FALSE, MISLEADING & DECEPTIVE ADVERTISING IN THE TRAVEL INDUSTRY: THE CONSUMER'S RIGHTS & REMEDIES 2003

October 22, 2003
Prepared for an Association of the Bar of the City of New York CLE Program: Hot Topics in Advertising Law.

THIS PAPER MAY NOT BE REPRODUCED WITHOUT THE PERMISSION OF THOMAS A. DICKERSON. By Justice Thomas A. Dickerson¹

A.] Introduction To Travel Industry Advertising

How The Travel Industry Works
The Methods Of Travel Advertising
State & Federal Regulation Of Travel Advertising

B.] Deceptive & Misleading Travel Advertising

What Is Puffing?
1. What Is First Class?
Actionable Misrepresentations
1. Negligent Misrepresentation
2. Fraudulent Misrepresentation
3. Promissory Estoppel
4. Consumer Protection Statutes
5. Sellers of Travel Statutes
6. Breach of Fiduciary Duty
Federal Law Preemptions
1. Airlines, Tour Operators & Travel Agents
2. Cruise Lines
Misrepresentations: Private & Public Lawsuits
1. Airlines
  1. Consumer Lawsuits
  2. D.O.T. Enforcement Actions & Industry Letters
2. Cruise Lines
3. Rental Car Companies
4. Hotels, Resorts & Time Sharing Companies
5. Resort Time Share Operators
6. Tour Operators
  1. Consumer Lawsuits
  2. D.O.T. & F.T.C. Enforcement Actions
7. Travel Agents
  1. Affirmative Misrepresentations
  2. Breach Of Fiduciary Duty

C.] Consumer Protection Statutes

GBL § 349
GBL § 350
Application To Travel Advertising
State & Federal Telemarketing Statutes
Sellers Of Travel Statutes

D] Selling Travel Over The Internet & Personal Jurisdiction

The Solicitation Plus Doctrine
Jurisdiction And The Internet
A Transactional Analysis of Internet Commerce
Passive Web Sites
Passive Web Sites Plus
Interactive Web Sites
Forum Selection Clauses, Choice of Law Clauses, & Arbitration Clauses
The Internet May Have Expanded Jurisdiction

E] New York State Needs A Modern Travel Seller Statute

The Need For A Modern Travel Seller Statute
Travel Agents & Pseudo Travel Agents
The Irony Of Deregulation
Travel Seller Statutes Worldwide
1. Class Action Litigationfornia
2. Delaware
3. Florida
4. Hawaii
5. Illinois
6. Iowa
7. Massachusetts
8. Minnesota
9. Nevada
10. Ohio
11. Oregon
12. Rhode Island
13. Virginia
14. Washington
15. Other Countries
New York's Truth In Travel Act
Travel Promoters
A Modern Travel Seller Statute
Proficiency Testing & Annual Registration
Financial Stability
Advertising And Disclosure Standards
Consumer Remedies

A] Introduction To Travel Industry Advertising

In litigating false, deceptive and misleading advertising claims it is important to understand how travel services are marketed and delivered to the general public. Once understood plaintiff's counsel will be able to intelligently select (1) viable, liable and available defendants, (2) appropriate theories of liability and damages,(3) determine the enforceability of disclaimers, forum selection clauses, arbitration clauses and choice of law clauses and (4) anticipate dismissal motions based upon a lack of jurisdiction,forum non conveniens, choice of law and the application of the Foreign Sovereign Immunities Act, the Warsaw Convention, the Athens Convention and so forth².

1] How The Travel Industry Works

The travel industry markets travel services delivered by travel suppliers providing (1) transportation [ e.g., airlines, cruise lines, buses, railroads, rental cars, tour vans ], (2) accommodations, food and drink [ e.g., hotels, resorts, restaurants, time shares, bed and breakfast facilities ], (3) tours of local sites, (4) sports activities [ e.g., horse, camel and other animal rides, water sports ( swimming, white water rafting, scuba diving, snorkeling, water skiing, jet skiing, parachuting, parasailing, tubing ), winter sports [ skiing, snowmobiling, skating, tobogganing ], (5) entertainment [ museums, casinos, theaters, theme and amusement parks ] and (6) other services such as travel insurance. Many travel suppliers e.g., airlines, hotels, cruise lines, rental car companies, theme and amusement parks, have their own distribution systems and market directly to the public through advertising, toll free " 800 " reservations numbers and the Internet³.

However, travel suppliers may market their services through travel intermediaries such as tour operators, Public Charter Tour Operators, consolidators, travel agents, pseudo travel agents, independent contractors, outside sales agents, telemarketing " boiler rooms ", time share promoters, travel clubs and informal travel promoters⁴. Each of these entities markets travel services using the travel supplier's brochures and/or uses its own brochures describing, for example, the component parts of a 7 day/8 night tour to the Greek Islands featuring round trip air transportation, hotel accommodations for 2 days, a 5 day cruise and tours of local sites. Lastly, travel agents may orally misrepresent the nature of the travel services to be delivered by travel suppliers and tour operators and vouch for the willingness, financial stability and reliability of recommended travel suppliers and tour operators.

2] The Methods Of Travel Advertising

Travel suppliers such as hotels, resorts and cruiselines and tour operators will create multi-colored brochures and distribute them directly to consumers or to travel agents. These brochures can be seductive and may contain actionable misrepresentations. Suppliers and tour operators will also use TV [ see Luskins v. Consumer Protection Division ⁵ ( bogus vacation certificates offering " free air fare for two " advertised on TV and in newspapers )] and radio [ see DOT fines Hotwire for deceptive radio ads ⁶ ( " (DOT) fined Hotwire $50,000 ( for using ) deceptive radio ads to promote its low fares " )], newspapers, direct mail [ see Plutock v. European American Bank⁷ ( postcards stating that recipient " had been selected to receive a pre-paid luxury cruise plus hotel accommodations " ], telephones [ see Federal Trade Commission v. Med Resorts International⁸ ( time share promoter made unsolicited telephone calls inviting consumers to attend sales meeting and join vacation club ); Federal Trade Commission v. Commonwealth Marketing Group⁹( W.D. Pa. 1999 ).( telemarketing of vacations )], Internet e-mails. See Ricard v. Travel Coordinators, Inc. ¹⁰ ( travel agents defrauded after receiving e-mails and purchasing fam trips, " e-mails were sent via a mass e-mailing to e-mail addresses on a mailing list of travel agents " ); Johnston, A Boom Market In Travel Scams¹¹ ( " The Internet has provided a lucrative new venue for a variety of travel swindles. Travel scams are the ninth most common swindles reported to Internet Fraud Watch "; Minneapolis agency to pay fine to DOT¹² ( Minneapolis travel agency fined $40,000 " for failing to properly display fares and taxes on its Web site " )] and fax transmissions [ see Milligan, Travel groups fight new FCC rule of faxes¹³ ( FCC issues new rule " prohibit(ing) companies from sending certain types of unsolicited faxes unless they have prior consent from the person or company receiving the fax... The travel industry alone accounts for about 18 million faxed pages each month " )].

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3] State & Federal Regulation of Travel Advertising

Travel advertising is subject to some regulation through

(1) State consumer protection statutes, (2) State and Federal Telemarketing Statutes, (3) the Federal Trade Commission [ FTC ], (4) the Department of Transportation [ DOT ] and (5) the Sellers of Travel statutes enacted by several States. In addition, all but four States require travel agents to be licensed to sell travel insurance¹⁴.

B] Deceptive & Misleading Travel Advertising

1] What Is Puffing?
   It is not uncommon for travel advertising to describe the hotel, resort or cruise ship as the " greatest ", " special ", " first class ", " beautiful ", " luxurious ", " exquisite " or " the best in the world ". Whether these superlatives are mere puffing [ see Simon v. Cunard Line Limited¹⁵ ( inferior service aboard QE II; brochure language asserting that QE II was " ' the greatest ship in the world ' and that' everything about the Queen lives up to the high standards you would expect aboard the greatest ship in the world '( are ) mere puffing and not actionable " ); Viches v. MLT, Inc.¹⁶ ( tour participants sprayed with insecticide at hotel in Dominican Republic; brochure language asserting a " worry free " vacation " is an example of the ' mere puffing ' often associated with descriptions of travel services and is not a guarantee of no harm " ); Davies v. General Tours, Inc.¹⁷( brochure language assuring consumers a smooth, comfortable and safe trip is mere puffing and not a warranty of safety ) ] or actionable misrepresentations will depend on just how bad the actual accommodations or facilities are. Such superlatives may be sufficiently misleading and deceptive to be actionable under G.B.L. §§ 349, 350 [ see Vallery v. Bermuda Star Line, Inc.¹⁸
( " Since the ( passengers ) booked the most expensive cabin they expected a first class stateroom...The drapes were partly dirty and dingy; the tables were painted with white enamel paint with nicotine stains; the headboards of the beds were broken and the mattresses of the beds were concave; a lamp shade had a hole, the light flickered and the knobs on the dressers were broken...The stateroom did not meet the quality as described in the brochure as being special, luxurious and beautiful nor was it exquisite...Defendant's advertisement... Transcended the bounds of a statement of opinion and reached the level of false representations and pretenses when the brochure assigned qualities to the stateroom...which it did not possess " ) ].

a] What Is First Class?
The term " first class " as it relates to hotel accommodations has common law significance [ see Tobin v. Slutsky¹⁹ ( " first class " accommodations creates a legal standard of care ); McKee v. Sheraton-Russell, Inc.²⁰ ( safety standard of care varies with grade and quality of hotel ); DeWolf v. Ford²¹( prices charged and ' grade of inn ' create legal standards )]. In comparing hotels in " bait & switch " cases, however, a hotel rating such as " Superior First Class " may be difficult to define [ see Irving Trust Co. v. Nationwide Leisure Corp²²( S.D.N.Y. 1983 ).]( tour operator promised to delivered superior first class hotels in the West End of London and delivered neither )]. In cruise cases, however, some courts seem willing to ascribe meaning to the term " First Class " [ see Vallery v. Bermuda Star Line, Inc. ²³ ( " first class ship " actionable misrepresentation under G.B.L. §§ 349, 350 ); Owens v. Italia Societa Per Azione²⁴ ( " first class passage " actionable misrepresentation ); Ricci v. Hurley²⁵( " luxury cruise " actionable misrepresentation )].

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2] Actionable Misrepresentations

   There are a variety of misrepresentations used in travel advertising and many of them will be reviewed below by their source. The causes of action most commonly used in travel misrepresentation cases are the following:

a] Negligent Misrepresentation
[ see Marcus v. Zenith Travel²⁶ ( consumer " wanted to cancel the trip after ( tour operator ) made hotel changes for the tour, but ( travel agent ) negligently promised that ( tour operator ) was financially secure and would deliver all vacation services. ( Consumer ) relied on ( travel agent's ) assurances...and did not cancel the trip " ); Pellegrini v. Landmark Travel Group²⁷
( " When ( consumer ) learned that the Apple tour did not have the promised meal plan he asked ( travel agent ) if he could cancel without penalty. ( Travel agent ) assured ( consumer ) that the Apple tour tickets were refundable when, in fact, they were non-refundable. ( Consumer )...canceled the tour and lost his full contract price " );
Gelfand v. Action Travel Center²⁸ ( travel agent negligently misrepresentation the ability of cruise ship to deal with tourist's disabilities ); Lewis v. Eisin²⁹
( student tourist drowns in hotel pool; tour operator failed to reveal that another student tourist nearly drowned in the same pool a few days earlier; brochure negligently misrepresented that tour would be "' relaxing and carefree ' as possible and ' because of the travel experience and background knowledge of the areas covered in your tour '" ) ];

b] Fraudulent Misrepresentation
[ see King v. Club Med, Inc.³⁰ ( brochure promised " Luxury hotel with modern air conditioned rooms, private bathrooms and electricity "; in reality " the hotel...' had sporadic electricity, no air conditioning... sanitary facilities in the rooms...were either not operational or sporadic "; class certification granted ); Guadagno v. Diamond Tours & Travel, Inc.³¹ ( unfinished resort misrepresented as having numerous facilities, sports activities and accommodations which did not exist; class certification granted; subsequent decision³² granted summary judgment to the plaintiff class ); Ocean Cruise Lines, Inc. v. Abeta Travel Services, Inc.³³1990 ). ( cruise line fails to provide cruise to group of passengers; fraud proven; punitive damages of $150,000 awarded ); Kessler v. National Enterprises, Inc.³⁴ ( judgement for class of time share owners against time share operator for fraudulent misrepresentations regarding availability of parking and hotel facilities)];

c] Promissory Estoppel
[ see Chow v. Trans World Airlines, Inc.³⁵ ( detrimental reliance upon false promises;
" TWA repeatedly promised to place Chow on a priority list with Singapore ( Airlines ) and in so doing, must have realized that their promises would induce Chow's failure to make arrangements with Singapore himself );
Keefe v. Bahama Cruise Line, Inc.³⁶ ( reliance upon false promises resulted in delay in filing claim ); Fogel v. Hertz International, Ltd.³⁷( agency by estoppel; consumer reliance upon advertising and Hertz signs )];

d] Violation of State Consumer Protection Statutes
[ See Section C, infra ];

e] Violation of State Sellers of Travel Statutes
[ See Section E, infra ];

f] Breach of Fiduciary Duty
[ Unlike travel suppliers and tour operators, travel agents have a fiduciary relationship with their customers [ see Brown v. Hambric³⁸ ( travel agents are " professionals and fiduciaries and are expected to be knowledgeable of the travel services they sell " ); Pelegrini v. Landmark Travel Group³⁹ ( " Today's travel agent is the consumer's agent and a fiduciary "; failure to reveal non-refundability of tickets ); Levin v. Kasmir World Travel, Inc.⁴⁰ ( " the travel agent is not merely a dispenser of tickets but also a fiduciary on whose expertise a traveler may reasonably rely "; failure to reveal that consumers needed a visa to enter China ); Shlivko v. Good Luck Travel, Inc.⁴¹ ( failure to investigate unclean conditions of hotel; review of cases imposing fiduciary duty)].

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3] Federal Law Preemptions

Federal law preempts some state law claims against airlines, Public Charter Tour Operators, travel agents and cruise lines.

a] Airlines, Tour Operators & Travel Agents
The Supreme Court has held that the Airline Deregulation Act [ ADA> ] and the Federal Aviation Act [ FAA ] preempt State statutory and common law claims which " relate to rates, routes or services of any air carrier "⁴². This means that State law cases may now be removed to federal court⁴³, and/or may be dismissed on the grounds that the FAA has primary jurisdiction over a particular claim⁴⁴ or there is no private right of action under the FAA for the claims asserted⁴⁵. The Supreme Court also held in American Airlines, Inc. v. Wolens ⁴⁶( 1995 ). that statutory consumer fraud claims are preempted by the ADA>. With varying results the courts have addressed the preemption issue in cases involving false, deceptive or misleading advertising [ see Breitling USA v. Federal Express Corp.⁴⁷ ( misrepresented cargo rate claims preempted by ADA ); Weber v. USAirways, Inc.⁴⁸( misrepresented overbooking voucher claims preempted by ADA ); McLaughlin v. TWA Getaway Vacations⁴⁹( false and deceptive advertising of flight arrival times; misrepresentation claims preempted by ADA ); People v. Western Airlines, Inc.⁵⁰ ( state law challenge to airline pricing not preempted ); People v. TWA⁵¹ ( FAA preempts New York State consumer protection laws relating to deceptive airline advertising ); Fenn v. Trans National Travel, Inc.⁵² ( misrepresented fuel surcharge claims preempted by ADA )].

In addition, the Warsaw Convention⁵³ as modified by the Montreal Agreement governs claims arising from international air transportation and preempts common or statutory law regarding the rights, responsibilities and liabilities of the parties [ see Newsome v. Trans International Airlines⁵⁴ ( Warsaw Convention preempts consumer protection provisions of D.O.T. Public Charter Tour Operator regulations ); Bernardi v. Apple Vacations⁵⁵ ( passenger claims inhumane conditions during flight; Pennsylvania Unfair Trade Practices and Consumer Protection Law claims preempted by Warsaw Convention )].

b] Cruise Lines
Unlike false, deceptive and misleading advertising claims against the airlines, similar statutory consumer protection claims may be brought against cruise lines without being preempted [ see Vallery v. Bermuda Star Line, Inc.⁵⁶ ( misrepresented cruise; claims alleging violations of G.B.L. §§ 349, 350 )]. However, maritime law does preempt some consumer claims. For example, New York State requires consumer transaction contracts to be " printed...clear and legible [ in print ] eight points in depth or five and one-half points in depth for upper case type [ to be admissible ] in evidence in any trial "⁵⁷ ( applied to home improvement contracts ). .

The microscopic terms and conditions in passenger tickets are, clearly, meant to be unreadable and invisible. In fact, maritime law, which governs the rights and remedies of cruise passengers, preempts all State laws requiring consumer contracts to be in a given type size [ Lerner v. Karageorgis Lines, Inc.⁵⁸ ( 1985 ). ( enforcement of time limitation provision in four-point type; maritime law preempts New York 's statute requiring consumer contracts to be in ten-point type )]. In addition, the terms and conditions in passenger tickets are enforceable even though the passenger can neither read nor understand the language in which the tickets are printed [ Paredes v. Princess Cruises⁵⁹ ( time limitations in passenger ticket in English language enforced even though passenger was unable to read English )].
And lastly, some courts, but not all⁶⁰, will not incorporate misrepresentations which appear in cruise line brochures and upon which consumers rely, into the passenger's contract of passage with the cruise line [ see Warren v. Ajax Navigation Corp.⁶¹( passenger suffers heart attack and claims brochure negligently misrepresented that " ships were staffed with ' certified doctors '"; misrepresentation claim dismissed because brochure language not incorporated into passenger ticket ].

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4] Misrepresentations: Private & Public Lawsuits

a] Airlines .
Misrepresentation claims against airlines, tour operators and travel agents may be asserted in consumer lawsuits or by the D.O.T. in enforcement proceedings, typically, involving claims preempted by the ADA> and FAA.

i]Consumer Lawsuits
[ see Sporn v. Metro International Airways,⁶² ( misrepresented departure time results in 3 hour flight delay ); Liechtung v. Tower Air ⁶³ ( flight misrepresented as non-stop between New York> and Israel> made 2 hour stopover in Paris> ); Darras v. T.W.A. ⁶⁴ ( hijacking; failure to inform passengers that security procedures at foreign airport inadequate ); Eastern Air Lines, Inc. v. New York Air Lines, Inc.⁶⁵1983 ). ( misleading price comparisons ); American Express Travel Related Services v. Marco⁶⁶( S.D.N.Y. 1985 ) ( flight attendant promised non-smoking seating ); Siben v. American Airlines, Inc.⁶⁷ ( misrepresentations about the location and arrival time of lost baggage ); Chow v. T.W.A.⁶⁸ ( misrepresentations over flight delay ); Neilan v. Value Vacations, Inc.⁶⁹ ( cancelled flights ); Cruz v. American Airlines, Inc.⁷⁰ ( passengers challenge airline's 30 days lost baggage claim filing rule as contrary to Warsaw Convention ); Greeley v. KLM Royal Dutch Airlines⁷¹ ( airline relied upon invalid tariffs in denying lost jewelry claims ); Weber v. USAirways, Inc.⁷² ( vouchers given to passenger for relinquishing his seat to an overbooked passenger contained use restrictions about which he had not been informed )];

ii] D.O.T. Enforcement Actions & Industry Letters
[ see Frontier Airlines, Inc., Consent Order 99-6-1 ( June 1, 1999 )( $18,000 fine imposed for failing to state in ads that fares " were each way fares requiring a round trip purchase " ( $10,000 find for failing to disclose passenger facility charges );
American Trans. Air Inc. Consent Order 97-12-1 ( December 1, 1997 )( $25,000 fine for failing to have a reasonable number of seats available at advertised prices );

United AirlinesConsent Order 96-9-9 ( September 6, 1996 ) ( $25,000 fine for deceptive " two-for-one " and " percentage-off fare " advertising ); For additional prohibitions and enforcement proceedings see D.O.T. Industry Letters On Guidance Regarding Aviation Rules and Statute at http://airconsumer.ost.dot.gov/rules.htm].

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b]Cruise Lines
[ Boyles v. Cunard Line Ltd.⁷³ ( cruise ship misrepresented availability of " spa at sea " when none existed ); Desmond v. Holland America Cruises⁷⁴ ( failure to adhere to promised itinerary ); Casper v. Cunard Line⁷⁵ ( QEII breaks down during Norwegian fjord cruise and fails to follow advertised itinerary ); Donnelly v. Klosters Rederi⁷⁶ ( misrepresentations of the nature and quality of services including " sobriety of the crew " ); Walker v. Carnival Cruise Lines⁷⁷ ( " Despite receiving assurances from ( travel agent ) and ( cruise line ) that his room and the ship were disabled accessible ( neither were ) " ); Kessler v. Royal Caribbean Cruises⁷⁸ ( misrepresented itinerary ); Stobaugh v. Norwegian Cruise Line⁷⁹ ( cruise ship sails into hurricane injuring passengers; negligent misrepresentations alleged; class certification denied ); Bergonzine v. Maui Charters⁸⁰ ( 350 lb. disabled passenger relied upon cruise brochure stating that " its cruises are suitable for handicapped individuals " and broke ankle disembarking; $40,000 for pain and suffering awarded ); Blair v. Norwegian Caribbean Lines⁸¹ ( passengers relied on advertisement in Cruise & Travel Magazine showing " a typical twin bed outside stateroom "; the actual room had a " double bed instead of two twin beds...the room was deficient in other respects with only sixteen inches of space between the bed and the cabin wall; missing molding along the walls; missing veneer on the bureau drawers and stained bedspread " ); Mirra v. Holland America Line⁸²( " Holland's advertisements described the cabin that plaintiff reserved as 219 square feet, with two twin beds, a rollaway bed and a sitting area. The cabin...received measured only 100 square feet, had the wrong size bed and no appreciable sitting space " ); Vallery v. Bermuda Star Line, Inc.⁸³
( " The brochure provides that the S.S. Bermuda Star is ' a very special kind of luxury ' with ' impeccable taste, in the design and furnishings of the beautifully appointed lounges, dining room and cabins. ' The vessel is described as a ' first class ship '...The cabin did not resemble the pictures in the brochure. The drapes were partly dirty and dingy; the tables were painted with white enamel paint with nicotine stains; the headboards of the beds were broken and the mattresses of the beds were concave; the lamp shade had a hole; the light flickered; and the knobs on the dressers were broken " );
Gelfand v. Action Travel Center, Inc.⁸⁴ ( brochure misrepresented old but refurbished Costa Riviera cruise ship as new; " There's something new under the Caribbean sun and moon "; " sail the new Costa Riviera " ); Latman v. Costa Cruise Lines⁸⁵ ( deceptive port charges; " We therefore conclude that where the cruise line bills the passenger for port charges but keeps part of the money for itself, that is a deceptive practice " ); see also Dickerson, The Cruise Passenger's Rights & Remedies 2003⁸⁶ ].

c] Rental Car Companies
[ see Kermisch v. Avis Rent a Car Systems, Inc.⁸⁷ ( bait & switch; French-made Renault 12 promised and defective Rumanian-made Dacia 1300 delivered ); Garcia v. L&R Realty, Inc.⁸⁸ ( failure to inform renter of additional charge imposed for out of state return of vehicle ); Commercial Union Insurance Co. v. Auto Europe⁸⁹ ( deceptive value added taxes imposed on renters ); Lazar v. The Hertz Corp.⁹⁰ ( unconscionable replacement gasoline charges ); Weinberg v. The Hertz Corp.⁹¹ ( excessive charges for collision damage waivers, personal accident insurance and late return fees ); People v. Dollar Rent-A-Car Systems, Inc.⁹² ( overcharging for the actual costs of repairing damaged vehicle and misrepresenting that collision damage waiver is insurance)].

d] Hotels & Resorts
[ King v. Club Med, Inc.⁹³ ( brochure promised
" Luxury hotel with modern air conditioned rooms, private bathrooms and electricity "; in reality " the hotel...' had sporadic electricity, no air conditioning... sanitary facilities in the rooms...were either not operational or sporadic ";
class certification granted ); Guadagno v. Diamond Tours & Travel, Inc.⁹⁴ (1976 ). ( unfinished resort misrepresented as having numerous facilities, sports activities and accommodations which did not exist; class certification granted; subsequent decision⁹⁵ granted summary judgment to the plaintiff class ); Dold v. Outrigger Hotel⁹⁶ ( bait & switch; beach hotel steered overbooked guests to hotels considerable distance from beach ); Thomson Travel Ltd. v. Roberts⁹⁷ ( brochure falsely stated that " hotel is right on beach " ); Perrin v. Hilton International, Inc.⁹⁸( hotel mistakenly told husband that wife was not registered in hotel when in fact she was; claim for emotional distress is actionable); Reiken v. Nationwide Leisure Corp.⁹⁹ ( location of hotels on tours to England misrepresented ); Gianocostas v. RIU Hotels¹⁰⁰ ( misrepresentations of the availability of medical services for insulin-dependent diabetic guest ); Greenwood v. Airtours¹⁰¹ ( promise of " 3 Star rooms with half board " in Tenerife misrepresented; no board, dirty rooms infested with cockroaches, wild dogs on hotel grounds, graffiti, glass near pool ); Southernmost Affiliates v. Alonza¹⁰² ( guests whose property was stolen from their room claim hotel ' mislead them into believing the room was safe '" ); Smith v. Atlas International Tours, Inc.¹⁰³( misrepresentations regarding availability of " Glatt " kosher food at hotel during Passover ); Tarshis v. Lahaina Investment Corp.¹⁰⁴( hotel has duty to warn of dangerous surf conditions on beach; injured guest relied on brochure language " The Royal Lahaina Beach resort stretches along a 3-mile secluded white sand beach...The sea is safe and exhilarating for swimming " ); see also Dickerson, Hotels, Resorts And Casinos: Selected Liability Issues¹⁰⁵ ].

e] Resort Time Shares
[ see Kessler v. National Enterprises, Inc.¹⁰⁶ ( judgement for class of time share owners against time share operator for fraudulent misrepresentations regarding availability of parking and nature of hotel facilities ); Isaak v. Trumbull Savings & Loan Company ¹⁰⁷ ( bust-out scheme; consumers lose investments in campground timeshares ); State of Ohio v. Houseman¹⁰⁸( bust-out scheme; time share owners defrauded ); Dorian v. Harich Tahoe Development¹⁰⁹ ( misrepresentations of the market and rental value of timeshares and ease of resale ); U.S.A. v. Gennuso¹¹⁰ ( deceptive use of timeshare presentations to sell overpriced water purification systems ); Leisure American Resorts, Inc. v. Knutilla¹¹¹ ( misrepresentations of the willingness and ability of a timeshare promoter to resell timeshare units ); Tiffany v. Sturbridge Camping Club ¹¹² ( misrepresentations of the annual availability of a timeshare unit )].

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f] Tour Operators
Misrepresentation claims against tour operators may be asserted in consumer lawsuits or by the D.O.T. [ Public Charter Tour Operators ] and by the F.T.C. in enforcement proceedings or in lawsuits.

i] Consumer Lawsuits [ King v. Club Med, Inc.¹¹³ ( brochure promised " Luxury hotel with modern air conditioned rooms, private bathrooms and electricity "; in reality " the hotel...' had sporadic electricity, no air conditioning... sanitary facilities in the rooms...were either not operational or sporadic "; class certification granted ); Guadagno v. Diamond Tours & Travel, Inc.¹¹⁴ ( unfinished resort misrepresented as having numerous facilities, sports activities and accommodations which did not exist; class certification granted; subsequent decision¹¹⁵ granted summary judgment to the plaintiff class ); Reiken v. Nationwide Leisure Corp.¹¹⁶ ( tour brochure promised superior first class hotels located in the West End of London and delivered neither ); Smith v. Atlas International Tours, Inc.¹¹⁷ ( misrepresentations regarding " major renovations " at hotel );

Miller v. Group Voyagers, Inc.¹¹⁸ ( tour operator failed to reveal unsanitary conditions at one hotel and rash of thefts at another; misrepresentations of condition of bus ); Touhey v. Trans National Travel, Inc.¹¹⁹ ( unfinished hotel under construction); Knoll v. Cerkvenik-Anderson Travel, Inc.¹²⁰ ( misrepresentation of adequate supervision of student tourists ); McLauglin v. TWA Getaway Vacations, Inc.¹²¹( flight arrival times misrepresented ); Neilan v. Value Vacations, Inc.¹²²( flights for 8000 consumers cancelled ); Fenn v. Trans National Travel¹²³( imposition of fuel surcharge paid under protest ); Lewis v. Eisin¹²⁴ ( student tourist drowns in hotel pool; tour operator failed to reveal that another student tourist nearly drowned in the same pool a few days earlier; brochure negligently misrepresented that tour would "' relaxing and carefree ' as possible and ' because of the travel experience and background knowledge of the areas covered in your tour '" ); Elsis v. TWA¹²⁵( tourists jumped into Nile as cruise ship burned to the water line; tour operator misrepresented in brochure that it would " examine...every cruise on site "); Dow v. Abercrombie & Kent¹²⁶( tourists attacked and robbed by bandits while on African safari; misrepresentations as to qualifications and experience of tour escorts ); Krautsack v. Anderson¹²⁷ ( rained every day during African safari; misrepresentations about the weather conditions and conflict of interest )].



ii] D.O.T. & F.T.C. Enforcement Actions [ see F.T.C. v. Amy Travel Services, Inc.¹²⁸ ( bogus vacation passports ); F.T.C. v. World Travel Vacation Brokers¹²⁹ ( $29 vacation voucher scam ); F.T.C. v. Travel Bahamas Tours¹³⁰ ( deceptive vacation certificates ); For additional information on F.T.C. enforcement proceedings see http://www.ftc.gov; Airlift Group, Inc.¹³¹( tour operator oversold flights ); American Express Travel Related Services¹³²( price advertising violations ); For additional information on D.O.T. enforcement proceedings see http://airconsumer.ost.dot.gov/rules.htm].

   g] Travel Agents
Misrepresentation claims against travel agents may be based upon affirmative misrepresentations or failures to reveal material facts.

i] Affirmative Misrepresentations [ see Marcus v. Zenith Travel¹³³ ( consumer " wanted to cancel the trip after ( tour operator ) made hotel changes for the tour, but ( travel agent ) negligently promised that ( tour operator ) was financially secure and would deliver all vacation services. ( Consumer ) relied on ( travel agent's ) assurances...and did not cancel the trip " ); Pellegrini v. Landmark Travel Group¹³⁴

( " When ( consumer ) learned that the Apple tour did not have the promised meal plan he asked ( travel agent ) if he could cancel without penalty. ( Travel agent ) assured ( consumer ) that the Apple tour tickets were refundable when, in fact, they were non-refundable. ( Consumer )...canceled the tour and lost his full contract price " ); Gelfand v. Action Travel Center¹³⁵ ( travel agent negligently misrepresented the ability of cruise ship to deal with tourist's disabilities ); Fix v. Travel Help¹³⁶( consumer relied upon travel agent's assurances that Eastern Airlines was financially sound; travel agent liable after airline went bankrupt)];

ii] Breach of Fiduciary Duty [ Unlike travel suppliers and tour operators, travel agents have a fiduciary relationship with their customers [ see Brown v. Hambric¹³⁷ ( travel agents are " professionals and fiduciaries and are expected to be knowledgeable of the travel services they sell " ); Pelegrini v. Landmark Travel Group¹³⁸( 1995 ). ( " Today's travel agent is the consumer's agent and a fiduciary " ); Levin v. Kasmir World Travel, Inc.¹³⁹ ( " the travel agent is not merely a dispenser of tickets but also a fiduciary on whose expertise a traveler may reasonably rely " ); Shlivko v. Good Luck Travel, Inc.¹⁴⁰( failure to investigate unclean conditions of hotel; review of cases imposing fiduciary duty)].
As such travel agents have a duty to discover and disclose information which their customers need. A failure to do so amounts to an actionable omission and supports a cause of action for breach of fiduciary duty [ see e.g., Levin v. Kasmir World Travel, Inc.¹⁴¹ ( failure to advise consumers of need to have visa to enter China ); Douglas v. Steele¹⁴² ( travel agent failed to reveal information regarding financial instability of tour operator ); Krautsack v. Anderson¹⁴³ ( rained every day during African safari; breach of fiduciary duty in failing to reveal conflict of interest and misinforming consumers about impact of rain on safari ); Rodriquez v. Cardona Travel Bureau¹⁴⁴ ( travel agent failed to warn of risk of charters ); Touhey v. Trans National Travel, Inc. ¹⁴⁵ ( travel agent failed to discover and reveal inadequate hotel accommodations ); Maurer v. Cerkvenik-Anderson Travel¹⁴⁶ ( student tourist falls to death under steel wheels of the Party Train to Mazatlan, Mexico; negligent failure to reveal three prior deaths of students on same train )].

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C] Consumer Protection Statutes

1] General Business Law § 349

The most popular of New YorkState's many consumer protection statutes is General Business Law § 349 [ " GBL § 349 " ] which prohibits deceptive and misleading business practices¹⁴⁷. GBL § 349 allows consumers to sue for $50.00 or actual damages which may be trebled up to $1,000.00 upon a finding of a " wil(ful) or know(ing) violat(ion) ".¹⁴⁸( damages consisted of the " balance owed to the claimant pursuant to the arbitrator's award...reduced to the jurisdictional amount of $3,000 " ). Attorneys fees and costs may be recovered as well. As long as the deceptive business practice has " a broad impact on consumers at large "¹⁴⁹ and constitutes " consumer-oriented conduct "¹⁵⁰ proving a violation of GBL § 349 is straight forward.

As stated in Pellegrini v. Landmark Travel Group¹⁵¹
" ( GBL § 349 ) is a broad, remedial statute... The elements of a violation of ( GBL § 349 ) are (1) proof that the practice was deceptive or misleading in a material respect and (2) proof that plaintiff was injured...There is no requirement under ( GBL § 349 ) that plaintiff prove that defendant's practices and acts were intentional, fraudulent or even reckless. Nor does plaintiff have to prove reliance upon defendant's deceptive practices ".

Initially GBL § 349 had a low threshold for a finding of deception, i.e., misleading and deceptive acts directed to " the ignorant, the unthinking and the credulous who, in making purchases, do not stop to analyze but are governed by appearances and general impressions " [ Guggenheimer v. Ginzburg]¹⁵². Recently, the Court of Appeals raised the threshold to those misleading and deceptive acts " likely to mislead a reasonable consumer acting reasonably under the circumstances " [ Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank,N.A. ¹⁵³ ].

GBL § 349 applies to a broad spectrum of goods and services [ Karlin v. IVF America¹⁵⁴
( GBL 349... " on (its) face appl(ies) to virtually all economic activity and (its) application has been correspondingly broad...The reach of (this) statute ' provides needed authority to cope with the numerous, ever-changing types of false and deceptive business practices which plague consumers in our State '" )].
GBL § 349 is broader than common law fraud [ Gaidon v. Guardian Life Insurance Company¹⁵⁵ ( " encompasses a significantly wider range of deceptive business practices that were never previously condemned by decisional law " ); State of New York v. Feldman¹⁵⁶ ( GBL § 349 " was intended to be broadly applicable, extending far beyond the reach of common law fraud " )]. Hence, GBL § 349 claims are governed by a three-year period of limitations [ C.P.L.R. 241(2) ]. GBL § 349 claims accrue when the consumer " has been injured by a deceptive act "¹⁵⁷. GBL § 349 does not apply to the claims of non-residents who did not enter into contracts in New York State [ Goshen v. Mutual Life Insurance Company¹⁵⁸ ] or receive services in New York State> [ Scott v. Bell Atlantic Corp.¹⁵⁹ ]. And, lastly, a GBL § 349 claim " does not need to be based on an independent private right of action " [ Farino v. Jiffy Lube International, Inc.¹⁶⁰ ].

2] General Business Law § 350

Consumers who rely upon false advertising and purchase defective goods or services may sue for misrepresentation. In addition to common law claims for fraudulent misrepresentation the consumer may assert a violation of General Business Law § 350 [ " GBL § 350 " ] [ Scott v. Bell Atlantic Corp.¹⁶¹( 2002 ). ( defective ' high speed ' Internet services falsely advertised ); Card v. Chase Manhattan Bank¹⁶² ( bank falsely misrepresented that its LifePlus Credit Insurance plan would pay off credit card balances were the user to become unemployed )]. GBL § 350 prohibits false advertising which
" means advertising, including labeling, of a commodity...if such advertising is misleading in a material respect...( covers )....representations made by statement, word, design, device, sound...but also... advertising ( which ) fails to reveal facts material "
¹⁶³. GBL § 350 covers a broad spectrum of misconduct [ Karlin v. IVF America¹⁶⁴ ( 1999 ). ( " ( this statute ) on ( its ) face appl(ies) to virtually all economic activity and ( its ) application has been correspondingly broad " )].
Proof of a violation of GBL 350 is simple, i.e., " the mere falsity of the advertising content is sufficient as a basis for the false advertising charge " [ People v. Lipsitz¹⁶⁵ ( 1997 ). ( magazine salesman violated GBL § 350; " ( the ) ( defendant's ) business practice is generally ' no magazine, no service, no refunds " although exactly the contrary is promised " ].

3] Consumer Protection Statutes & Travel Advertising

GBL §§ 349, 350 and the consumer protection statutes of other States apply to the marketing and delivery of travel services with the exception of federal law preemptions [ see Section B(3), supra ][ see Vallery v. Bermuda Star Line, Inc.¹⁶⁶ ( GBL §§ 349, 350 ; misrepresented cruise ); Pellegrini v. Landmark Travel Group¹⁶⁷ ( GBL § 349; refundability of tour operator tickets misrepresented ); People v. P.U. Travel, Inc.¹⁶⁸( Attorney General charges travel agency with fraudulent and deceptive business practices in failing to deliver flights to Spain or refunds ); Krautsack v. Anderson¹⁶⁹ ( rained every day during African safari; Illinois consumer fraud act claims against tour operator for failing to reveal conflict of interest ); Victor v. ABC Appliances, Inc.¹⁷⁰ ( Michigan Consumer Protection Act; certified consumer class action alleging " free air fares " not free when require purchase of overpriced hotel accommodations ); Brunwasser v. T.W.A¹⁷¹ . ( misrepresentations of non-stop flights; Pennsylvania consumer protection statute claim sustained ); Maurer v. Cerkvenik-Anderson Travel¹⁷² ( student tourist dies under steel wheels of Mazatlan Party Train; failure to reveal prior deaths on same train; violation of Arizona Consumer Fraud Act )].

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4] State & Federal Telemarketing Statutes

It is quite common for consumers to receive unsolicited phone calls or faxes from companies selling cruises, tours and resort time shares. Many of these phone calls or faxes originate from automated telephone equipment or automatic dialing-announcing devices, the use of which is regulated by Federal and New York State consumer protection statutes.

On the Federal level the Telephone Consumer Protection Act¹⁷³ [ TCPA ] prohibits users of automated telephone equipment " to initiate any telephone call to any residential telephone line using an artificial or prerecorded voice to deliver a message without express consent of the called party "¹⁷⁴. The purpose of the TCPA is to provide " a remedy to consumers who are subjected to telemarketing abuses and ' to encourage consumers to sue and obtain monetary awards based on a violation of the statute ' "¹⁷⁵

The TCPA " provides a federal right to be free from certain types of telephone solicitations and facsimiles ( faxes )"¹⁷⁶. The TCPA may be used by consumers in New York State Courts including Supreme Court [ see Antollino v. Hispanic Media¹⁷⁷( 33 unsolicited faxes times $500 equals judgment of $16,500 ), Civil Court [ see Redgayzer & Gratt v. Enine, Inc.¹⁷⁸ ] and Small Claims Court [ see Kaplan v. Democrat & Chronicle¹⁷⁹; Shulman v. Chase Manhattan Bank,¹⁸⁰ ( TCPA provides a private right of action which may be asserted in New York State Courts )]. Some Federal Courts have held that the states have exclusive jurisdiction over private causes of action brought under the TCPA¹⁸¹ while some scholars have complained that " Congress intended for private enforcement actions to be brought by pro se plaintiffs in small claims court and practically limited enforcement to such tribunals "¹⁸².
Under the TCPA consumers may recover their actual monetary loss for each violation or up to $500.00 in damages, whichever is greater. In Kaplan v. Life Fitness Center¹⁸³ the Court found " that plaintiff is entitled to damages of $500 for the TCPA violation ( and ) an additional award of damages of $500 for violation of the federal regulation ". The Court may treble damages upon a showing that " defendant willfully and knowingly violated "¹⁸⁴ the Act.

In 2001 a Virginia state court class action against Hooters resulted in a jury award of $12 million on behalf of 1,321 persons who had received 6 unsolicited faxes¹⁸⁵amount " ).. Recently, a New York Civil Court in Redgayzer & Gratt v. Enine, Inc.¹⁸⁶ held that the TPCA, to the extent it restricts unsolicited fax advertisements, is unconstitutional as violative of freedom of speech.

On the State level, General Business Law § 399-p [ " GBL § 399-p " ] " also places restrictions on the use of automatic dialing-announcing devices and placement of consumer calls in telemarketing "¹⁸⁷ such as requiring the disclosure of the nature of the call and the name of the person on whose behalf the call is being made. A violation of GBL § 399-p allows recovery of actual damages or $50.00, whichever is greater, including trebling upon a showing of a wilful violation. Consumers aggrieved by telemarketing abuses may sue in Small Claims Court and recover damages under both the TCPA and GBL § 399-p [ Kaplan v. First City Mortgage¹⁸⁸ ( consumer sues telemarketer in Small Claims Court and recovers $500.00 for a violation of TCPA and $50.00 for a violation of GBL § 399-p ); Kaplan v. Life Fitness Center¹⁸⁹ ( consumer recovers $1,000.00 for violations of TCPA and $50.00 for a violation of GBL § 399-p )].

Under General Business Law § 399-z [ " GBL § 399-z " ], known as the " Do Not Call " rule, consumers may prevent telemarketers from making unsolicited telephone calls by filing their names and phone numbers with a statewide registry.
" No telemarketer...may make...any unsolicited sales calls to any customer more than thirty days after the customer's name and telephone number(s)...appear on the then current quarterly no telemarketing sales calls registry ".
Violations of this rule may subject the telemarketer to a maximum fine of $2,000.00. In March of 2002 thirteen telemarketers accepted fines totaling $217,000 for making calls to persons who joined the Do Not Call Registry.¹⁹⁰ In addition " [n]othing ( in this rule ) shall be construed to restrict any right which any person may have under any other statute or at common law "

Under General Business Law § 399-pp [ " GBL § 399-pp " ] known as the Telemarketing And Consumer Fraud And Abuse Prevention Act, telemarketers must register and pay a $500 fee [ GBL § 399-pp(3) ] and post a $25,000 bond " payable in favor of ( New York State ) for the benefit of any customer injured as a result of a violation of this section " [ GBL § 399-pp(4) ]. The certificate of registration may be revoked and a $1,000 fine imposed for a violation of this section and other statutes including the Federal TCPA. The registered telemarketer may not engage in a host of specific deceptive [ GBL § 399-pp(6)(a) ] or abusive [ GBL § 399-pp(7) ] telemarketing acts or practices, must provide consumers with a variety of information [ GBL § 399-pp(6)(b)] and may telephone only between 8:00AM to 9:00PM. A violation of GBL § 399-pp is also a violation of GBL § 349 and also authorizes the imposition of a civil penalty of not less than $1,000 nor more than $2,000.

5] State Sellers of Travel Statutes

[ See Section E, infra ]

D] Selling Travel Over The Internet & Personal Jurisdiction

Consumer use of the Internet to make travel arrangements has risen dramatically in recent years¹⁹¹. While consumers remain cautious about the reliability of information, the prospect of hidden fees and insecure credit card transactions, travel shopping on the Web is increasing¹⁹²(

" Traditional travel agencies don't sell cruises as well as they should and will lose significant market share to supplier-direct initiatives and online agencies in the next three years...traditional agencies' share of the cruise market will shrink from 90% to 60% by 2006, while supplier-direct sales ( Web and phone ) will reach 25% by that time...online agencies will be selling 15% of cruises by 2006 " );

" Untangling the Web" , Stop Press, Conde Nast Traveler, June 2002, pp. 57-64., particularly, as travel suppliers, e.g., hotels and air carriers, and travel sellers, e.g., Cheap Tickets, Expedia, One Travel, Travelocity, TravelNow and Orbitz¹⁹³, offer exclusive fares on their own Web sites with 24 hour accessability and retailers continue to develop creative ways to sell travel services, e.g., Priceline¹⁹⁴, Travelot¹⁹⁵whereby it would link to a pre-existing high traffic website to attract customers, advertise the availability of its services through broadcast and internet advertising, and obtain its revenue through commissions paid to Travelot by travel agents in the destination loClass Action Litigationties who arrange the bookings. The agents would, in turn, derive their commissions from the providers of hotel, auto and other requested services. ", Site59's " last-minute-air-plus-land-packages "¹⁹⁶.

While offering many conveniences the unlimited access of unlicensed, uninsured and irresponsible travel suppliers and travel sellers to the Internet threatens consumers by exposing them to complex travel scams¹⁹⁷. However, the Internet, as opposed to selling travel services through travel agents or over an "800" telephone number, may give injured travelers an edge in establishing personal jurisdiction over foreign travel suppliers and travel sellers.

1] The Solicitation Plus Doctrine

If a foreign travel supplier, e.g., a hotel or an air carrier conducts business through an agent¹⁹⁸Seventh Circuit: Cummings v. Club Mediterranee, S.A., 2002 WL 1379128 ( N.D. Ill. 2002 )( solicitation through travel agents in the forum by agent sufficient basis for jurisdiction over principal );, a wholly owned subsidiary¹⁹⁹New York: Taca Intl. Airlines v. Rolls-Royce of England, 15 N.Y. 2d 97, 256 N.Y.S. 2d 129, 204 N.E. 2d 329 ( 1965 )., a parent corporation²⁰⁰( E.D. Pa. 1993 )( Pennsylvania has jurisdiction over Florida resort Walt Disney World based upon connections of parent corporation Walt Disney Company to Pennsylvania ). or joint venturer²⁰¹( S.D.N.Y. 2002 )( Hungarian and U.S. elevator companies joint venturers ); or maintains an office with a staff, a bank account and a local telephone number then the assertion of personal jurisdiction would, generally, be appropriate. In the absence of such indicia of physical presence in the forum, however, the assertion of personal jurisdiction is more problematic. For example, a foreign travel supplier or travel seller may conduct business through an independent contractor²⁰²New York: Guile v. Sea Island Co., Inc., 11 Misc. 2d 496, 66 N.Y.S. 2d 467 ( 1946 ), aff'd272 App. Div. 881, 71 N.Y.S. 2d 911 ( 1947 )., travel agent²⁰³New York: Savoleo v. Couples Hotel, 136 A.D. 2d 692, 524 N.Y.S. 2d 52 ( 1988 )., tour operator²⁰⁴Seventh Circuit: Wilson v. Humphreys, 916 F. 2d 1239 ( 7^th Cir. 1990 ). or the Internet. Under these circumstances New York Courts have found personal jurisdiction if there was active solicitation of business plus " some financial or commercial dealings in New York or ( the foreign company ) holds itself out as operating in New York "²⁰⁵ ( E.D.N.Y. 2003 ). and/or contract formation in New York State. This concept, known as the " solicitation-plus " doctrine, is still followed with some exceptions²⁰⁶Connecticut: Stewart v. Air Jamaica Holdings Ltd., 2000 U.S. Conn. Super. 1107 ( Conn. Super. 2000 )( plaintiff fails to prove solicitation of business in Connecticut ). by most U.S. Courts²⁰⁷( solicitation plus doctrine followed in Texas ). .

2] Jurisdiction And The Internet

The extent to which an Internet Web site confers personal jurisdiction in the forum in which the traveler's computer is located [ and through which reservations can or have been made ] has been addressed recently by several courts²⁰⁸California: Silk Air v. Superior Court, 2003 WL 40818 ( Cal. App. 2003 ); Cervantes v. Ramparts, Inc., 2003 WL 257770 ( Cal. App. 2003 ).. Initially, it is important to identify two non-issues relied upon by some Courts in rejecting interactive Internet reservation Web sites as a basis for the assertion of personal jurisdiction.

First, at least, one Court has made a distinction between the purchase of goods and services over the Internet²⁰⁹site ). and the making of travel arrangements over the Internet, finding the former but not the latter, as a sufficient basis for the assertion of personal jurisdiction²¹⁰destination. " ). Such a distinction is unwarranted since the focus of a proper jurisdictional analysis should be on the situs of the transaction which is the consumer's computer screen and not on when the actual delivery of the purchased service takes place.

Second, some Courts have refused to assert personal jurisdiction over foreign travel suppliers by trivializing the marketing of travel services over the Internet and analogizing interactive Internet reservation Web sites to little more than a hotel reservations "800" number²¹¹That the Ramparts Web site permitted limited interactivity does not distinguish it from maintenance of an ' 800 ' number for purposes of establishing general jurisdiction " ). These two instrumentalities, however, are qualitatively different in their impact upon the assertion of personal jurisdiction over foreign travel suppliers and travel sellers.

3] A Transactional Analysis Of Internet Commerce

A useful jurisdictional analysis appears in Zippo Manufacturing Co. v. Zippo Dot Com, Inc.,²¹² a trademark infringement action brought by the manufacturer of " Zippo " lighters against a computer news service using the Internet domain name of " zippo.com ". In Zippo, the defendant was a Californiabased news service with an interactive Web site " through which it exchanges information with Pennsylvania residents in hopes of using that information for commercial gain later ". The defendant had entered into news service contracts²¹³ with 3,000 Pennsylvania residents and 7 " contracts with Internet access providers to furnish services to their customers in Pennsylvania ". Since it was defendant's " conscious choice to conduct business ( in Pennsylvania )" the Court asserted personal jurisdiction based upon the following analysis.
" At one end of the spectrum are situations where a defendant clearly does business over the Internet. If the defendant enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet, personal jurisdiction is proper...At the opposite end are situations where a defendant has simply posted information on an Internet Web site which is accessible to users in foreign jurisdictions. A passive Web site that does little more than make information available to those who are interested in it is not grounds for the exercise (of) personal jurisdiction ...The middle ground is occupied by interactive Web sites where a user can exchange information with the host computer. In these cases, the exercise of jurisdiction is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site."

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4] Passive Web Sites

If the foreign company maintains an informational Web site accessible to the general public but which can not be used for making reservations then most²¹⁴Oregon: Millenium Enterprises v. Millenium Music, 49 USPQ2d 1878 ( Oregon Jan. 4, 1999 )., but not all²¹⁵District of Columbia Circuit: Heroes, Inc. v. Heroes Found, 958 F. Supp. 1 ( D.C.D.C. 1996 )( Web site, toll free number and local newspaper ad )., Courts would find it unreasonable to assert personal jurisdiction. For example, in Weber v. Jolly Hotels²¹⁶ a New Jersey resident purchased a tour packaged by a Massachusetts travel agent, not an exclusive selling agent, which featured accommodations at a Sicilian hotel owned by an Italian corporation, Itajolly Compagnia Italiana Dei Jolly Hotels [ " Jolly Hotels " ].
Jolly Hotels conducted no business in New Jersey but had a subsidiary which owned a hotel in New York City which could make reservations at all of its hotels. The plaintiff sustained injuries at defendant's Sicilian hotel and brought suit against Jolly Hotels in New Jersey . Jolly Hotels maintained a Web site accessible in New Jersey which provided "'photographs of hotel rooms, descriptions of hotel facilities, information about numbers of rooms and telephone numbers '". The Web site could not be used to make reservations at any of Jolly Hotels. Finding the Web site to be passive in nature the Court dismissed the complaint for a lack of personal jurisdiction but transferred the case to New York because defendant's subsidiary's New York City hotel could make reservations at all Jolly Hotels.

5] Passive Web Sites Plus

However, passive Web sites combined with other business activity, e.g., the activities of subsidiary corporations in the forum²¹⁷( jurisdiction in Florida over Bahamian parent hotel corporations based upon activities of subsidiary corporations in the forum and passive web site; " The Sun Defendants maintain and staff several Florida telephone numbers listed on the ' Sun ' website as contacts for the Sun Defendants. See http://www.sunint.com( last visited March 22, 2002 )" )., providing trainees to a company doing business in the forum²¹⁸( D. Mass. 1997 )., entering into a licensing agreement with a company in the forum and selling to three companies in the forum²¹⁹, entering into a contract with a company in the forum which contained a forum selection clause and multiple e-mail communications to the forum²²⁰, e-mail, fax and telephone communications²²¹, contracts and various correspondence surrounding those contracts²²², various support services incident to sales²²³2000 )., e-mail, fax, telephone and regular mail communications²²⁴ and 12 sales in the forum and plans to sell more²²⁵, mortgage loan applications printed out and chats online with mortgage representatives²²⁶( S.D.N.Y. 2000 )., fielding e-mail questions about products and sending information about orders²²⁷site " )., " the web site contains several interactive pages which allow customers to take and score performance tests, download product demos, and order products on-line ( and) provides a registration form whereby customers may obtain product brochures, test demonstration diskettes or answers to questions "²²⁸, may provide a reasonable basis for the assertion of personal jurisdiction.

6] Interactive Web Sites

If the Web site provides information, e-mail communication, describes the goods or services offered, downloads a printed order form or allows on-line sales²²⁹2001 )( slip and fall at Arkansas hotel; no jurisdiction found; " The website merely permits a user to submit an email to BPH requesting reservation information. No reservation is confirmed over the website " ). with the use of a credit card and sales are, in fact, made⁰( " There is no evidence that any commercial transactions are actually completed on BPH's website. No reservation is confirmed over the website " ). in this manner in the forum, particularly by the injured consumer²³¹2001 )
( " Even if Rodriguez has made his hotel reservations over CCC's website-and it is not alleged that he did-the personal injuries at the heart of this lawsuit arose, if at all, from the allegedly negligent conduct of the defendants in Nevada rather than from the making of a hotel reservation. Absent the requisite nexus, there is no basis for long-arm jurisdiction over CCC " ).,
then some Courts²³²Oregon : Millunium Enterprises v. Millenium Music, 49 USPQ2d 1878 ( Oregon, Jan. 4, 1999 ).but not all²³³card " ). may find the assertion of personal jurisdiction reasonable. This seems to be the trend for the sale of goods and services that are delivered after they are ordered by the consumer on his or her home computer. As noted above, however, at least one court has made an unwarranted distinction between placing Internet orders for the immediate delivery of goods and services and making reservations for delivery of hotel accommodations some time in the future²³⁴destination. " ). .

Although this area of the law is developing it is fair, at this point, to make the following conclusions.

First, the lowest level of travel Web site interactivity, involving e-mail communications which allow travelers to request information but not make reservations, would be an insufficient basis for jurisdiction [ Smith v. Basin Park Hotel, Inc.²³⁵ ( although the hotel had a Web site the Court found no basis for asserting jurisdiction since
" There is no evidence that any commercial transactions are actually completed on ( the hotel's ) website. The website merely permits a user to submit an email to ( the hotel ) requesting reservations information. No reservation is confirmed over the website " );
Cervantes v. Ramparts, Inc.²³⁶
( " Ramparts' only ' continuous ' contact with this state is that it maintained a Web site that allowed Internet users in California, or anywhere else, to learn about and send e-mail to the Luxor Hotel. That the Ramparts Web site permitted limited interactivity does not distinguish it from maintenance of an '800' telephone number for purposes of establishing general jurisdiction " )].

Second, the middle level of travel Web site interactivity, involving the ability to obtain information, communicate by email and, in fact, make hotel reservations has generated cases finding a sufficient basis for jurisdiction [ In Brown v. Grand Hotel Eden-A Summit Hotel²³⁷, a case in which a guest was injured at a Swiss hotel the services of which were marketed through a joint reservation Web site, the Court found that " Hotel Eden's presence on the Summit Hotels website, which also permits reservations to be confirmed automatically supports our finding that Hotel Eden is ' doing business ' in the State of New York ".

After discovery Brownwas modified²³⁸' doing business ' on behalf of a hotel " ). finding that, in actuality, neither Summit>'s Web site nor the Hotel Eden's Web site could confirm reservations.
" The only interactivity Hotel Eden's website allows is the opportunity for users to inquire into room availability. Upon receiving these inquiries, the hotel responds, through e-mail or fax, with an offer if a suitable room is available; the user then must respond to the hotel to accept the offer " );
Decker v. Circus Circus Hotel²³⁹
( "...it is clear that any customer can reserve a room through the Web site...by making reservations available on the Internet, the defendants have effectively placed their hotel and its services into an endless stream of commerce " );
Grutkowski v. Steamboat Lake Guides²⁴⁰ ( " This site does not permit a reader to purchase or reserve tours over the Internet and thus, does not permit SLO to ' transact business ' over the Internet " )] and cases finding an insufficient basis for jurisdiction [ Rodriguez v. Circus Circus Casinos, Inc.²⁴¹ ( no jurisdiction based upon interactive reservations Web site ); Imundo v. Pocono Palace, Inc²⁴² ( no jurisdiction based upon interactive reservations Web site ); Snyder v. Dolphin Encounters Limited²⁴³ ( no jurisdiction based on interactive reservations Web site ); Bell v. Imperial Palace Hotel/Casino, Inc.²⁴⁴ ( no jurisdiction based upon interactive reservations Web site ); Arriaga v. Imperial Palace, Inc.²⁴⁵ ( no jurisdiction based upon interactive reservations Web site ) ].

Third, the highest level of travel Web site interactivity, involving the purchase of travel services on the Web site together with other business contacts with the forum, would provide a sufficient basis for jurisdiction [ Silk Air v. Superior Court²⁴⁶ ( general jurisdiction over foreign air carrier
" based upon (1) Silk Air's continuing and substantial revenue in California, (2) its advertising in Californiaby means of flyers distributed through its parent company's Los Angeles offices and (3) its interactive internet site allowing Class Action Litigationfornians to purchase tickets on its airline " );
In re Ski Train Fire in Kaprun, Austria²⁴⁷ ( " Siemans AG conducts substantial and continuous business...conducting sales in New York over the Internet, being listed on the New York Stock Exchange...buying a New York company...employs a press contact here and has sued in New York " ) ].

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7] Interactive Web Sites & Forum Selection Clauses, Choice of Law Clauses & Arbitration Agreements

To reduce the likelihood of being haled into the consumer's local Court foreign travel suppliers and travel sellers may rely upon forum selection clauses, arbitration clauses and choice of law clauses contained in the Internet transaction documents.
" For instance, an Internet business may want its users to agree that any dispute arising between them shall be resolved in the courts of the Internet business's home state or city, or that it shall be resolved before an arbitration tribunal rather than a court, or that a judge rather than a jury will decide the case, or that the law of a particular state will govern the relationship " ²⁴⁸.

a] Forum Selection Clauses:
The enforceability of an Internet forum selection clause was addressed by the Court in Decker v. Circus Circus Hotel²⁴⁹. In Decker, New Jersey consumers made reservations at a Nevada hotel using an interactive Web site. The reservation form which appeared on the computer screen contained a forum selection clause informing guests that should they wish to commence a lawsuit against the hotel it could only be brought in Nevada . In the Deckercase the Court decided to enforce the Nevada forum selection clause. The Court also found that the combination of an interactive Web site with a forum selection clause negates any intent of being haled into a local courtroom.

Forum selection clauses are used by cruiselines [ Carnival Cruise Lines, Inc. v. Shutte²⁵⁰ ( 1991 ). ( Florida forum selection clause enforced ); Kessler v. Royal Caribbean Cruises, Ltd.²⁵¹( Florida forum selection clause enforced ); Elliott v. Carnival Cruise Lines²⁵² ( Miami, Florida forum selection clause enforced ); Moeller v. Cruiseshipcenters²⁵³ ( Washington forum selection clause enforced ); Effron v. Sun Line Cruises, Inc.²⁵⁴ ( Greek forum selection clause enforced ); Schaff v. Sun Line Cruises, Inc.²⁵⁵ ( Greek forum selection clause not enforced ); Hodes v. SNC Achille Lauro²⁵⁶ ( Naples forum selection clause enforced ); O.C. Harden v. American Airlines²⁵⁷ ( Hawaii forum selection clause enforced ); Jewel Seafoods, Ltd. v. M/V Peace River²⁵⁸ ( Chinese forum selection clause enforced ); Carron v. Holland America Line-Westours, Inc.²⁵⁹ ( Washington forum selection clause enforced ); Rawlins v. Clipper Cruise Lines²⁶⁰ Missouri forum selection clause enforced ); Hollmann v. Cunard Line Limited²⁶¹ ( England forum selection clause enforced )]; hotels [ Doe v. Sun International Hotels, Ltd.²⁶² ( S.D. Fla. 1998 ). ( female guest raped at hotel; Bahamas forum selection clause in guest registration form signed by minor guest's step father not enforced; void by reason of guest reaching age of majority )]; tour operators [ Shea v. Global Travel Marketing, Inc.²⁶³ ( estate of child tourist on safari killed by hyenas not bound by contract clause requiring arbitration of disputes in Fort Lauderdale, Florida ); Sachs v. TWA Getaway Vacations, Inc.²⁶⁴ ( tour participant contract stated that " Any litigation concerning the trip may be brought only within the state of Missouri and nowhere else, and Missouri law will be applicable to any and all such litigation " ); Rodriquez v. Class Travel Worldwide²⁶⁵ ( minor tourist injured after being pushed into hotel pool; Californiaforum selection clause in tour operator's registration form enforced ); Paster v. Putney Student Travel, Inc.²⁶⁶( tourist contracted oral yeast infection on the Blackfeet Indian Reservation in Montana during a " sweat ceremony ", one portion of which included the passing of a tobacco filled pipe; Vermont forum selection clause in tour participant contract enforced )] and resort time share operators [ World Vacation Travel, S.A. v. Brooker²⁶⁷ ( time share purchasers alleged breach of time share agreement; Mexico forum selection enforced )].

With respect to airline tickets, however, the D.O.T. has prohibited the use of forum selection clauses [ see July 15, 1996 D.O.T. Industry Letter from Samuel Podberesky ( We are sending... this letter to advise you of...problematic practices...(1) choice of forum provisions in contracts of carriage and tariffs...We view such provisions to be unlawful ( and ) unconscionable " ); see http://airconsumer.ost.dot.gov/rules.htm ].

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b] Arbitration Clauses:
The enforceability of arbitration clauses in tour contracts has been addressed by some courts [ Shea v. Global Travel Marketing, Inc.²⁶⁸ ( child tourist was " killed while on safari with his mother in Botswana. He was sleeping alone in a tent at a campsite when he was dragged from his tent and mauled by hyenas ". The tour contract, signed by the child's mother, provided " that all disputes between the parties be settled by binding arbitration in Fort Lauderdale, Florida ". The Court refused to enforce the clause finding that the parent did not have " the authority to bind a minor child to arbitrate potential personal injury claims " ); Milgrim v. Backroads, Inc.²⁶⁹( tourist injured on bicycle tour of Loire Valley; clause in tour participant contract stating that " the dispute shall be settled by binding arbitration through the American Arbitration Association at San Francisco, California" enforced )].

c] Choice Of Law Clauses:
Choice of law clauses often appear in cruise contracts. The law selected may be that of the Bahamas [ Kirman v. Compagnie Francaise²⁷⁰ ( choice of Bahamian law clause enforced; cruise between Singapore and Australia )], China [ Jewel Seafoods Ltd. v. M/V Peace River²⁷¹ ( choice of Chinese law clause enforced )] or Italy [ Falcone v. Mediterranean Shipping Co.²⁷² ].

Recently tour operators have used choice of law clauses [ Sachs v. TWA Getaway Vacations, Inc.²⁷³ ( tour participant contract stated that " Any litigation concerning the trip may be brought only within the state of Missouri and nowhere else, and Missouri law will be applicable to any and all such litigation "; court applied Missouri and Florida law in dismissing claims against tour operator)].

Choice of law clauses are, generally, enforceable unless the passenger can demonstrate that enforcement would be unreasonable, to prevent fraud or overreaching [ Long v. Holland America Line Westours, Inc.²⁷⁴ ( passenger falls during land tour of museum; maritime law does not govern land tour; choice of law clause in tour contract stating that " except when maritime law applied, the contract would be construed according to Washington state law " rejected; Alaska law applied ) or that " enforcement would contravene a strong public policy of the forum in which the suit is brought " [ Milanovich v. Costa Crociere, SPA²⁷⁵ ].

8] The Internet May Have Expanded Jurisdiction

The Internet may have changed the way in which the Courts decide what types of business contacts justify the assertion of personal jurisdiction. Although the Courts are not yet in agreement on what constitutes a threshold of interactivity in the marketing of travel services over the Internet [ often coupled with more traditional contacts with the forum ], there has been some movement towards a re-evaluation of the archaic solicitation plus doctrine as an appropriate analytical framework for resolving jurisdictional issues within the context of travel consumer litigation.

E] New York State Needs A Modern Travel Seller Statute

Travel Sellers include tour operators, Public Charter Tour Operators, consolidators, professional travel agents, pseudo travel agents, independent contractors, outside sales agents, telemarketing " boiler rooms ", time share promoters, Internet Web sites, travel clubs and informal travel promoters.

1] The Need For A Modern Travel Seller Statute

There is a compelling need for New York State to enact a comprehensive Travel Seller statute to reduce the likelihood of travel scams
[ " Travel has long been a fertile field for flimflam, but what had been a cottage industry has lately mushroomed into a growth industry...the Federal Trade Commission and the attorneys general of 12 states estimated the cost of travel-related fraud at more than $12 billion a year...' Travel fraud comes in many more packages that it used to ' "²⁷⁶ ]
and other examples of misconduct in the sale of travel services and to establish and maintain levels of professionalism in the travel industry
[ " Fortune tellers at state fairs are probably subject to more regulation than sellers of travel... Mike Spinelli, president of the American Society of Travel Agents...is worried about this lack of governance for a business that is founded almost entirely on promises and trust: people get a brochure and write out a check on the basis of a color picture and a schedule for a year from now. ' When money is paid for services to be delivered at a later date, you invite fraud...It's so easy to do a scam' "²⁷⁷ ].

2] Travel Agents & Pseudo Travel Agents

There is an ongoing dilution of travel agent professionalism in New York State and elsewhere. Until recently, being a professional travel agent
" require(d) years of training and participation in advanced educational programs such as those provided by the Institute of Certified Travel Agents [ ICTA ] and the American Society of Travel Agents [ ASTA ], accreditation by supplier organizations such as the Airlines Reporting Corporation [ ARC ] and the Cruise Lines International Association [ CLIA ], compliance with state and local licensing and registration requirements and obtaining bonding and comprehensive insurance "²⁷⁸.

Today there are many companies in the business of selling travel agent identification cards with more or less training to consumers at prices ranging from $485.00 to $7,995.00²⁷⁹ [ see Premier Travel International, Inc. v. State of Florida²⁸⁰ ( State attempts to close down travel agent cardmill business violating Sellers of Travel Act; cardmill offers " in exchange for an investment of $6,000, travel agent training and services so that individuals could receive discounted travel and sell travel to others "); Brown v. Hambric²⁸¹ ( combination of travel agent cardmill and pyramid scheme )]. There may be as many as 200,000 pseudo travel agents nationwide and " the cardmills continue to aggressively promote their business through newspaper ads...and literally hundreds of sites on the Internet. New firms get on the bandwagon every month "²⁸². Some suppliers such as hotels and rental car companies have offered substantial discounts to consumers possessing travel agent ID cards²⁸³.

Consumers are at risk since they may rely upon pseudo travel agents assuming, incorrectly, that they have the professional expertise and competence to make error free bookings and render accurate information²⁸⁴. Professional travel agents are at risk from competitors who have little, if any, training or experience and whose incompetence can and will hurt their professional reputation²⁸⁵.

3] The Irony Of Deregulation

The dilution of travel agent professionalism can be attributed to, at least, two factors. First, the Airlines Deregulation Act²⁸⁶ of 1978 [ " ADA " ] has been a
" huge disappointment. Twenty years after enactment, there were fewer airlines and a greater concentration of market power. Pricing became unnecessarily complex, the quality of service dropped dramatically and although the per-mile cost dropped from ' 12.7 cents per mile in 1981 to just 8 cents [ in 1998 ] adjusted for inflation...low fares often don't show up at all in scores of smaller cities or in large markets monopolized by a single carrier '"²⁸⁷,
In addition the ADA has encouraged the proliferation of unregulated methods for the marketing of travel services such as pseudo travel agents and Internet Web sites²⁸⁸.
Second, ASTA and other travel agent trade associations have vigorously opposed any form of meaningful licensing or regulation in New York State and elsewhere²⁸⁹. As a consequence there are few barriers²⁹⁰ to market entry similar to those erected to control the practice of law or medicine.

4] Travel Seller Statutes Worldwide
The following States and foreign countries have enacted some form of Sellers of Travel statute²⁹¹
a] Class Action Litigationfornia²⁹²
[ registration and $100 annual fee per location, travel consumer restitution fund, financial security requirements, disclosure of information to customers, delivery of tickets upon full payment, violations and penalties; enforcement by public agencies²⁹³( " Even California, viewed as almost predatory in its pursuit of out-of-state agents with Web sites, relies heavily on complaints to supplement reviews of travel promotions, web sites..." ). and private groups²⁹⁴ is vigorous; see Ricard v. Travel Coordinators, Inc.²⁹⁵( travel agents receive emails and purchase fam trips which were not delivered; violations of Sellers of Travel Law ); Milligan, Class Action Litigationf. Cracks down on travel swindles²⁹⁶( " Some of the cases involved allegations of serious fraud, such as bilking several hundred thousand dollars from clients who purchased vacations that never materialized, and an air ticket-buying scheme that cost consumers more than $1 million " )];

b] Delaware²⁹⁷
[ registration and annual fee of $225, violations and penalties ];

c] Florida²⁹⁸ [ registration and annual fee of $300, advertising and financial security requirements, disclosure of information to customers, violations and penalties; enforcement is vigorous²⁹⁹; see Omega Congress, Inc. v. BAF Tours Services, Inc.³⁰⁰2003 ). ( tour operator, unregistered under Sellers of Travel Act, may not enforce hotel rooms' contract ); Premier Travel International, Inc. v. State of Florida³⁰¹ ( travel agent cardmill may be violating Sellers of Travel Act ); State v. Sobieck³⁰² ( ticket scalping )];

d] Hawaii³⁰³
[ registration and biannual fee of $140, trust accounts and financial security requirements, disclosure of consumer rights, airline awards, coupons, vouchers and other information to customers, violations and penalties; enforcement is vigorous³⁰⁴];

e] Illinois³⁰⁵
[ registration not required, applies to travel promoters which must establish trust accounts and disclose specific information, violations and penalties; broader and more comprehensive statute repealed; see McCoy v. MTI Vacations, Inc.³⁰⁶( violation of Illinois Travel Promoter Act is also violation of Consumer Protection Act ) ];

f] Iowa³⁰⁷
[ registration with annual fee of $15, financial security requirements, violations and penalties ];

g] Massachusetts³⁰⁸
[ registration not required, misrepresentations prohibited, disclosure of information to customers, delivery of tickets and refund options, violations and penalties ];

h] Minnesota³⁰⁹
[ applies only to membership travel operators, buyers have right to cancel ];

i] Nevada³¹⁰
[ registration with annual fee of $25 for each travel agent, financial security was a $50,000 surety bond but may now be a trust fund only³¹¹( " The Nevada Senate approved and sent to the Governor a bill that eliminates the $50,000 bond requirement imposed on non-ARC agencies two years ago. The new regulation will instead require all Nevada agencies, both ARC and non-ARC, to maintain trust accounts for customer trip payments " ). ];

j] Ohio³¹²
[ registration with $10 fee, financial security for tour promoters, advertising standards, violations and penalties ];

k] Oregon³¹³
[ registration not required, financial security requirements, violations and penalties ];

l] Rhode Island³¹⁴
[ registration with annual fee of $100 per agency, $30 per travel manager or agent, licensing of travel managers, proficiency testing, advertising standards, financial security requirements, disclosure of information, violations and penalties ];

m] Virginia³¹⁵
[ applies to travel clubs, registration and annual fee of $350, financial security requirements, disclosure of information to customers, violations and penalties ];

n] Washington³¹⁶
[ registration with annual fee of $234 for main business location, $25 for each additional branch, advertising standards, financial security requirements, disclosure of information to customers, violations and penalties ].

There are also Sellers of Travel statutes in the Canadian provinces of British Columbia³¹⁷, Ontario³¹⁸ and Quebec³¹⁹ and in Australia, Israel, Japan and members of the European Community³²⁰ to include Belgium, Denmark, Finland, France, Greece, Ireland, Italy, Luxembourg, The Netherlands, Portugal, Spain and the United Kingdom³²¹See also: Yaqub , European Travel Law , John Wiley & Sons, London, 1997; Grant, Holiday Law , Sweet & Maxwell, London, 1995; Cordato, Australian Travel & Tourism Law , 3d Edition, Butterworths, Sydney, Australia 1999; Atherton, Tourism, Travel and Hospitality Law , LBC Information Services, North Ryde NSW, Australia, 1998..

5] New York's Truth In Travel Act

New York State's Truth In Travel Act³²² is one of the weakest of the enacted Sellers of Travel Acts. The truth about the Truth In Travel Act is that it protects the major players in New York's travel industry, i.e., airlines, railroads, bus and rental car companies, cruise lines and their ARC and CLIA appointed travel agents, from the expense and discipline of licensing and regulation³²³. It also protects them from the rigors of price competition by prohibiting discounting, " rebates or other concessions "³²⁴.

The Truth In Travel Act [ " the Act " ] was enacted in 1974 for the " purpose of safeguarding the public against fraud, false advertising, misrepresentation and similar abuses "³²⁵. The Act , excluding common carriers, applies to travel consultants, i.e., travel agents or others, who sell " travel tickets or orders for transportation "³²⁶. Travel consultants are prohibited from engaging in seven different types of misconduct³²⁷ (7) Misrepresent requirements for charter fare rates.. The 1974 version of the Act allowed the Attorney General or District Attorney to seek injunctive relief³²⁸.

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6] Travel Promoters

In 1990 the Act was amended to " combat the widespread fraudulent operations of travel promoters ( which ) are...often little more than ' boiler room ' operators who defraud consumers "³²⁹. Travel promoters are " primarily engaged in the direct solicitation of individuals by mail or telephone for the sale...of any travel or vacation services, including travel club memberships "³³⁰. Typically, travel promoters use the mails to send consumers bogus vacation certificates featuring incredibly low air fares³³¹ and/or memberships in travel clubs³³²forthcoming )...plaintiff was lured into a scam..." ).. The amended Act expands the term " travel services " beyond transportation to include " accommodations...rental of motor vehicles (

Class Action Litigation Information

A Service of Timothy E. Eble, P.A.

FALSE, MISLEADING & DECEPTIVE ADVERTISING IN THE TRAVEL INDUSTRY: THE CONSUMER'S RIGHTS & REMEDIES 2003

Table Of Contents

A] Introduction To Travel Industry Advertising

1] How The Travel Industry Works

2] The Methods Of Travel Advertising

3] State & Federal Regulation of Travel Advertising

B] Deceptive & Misleading Travel Advertising

1] What Is Puffing?

2] Actionable Misrepresentations

3] Federal Law Preemptions

4] Misrepresentations: Private & Public Lawsuits

C] Consumer Protection Statutes

1] General Business Law § 349

2] General Business Law § 350

3] Consumer Protection Statutes & Travel Advertising

4] State & Federal Telemarketing Statutes

5] State Sellers of Travel Statutes

D] Selling Travel Over The Internet & Personal Jurisdiction

1] The Solicitation Plus Doctrine

2] Jurisdiction And The Internet

3] A Transactional Analysis Of Internet Commerce

4] Passive Web Sites

5] Passive Web Sites Plus

6] Interactive Web Sites

7] Interactive Web Sites & Forum Selection Clauses, Choice of Law Clauses & Arbitration Agreements

8] The Internet May Have Expanded Jurisdiction

E] New York State Needs A Modern Travel Seller Statute

1] The Need For A Modern Travel Seller Statute

2] Travel Agents & Pseudo Travel Agents

3] The Irony Of Deregulation

4] Travel Seller Statutes Worldwide

5] New York's Truth In Travel Act

6] Travel Promoters