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Hiam v. HomeAway.com, Inc.

United States District Court, D. Massachusetts

July 27, 2017

PETER HIAM and BROOKE HUTCHENS, Plaintiffs,
v.
HOMEAWAY.COM, INC., Defendant.

          MEMORANDUM & ORDER

          WILLIAM G. YOUNG, DISTRICT JUDGE

         I. INTRODUCTION

         Peter Hiam (“Hiam”) and Brooke Hutchens (“Hutchens”) (collectively, the “Plaintiffs”) sued HomeAway.com, Inc. (“HomeAway”) under Massachusetts and Colorado consumer protection laws, as well as common law aiding and abetting fraud, in connection with vacation rentals posted on HomeAway's website. HomeAway moved for summary judgment, asserting protections for “interactive computer service” providers under the Communications Decency Act (“CDA”). For the reasons stated below, this Court GRANTS HomeAway's motion for summary judgment.

         A. Procedural History

         On February 19, 2016, Hiam sued HomeAway. Compl., ECF No. 1. Hiam amended his complaint twice. Second Am. Compl. (“SAC”), ECF No. 31. On December 14, 2016, the Court added Hutchens as a party to the action. HomeAway answered, asserting the affirmative defense that the CDA bars the Plaintiffs' claims. Answer Second Am. Compl. 20, ECF No. 33. On February 1, 2017, HomeAway moved for summary judgment, Def. HomeAway.com, Inc.'s Mot. Summ. J., ECF No. 38, and the parties submitted briefs and supporting statements of facts. Mem. Law Supp. HomeAway.com, Inc.'s Mot. Summ. J. (“Def.'s Mem.”), ECF No. 39; HomeAway.com, Inc.'s Statement Undisputed Material Facts Supp. Mot. Summ. J. (“Def.'s Facts”), ECF No. 40; Pls.' Opp'n Def.'s Mot. Summ. J. (“Pls.' Opp'n”), ECF No. 45; Pls.' Statement Undisputed Facts Opp'n Def.'s Mot. Summ. J. (“Pls.' Facts”), ECF No. 46; Reply Mem. Law Supp. HomeAway's Mot. Summ. J. (“Def.'s Reply”), ECF No. 56; Pls.' Surreply Def.'s Reply Mem. Re Summ. J. (“Pls.' Surreply”), ECF No. 60. After an oral hearing, the Court took the motion under advisement, Electronic Clerk's Notes, ECF No. 64, and the parties filed post-argument briefs, Pls.' Post-Arg. Mem. Re Summ. J., ECF No. 66; Reply Mem. Law Supp. HomeAway's Mot. Summ. J., ECF No. 69.

         B. Facts Alleged

         1. HomeAway's Basic Rental Guarantee, Terms and Conditions, and Privacy Policy

         HomeAway is a Delaware corporation that owns a website with the domain name, VRBO.com (“VRBO”). Def.'s Facts ¶¶ 1, 2. VRBO, which stands for “Vacation Rentals By Owner, ” is a forum on which users may list properties for rent or rent properties from others. Id. ¶ 3. The website contains language setting forth certain HomeAway policies, conditions, and guarantees in connection with using the website.

         First, the website offers a Basic Rental Guarantee (“Guarantee”) to eligible users, referred to in the Guarantee as “registered traveler[s]”. Aff. Amanda McGee, Ex. 4, Decl. Brittany Miers, Attachment A (“Basic Rental Guarantee”) 4, ECF No. 41-4.[1] Pursuant to the Guarantee's terms, HomeAway will reimburse qualifying users up to $1, 000 “where such funds are lost or misappropriated as the result of Internet Fraud.” Id. at 5. The Basic Rental Guarantee defines internet fraud as:

a deposit or payment by a Registered Traveler for a vacation rental . . . where such listing is subsequently determined to be, in HomeAway's reasonable discretion, fictitious or illegitimate because the holiday rental property (i) does not exist as a property available for rent, or (ii) was advertised with the intention of defrauding travelers . . . .

Id. The Guarantee further sets out several requirements to qualify for the reimbursement, two of which are relevant here. First, the user must submit a request form within the allotted period. Id. at 6-7. Second, the property owner or manager and PayPal, bank, payment provider, or credit card issuer must deny the user reimbursement. Id. The Guarantee stipulates that HomeAway “DOES NOT protect against . . . [p]ayments . . . made to any property owner or manager via . . . instant wire transfer services.” Id. at 5. It does not state that HomeAway pre-screens or monitors rental postings. Rather, the Guarantee explains that it “is intended to provide protection against Internet Fraud . . . .” Id. at 4. Generally, the Guarantee outlines the registered traveler's obligations to furnish HomeAway with relevant information while the company considers the user's reimbursement request. Id. at 6-8.

         Second, HomeAway's Terms and Conditions explicitly disavow “any responsibility for[] the confirmation for each user's purported identity.” Aff. Amanda McGee, Ex. 4, Decl. Brittany Miers, Attachment B (“Terms & Conditions”) 13, ECF No. 41-4. The Terms and Conditions also strongly recommend -- at least twice repeating -- that travelers communicate directly with property owners, in addition to “tak[ing] other reasonable measures to assure yourself of the other person's identity and . . . of the property and relevant details of your booking . . . .” Id. The Terms and Conditions state that while HomeAway “take[s] certain measures with a goal to assist users to avoid potentially fraudulent or other illegal activity of which [it] become[s] aware, [HomeAway] assume[s] no liability or obligation to take any such measures or actions.” Id. at 11. HomeAway further insulates itself by adding:

We have no duty to pre-screen content posted on the Site by members, travelers or other users . . . . All property listings on the Site are the sole responsibility of the member . . . and we specifically disclaim any and all liability arising from the alleged accuracy of the listings . . . . We do not represent or warrant that any of the . . . content . . . published on the Site is accurate or up-to-date . . . .

Id. at 14. Again, HomeAway stated that it “assume[s] no responsibility to verify property listing content or the accuracy of the location. Members are solely responsible for ensuring the accuracy of listing content . . . and travelers are solely responsible for verifying the accuracy of such content . . . .” Id. at 15. The disclaimer section emphasizes (in bold, capital letters),

To the fullest extent permissible by law, we make no representations or warranties of any kind whatsoever for the content on the site . . . . Further, we expressly disclaim any express or implied warranties . . . . We have no control over and do not guarantee (other than pursuant to any guarantee the [sic] may be offered on the site) . . . the truth or accuracy of any listing or other content . . . .

Id. at 18.

         Third, HomeAway's Privacy Policy outlines how, when, and if HomeAway will disclose users' personal information. Aff. Amanda McGee, Ex. 4, Decl. Brittany Miers, Attachment C (“Privacy Policy”) 32, ECF No. 41-4 (emphasis added). The relevant provision states that HomeAway “may disclose your personal data to enforce our policies . . . .” Id.

         2. The Jewels of Belize

         In April 2014, Hiam[2] and Hutchens attempted to rent the vacation property known as the “Jewels of Belize Estate.” Def.'s Facts ¶¶ 36, 54. Both Hiam and Hutchens communicated directly with an individual using the Jewels of Belize email account associated with the listing. Id. ¶¶ 36-37. To reserve the property, both Hiam and Hutchens followed the directions provided by the Jewels of Belize “agent” and wired an initial deposit for fifty percent of the total rental amount. Id. ¶¶ 41, 55. On April 22, 2014, Hiam wired his security deposit of $23, 282.50 to a TD Bank account. Id. ¶ 41. Hutchens similarly followed the wiring instructions, transferring $26, 343.75 to the account on April 24, 2014. Id. ¶ 55. Hiam wired his second payment on October 2, 2014; Hutchens, on July 18, 2014. Id. ¶¶ 41, 55.

         After wiring his second installment, Hiam heard nothing further from anyone associated with the Jewels of Belize rental property. Id. ¶ 42. Having heard nothing from the property manager, Hiam contacted VRBO's customer support about two weeks before his reservation was scheduled to begin. Id. ¶ 43. Customer support informed Hiam that they too could not reach the property owner due to the disconnected phone number but that the company had “determined this owner to be a real person who . . . had successful stays in the past, which does not meet [HomeAway's] definition of fraud.” Aff. Amanda McGee, Ex. 7 (“VRBO E-mails”) 2-3, ECF No. 41-7. In response, Hiam requested the owner's identity. Id. at 3. Several weeks later, a U.S. Trust and Security Specialist expressed gratitude for Hiam's “patience [during the] investigation, ” but denied Hiam's request for the Jewels of Belize owner's information “due to privacy concerns.” Id. at 1.

         While Hiam did not hear from anyone associated with the Jewels of Belize property after wiring his second payment, Hutchens received a call from “Dayva” on October 19, 2014. Def.'s Facts ¶ 57. Dayva told Hutchens that since the estate was no longer available, Jewels of Belize arranged for alternative accommodations at a nearby hotel resort. Id. ¶ 57. A few days into Hutchens's trip, the hotel informed Hutchens that Jewels of Belize's checks covering Hutchens's hotel reservations bounced, and the hotel demanded payment from Hutchens. Id. ¶ 58. Hutchens complied. Id. ¶ 59. The hotel later reimbursed Hutchens “based on payments made to the hotel by Jewels of Belize.” Id. ¶ 60. Upon her return, Hutchens reported the incident to VRBO. Id. ¶ 61; Aff. Amanda McGee, Ex. 8 (“VRBO Property Complaints”) 8, ECF No. 41-8. After searching for the property location on Google Earth, VRBO responded that those “images have a general date of 2014. The image could be two weeks old, or it could be 11 months old.” Aff. John Traficonte, Ex. 1 (“Massara Case Comments”) 3, ECF No. 48-1.

         Based on these events, Hiam and Hutchens brought this action pursuant to Massachusetts and Colorado consumer protection statutes and common law aiding and abetting fraud. SAC ¶¶ 73-93, 98-106. Hiam alleges unfair or deceptive trade practices under Massachusetts General Laws Chapter 93A (count II) and associated consumer protection regulations (count VII). Id. ¶¶ 73-80, 102-06. He also raises a concert of action claim (count III). Id. ¶¶ 81-85. Jointly, Hiam and Hutchens assert a fraud and misrepresentation claim (count IV), Id. ¶¶ 86-93, and a claim of unjust enrichment (count V), Id. ¶¶ 94-97. Hutchens brings a claim for deceptive trade practices under Colorado's consumer protection law (count VI). Id. ¶¶ 98-101. The Plaintiffs also seek declaratory relief to clarify HomeAway's forum-selection clause and one-year claims limitation period as enumerated in HomeAway's Terms and Conditions (count I). Id. ¶¶ 69-72.

         II. ANALYSIS

         A. Standard of Review

         “Summary judgment is appropriate when ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'” Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 7-8 (1st Cir. 1990) (citing Fed.R.Civ.P. 56(c)). “[T]he mere existence of some alleged factual dispute between the parties will not defeat” a summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986) (emphasis in original). Rather, a factual dispute must be both genuine and material. Id. at 248. When determining whether there is a genuine and material factual dispute, the court construes the record and draws all reasonable inferences in the nonmoving party's favor. Id. at 255. Where the moving party bears the burden of proof, absent binding admissions by the non moving party, summary judgement is inappropriate as the fact finder could reject the evidence proffered by the moving party. See Reeves v. Sanderson Plumbing, 530 U.S. 133, 150-51 (2000).

         B. Statutory Immunity under Section 230 of the Communications Decency Act

         Section 230 of the Communications Decency Act, 47 U.S.C. § 230, provides “broad immunity to entities . . . that facilitate the speech of others on the Internet.” Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 415 (1st Cir. 2007). To further this objective, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider, ” 47 U.S.C. § 230(c)(1), and “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section, ” Id. § 230(e)(3). The CDA, therefore, precludes a state law claim where three criteria are met: “(1) [the entity] is a ‘provider or user of an interactive computer service'; (2) the claim is based on ‘information provided by another information content provider'; and (3) the claim would treat [the entity] ‘as the publisher or speaker' of that information.” Universal Commc'n Sys., Inc., 478 F.3d at 418.

         As a result, “lawsuits seeking to hold a service provider liable for its exercise of a publisher's traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content -- are barred.” Zeran v. America Online, Inc.,129 F.3d 327, 330 (4th Cir. 1997). In addition to these “traditional editorial functions” adopted by the Fourth Circuit, the First Circuit has added website construction and operation, including a website operator's “decisions about how to treat postings generally.” Universal Commc'n Sys., Inc., 478 F.3d at 422. “A key limitation in Section 230, however, is that immunity only applies when the information that forms the basis for the state law claim has been provided by ‘another information content provider.'” Id. at 419 (quoting 47 U.S.C. ยง 230(c)(1)). Therefore, if the Court ...


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