Priceline’s “Best Price Guaranteed” policy: Is it misleading and deceptive?

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In this week’s article we examine the case of Chapman v. Priceline Group, Inc., Case No. 3-15-CV-1519 (RNC) (D. Conn. September 30, 2017) wherein the class action complaint alleged “that Priceline has ‘prominently represented and continues to represent a ‘Best Price Guaranteed’ promise for airfare purchased through its website’ that guarantees to consumers the ‘lowest price on everything [they] book[]. With regard to travel on Spirit Airlines, however, Priceline secretly adds its own markup. As a result, ‘Spirit Airlines flights are always cheaper when purchased through Spirit Airlines’ website than when purchased through Priceline.com”. Priceline moved to dismiss the amended complaint which the Court denied.

Travel Terror Update

eTN Chatroom: Discuss with readers from around the world:


Bangkok, Thailand

In Motorcyclist arrested after fire-bombing rampage, travelwirenews (11/8/2017) it was noted that “the first and second floors of the Khpng district office were extensively damaged when a white-robed man on a motorbike three several Molotov cocktails into the building late Tuesday night… Police seized from him three bottles filled with petrol, a knife, some joss sticks, a cigarette lighter, a mobile phone and some cash. He was charged with arson”.

France

In France faces ‘very high’ terrorism risk-interior minister ahead of anniversary of Paris attacks, travelwirenews (11/12/2017) it was noted that “As France prepares to mark the second anniversary of the November 2015 Paris attacks, Interior Minister Gerard Collomb has warned that the terrorist threat remains ‘very high’ with a number of ‘small groups’ planning attacks. France has been on high alert since January 2015 when it was paralyzed by a series of Islamic State-linked terrorist attacks”.

Aden, Yemen

In 8 police killed in terrorist attack in Yemen claimed by ISIS, travelwirenews (11/5/2017) it was noted that “At least eight police officers have been killed in an attack involving a suicide bombing and a hostage situation, in the Yemeni port-city of Aden. A suicide bomber blew up an explosives-rugged car outside of the local criminal investigations department office”.

Southern Russia

In 2 militants killed in tense gunfight in southern Russia, travelwirenews (11/5/2017) it was noted that “Two militants have been shot dead by security officials after attacking a traffic police post in Russia’s Republic of Ingushetia on Sunday, the National Anti-Terrorist Committee (NAC) said adding that one officer was killed and two injured in the shootout”.

Berlin, Germany

In Driver steers car into crowd in Berlin but no one is hurt, travelwirenews (11/11/2017) it was noted that “A man drove a car into a crowd of people waiting for a bus in Berlin but didn’t injure anybody, police said Saturday as they hunted for him and the car (which was) a Mercedes (which) had been rented by a 36-year-old Moroccan man and they had searched his Berlin apartment and taken evidence”.

Dharmasraya, Indonesia

In Indonesian police shoot dead 2 men in police station attack, travelwirenews (11/12/2017) it was noted that “Indonesian police say that they have fatally shot two men suspected of burning down a remote police station on Sumatra island. National police spokesman Rikwanto says the suspects were killed early Sunday in the West Sumatra district of Dharmasraya. The fire had totally destroyed the main building of the Dharmasraya police station

Iraq

In War on ISIS cost Iraq over $100 billion-PM, travelwirenews (11/12/2017) it was noted that “The Islamic State…occupation of Iraqi territories and the fight against the militants has cost Baghdad more than $100 billion, Prime Minister Haider al-Abadi said…’The damage caused by the IS occupation of Iraqi cities already amounts to more than $100 billion’”.

Uber Sells Stake To SoftBank

In Benner & Isaac, Uber Reaches Deal to Sell Stake to Softbank, nytimes (11/12/2017) it was noted that “Uber completed a deal on Sunday to sell a significant stake of itself to SoftBank, a Japanese conglomerate, paving the way for the rise-hailing company to make sweeping governance changes and to go public in 2019. Under the agreement, a consortium of investors led by SoftBank will buy at least 14 percent of Uber through a combination of new and existing stock…SoftBank plans to buy about $ 1 billion of fresh stock at Uber’s current valuation of about $68.5 billion, but the bulk of the deal will be purchasing existing Uber shares from investors”.

Panic Buttons In Chicago Hotels

In Pearlman, Chicago Passes Ordinance Requiring Hotels to Provide ‘Panic Buttons’ to Certain Employees, The National Law Review (10/29/2017) it was noted that “On October 11, 2017 the Chicago City Council passed the Hotel Workers Sexual Harassment Ordinance…which requires Chicago hotels to develop anti-sexual harassment policies and provide employees who work alone in hotel rooms with panic buttons. Employers who fail to comply with these requirements or retaliate against employees for invoking the Ordinance’s protection may be subject to fines and/or the suspension or revocation of their hotel license”.

Jet Airways Attempted Hijack

In Passenger ‘tries’ to hijack Jet Airways flight, travelwirenews (11/13/2017) it was noted that “A Jet Airways flight was preparing to leave Cochin airport when a passenger announced a hijack… He had reportedly threatened to take control of the aircraft (and was arrested)”.

Guns, Guns, Guns

In Fisher & Keller, What Explains U.S. Mass Shootings? International Comparisons Suggest an Answer, nytimes (11/7/2017) it was noted that “The United States has 270 million guns and had 90 mass shooters from 1966 to 2012. No other country has more than 46 million guns or 18 mass shooters…The only variable that can explain the high rate of mass shootings in America is its astronomical number of guns…Americans make up about 4.4 percent of the global population but own 42 percent of the world’s guns”.

California Shooting Rampage

In Fuller, Northern California Gunman Killed Wife Before Shooting Rampage, nytimes (11/15/2017) it was noted that “The death toll in a Northern California shooting rampage rose from five on Wednesday after the authorities said they found the body of the gunman’s wife hidden under the floor of the couple’s home. The death toll, the authorities say, could have been much worse had an elementary school not ordered an immediate lockdown”.

Trevi Fountain May Reduce Rome’s Debt

In When in broke Rome…Cash-strapped city eyeing Trevi Fountain tourist coins, tavelwirenews (11/11/2017) it was noted that “The Eternal City that is Rome is going through somewhat of a budgetary crisis at the moment, and with cash in short supply, officials are now even eyeing up the city’s iconic Trevi Fountain. Every year, millions of tourists flock to (Rome and) A good of these toss coins into the near 300-year-old fountain, the haul of which reportedly hit $1.5 million in 2016 alone, chump change compared to the city’s estimated E 12 billion ($14 billion) debt”.

Typhoon Hits Vietnam

In Dozens dead & 40,000 houses damaged as typhoon hits Vietnam ahead of intl APEC summit, travelwirenews (11/5/2017) it was noted that “At least 27 people have been killed and tens of thousands evacuated after Typhoon Damrey struck Vietnam…The typhoon made landfall on Saturday with winds up to 90kph…nearly 40,000 houses were damaged…at least 626 houses collapsed entirely…30,000 people were evacuated”.

Beware Crimson Tide In Italy

In Crimson tide: Pollution turns sea water red in Italian city, travelwirenews (11/16/2017) it was noted that “Bay water has turned red in an Italian port city, due to alarming rates of industrial pollution…The photos attached to the letter, published by the group Genitori Tarantine (Parents of Taranto) on its Facebook page, show the most vivid example of pollution the city is facing. One picture shows a pool of water that has entirely turned rust red while another one demonstrates rust-colored dense fog billowing over the city streets”.

Brits Overweight, Indeed

In UK is fattest country in Western Europe with 63% of adults overweight & obese; OECD study, travelwirenews (11/12/2017) it was noted that “Over 63 percent of adults in Britain are overweight OECD (Organisation for Economic Cooperation and Development) says. The 2017 Obesity Update report found that the UK is the sixth fattest nation out of OECD member countries, with a 27 percent adult obesity rate. The U.S., Mexico, New Zealand, Hungary and Austria fare worse that the UK though. The countries with the lowest levels of obesity are Japan, Italy and Switzerland”.

Tourist Bus Overturns In Thailand

In Tour bus overturns in Phetchabun; 1 killed, 20 injured, travelwirenews (11/12/2017) it was noted that “A bus taking a group of elderly people on a tour of Khao Kho and Lom Sak districts overturned on Sunday morning, killing one of the tourists and injuring about 20 others…The passengers told police that the double decker bus was taking 43 elderly people from Bangkok to visit several temples and tourist attractions in Phetchabun”.

Jellyfish Invade Crimea

In Creatures from the deep: Jellyfish invasion strikes waters off Sevastopol, travelwirenews (11/12/2017) it was noted that “An intense jellyfish bloom has swamped the waters of Balaclava Bay in Sevastapool, Crimea, turning the area into a bubbly and slimy mess. The sea creatures amassed near the piers, turning the water into an alien-like landscape, overrun with an infestation of bobbing jellyfish”.

New Travel ID Law

In Vora, What You Need to Know About the New ID Law and Travel, nytimes (11/8/2017) it was noted that “In the past several months, there has been plenty of conversation about the Real ID Act and how it will affect air travelers. Passed by Congress in 2005, it act is intended to prevent identity fraud and starting on Jan. 22, 2018, fliers who reside in some states, even if they are flying domestically, will need identification other than a driver’s license to pass through (TAS) security checkpoints at airports. Who exactly is affected and what additional identification will the TSA require? Here, answers to questions about what the Real ID Act means for travelers and why having a passport now may be more important than ever. The act is meant to ensure that a person presenting an ID is in fact who that person says they are, according to…a spokeswoman for Department of Homeland Security. “The act prevents the production of fake IDs and ensures that all identification that is used has certain features which prevent tampering or are difficult to replicate’…These features include anti-counterfeit technology, such as holograms on some state licenses. Federally issued documents, such as a passport, also fall into the difficult-to-replicate category”.

Does Clear Speed Up Screening?

In Vora, How Clear Can Speed Up the Airport Screening Process, nytimes (11/17/2017) it was noted that “What exactly is Clear, and how is it different from T.S.A. PreChecks?… Caryn Seidman Becker, the company’s chief executive, said that Clear uses biometric technology-in this case, either a scan of your fingerprint or an iris scan of your eye-to identify who you are and help you get through airport security quickly… Once Clear members arrive at the airport, they go through a dedicated Clear lane to a pod where they either scan their fingerprints on a fingerprint reader or look at a camera that can read iris images”.

Pizza, Anyone?

In Wolfe, New York Today: Chicago Pizza vs. the New York Slice, nytimes (11/16/2017) it was noted that “Here is what a few pizza lovers had to say: ‘I’ve lived in Chicago, which I loathe, and near Battery Park in New York City, which is grotesquely noisy and overpriced. I’m 69 and I’ve eaten a lot of pizza. A Chicago pizzeria is better than a New York City pizzeria’; ‘Chicago Pizza is a casserole, New York Pizza is pizza, with the best in Brooklyn. And, please, no pineapple’; ‘The one glaring problem with a Chicago pizza slice is not so much the taste, but that it is so thick that you cannot fold it. How is the world can you walk with a Coke in one hand and a slice in the other and eat it unless it is folded? Eating an unfolded slice is like eating a floor tile’”. Enjoy.

Recreational Use Statutes

In Fazio & Strell, Comparison of Tri-State Area Recreational Use Statutes, law (10/23/2017) it was noted that “Beginning in the 1950s, states began adopting recreational use statutes, which shield landowners from tort liability when people engage in certain types of outdoor recreation on those lands, thus encouraging recreation. Although New York’s, New Jersey’s and Connecticut’s statutes are structured similarly, their application has been far from uniform”.

Delta Pays Plenty

In Bravo, Delta pays passenger $4,000 in flight vouchers to give up seat, chron (9/15/2017) it was noted that “Tracy Jarvis Smith was waiting for takeoff with her family when Delta Airline employees asked passengers to voluntarily give up their seat in exchange for monetary compensation. The flight traveling from Atlanta to South Bend, Indiana was filled with University of Georgia football fans waiting to get to Saturday’s game against Notre-Dame…Bids quickly rose to $2,200, then $2,800, then $3,000. That’s when Smith turned to her husband Larry and said if they offer $4,000, she’s accepting the prize”.

British Woman In Egyptian Jail

In Busby, British woman languishes in Egyptian jail for carrying painkillers, msn (11/3/2017) it as noted that “Egyptian authorities have detained a British woman who entered the country carrying painkillers. (Ms. X) was arrested after 290 tramadol tablets and some naproxen for husband’s sore back was found in her suitcase. She then reportedly signed her name beneath a 38-page statement in Arabic, upon request, believing she would be able to leave the airport afterwards and begin her two-week break by the Red Sea. Instead, she was put into a cramped cell with 25 other women, where she remained for almost a month”.

Norovirus & Cruise Ships

In Lun, Ressler, Ferson & White, Norovirus and cruise ships, microbiology.publish.csiro (10/31/2017) it was noted that “Acute gastroenteritis (AGE) is one of the most common diseases of humans in both developed and developing countries… It remains one of the most significant health burdens on society. An estimated 1.8 million AGE-associated deaths occur annually worldwide making it the leading cause of mortality among children under the age of five years. In this article, we examine recent trends in emerging noroviruses, the ability of the virus to cause outbreaks on cruise ships and discuss the factors that influence its on-board spread”.

Tourist Guides In Romania

In Tatar, Herman & Giurgiu, Analysis Of The Licensed Tourist Guides’ Evolution Of Romania And Critical Issues Affecting Their Activity, istgeorelint.uoradea.ro/Reviste/Anale/anale (2017) it was noted that “The study refers to the licensed tourist guides of Romania during 1998-2016…The statistical analysis showed an (increase) from 24 tourist guides in the year 1998 to 4,335 licensed tour guides in 2016…A tourist guide is defined as a person with a broad knowledge whose primary role is to inform, thus performing the function of an educator”.

Driverless Cars: Liability Issues

In Hoenig, The ‘Driverless’ Car Era: Liability Considerations, law (11/9/2017) it was noted that “Most readers have heard something about the advent of so-called ‘self-driving’ or ‘driverless’ cars. Some of the more technical terms used by safety regulators, scientists, the motor vehicle industry and others are ‘automated’ or ‘autonomous vehicles’ (Avs)…Why the rush towards autonomous vehicles? From the regulatory perspective the paramount rationale is safety benefits. Automated vehicles’ potential to save lives and reduce injuries is rooted in traffic facts: 94 percent of serious crashes are due to human error; more than 35,000 persons died in motor vehicle-related crashes in the United States in 2015; more than 2.4 million injuries occur per year…Imposing, at the outset, crushing liability costs or explosive class action exposures upon manufacturers of Avs or suppliers of their software could stunt the development and improvement of self-driving vehicles… Therefore, some scholars and experts have suggested that federal preemption of certain kinds of lawsuits should govern at least early stages of AV use”. See also: Full Tilt: When 100% Of Cars Are Autonomous, nytimes (11/8/2017); Liedtke, California may limit liability of self-driving-car makers, AP, msn (11/16/2017).

What Abu Dubai Hotel Caught Fire?

In 9 rescued from Abu Dubai hotel fire, travelwirenews (11/8/2017) it was noted that “Firefighters in Abu Dubai rescued nine people from a fire that broke out on the 14th floor of a hotel…Officials have declined to reveal the name of the hotel or any other details and information about the hotel in question”.

Travel Law Case Of The Week

In the Chapman case the Court noted “These allegations are premised on a ‘Best Price Guaranteed’ representation contained in the ‘Priceline Terms and Conditions’ located on the Priceline website, Priceline.com/ Clicking on the words ‘Best Price Guaranteed’ results in the appearance of a statement in bold letter that Priceline ‘guarantee[s] the lowest price on everything you book’, The website goes on to state: ‘Find a lower rice, we’ll refund you 100% of the difference. Book an Express Deal, we’ll refund you 200% of the difference, Guaranteed. The Priceline.com Best Price Guarantee applies to every Air, Hotel, Rental Car, Cruise and Vacation Package reservation sold on priceline.com!’. “Best Price Guaranteed” policy promised that airfare purchased “through its website” would be the “lowest price on everything [they] book”.

Reasonable Consumers

“Plaintiff alleges that reasonable consumers who take advantage of Priceline’s best price guarantee ‘do not think they are merely getting the right to invoke a price-matching scheme’. Rather they ‘understand the Guarantee and corresponding price-match policy…to indicate that Priceline actually is selling the fares at the lowest available price-or, at the very least, that Priceline is not knowingly marking up those prices’. Plaintiff alleges that Priceline was aware of this understanding, but failed to disclaim its ‘Best Price Guaranteed’ policy with respect to Spirit Airlines though it knew Spirit Airlines flights were available for a lower fare on Spirit Airlines’ website… The amended complaint alleges that plaintiff purchased Spirit Airline tickets through Priceline…Though he ‘believed he was truly getting the best price for the air travel on Spirit Airlines’, ‘[t]hose same tickets were at that very moment offered for sale for significantly less on Spirit.com’”.

The Amended Complaint

“Plaintiff alleges that he was ‘aware’ of the ‘Best Price Guaranteed’ promise and ‘would not have purchased his tickets on Priceline.com had he known they had been marked up over the price for which they were being sold at the same time on Spirit Airlines’ website’…The amended complaint contains five causes of action, all on behalf of the class: violation of CUTPA (Connecticut Unfair Trade Practices Act), breach of contract, breach of the covenant of good faith and fair dealing, breach of express warranty and unjust enrichment. Plaintiff seeks restitution of fares paid to Priceline in excess of the lowest price available at the time of purchase, disgorgement of profits, actual and punitive damages, prejudgment interest, costs and fees”.

Airline Deregulation Act

“Priceline argues that the CUTPA, breach of duty of good faith and fair dealing and unjust enrichment claims…are preempted by the Airline Deregulation Act (ADA). Plaintiff responds that Priceline is not the type of entity the ADA was intended to protect and, even if it were, the claims do not fall within the scope of the ADA’s preemption provision. I conclude that even if Priceline may rely on the ADA, it has not shown a sufficient connection between its Best Price Guaranteed promise and the conduct of Spirit Airlines or any other air carrier to support preemption of the state law claims… Broadly speaking, plaintiff’s state law claims do involve prices at which Spirit Airlines tickets are sold. But this does not, by itself, support ADA preemption. Priceline must show that enforcing the state laws on which plaintiff relies would have a significant effect on the ‘price, route or service of an air carrier’”.

CUTPA Regulations

“Priceline argues that the complaint must be dismissed because it fails to state a claim…I conclude that the allegations of the amended complaint are sufficient to support each of the claims”. As far as the CUTPA claim is concerned the Court found that “[r]epresentations similar to the ones at issue here are covered by the following regulation: Advertisements frequently contain representations of guarantees that assure prospective purchasers that savings may be realized in the purchase of the advertiser’s products or services. Some typical advertisements of this type are ‘Guaranteed to save you 50%’, ‘Guaranteed never to be undersold’, ‘Guaranteed lowest price in town’. These advertisements should include a clear and conspicuous disclosure of what the guarantee will do if the savings are not realized, together with any time or other limitations that he may impose. Example: ‘Guaranteed lowest price in town’ might be accompanied by the following disclosure: ‘If within 30 days from the date that you buy a sewing machine from me, you purchase he identical machine in town, for less and present a receipt therefore to me, I will refund your money’ Conn. Agencies Regs. Section 42-11b-6″.

The Overall Impression

“Assuming the content of Priceline’s website with respect to the best price guarantee lasses muster under this regulation, that is not the end of the matter. Plaintiff argues that ‘even when the ‘fine print’ is read in conjunction with the prominent ‘best price’ representation, the overall impression is still that Priceline is not actively adding surcharges’. I agree that this is a plausible interpretation of the Priceline Terms and Conditions. The allegations…are therefore sufficient to state a claim under CUTPA at least insofar as the claim is based on Priceline’s allegedly deceptive addition of a secret markup to the price of Spirit Airlines tickets”.

Breach Of Contract

Regarding the breach of contract and breach of warranty claims the Court reviewed three different versions of Priceline’s “Best Price Guarantee” policy and Priceline’s disclaimer. First, in July 2015 the policy was “We Guarantee The Lowest Price On Everything You Book. Find a lower price, we’ll refund you 100% of the difference”. Second, the policy in March 2015 was “The Priceline Negotiator’s Best Price Guarantee. Nobody out-deals the Negotiator. Nobody. If you find a lower price online for the same itinerary, we’ll refund 100% of the difference”. And third in April 2014 the policy was “The Priceline Negotiator’s Best Price Guarantee….I’m going to make this short and sweet…I’m going to make you a special promise and it applies to…airline tickets, hotel rooms, rental cars, cruises, vacation packages and activities. If you find a lower published price for the exact same itinerary, within 24 hours of booking, Priceline will: Refund you 100% of the difference…Plus we’ll give you a $50 Priceline Vacation Package Coupon for your next trip”. In addition, the Court considered Priceline’s “Disclaimers of Warranties” which provided “Without Limiting The Foregoing, No Warranty Or Guarantee Is Made…That A User Will Receive The Lowest Available Price For Goods And/Or Services Available Through This Site”.

No Surcharges Added

“I agree with Priceline that the quoted provisions, especially the last, make it clear to a reasonable consumer that the ‘Best Price Guaranteed’ policy is a price-matching scheme, not an absolute promise to provide the best price on all purchases…[H]owever, it is plausible that a reasonable consumer would interpret the contract language to include a promise not to add hidden surcharges”. The Court also sustained the breach of contract and breach of warranty claims as well as claims of a breach of the duty of good faith and fair dealing [“plaintiff may be able to prove that Priceline’s alleged practice of secretly adding surcharges to Spirit Airlines tickets was not motivated by an honest mistake about its duties”] and unjust enrichment.

tom dickerson

The author, Thomas A. Dickerson, is a retired Associate Justice of the Appellate Division, Second Department of the New York State Supreme Court and has been writing about Travel Law for 41 years including his annually updated law books, Travel Law, Law Journal Press (2016), Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), Class Actions: The Law of 50 States, Law Journal Press (2016) and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. For additional travel law news and developments, especially, in the member states of the EU see IFTTA.org

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