On June 10, 2019, a federal court in Washington dismissed Church v. EXPEDIA INC., a class action lawsuit against Expedia, Hotels.com and other travel sites.
The plaintiff, Joseph Church, had made reservations with the travel sites via Reservations.com, and had claimed they all “were part of a fraudulent conspiracy to deceive consumers into believing that they were paying a legitimate Taxes & Fees charge."
Luckily for all the travel sites, Reservations.com was able to prove that the Plaintiff was bound to an enforceable clickwrap Terms of Service that included a binding arbitration provision. This is how they did it:
- They were able to prove what the screen looked like when the plaintiff made the reservation;
- They proved what their Terms actually said on June 4, 2017, the date in which the plaintiff clicked “complete reservation.”
How Expedia enforced their Terms of Service: Screenshots
As you can see from the screenshot below, Reservations.com was able to prove what the screen looked like when the plaintiff made the reservation and therefore accepted the Terms of Service.
Image of Reservation.com's sign up page at the time of the plaintiff's booking.
The founder of Reservations.com, Yatin Patel, submitted an affidavit to the court, affirming that the screenshot above was “substantially similar to one that would have been in place at the time of Plaintiff’s booking.
The screen capture affirmed that anyone who submitted the form had clear notice that by “clicking the ‘Complete Reservation’ button you agree to our Terms of Service.” Based on this, the court determined that this clickwrap agreement is in fact binding on the plaintiff.
Next step in clickwrap enforceability: Prove what the Terms of Service actually said
Next, Reservations.com needed to prove what the Terms of Service actually said on June 4, 2017 - the date plaintiff clicked on “Complete Reservation.” To do this, Reservations.com relied on the “Wayback Machine” to show what version of the Terms of Service was published on that date.
In an incredible stroke of luck, the crafty robots behind the Wayback Machine had actually taken a snapshot of the Terms of Service on June 4, 2017. This screenshot was also attached to Mr. Pate’s affidavit, and was successfully used to show that plaintiff was bound to a mandatory arbitration provision in the Terms of Service.
As a result, Expedia, Hotels.com and other travel sites managed to avoid millions in legal fees, and the time-suck of defending the lawsuit in court. Further, situations like these distract several department’s time, money, and people resources, often involving developers, product managers, and even founders.
Luckily, these sites were able to forego defending a costly class action. While this is a great outcome for the travel sites, it could have easily gone a different way:
- If Reservations.com couldn’t produce a screenshot of the “Complete Reservation” clickwrap in place on June 4, 2017, the clickwrap could have been unenforceable.
- While the court accepted clicking the “Complete Reservation” button as acceptance in this case, courts have been known to penalize defendants for not adding a separate checkbox to collect assent separately from purchase or signup. Recent research shows that enforceability of the browsewrap method is declining.
- What if the Wayback Machine had no archives of the Terms of Service for June 4, 2017? The screenshot below shows the 2017 archives of the Terms of Service:
Image of Reservation.com's Terms of Service on June 4, 2017
Between April 11, 2014 and July 23, 2019, the Terms of Service page was archived 60 times. Even more, the 2017 archives were sparse at best.
Further, Wayback Machine clearly states in a note below the calendars that, “This calendar view maps the number of times reservations.com/terms was crawled by the Wayback Machine, not how many times the site was actually updated.” That means that different versions of the Terms of Service could exist for dates that don’t have blue dots on the calendar. What if the plaintiff made reservations on a date without a blue dot? What if the Wayback Machine takes its site down and deletes all of its archives?
Don't leave crucial clickwrap enforceability factors up to chance
To the advantage of Expedia and other travel sites, these points are moot. They were lucky enough to have met the enforceability requirements and avoid wasting their resources defending themselves. Still, leaving these critical factors of clickwrap enforceability up to chance is a risky way to do business.
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