United States District Court, D. Massachusetts
MEMORANDUM & ORDER
WILLIAM G. YOUNG, DISTRICT JUDGE
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.
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.
HomeAway's Basic Rental Guarantee, Terms and Conditions,
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.
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. 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.
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.
HomeAway will disclose users' personal information. Aff.
Amanda McGee, Ex. 4, Decl. Brittany Miers, Attachment C
added). The relevant provision states that HomeAway
“may disclose your personal data to enforce our
policies . . . .” Id.
Jewels of Belize
April 2014, Hiam 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.
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.
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.
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.
Standard of Review
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).
Statutory Immunity under Section 230 of the Communications
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.
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.
§ 230(c)(1)). Therefore, if the Court ...