Wednesday, January 05, 2022

TripAdvisor might not get 230 protection when its own ad touted pandemic precautions

Chang v. TripAdvisor, LLC, 2021 WL 6237376, Civ. No. 2021-00347 (Mass. Super. Ct. Nov. 19, 2021)

Chang sought transportation services for an upcoming trip he had planned to San Jose Del Cabo in Mexico and found an ad on TripAdvisor’s website for a shuttle service from the Los Cabos Airport to his hotel. “Relying in part on the advertisement’s representations regarding safety measures taken to prevent the spread of COVID-19, Mr. Chang booked a one-way ticket for July 15, 2020 on the shuttle service.” He alleged that the shuttle didn’t comply with those safety measures, and sued TripAdvisor and Viator, “a company that advertises its services in cooperation with TripAdvisor,” under California law. The court rejected TripAdvisor’s §230 argument at the pleading stage, but nonetheless granted the motion to dismiss.

§230 supports a motion to dismiss only if the CDA’s “barrier to suit is evident from the face of the ... complaint.” The complaint did not admit that TripAdvisor wasn’t an information content provider, that is, “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive service.” The complaint alleged that defendants “publish[ ] and advertise[ ] [their] services in cooperation” with others on their website. After his reservation, Chang received an email from TripAdvisor containing a section titled “Keeping you safe during COVID-19” which reiterated the same safety measures touted in the initial ad. “While Mr. Chang does not allege the extent of Defendants’ contributions to the description of the safety measures in the advertisement, it is certainly plausible that the text describing such safety measures was created at least in part by Defendants.”

However, Chang didn’t allege facts suggesting that either defendant had the requisite knowledge or intent required under each claim. The FAL bars making or disseminating to the public any statement concerning a product or service that “is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.” The complaint lacked allegations suggesting defendants either intentionally or negligently disseminated the untrue advertisement. The court noted that there was no allegation that either defendant operated the shuttle service itself or oversaw its operation. The CLRA likewise bars advertising goods or services “with intent not to sell them as advertised,” Cal. Civ. Code §1770(a)(9), so that claim had the same flaw. Chang also argued that he stated a claim under Cal. Civ. Code §1770(a)(7), which makes it unlawful to “[r]epresent[ ] that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another” and has no intent requirement, but the complaint didn’t mention (a)(7), only (a)(9) (adding “et seq.” to the reference wasn’t sufficient, since 27 different bad practices were listed). He could amend his complaint.

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