Robo calling and unwanted marketing phone calls: Are hotel chains vicariously liable?

In this week’s article, we discuss the case of Kern v. VIP Travel Services, 2017 U.S. Dist. LEXIS 71139 (W.D. Mich. 2017). As noted in Hanson, Hotel Chains Escape TCPA (Telephone Consumer Protection Law) Claims Of Vicarious Liability, law360.com (5/10/2017) “A Michigan federal judge…dismissed hotel chains AM Resorts LP and Newport Hospitality LLC from an illegal robo-calling suit that claims they were involved in unwanted marketing phone calls, ruling that the chains weren’t ‘vicariously liable’ for the calls…The Michigan residents alleged they received several dozen cell phone calls from VIP Travel Services and United Shuttle Alliance Transportation Corp., known collectively as USA, and that the hotel chains were vicariously liable for the calls in violation of the Telephone Consumer Protection Act”.

Terror Targets Update

The Greatest Threats, Indeed

In Friedman, Islamic State and Climate Change Seen as World’s Greatest Threats, Poll Says, nytimes.com (8/1/2017) it was noted that “Climate change is essentially tied with the Islamic State as the most-feared security threat across much of the world-except in the United States, where cyberattacks are considered a greater danger than global warming according to a Pew Research Center report released on Tuesday. Residents of 13 countries ranked climate change as the greatest threat to national security while in 17 countries the Islamic State was considered a more immediate problem”.

Australia

In Australia foils ‘terror plot’ aimed at downing plane, travelwirenews.com (7/30/2017) it was noted that “Australia has thwarted a Takfiri-inspired ‘terrorist plot’ aimed at downing an aircraft with explosives. ‘I can report last night that there has been a major point counter-terrorism operation to disrupt a terrorist plot to bring down an airplane’”.

Hamburg, Germany

In German intelligence agencies ‘knew about Hamburg attacker’, travelwirenews.com (7/30/2017) it was noted that “The man who killed one person and injured six others in a knife attack in the German city of Hamburg had been known to intelligence authorities in Germany, an official says. The 26-year-old man, identified as Ahmad A., attacked customers at random at a German chain store before he was overpowered by passers-by on Friday”.

Mexico Deadly, Indeed

In Ahmed, Mexico’s Deadliest Town, Mexico’s Deadliest Year, nytimes.com (8/4/2017) it was noted that “This was once one of the safest parts of Mexico, a place where people fleeing the nation’s infamous drug battles would come for sanctuary. Now, officials here in Tecoman, a quiet farming town in the coastal state of Colima, barely shrug when two murders occur within hours of each other…Last year, the town became the deadliest municipality in all of Mexico, with a homicide rate similar to a war zone’s…This year it is on track to double that figure, making it perhaps the most glaring example of a nationwide crisis. Mexico is reaching the deadliest point in decades. Even with more than 100,000 deaths, 30,000 people missing and billions of dollars tossed into the furnace of Mexico’s decade-long fight against organized crime, the flames have not died down. By some measures, they are only getting worse”

Take A Punch, Please

In Nice Airport employee punches easyJet passenger after a row over delayed flight. www.eturbonews.com (7/31/2017) it was noted that “Nice airport has launched an investigation after video was published online that appears to show a staff member punching a passenger holding a young child following a row over a delayed flight”.

Bus Crash In Madagascar

In Bus crash kills at, least 34 in Madagascar, travelwirenews.com (8/1/2017) it was noted that “At least 34 people died when a bus carrying young Christian worshipers plunged down a steep ravine in central Madagascar…Police said 12 badly burned bodies were counted at the site, 70 kilometers north of the capital Antananarivo”.

Hotel Fire In Turkey

In Fourteen tourists injured, 400 evacuated after hotel fire in Kemer, Turkey, www.eturbonews.com (7/29/2017) it was noted that “Fourteen people-four Russian tourists and 10 Turkish citizens, have been injured in a fire at a hotel in Kemer, Turkey. Around 400 others were reportedly evacuated. The fire started in the kitchen of the 5-star hotel, local news sources reported”.

Tour Boat Sinks Off Turkey

In Tour boat sinks in Mediterranean off Turkey, 3 missing, travelwirenews.com (8/2/2017) it was noted that “Three people were missing after a tour boat sank in the Mediterranean off the coast of Turkey’s southwestern province of Mugia on Wednesday, an official said. The boat, named Anemore, was carrying 11 people when it sank off the Marmaris district of Mugia, a popular tourist area…Eight passengers have so far been rescued”.

Russian Tourists Injured

In 35 Russian tourists among dozens injured in munition depot blast in Abkhazia, travelwirenews.com (8/3/2017) it was noted that “Dozens of people have been injured by explosions and the resultant fire at an ammunition depot in Abkhazia which lasted for four hours. Among the injured are 35 Russian nationals”.

Plane Hits Portugal Beach

In 2 dead as plane hits Portugal beach, travelwirenews.com (8/2/2017) it was noted that “Lisbon: An eight-year-old girl and a man were killed while sunbathing when a small plane plummeted on to a crowded beach in Portugal on Wednesday, apparently due to engine failure”.

Elephants, Tigers & Leopards

In Elephants, tigers kill one human a day in India, travelwirenews.com (8/1/2017) it was noted that “Endangered elephants and tigers are killing one person a day in India as humans put a growing squeeze on their habitat, according to new government figures. But man is in turn killing a leopard a day as the man-animal tussle foe space reaches new heights”.

Muslims Not Traveling To America

In Einashe, Traveling to America While Muslim, nytimes.com (7/21/2017) it as noted that “Contrary to recent reports of the United States being inundated with international travelers this year…a subset of travelers-British Muslims-is rethinking its plans. While no statistics in Britain are available, a significant number of British Muslims say they are eschewing United States travel in light of the ban, according to Muslin officials and anecdotal evidence from interviews in Britain…‘Some British Muslims don’t want to go to the United States because of the hassle of traveling there’”.

Fines All Around, Please

In Simpson, DOT Fines Delta, American, Frontier Over Consumer Woes, law.360.com (7/21/2017) it was noted that “The (DOT) hit Delta, American and Frontier Airlines with fines Friday for violating various consumer protection rules, including against oversales and inaccurate baggage reports…Delta Air Lines Inc. will pay $200,000, Frontier Airlines, Inc. will pay $400,000 and American Airlines, Inc. will pay $250,000 in penalties”.

British Airways Pay Up, Please

In Steinmetz, Skycop: British Airways Owe up to E45 Million to Passengers, www.eturbonews.com (7/26/2017) it was noted that “Following an ‘IT failure’ that struck the British Airways network on the 27th of May, an estimated 75,000 were left stranded at airports across Europe. SKYCOP has now approached the United Kingdom Civil Aviation Authority in order to receive answers from the airline as to when the debt, which might be as big as 45 million euros, will be paid to those passengers left without flights”.

Airline Stress, Indeed

In Airport Checklist: Boarding Pass, ID, Stress, nytimes.com (7/28/2017) it was noted “Air travel, once viewed as efficient, exclusive-even glamorous-now sometimes seems like a chore…Will one be hauled off the plane because of overbooking? Is speaking a foreign language going to set off the passenger at your elbow? Will a scorpion drop from the overhead bin? Will a uniformed officer write up an unauthorized birthday cake or will a flight attendant erupt in a red-faced outburst of air rage? All of those things-and others, come worse-are possible, as The New York Time’s Sarah Lyall learned during a weeklong odyssey. Times journalists crisscrossing the country in recent weeks have found that the stressed-out state of air gravel is clear. Here are their stories”.

The New TripAdvisor

In Sablich, How to Plan a Trip With the New TripAdvisor, nytimes.com (7/20/2017) it was noted that “With so many websites vying for the opportunity to book your next trip, TripAdvisor is hoping its recent make over will help it stand out from the ever-expanding crowd. Not that the self-described ‘world largest travel site’ is hurting for attention, with 390 million average unique monthly visitors and over 500 million reviews for hotels, restaurants and other travel destinations. But standing pat is never an option in the highly competitive travel booking industry. Which brings us to TripAdvisor’s new look, which comes with additional search features and a more personalized app for iOS and Android devices, And nearly half of TripAdvisor’s traffic coming from mobile last year, an increase of 29 percent, according to the company, it’s no surprise that the most noticeable changes are seen on its revised smartphone and tablet incarnations”.

Service Animals Got To Go, Too

In Levere, When a Service Animal Has to Go, Airports’ Options May Be Wanting, nytimes.com (7/24/2017) it was noted that “For Mr. May, who is blind, what matters is the quality of the relief areas for service animals beyond security in the airport terminals. In theory, a new federal rule requiring those areas should be a boon for the animals’ owners, who may be blind, be deaf, use a wheelchair or have some other type of disability. But according to disability travel experts, the rule has led to some facilities that users find poorly designed. Since August, the (DOT) has required American airports boarding 10,000 or more travelers annually to have at least one wheelchair-accessible service animal relief area per terminal, generally beyond security. The rule covered 382 airports…Mr. May, of the Lighthouse for the Blind, described the past-security relief area in the rotunda area of Terminal 3 at O’Hare as ‘worthless’”.

Thankless Job, Anyone?

In Isaac, Uber Offers a Thankless Job, and the Applications Flood In, nytimes.com (7/13/2017) it was noted that “Wanted: a seasoned executive to take the top position at a troubled technology start-up. Must be willing to fix a broken culture, deal with an aggressive predecessor, battle a risky lawsuit and prepare the company for an initial public offering. Self-starters preferred. This is essentially the pitch that Uber is making to potential chief executive candidates after Travis Kalanick…was ousted from the top spot last month. By some accounts, the job appears to be a thankless one at a company whose reputation is in the toilet. So, who would want it? Quite a few people, as it turns out”.

Sensing Weakness At Uber

In Mozur, Sensing Weakness, Uber’s Asian Rivals Make $2.5 Billion Play, Dealbook, nytimes.com (7/24/2017) it was noted that “In East Asia, Uber’s biggest rivals smell blood. Grab, the Singapore-based ride-sharing company competing with Uber for dominance in Southeast Asia, said on Monday that it expected to raise $2.5 billion in a new fund-raising round, in part with the help of the onetime major Uber competitor Didi Chuxing, which outmaneuvered its American rival in China. The round will include a combined $2 billion from Didi and the Japanese tech investment giant SoftBank that would value Grab at more than $6 billion…In laying down such a big pile of cash, Didi and Softbank are betting that they can repeat what they pulled off in China, where Uber ultimately sold its operations to Didi in exchange for a 17 percent equity stake. More recently, Uber made a similar move in Russia, forming a partnership with Yandex.taxi to cut down on competition there”.

Lyft And Taco Bell?

In Maheshwari, It’s Late and You’ve Got the Munchies. Lyft and Taco Bell Have an Idea, nytimes.com (7/25/2017) it was noted that “Taco Bell has…found a new marketing vehicle, and its name is Lyft. The fast-food chain is beginning a joint venture with the ride-sharing company this week that will allow Lyft passengers to request rides that incorporate a stop at a Taco Bell drive-through between 9 p.m. and 2 a.m. The companies will test the option, which will appear as ‘Taco Mode’ in the Lyft app, during the next two weeks around a Newport Beach. Calif., location with plans to extend the program nationally next year”.

Mass Tourism In Venice

In Masciullo, Venice and Florence: Solutions to control mass tourism, www.eturbonews.com (7/25/2017) it was noted that “The recent abuse of some young Belgian tourists who jumped off the San Marco bridge in the lower canal has exacerbated the patience of the local authorities who are seriously studying a plan to contain the flow of tourists into Venice…Among the solutions conceived by the responsible authorities, the proposal to install turnstiles in certain areas to restrict access was rejected, as well as to apply a ticket to curb the ‘bite and run’ (day visitors) tourism to Venice and Florence”.

Don’t Take Our Seats, Please

In Fitzsimmons, $800 Million Subway Rescue Plan Adds Cars and Subtracts Seats, nytimes.com (7/25/2017) it was noted that “Seat-free subway cars on crowded routes. Extra cars added to trains on the C line. Medical workers deployed at stations to quickly remove sick passengers. More countdown clocks. These are some of the pieces of the Metropolitan Transportation Authority’s long-anticipated, roughly $800 million emergency rescue plan for New York City’s troubled subway system, which was announced on Tuesday”.

Gorilla Tourism, Anyone?

In Gorilla tourism spurs growth in Kigezi region, travelwirenews.cm (7/23/2017) it was noted that “Mountain gorilla tourism has not only contributed huge sums of money to the national economy, it has immensely spurred development in the Kigezi sub-region. More than 18,000 gorilla permits are sold annually, which translates into an annual collection of more Shs38b. Each permit costs Shs2.16m ($600). According to…the Bwindi and Mgahinga National Park acting conservation area manager, mountain gorilla tourism started in 1961 when the area was still a sanctuary”.

Flesh-Eating Bacteria

In Wootson, To Your Health: He thought he just had blisters from a hike. He had flesh-eating bacteria and nearly died, washingtonpost.com (7/23/2017) it was noted that “Wayne Atkins thought little of the blisters he had gotten while hiking. He was trekking up and down the 4,500-foot-high Mount Garfield in New Hampshire-10-miles round trip-and blisters were no surprise…The blisters didn’t go away…Worried, he went to the hospital…(and) would spend the month fighting for his life as his body was devoured by flesh-eating bacteria…his blisters had allowed Group A streptococcus to enter his body…But according to the Centers for Disease Control and Prevention, every year, 11,000 to 13,000 people are infected with an invasive form of strep A disease that can cause blood infection or pneumonia”.

How Much Do Uber Drivers Make?

In Wile, Here’s How Much Uber Drivers Really Make, time.com (7/9/2017) it was noted that “The most recent earnings study comes from loan company Earnest, which used loan application data that included Uber earnings to show that Uber can be among the most lucrative platforms for ‘gig economy’ workers. Earnest found that the median Uber driver makes $155 a month-third most among the nine gig platforms surveyed. (People working with Airbnb and Lyft tended to earn more.) Meanwhile, the average Uber driver makes $364 a month-fourth most- suggesting some drivers are taking home the lion’s share of possible earnings. Earnest did not ask drivers to say whether these figures were gross or net. ()Expenses vary widely, but can subtract 20% to 30% of one’s gross earnings driving for Uber). The study also did not factor in how many hours individuals worked to earn this income, so we can’t gauge how much drivers made on an hourly basis”. The chart shows the following average monthly incomes: Airbnb at $924, TaskRabbit at $380, Lyft at $377, Uber at $364.

Annoying Teenagers Pay More

In Uber will pay drivers extra to put up with annoying teenagers, travelwirenews.com (6/20/2017) it was noted that “Buried in the June 20 announcement that Uber will finally allow tipping was a little nugget sure to grab the attention of harried drivers everywhere: Uber will now pass on part of the surcharge for teen riders to drivers. ‘For teen account trips’ the company explained in an email sent to drivers, ‘$2 will be added to the base fare and you’ll earn more for those rides’”.

Rape And Uber’s Safe Ride Fee

In Eslinger, Uber Can’t Trim Rape Victim’s False Ad, Fraud Claims, law360.com (6/29/2017) it was noted that “A California judge on Thursday rebuffed Uber’s bid to trim a rider’s claims that the company falsely marketed its ride-hailing app as safe before she was raped by her driver, saying the company’s arguments were better suited for a later stage in the case…(The lawsuit) alleges the company falsely advertises itself as connecting ‘carefully screened driver-employees to people seeking safe and affordable rides’ when in fact it does not conduct thorough background checks and knowingly has drivers who pose a danger to passengers. The suit also noted Taylor aid Uber’s extra $1 ‘Safe Rides Fee’, which is used for the screening and background checks of drivers”.

The Future Is Now

In Astor, Microchip Implants for Employees? One Company Says Yes, nytimes.com (7/25/2017) it was noted that “At first blush, it sounds like the talk of a conspiracy theorist: a company implanting microchips under employee’s skin. But it’s not a conspiracy, and employees are lining up for the opportunity. On August 1, employees at Three Square Market, a technology company is Wisconsin, can choose to have a chip the size of a grain of rice injected between their thumb and index finger. Once this is done, any task involving RFID technology-swiping into the office building, paying for food in the cafeteria-can be accomplished with a wave of the hand. The program is not mandatory, but as of Monday, more than 50 out of 80 employees…volunteered”.

Travel Law Case Of The Week

In the Kern case, the Court noted that “Plaintiffs are residents of Michigan. (Defendant) Newport is incorporated in Florida and owns a resort in Florida. (Defendant) Secrets is incorporated in Pennsylvania and owns resorts in the Dominican Republic, Jamaica and Mexico. The TCPA makes it unlawful to make a call using an ‘automatic telephone dialing system or prerecorded device…to any telephone number assigned to a…cellular telephone service’ 47 U.S.C. 227(b)(1)(A)(III). Under FCC regulations, it is also unlawful to initiate a telephone solicitation to a residential telephone subscriber who has registered his or her telephone number on the national do-not-call registry. 47 C.F.R. 64.1200(c)(2)”.

The Unwanted Phone Calls

“Plaintiffs allege that they received several dozen telephone calls from VIP Travel Services and United Shuttle Alliance Transportation Corp. (Collectively USA) in…October of 2013 to their cell phone numbers which are registered on the national do-not-call registry. When answering the calls, Plaintiffs heard an automated voice telling them, ‘Pack Your Bags! You’ve won a Disney vacation…After submitting (a) form, Kern received an email from USA encouraging him to visit USA’s website and recommending that he look into Silver Lake or Summer Bay resorts….Kern made reservations with USA to stay at three resorts, including Summer Bay Resort, Newport Beachside Resort and Villa Del Palmer. Plaintiffs allegedly received emails from these three resorts to confirm their reservations but Plaintiffs did not confirm (because) the reservations would have required them to attend a presentation about owning property at the resorts”.

Vicarious Liability

After dismissing the complaint against Newport because of a lack of jurisdiction, the Court addressed the issue of the vicarious liability of Resorts hotel chain. “Under the TCPA the party who makes or initiates a call not permitted by statute is directly liable, but the TCPA also permits vicarious liability.

‘Our rules have long drawn a distinction between the telemarketer who initiates a call and the seller on whose behalf a call is made. In accordance with those rules…a seller is not directly liable for a violation of the TCPA unless it initiates a call, but may be held vicariously liable under federal common law agency principles for a TCPA violation by a third-party telemarketer” [In re DISH Network, LLC, 28 F.C.C. Rcd. 6574, 6582 Section 24 (2013)]. Plaintiffs assert that the Resorts are vicariously liable for the calls made by USA (under the principles of formal agency, apparent authority and ratification)”.

Actual Authority

“In this case, nothing in the complaint permits a reasonable inference that the Resorts had the right to control USA or gave actual authority to USA to make automated telephone calls in violation of the TCPA. Even if the Resorts contracted with USA to solicit customers, that does not mean that the Resorts had the right to control USA or conferred on them the authority to solicit customers through improper means”.

Apparent Authority

“‘[U]nder the theory of apparent authority, a principal will incur liability for the acts of an ‘agent’ if the principle ‘held the agent out to third parties as possessing sufficient authority to commit the particular act in question and there was reliance upon the apparent authority’…In this case there are no well-pleaded allegations that the Resorts gave USA access to detailed information about the Resorts’ pricing, services or customer information, or gave USA the ability to enter consumer information into the Resorts’ systems…There is no allegation that the Resorts allowed USA to use their names, trademarks or service marks”.

Ratification

“Plaintiffs also contend that Defendants ‘manifested their asset to’ (i.e., ratified) the actions of USA by accepting reservations from customers who were unlawfully solicited…the well-pleaded facts in the complaint do not permit a reasonable inference that the Resorts were aware of USA’s allegedly unlawful solicitations. ‘A person who has ratified is not bound by the ratification if it was made without knowledge of material facts about the act of the agent or either actor’…Accepting a reservation request from a customer does not in itself suggest that the Resorts were aware of the manner in which the reservation was obtained. An acceptance is not effective to ratify unless it is accompanied by ‘actual knowledge of material facts’”.

Conclusion

“In short, Plaintiffs fail to state a claim of vicarious liability against (Resorts) because Plaintiffs have not alleged facts from which to infer an agency relationship”.

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

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here. http://www.nycourts.gov/courts/9jd/taxcertatd.shtml/