising in support of its solicitation expressly states that ‘the vacation packages are ‘nonrefundable.’ The Loretto package included three nights in a deluxe room at the Loretto and ‘expired on May 12, 2011′. Plaintiff’s ‘winning…bid-i.e., offer-for the Loretto package was ‘$1,042.00 plus a $40.00 ‘handling fee’ payable to Luxury Link’. Luxury Link accepted [p]laintiff’s bid, and [p]laintiff paid Luxury Link ‘in full upon paying the price resulting from the auction process’. In sum, in exchange for $1,082, plaintiff received the right for a three-night stay at Loretto prior to May 12, 2011 (the Contract).
“In the context of the Contract (which contains no promises by Luxury Link of any performance other than the three nights’ lodging prior to May 12, 2011), the thrust of plaintiff’s complaint is that when a consumer (like plaintiff) does not redeem a prepaid vacation package before it expires, ‘Luxury Link does not return any of the money received’; Luxury Link ‘refus[es]…to alternatively apply the promotional value, or some of it, to the same vacation package on alternative dates’; and [n]o refund, repricing, credit or other adjustment is allowed by Luxury Link’.
“Our reading of the allegations, in a light most favorable to plaintiff, tells us nothing more than plaintiff is displeased with Luxury Links’ customer service: Luxury Link failed to undertake additional responsibilities (even though plaintiff offered additional consideration) solely because plaintiff failed to take advantage of exactly what be bought and exactly what Luxury Link sold pursuant to the Contract. Plaintiff alleges that this failure resulted in a forfeiture of plaintiff’s payment, similar to an undisclosed liquidated damages provision or an unconscionable term in a contract of adhesion. We disagree. By its very terms, the benefit of plaintiff’s bargain-namely, the opportunity to spend three nights at the Loretto-expired on May 12, 2011. Plaintiff did not forfeit anything; he paid the agreed-upon consideration and then failed to take advantage of the benefit of his bargain…given the facts alleges…Luxury Link had no statutory or contractual obligations to provide plaintiff with a credit or to take on additional responsibilities by rebooking a new or different package at Loretto or elsewhere”.
Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
This article may not be reproduced without the permission of Thomas A. Dickerson.