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. California
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 localities 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 California based 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 California by means of flyers distributed through its parent company's Los Angeles offices and (3) its interactive internet site allowing Californians 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; California forum 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] California²⁹²
[ 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, Calif. 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 ( and ) time shares ³³³". Not surprisingly the definition of travel promoters excludes all carriers³³⁴ and their ARC and CLIA appointed travel agents³³⁵.

A travel promoter's solicitation material must disclose certain information³³⁶ including the consumer's right to cancel the agreement after receiving " full written disclosure "³³⁷. Much like New York's Door-To-Door Sales Act³³⁸ consumers have three days in which to cancel the transaction and the travel promoter has ten days in which to make the refund. Travel promoters are also prohibited from engaging in nine different types of misconduct³³⁹. Both consumers and the District Attorney may invoke the Act in actions against errant travel promoters under G.B.L. § 158-a. However, consumers still do not have a private right of action under G.B.L. § 158 in actions against travel consultants As an enforcement tool the Act is of little value. Evidently, the Act has rarely been used in the last thirty years.

7] A Modern Travel Seller Statute

New York State should enact a Sellers of Travel statute with the following components; annual registration, minimum levels of education, training and experience measured by proficiency testing, proof of financial security in the form of consumer surety bonds, errors and omissions insurance and consumer escrow accounts, and the funding of a State administered consumer restitution fund, advertising guidelines, contractual disclosure rules and remedies and penalties.

8] Proficiency Testing & Annual Registration

Consumers need to know what to expect from Sellers of Travel, particularly, in terms of knowledge, expertise and the ability to render accurate advice. Sellers of Travel should be required to possess minimum levels of education, training and experience. Rhode Island requires licensees to have been a full time travel agent for, at least, one year or pass a course of study at a recognized institution. Rhode Island also requires Sellers of Travel to pass a written proficiency examination " to show the applicant's knowledge of...the means and methods of domestic and foreign travel...and of state and federal statutes and regulations ".

Sellers of Travel should pay an annual registration fee and submit a registration form, as they do in California and other States, setting forth the identity and location of the agency's owners, any Court orders or judgments and their disposition, location of consumer trust accounts, identity of surety bonds and error and omissions insurance and proof of compliance with a State administered restitution fund.

9] Financial Stability

Occasionally a Travel Seller may strand thousands of consumers providing neither contracted for travel services nor a refund. Typically, when a Travel Seller defaults there are few assets available to satisfy consumer claims. Sellers of Travel should (1) maintain surety bonds to protect consumer deposits from defaults, (2) place consumer deposits in trust accounts until all or a substantial part of the contracted for services are delivered, (3) maintain errors and omissions insurance and (4) fund a State administered consumer restitution fund.

With the exception of D.O.T. Public Charter Tour Operators, Sellers of Travel are not required to maintain surety bonds to protect consumers unless required by the Sellers of Travel statutes of California, Florida, Iowa, Ohio, Rhode Island, Virginia and Oregon. ARC appointed travel agents in New York State and elsewhere are required to maintain a surety bond the sole beneficiaries of which are domestic airlines. This bond does not protect consumers from a Seller of Travel's defaults.

Consumer deposits are best protected by requiring Sellers of Travel to place 90% of the deposit into a trust account. These deposits should be used to purchase the travel services for which they were paid. This prevents the Seller of Travel from " deficit spending ", i.e., using the deposits for one tour to pay for the services delivered to another tour. The Seller of Travel statutes of Hawaii, Illinois, Oregon, California, Nevada, Washington and Virginia require the use of trust accounts.

Sellers of Travel should maintain, at least, $1 million dollars in error and omissions insurance for the benefit of consumers injured due to negligence. In addition, Sellers of Travel should be required as they are in California to contribute to a consumer restitution fund. Such a fund would cover consumer claims arising from the bankruptcy or default of a Seller of Travel.

Similar financial guarantee programs are required of Sellers of Travel in Canada, Australia, Israel and members of the European Community.

10] Advertising And Disclosure Standards

The Truth In Travel Act and the Sellers of Travel statutes of California, Florida, Massachusetts, Oregon, Virginia and Washington prohibit some misrepresentations including advertising travel services when they are not, in fact, available. What the Truth In Travel Act does not do is give consumers a private right of action against the major players in the travel industry for misleading and deceptive business practices under G.B.L. § 158. The Sellers of Travel statutes of Florida, Virginia, Hawaii, Massachusetts and Washington are tied in with each state's consumer protection statute. These statutes, similar to New York's General Business Law § 349, prohibit misleading and deceptive business practices, give consumers a private right of action and award actual and treble damages, attorneys fees and costs.

The Truth In Travel Act and the Sellers of Travel statutes of California, Hawaii, Massachusetts, Oregon, Virginia and Washington require the disclosure of basic information such as the identity and location of the Travel Seller, a statement of payments and their purpose, the name of the carrier providing services and type of equipment, time, date and place of departure and cancellation rights. The disclosure requirements under the Truth In Travel Act apply only to travel promoters exempting all carriers and their ARC and CLIA appointed travel agents.

Hawaii also requires that consumers be informed of their statutory rights including (1) the right to proper disclosure, (2) the right to rely on the travel agent's guarantees and promises, (3) the right to have the travel agency fulfill its contracts and honor its guarantees, (4) the right to be informed of cancellation provisions, (5) the right to obtain all tickets upon full payment and (6) the right to have a refund within fourteen days of a request.

Under California's Educational Travel Organization Act consumers must be advised of the existence of a 24 hour emergency telephone service. Massachusetts requires disclosure of " the complete terms of any substitution policy of any seller of travel services " and " the complete terms of any trip cancellation insurance policy...". Travel Seller advertising and disclosure standards are required in Canada, Australia and members of the European Community.

11] Consumer Remedies

Any violation of a modern Sellers of Travel statute should, as it does in some states, constitute a violation of General Business Law § 349 entitling the injured consumer to actual damages, trebling, attorneys fees and costs. Such a violation should also void any consumer contract allowing a full refund³⁴⁰ and prevent the Seller of Travel from enforcing any contract against the consumer³⁴¹( 1966 )( travel agent who failed to obtain license can not enforce contract with customer ).

FOOTNOTES

1.Thomas A. Dickerson is a Justice of the New York State Supreme Court, Westchester County Courthouse, 111 Dr. Martin Luther King, Jr. Blvd., White Plains, N.Y. 10601. Judge Dickerson's Web Page is at http://members.aol.com/judgetad/ index.html . Judge Dickerson is the author of Travel Law, Law Journal Press, New York, 1981-2003, Web Page at http://members.aol.com/travellaw/index.html; Class Actions: The Law of 50 States, Law Journal Press, 1988-2003, Web Page at http://members.aol.com/class50/index.html ; and over 200 consumer law articles. For some of Judge Dickerson's articles see http://www.classactionlitigation.com/library/ca_articles.html

2. See generally Travel Law, Chapters 1-5.

3. For further discussions of the marketing of travel services by travel suppliers see Travel Law, § 2.03 [ airlines ] , §3.03 [ cruiselines, railroads, buses, rental cars ], § 4.02 [ hotels, resorts ], § 4.07(3)(d) [ Internet Web sites ], § 4.10(1) [ resort time shares ], § 4.11 [ casinos ] and § 4.12 [ theme and amusement parks ].

4. For further discussions of the marketing of travel services by travel intermediaries see Travel Law§ § 5.01, 5.02(1)-(4), 5.03(1)-(2), 5.04, 5.05 [ tour operators, travel agents, informal travel promoters, wholesalers, consolidators, pseudo travel agents ].

5. Luskins v. Consumer Protection Division, 353 Md. 335, 726 A. 2d 702 ( 1999 ).

6. "DOT fines Hotwire for deceptive radio ads," Travel Weekly, October 14, 2002, p. 8.

7. Plutock v. European American Bank, 143 Misc. 2d 149, 540 N.Y.S. 2d 135 ( 1989 ).

8. Federal Trade Commission v. Med Resorts International, 2001 WL 327880 ( N.D. Ill. 2001 ).

9. Federal Trade Commission v. Commonwealth Marketing Group, 1999 WL 816726

10. Ricard v. Travel Coordinators, Inc., 2003 WL 1301540 ( Cal. App. 2003 )

11. Johnston, A Boom Market In Travel Scams, Practical Traveler, N.Y. Times Sunday September 10, 2000, p. 4.

12. "Minneapolis agency to pay fine to DOT", Travel Weekly, June 9, 2003, p. 1.

13. Milligan, "Travel groups fight new FCC rule of faxes", Travel Weekly, August 18, 2003, p.4.

14. See Holly, "License to Sell", Travel Agent, April 1, 2002, p. 42.

15. Simon v. Cunard Line Limited, 75 A.D. 2d 283, 428 N.Y.S. 2d 952 ( 1980 ).

16. Viches v. MLT, Inc., 2000 U.S. Dist. LEXIS 18474 ( E.D. Mich. 2000 ).

17. Davies v. General Tours, Inc., 63 Conn. App. 17, 774 A. 2d 1063 ( 2001 ).

18. Vallery v. Bermuda Star Line, Inc . , 141 Misc. 2d 395, 532 N.Y.S. 2d 965 ( 1988 ) .

19. Tobin v. Slutky 12.0pt'>, 506 F. 2d 1097 ( 2d Cir. 1974 ).

20. McKee v. Sheraton-Russell, Inc., 268 F. 2d 669 ( 2d Cir. 1959 ).

21. DeWolf v. Ford 12.0pt'>, 193 N.Y. 397, 86 N.E. 2d 527 ( 1908 ).

22. Irving Trust Co. v. Nationwide Leisure Corp., 575 F. Supp. 261

23. Vallery v. Bermuda Star Line, Inc . , 141 Misc. 2d 395, 532 N.Y.S. 2d 965 ( 1988 ) .

24. Owens v. Italia Societa Per Azione, 70 Misc. 2d 719, 334 N.Y.S. 2d 789 ( 1972 ), aff'd 75 Misc. 2d 104, 347 N.Y.S. 2d 431 ( 1973 ).

25. Ricci v. Hurley 12.0pt'>, 1984 A.M.C. 546 ( Fla. Cir. 1984 )

26. Marcus v. Zenith Travel, New York Law Journal, November 19, 1990, p. 25, col. 3 ( N.Y. Sup. ), aff'd 178 A.D. 2d 372, 577 N.Y.S. 2d 820 ( 1991 ).

27. Pellegrini v. Landmark Travel Group, 165 Misc. 2d 589, 628 N.Y.S. 2d 1003 ( 1995 ).

28. Gelfand v. Action Travel Center, 55 Ohio App. 3d 193, 563 N.E. 2d 317 ( 1988 ).

29. Lewis v. Eisin 12.0pt'>, 2002 WL 337775 ( Mo. App. 2002 ).

30. King v. Club Med, Inc., 76 A.D. 2d 123, 430 N.Y.S. 2d 65 ( 1980 ).

31. Guadagno v. Diamond Tours & Travel, Inc., 89 Misc. 2d 697, 302 N.Y.S. 2d 783 ( 1976 ).

32. Guadagno v. Diamond Tours & Travel, Inc., New York Law Journal, May 13, 1977, p.1.

33. Ocean Cruise Lines, Inc. v. Abeta Travel Services, Inc., 562 So. 2d 205 ( Ala. Sup.

34. Kessler v. National Enterprises, Inc., 238 F. 3d 1006 ( 8^th Cir. 2001 ).

35. Chow v. Trans World Airlines, Inc., 22 CCH Aviation Cases 17,445 ( Ind. App. 1989 ).

36. Keefe v. Bahama Cruise Line, Inc., 867 F. 2d 1318 ( 11^th Cir. 1989 ).

37. Fogel v. Hertz International, Ltd., 141 A.D. 2d 375, 529 N.Y.S. 2d 484 ( 1988 ).

38. Brown v. Hambric 12.0pt'>, 168 Misc. 2d 502, 638 N.Y.S. 2d 873, 874 ( 1995 ).

39. Pelegrini v. Landmark Travel Group, 165 Misc. 2d 589, 595, 628 N.Y.S. 2d 1003 ( 1995 ).

40. Levin v. Kasmir World Travel, Inc., 143 Misc. 2d 245, 540 N.Y.S. 2d 639 ( 1989 ).

41. Shlivko v. Good Luck Travel, Inc., 2003 WL 21355059 ( N.Y. Civ. 2003 ).

42. Morales v. Trans World Airlines, Inc., 504 U.S. 372, 112 S. Ct. 2031, 2037, 119 L. Ed. 2d 157 ( 1992 ).

43. See Lawal v. British Airways, 812 F. Supp. 713 ( S.D. Texas 1992 ).

44. See Gottlieb v. American Airlines, Inc., 24 CCH Aviation Cases 18,327 ( E.D. Pa. 1995 ).

45. See Lawal v. British Airways, 812 F. Supp. 713 ( S.D. Texas 1992 )( no private right of action under FAA and ADA ).

46. American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S. Ct. 817, 130 L. Ed. 2d 715

47. Breitling USA v. Federal Express Corp., 1999 WL 235633 ( D. Conn. 1999 ).

48. Weber v. USAirways, Inc., 2001 U.S. Dist. LEXIS 5051 ( 4^th Cir. 2001 ).

49. McLaughlin v. TWA Getaway Vacations, 1997 WL 282261 ( S.D.N.Y. 1997 ).

50. People v. Western Airlines, Inc., 19 CCH Aviation Cases 18,051 ( Cal. App. 1984 ).

51. People v. TWA 12.0pt'>, 147 Misc. 2d 697, 556 N.Y.S. 2d 803, aff'd 76 A.D. 2d 171 ( N.Y. App. Div. 1991 ).

52. Fenn v. Trans National Travel, Inc., 2002 Mass. Super. LEXIS 176 ( 2002 ).

53. See Travel Law , Chapter 2A.

54. Newsome v. Trans International Airlines, 492 So. 2d 592 ( Ala. 1986 ).

55. Bernardi v. Apple Vacations, 236 F. Supp. 2d 465 ( E.D. Pa. 2002 ).

56. Vallery v. Bermuda Star Line, Inc . , 141 Misc. 2d 395, 532 N.Y.S. 2d 965 ( 1988 ) .

57. 0.291. New York Civil Practice Law And Rules, Section 4544. See e.g., Walch v. New York Sports Club Corp., New York Law Journal, March 21, 2001, p. 19 ( N.Y. Civ. )( applied to health club contracts ); Hamilton v. Khalife, 289 A.D. 2d 444 ( 2d Dept. 2001 )( applied to car rental contracts ); Bauman v. Eagle Chase Association, 226 A.D. 2d 488 ( 2d Dept. 1996 )

58. Lerner v. Karageorgis Lines, Inc., 66 N.Y. 2d 479, 497 N.Y.S. 2d 894, 488 N.E. 2d 824

59. Paredes v. Princess Cruises, Inc., 1 F. Supp. 2d 87 ( D. Mass. 1998 ).

60. See e.g.,Boyles v. Cunard Line Ltd., 1994 A.M.C. 1631 ( S.D.N.Y. 1994 )( cruise line misrepresented in newsletter availability of " Spa at Sea " ); Donnelly v. Klosters Rederi, 515 F. Supp. 5 ( E.D. Pa. 1981 )( misrepresentations in brochure ); Bergonzine v. Maui Classic Charters, 1995 A./M.C. 2628 ( D. Haw. 1995 )( misrepresentations in brochure ).

61. Warren v. Ajax Navigation Corp., 1995 A.M.C. 2609 ( S.D. Fla. 1995 ).

62. Sporn v. Metro International Airways, 17 CCH Aviation Cases 18,207 ( N.Y. Sup. 1983).

63. Liechtung v. Tower Air, New York Law Journal, January 11, 1999, aff'd 269 A.D. 2d 363, 702 N.Y.S. 2d 111 ( 2000 ).

64. Darras v. T.W.A. 12.0pt'>, 19 CCH Aviation Cases 18,332 ( N.D. Ill. 1984 ).

65. Eastern Air Lines, Inc. v. New York Air Lines, Inc., 559 F. Supp. 1270 ( S.D.N.Y.

66. American Express Travel Related Services v. Marco, 19 CCH Aviation Cases 17,411

67. Siben v. American Airlines, Inc., 913 F. Supp. 271 ( S.D.N.Y. 1996 ).

68. Chow v. T.W.A. 12.0pt'>, 22 CCH Aviation Cases 17,445 ( Ind. App. 1989 ).

69. Neilan v. Value Vacations, Inc., 603 F. Supp. 1227 ( S.D.N.Y. 1985 ).

70. Cruz v. American Airlines, Inc., 193 F. 3d 526 ( D.C. Cir. 1999 ).

71. Greeley v. KLM Royal Dutch Airlines, 85 F.R.D. 697 ( S.D.N.Y. 1980 ).

72. Weber v. USAirways, Inc., 2001 U.S. Dist. LEXIS 5051 ( 4^th Cir. 2001 ).

73. Boyles v. Cunard Line Ltd., 1994 A.M.C. 1631 ( S.D.N.Y. 1994 ).

74. Desmond v. Holland America Cruises, 1981 A.M.C. 211 ( S.D.N.Y. 1981 ).

75. Casper v. Cunard Line , 560 F. Supp. 240 ( E.D. Pa. 1983 ).

76. Donnelly v. Kloserts Rederi, 515 F. Supp. 5 ( E.D. Pa. 1981 ).

77. Walker v. Carnival Cruise Lines, 63 F. Supp. 2d 1083 ( N.D. Cal. 1999 ).

78. Kessler v. Royal Caribbean Cruises, 2003 WL 32130105 ( E.D. Pa. 2003 ).

79. Stobaugh v. Norwegian Cruise Line, 105 S.W. 2d 302 ( Tex. App. 2003 ).

80. Bergonzine v. Maui Charters , 1995 A.M.C. 2628 ( D. Haw. 1995 ).

81. Blair v. Norwegian Caribbean Lines, 622 F. Supp. 21 ( D.D.C. 1985 ).

82. Mirra v. Holland America Line, 331 N.J. Super. 86, 751 A. 2d 138 ( 2000 ).

83. Vallery v. Bermuda Star Line, Inc . , 141 Misc. 2d 395, 532 N.Y.S. 2d 965 ( 1988 ) .

84. Gelfand v. Action Travel Center, Inc., 55 Ohio App. 3d 193, 563 N.E. 2d 317 ( 1988 ).

85. Latman v. Costa Cruise Lines, 758 So. 2d 699 ( Fla. App. 2000 ).

86. Dickerson, "The Cruise Passenger's Rights & Remedies 2003" , Paper prepared for an Association of the Bar of the City of New York CLE Program, Cruises & Resorts, January 29, 2004.

87. Kermisch v. Avis Rent a Car Systems, Inc., 71 A.D. 2d 799, 419 N.Y.S. 2d 793 ( 1979 ).

88. Garcia v. L&R Realty, Inc., 347 N.J. Super. 481, 790 A. 2d 939 ( 2002 ).

89. Commercial Union Insurance Co. v. Auto Europe, 2002 U.S. Dist. LEXIS 3319 ( N.D. Ill. 2002 ).

90. Lazar v. The Hertz Corp., 143 Cal. App. 3d 128, 191 Cal. Rptr. 849 ( 1983 ).

91. Weinberg v. The Hertz Corp., 69 N.Y. 2d 979, 516 N.Y.S. 2d 652 ( 1987 ).

92. People v. Dollar Rent-A-Car Systems, Inc., 211 Cal. App. 3d 119 ( Cal. App. 1989 ).

93. King v. Club Med, Inc., 76 A.D. 2d 123, 430 N.Y.S. 2d 65 ( 1980 ).

94. Guadagno v. Diamond Tours & Travel, Inc., 89 Misc. 2d 697, 302 N.Y.S. 2d 783

95. Guadagno v. Diamond Tours & Travel, Inc., New York Law Journal, May 13, 1977, p. 1.

96. Dold v. Outrigger Hotel, 501 P. 2d 368 ( Hawaii 1972 ).

97. Thomson Travel Ltd. v. Roberts [ 1984 ] 148 JP 666.

98. Perrin v. Hilton International, Inc., 1992 WL 396221 ( S.D.N.Y. 1992 ).

99. Reiken v. Nationwide Leisure Corp., 75 A.D. 2d 551, 427 N.Y.S. 2d 235 ( 1980 ).

100. Gianocostas v. RIU Hotels, 2001 WL 758695 ( Mass. Super. 2001 ).

101. Greenwood v. Airtours[ 1995 ] 4 CL 32.

102. Southernmost Affiliates v. Alonza, 654 So. 2d 1066 ( Fla. App. 1995 ).

103. Smith v. Atlas International Tours, Inc., 80 A.D. 2d 762, 436 N.Y.S. 2d 722 ( 1981 ).

104. Tarshis v. Lahaina Investment Corp., 480 F. 2d 1019 ( 9^th Cir. 1973 ).

105. Dickerson, Hotels, Resorts And Casinos: Selected Liability Issues, Paper prepared for an Association of the Bar of the City of New York CLE Program, Hotels & Restaurants: Checking Into Legal Issues, October 18, 2002, at http://www.classactionlitigation.com/library/ca_articles.html

106. Kessler v. National Enterprises, Inc., 238 F. 3d 1006 ( 8^th Cir. 2001 ).

107. Isaak v. Trumbull Savings & Loan Company, 169 F. 3d 390 ( 6^th Cir. 1999 ).

108. State of Ohio v. Houseman, 2000 Ohio App. LEXIS 3015 ( Ohio App. 2000 ).

109. Dorian v. Harich Tahoe Development, 1996 U.S. Dist. LEXIS 21627 ( N.D. Cal. 1996 ).

110. U.S.A. v. Gennuso, 967 F. 2d 1460 ( 10^th Cir. 1992 ).

111. Leisure American Resorts, Inc. V. Knutilla, 547 So. 2d 424 ( Ala. Sup. 1989 ).

112. Tiffany v. Sturbridge Camping Club, 32 Mass. App. Ct. 173, 587 N.E. 2d 238 ( 1992 ).

113. King v. Club Med, Inc., 76 A.D. 2d 123, 430 N.Y.S. 2d 65 ( 1980 ).

114. Guadagno v. Diamond Tours & Travel, Inc., 89 Misc. 2d 697, 302 N.Y.S. 2d 783 ( 1976 ).

115. Guadagno v. Diamond Tours & Travel, Inc., New York Law Journal, May 13, 1977, p.1.

116. Reiken v. Nationwide Leisure Corp., 75 A.D. 2d 551, 427 N.Y.S. 2d 235 ( 1980 ).

117. Smith v. Atlas International Tours, Inc., 80 A.D. 2d 762, 436 N.Y.S. 2d 722 ( 1981 ).

118. Miller v. Group Voyagers, Inc., 1996 WL 32119 ( E.D. Pa. 1996 ).

119. Touhey v. Trans National Travel, Inc., 47 Pa. D. & C. 3d 250 ( Pa. C.P. 1987 ).

120. Knoll v. Cerkvenik-Anderson Travel, Inc., 181 Ariz. 394, 891 P. 2d 861 ( 1995 ).

121. McLauglin v. TWA Getaway Vacations, Inc., 1997 WL 282261 ( S.D.N.Y. 1997 ).

122. Neilan v. Value Vacations, Inc., 116 F.R.D. 431 ( S.D.N.Y. 1987 ).

123. Fenn v. Trans National Travel, 2002 Mass. Super. LEXIS 176 ( 2002 ).

124. Lewis v. Eisin 12.0pt'>, 2002 WL 337775 ( Mo. App. 2002 ).

125. Elsis v. TWA , 1989 N.Y. Misc. LEXIS 899 ( N.Y. Sup. 1989 ).

126. Dow v. Abercrombie & Kent, 2000 U.S. Dist. LEXIS 7290 ( N.D. Ill. 2000 ).

127. Krautsack v. Anderson, 329 Ill. App. 3d 666, 768 N.E. 2d 133, 263 Ill. Dec. 373 ( 2002 ).

128. F.T.C. v. Amy Travel Saervice, Inc., 875 F. 2d 564 ( 7^th Cir. 1989 ).

129. F.T.C. v. World Travel Vacation Brokers, 861 F. 2d 1020 ( 7^th Cir. 1988 ).

130. F.T.C. v. Travel Bahamas Tours, Case No. 97-6181 Complaint February 26, 1977 .

131. Airlift Group, Inc . , Order 96-4-24 ( April 11, 1996 ).

132. American Express Travel Related Services, Order 96-11-19 ( November 19, 1996 ).

133. Marcus v. Zenith Travel, New York Law Journal, November 19, 1990, p. 25, col. 3 ( N.Y. Sup. ), aff'd 178 A.D. 2d 372, 577 N.Y.S. 2d 820 ( 1991 ).

134. Pellegrini v. Landmark Travel Group, 165 Misc. 2d 589, 628 N.Y.S. 2d 1003 ( 1995 ).

135. Gelfand v. Action Travel Center, 55 Ohio App. 3d 193, 563 N.E. 2d 317 ( 1988 ).

136. Fix v. Travel Help, 541 N.Y.S. 2d 924 ( N.Y. Civ. 1989 ).

137. Brown v. Hambric 12.0pt'>, 168 Misc. 2d 502, 638 N.Y.S. 2d 873, 874 ( 1995 ).

138. Pelegrini v. Landmark Travel Group, 165 Misc. 2d 589, 595, 628 N.Y.S. 2d 1003

139. Levin v. Kasmir World Travel, Inc., 143 Misc. 2d 245, 540 N.Y.S. 2d 639 ( 1989 ).

140. Shlivko v. Good Luck Travel, Inc., 2003 WL 21355059 ( N.Y. Civ. 2003 ).

141. Levin v. Kasmir World Travel, Inc., 143 Misc. 2d 245, 540 N.Y.S. 2d 639 ( 1989 ).

142. Douglas v. Steele, 816 P. 2d 586 ( Okla. App. 1991 ).

143. Krautsack v. Anderson, 329 Ill. App. 3d 666, 768 N.E. 2d 133, 263 Ill. Dec. 373 ( 2002 ).

144. Rodriquez v. Cardona Travel Bureau, 216 N.J. Super. 226, 523 A. 2d 281 ( 1986 ).

145.Touhey v. Trans National Travel, Inc., 47 Pa. D. & C. 3d 250 ( P.A. C.P. 1987 ).

146. Maurer v. Cerkvenik-Anderson Travel, 181 Ariz. 294, 890 P. 2d 69 ( 1994 ).

147. For an excellent discussion of General Business Law § 349 see Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris Inc.,, 178 F. Supp. 2d 198 ( E.D.N.Y. 2001 ).

148. See e.g.,Hart v. Moore , 155 Misc. 2d 203, 587 N.Y.S. 2d 477, 480 ( 1992 ). However, at least, one court has awarded damages exceeding the $1,000.00 limit. See Lipscomb v. Manfredi Motors, New York Law Journal, April 2, 2002, p. 21 ( Richmond Civ. Ct. )

149. Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y. 2d 20, 623 N.Y.S. 2d 529, 532, 647 N.E. 2d 741 ( 1995 ). See also Walts v. Melon Mortgage Corporation, 259 A.D. 2d 322, 686 N.Y.S. 2d 428 ( 1999 )( " Plaintiffs have adequately alleged a materially deceptive practice aimed at consumers " ), appeal dismissed94 N.Y. 2d 795, 700 N.Y.S. 2d 424, 722 N.E. 2d 504 ( 1999 ); McKinnon v. International Fidelity Insurance Co., 182 Misc. 2d 517, 522 ( N.Y. Sup. 1999 )( " the conduct must be consumer-oriented and have a broad impact on consumers at large " ).

150. Cruz v. NYNEX Information Resources, 263 A.D. 2d 285, 290, 703 N.Y.S. 2d 103 ( 1^st Dept. 2000 ).

151 Pellegrini v. Landmark Travel Group, 165 Misc. 2d 589, 628 N.Y.S. 2d 1003 ( 1995 ).

152. Guggenheimer v. Ginzburg, 43 N.Y. 2d 268, 401 N.Y.S. 2d 182, 184, 372 N.E. 2d 17 ( 1977 ).

153. Oswego Laborers' Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y. 2d 20, 623 N.Y.S. 2d 529, 532, 647 N.E. 2d 741 ( 1995 ).

154. Karlin v. IVF America, Inc., 93 N.Y. 2d 282, 690 N.Y.S. 2d 495, 712 N.E. 2d 662 ( 1999 ).

155. Gaidon v. Guardian Life Insurance Company, 96 N.Y. 2d 201, 727 N.Y.S. 2d 30, 750 N.E. 2d 1078 ( 2001 ).

156. State of New York v. Feldman, 2002 W.L. 237840 ( S.D.N.Y. 2002 ).

157. Id. See also: Soskel v. Handler, 189 Misc. 2d 795, 736 N.Y.S. 2d 853( 2001 )( unsatisfactory performance of hair transplant procedures; GBL § 349 claim accrued when last surgical procedure was performed ).

158. Goshen v. Mutual Life Insurance Company, 286 A.D. 2d 229, 730 N.Y.S. 2d 46 ( 2001 )

159. Scott v. Bell Atlantic Corp., 282 A.D. 2d 180, 726 N.Y.S. 2d 60 ( 2001 ).

160. Farino v. Jiffy Lube International, Inc., 298 A.D. 2d 553, 748 N.Y.S. 2d 673 ( 2002 ).

161. Scott v. Bell Atlantic Corp., 98 N.Y. 2d 314, 746 N.Y.S. 2d 858, 774 N.E. 2d 1190

162. Card v. Chase Manhattan Bank, 175 Misc. 2d 389, 669 N.Y.S. 2d 117 ( 1996 ).

163. Card v. Chase Manhattan Bank, 175 Misc. 2d 389, 669 N.Y.S. 2d 117, 121 ( 1996 )

164. Karlin v. IVF America, Inc., 93 N.Y. 2d 282, 690 N.Y.S. 2d 495, 712 N.E. 2d 662, 665

165. People v. Lipsitz, 174 Misc. 2d 571, 663 N.Y.S. 2d 468, 475

166. Vallery v. Bermuda Star Line, Inc . , 141 Misc. 2d 395, 532 N.Y.S. 2d 965 ( 1988 ) .

167. Pellegrini v. Landmark Travel Group, 165 Misc. 2d 589, 628 N.Y.S. 2d 1003 ( 1995 ).

168. People v. P.U. Travel, Inc., New York Law Journal, June 19, 2003, p. 20 ( N.Y. Sup. ).

169. Krautsack v. Anderson, 329 Ill. App. 3d 666, 768 N.E. 2d 133, 263 Ill. Dec. 373 ( 2002 ).

170 Victor v. ABC Appliances, Inc., 93-641-CP ( Mich. Cir. Washtenaw Cty. 1994 ).

171. Brunwasser v. T.W.A., 17 CCH Aviation Cases 17,723 ( W.D. Pa. 1982 ).

172. Maurer v. Cerkvenik-Anderson Travel, 181 Ariz. 294, 890 P. 2d 69 ( 1994 ).

173. Telephone Consumer Protection Act of 1991, 47 USC § 227.

174. 47 USC § 227[b][1][B].

175. Kaplan v. First City Mortgage, 183 Misc. 2d 24, 28, 701 N.Y.S. 2d 859 ( 1999 ).

176. Miller and Biggerstaff, Application of the Telephone Consumer Protection Act to Intrastate Telemarketing Calls and Faxes, 52 Federal Communications Law Journal, 667, 668-669 ( 2000 ).

177. Antollino v. Hispanic Media, New York Law Journal, May 9, 2003, p. 21 ( N.Y. Sup. ).

178. Rudgayzer & Gratt v. Enine, Inc., 2002 WL 31369753 ( N.Y. Civ. 2002 ).

179. Kaplan v. Democrat & Chronicle, 266 A.D. 2d 848, 698 N.Y.S. 2d 799 ( 3^rd Dept. 1998).

180. Schulman v. Chase Manhattan Bank, 268 A.D. 2d 174, 710 N.Y.S. 2d 368 ( 2000 ). Compare: Charvat v. ATW, Inc., 27 Ohio App. 3d 288, 712 N.E. 2d 805 ( 1998 )( consumer in small claims court has no private right of action under TPCA unless and until telemarketer telephones a person more than once in any 12-month period after the person has informed the telemarketer that he or she does not want to be called ).

181. See e.g., International Science & Tech. Inst., Inc. v. Inacom Communications, Inc., 106 F. 3d 1146 ( 4^th Cir. 1997 ); Murphey v. Lanier, 204 F. 3d 911 ( 9^th Cir. 2000 ); United Artists Theater Circuit, Inc. v. F.C.C., 2000 WL 33350942 ( D. Ariz. 2000 ).

182. Miller and Biggerstaff, Application of the Telephone Consumer Protection Act to Intrastate Telemarketing Calls and Faxes, 52 Federal Communications Law Journal, 667, 668-669 ( 2000 ).

183. Kaplan v. Life Fitness Center, Rochester City Court, December 13, 1999.

184. 47 USC § 227[b][3].

185. See Glaberson, Dispute Over Faxed Ads Draws Wide Scrutiny After $12 Million Award, N.Y. Times Sunday National Section, July 22, 2001, p. 18 ( " The basic damages were set by multiplying the six faxes received by the 1,321 recipients by $500-and then tripling the

186. Rudgayzer & Gratt v. Enine, Inc., 2002 WL 31369753 ( N.Y. Civ. 2002 ).

187. Kaplan v. First City Mortgage, 183 Misc. 2d 24, 701 N.Y.S. 2d 859 ( 1999 ).

188. Kaplan v. First City Mortgage, 183 Misc. 2d 24, 701 N.Y.S. 2d 859 ( 1999 ).

189. Kaplan v. Life Fitness Center, Rochester City Court, December 13, 1999.

190. See 13 telemarketers accept fines for violating Do Not Call law, The Journal News, March 10, 2002, p. 3A

( " In most cases the settlement is for $1,000 per call, compared with a maximum fine of $2,000 per call. More than 200 more companies are being investigated...More than 4,000 complaints have been filed and nearly 2 million households have signed up to bar calls from telemarketers nationwide ". )

191 Pfenning, Internet travel shows moment of weakness, Travel Weekly, October 14, 2002, p. 10

( " For the past seven years, the Travel Industry Association of America (TIA) has been tracking Internet use...each year...TIA has reported a rise in Internet travel planning...until this year...According to the TIA's newly released study, Traveler's Use of the Internet, 2002 Edition, 45% of all travelers and 67% of travelers with online access used the Internet to plan a trip in 2002...Online travel agency sites-such as Expedia, Travelocity and Priceline-are still as popular as they were a year ago ").

192. See Limone, Report: Direct sales on the rise, Travel Weekly, June 30, 2003, p. 43

193. For a comparison of these travel seller Web sites see Travel web sites: You still need to compare, Consumer Reports Travel Letter, June 2002, p. 1 ( We looked at five key factors: ability to provide lowest fares, ability to provide viable flight itineraries that make sense for most travelers, ease of use, customer services and privacy and security policies " ).

194. See How Low Can You Go? Priceline Adds Hotel Bids, Consumer Reports Travel Letter, December 1998, p. 1 ( " Priceline.com. The Internet bidding system that claims it lets travelers name their own prices for airline tickets, quietly launched a similar service for hotel rooms in 26 cities " ); Wilkening, The ins and outs of Priceline.com: Good fares come with drawbacks, Travel Weekly, June 24, 1999, p. 1 ( " But if you think the price is right, don't overlook the minuses--including uncertain hours of travel, nonstandard purchase conditions and some potential hidden costs " ).

195. See Matter of Travelot Company, 286 B.R. 447, 450 ( S.D. Ga. 2002 )

( " The concept developed by Travelot involves coupling the benefits of on-line bookings with the customized services of a pre-screened, high quality travel agent in the destination locality so that a given traveler could obtain not only availability and cost information but also qualitative comments about various facilities and attractions. Through continuing e-mail contacts, that traveler would then be able to develop a customized travel itinerary. Travelot conceived of a business model

196. See Untangling the Web, Stop Press, Conde Nast Traveler, June 2002, p. 62.

197. See D.O.T. Prohibition on Deceptive Practices In the Marketing of Airfare to the Public Using the Internet, January 18, 2001, at http://airconsumer.ost.dot.gov/rules.htm.

198. See e.g.,

Second Circuit: Brown v. Grand Hotel Eden, 2003 WL 21496756 ( S.D.N.Y. 2003 ) ( " a hotel is subject to the general jurisdiction of the New York courts...( Where ) full confirmation powers ( have been granted ) to their New York agents " ); In re Ski Train Fire in Kaprun, Austria, 2002 U.S. Dis. LEXIS 14563 ( S.D.N.Y. 2002 )( subsidiary qualified as an agent in the forum ); Pavis v. Club Med, Inc., 1998 WL 229912 ( D. Conn. 1998 )( solicitation through travel agents in the forum by agent sufficient basis for jurisdiction over principal ); Sankaran v. Club Mediterranee, S.A., 1998 WL 433780 ( N.D.N .Y. 1998 )( " Defendants' activities through their agents also suffice to show that they have established the requisite contacts with New York " ).

Sixth Circuit: Catalano v. BRI, Inc., 724 F. Supp. 1580 ( E.D. Mich. 1989 )( Michigan has personal jurisdiction over Las Vegas hotel based upon conducting business through an agent with offices in Michigan ).

199. See e.g.,

Eleventh Circuit: Meier v. Sun International Hotels, 288 F. 3d 1264 ( 11^th Cir. 2002 ) ( jurisdiction over foreign parent corporation based upon activities of subsidiary corporations in the forum ).

State Courts:

Connecticut: Hersey v. Lonrho, Inc., 807 A. 2d 1009 ( Conn. App. 2002 )( no jurisdiction over parent hotel based solicitation of subsidiary in the forum ).

Florida:Universal Caribbean Establishment v. Bard, 543 So. 2d 447 ( Fla. App. 1989 )( jurisdiction based upon activities of subsidiary corporations in the forum).

200. See e.g.,

Intermor v. Walt Disney Company, 250 F. Supp. 2d 116, 119-120 ( E.D.N.Y. 2003 ) ( the presence of Walt Disney Company in New York insufficient to impose jurisdiction over subsidiary Walt Disney World themepark in Florida ); Dorfman v. Marriott International Hotels, Inc.,2002 WL 14363 ( S.D.N.Y. 2002 )( New York has jurisdiction over Hungarian elevator company which is a mere department of U.S. elevator company ); Grill v. Walt Disney Co., 683 F. Supp. 66, 69 ( S.D.N.Y. 1988 )( " There is nothing in the record which suggests that Disney Co. acts as agent for Disney World Co. or that Disney World Co. is merely a department of Disney Co. Accordingly, the presence of the parent company in New York does not confer jurisdiction over...Disney World Co. " ).

Third Circuit: Weintraub v. Walt Disney World Co., 825 F. Supp. 717

201. See e.g.,

Second Circuit: Dorfman v. Marriott International Hotels, Inc., 2002 WL 14363

202. See e.g.,

Second Circuit: Gelfand v. Tanner Motor Tours, Ltd., 385 F. 2d 116 ( 2d Cir. 1967 ).

State Courts:

203. See e.g.,

Second Circuit: Pavis v. Club Med, Inc., 1998 WL 229912 ( D. Conn. 1998 )( solicitation through travel agents in the forum by agent sufficient basis for jurisdiction over principal );

Third Circuit: Romero v. Argentinas, 1993 WL 416547 ( D.N.J. 1993 ).

Tenth Circuit: Afflerbach v. Cunard Line. Ltd., 11 F. Supp. 2d 1260 ( D. Wyo. 1998 ).

State Courts:

204. See e.g.,

Sixth Circuit: Hughes v. Cabanas del Caribe Hotel, 744 F. Supp. 788 ( E.D. Mich. 1990 ).

205. See e.g.,

Second Circuit: Intermor v. Walt Disney Company, 250 F. Supp. 2d 116, 119-120

206 See

First Circuit: Sigros v. Walt Disney World Co., 129 F. Supp. 2d 56 ( D. Mass. 2001 ) ( advertising sufficient basis for jurisdiction ); Edwards v. Radventures, Inc., 164 F. Supp. 2d 190 ( D. Mass. 2001 )( solicitation sufficient basis for jurisdiction ); Szafarowicz v. Gotterup, 1999 WL 782028 ( D. Mass. 1999 )( Massachusetts may have jurisdiction over Cayman Island diving company if a significant amount of business was done in the U.S. ); Nowak v. Tak How Inc. Ltd., 1995 WL 521874 ( D. Mass. 1995 ).

Second Circuit: Pavia v. Club Med, Inc., 1998 WL 229912 ( D. Conn. 1998 ) ( solicitation through travel agents in the forum sufficient basis for jurisdiction ); Sankaran v. Club Mediterranee, S.A., 1998 WL 433780 ( N.D.N .Y. 1998 )( solicitation through travel agents in the forum sufficient basis for jurisdiction ); Mallon v. Walt Disney World Co., 42 F. Supp. 2d 143 ( D. Conn. 1998 )( continuous and extensive advertising in the forum, without contract formation, is sufficient to establish jurisdiction over foreign resort ); Begley v. Maho Bay Camps, 1994 WL 136016 ( E.D.N.Y. 1994 )( jurisdiction based upon newspaper ads and contact in New York City ).

Third Circuit: Weintraub v. Walt Disney World Co., 1993 WL 244064 ( E.D. Pa. 1993 )( advertising, staffing and customer relations activities sufficient to support jurisdiction ); Gavigan v. Walt Disney World, Inc., 646 F. Supp. 786 ( E.D. Pa. 1986 )( jurisdiction based upon ongoing promotional activities in the forum ).

Fifth Circuit: Kervin v. Red River Ski Area, Inc., 711 F. Supp. 1383 ( E.D. Tex. 1989 )( solicitation of business sufficient for jurisdiction ).

Sixth Circuit: Raftery v. Blake's Wilderness Outpost Camps, 1997 WL 14795 ( E.D. Mich. 1997 )( advertising sufficient for jurisdiction ).

Seventh Circuit: Wilson v. Humphreys, 916 F. 2d 1239 ( 7^th Cir. 1990 )( advertising and contacts with local tour operators sufficient for jurisdiction ); Cummings v. Club Mediterranee, S.A., 2002 WL 1379128 ( N.D. Ill. 2002 )( solicitation through travel agents in the forum sufficient basis for jurisdiction ).

State Courts:

207. See e.g.,

First Circuit: Rosich v. Circus & Circus Enterprises, Inc., 3 F. Supp. 2d 148 ( D.P.R. 1998 )( advertising through travel guide and brochures insufficient contact ); Clark v. City of St. Augustine, Florida, 977 F. Supp. 541 ( D. Mass. 1997 ) ( advertising in forum insufficient contact ).

Second Circuit: Brown v. Grand Hotel Eden, 214 F. Supp. 2d 235 ( S.D.N.Y. 2002 ) mod'd, Brown v. Grand Hotel Eden, 2003 WL 21496756 ( S.D.N.Y. 2003 )

( " there is well-developed law addressing jurisdiction over foreign hotels. If a New York agent possesses independent authority to make and confirm reservations on behalf of a hotel, the hotel is considered present...merely soliciting business from prospective customers in New York does not suffice to establish jurisdiction );

Dorfman v. Marriott International Hotels, Inc., 2002 WL 14363 ( S.D.N.Y. 2002 )( no jurisdiction over Marriott Hotel in Budapest, Hungary or Marriott International Hotels, Inc. based upon solicitation without contract formation in the forum; reservations contracts entered into in Nebraska at worldwide reservations system ); Ciarcia v. Venetianm Resort Hotel Casino, 2002 WL 265160 ( S.D.N.Y. 2002 )( " mere solicitation by mailings and telephone calls does not confer jurisdiction " ); Muse v. Vagabond Inn Hotel, 2002 WL 15803 ( E.D.N.Y. 2002 )( solicitation of business through toll-free telephone number insufficient for assertion of jurisdiction ); Hinsch v. Outrigger Hotels Hawaii, 153 F. Supp. 2d 209 ( E.D.N.Y. 2001 )( placement of ad in publication insufficient for assertion of jurisdiction ); Andrei v. DHC Hotels and Resorts, 2000 U.S. Dist. LEXIS 4107 ( S.D.N.Y. 2000 )( mere solicitation of business insufficient for jurisdiction ); Feldman v. Silverleaf Resorts, Inc., 2000 U.S. Dist. LEXIS 1005 ( S.D.N.Y. 2000 )( solicitation, regardless of how substantial, is insufficient to establish jurisdiction ); Swindell v. Florida East Coast Railway Co., 42 F. Supp. 2d 320 ( S.D.N.Y. 1999 )( railroad ticket sales by travel agents and employees at separately owned train stations insufficient to establish jurisdiction ); Weinberg v. Club ABC Tours, Inc., 1997 WL 37041 ( E.D.N.Y. 1997 )( ticket of ticket insufficient to confer jurisdiction ); Lane v. Vacations Charters, Ltd., 750 F. Supp. 120 ( S.D.N.Y. 1990 )( ads and toll free number insufficient contact ).

Third Circuit: Inzillo v. Continental Plaza, 2000 U.S. Dist. LEXIS 20103 ( M.D. Pa. 2000 )( advertising and selling hotel accommodations through travel agents and 800 number insufficient basis for jurisdiction ); Poteau v. Walt Disney World Company, 1999 U.S. Dist. LEXIS 12459 ( E.D. Pa. 1999 )( solicitation of business through travel agents insufficient to establish jurisdiction ); Romero v. Holiday Inn, Utrecht, 1998 U.S. Dist. LEXIS 19997 ( E.D. Pa. 1998 )( advertising through franchisor's Worldwide Directory and making reservations through 800 number insufficient for jurisdiction ).

Fourth Circuit: Pearson v. White Ski Company, Inc., 228 F. Supp. 2d 705 ( E.D. Va. 2002 )( solicitation through advertising and Internet in the forum insufficient to establish jurisdiction in the absence of a connection between advertising and the injury sustained ).

Fifth Circuit: Luna v. Compagnie Paramena de Aviacion, 1994 WL 173369 ( S.D. Tex. 1994 )( solicitation of business and 800 number insufficient ).

Sixth Circuit: Denham v. Sampson Investments, 997 F. Supp. 840 ( E.D. Mich. 1998 )( sending brochures to forum and reserving rooms at hotels insufficient contact ).

Seventh Circuit: Dresden v. Treasure Island, LLC, 2001 U.S. Dist. LEXIS 13928 ( N.D. Ill. 2001) ( indirect advertising in the forum insufficient contact ).

Tenth Circuit: Rainbow Travel Service, Inc. v. Hilton Hotels Corp., 896 F. 2d 1233 ( 10th Cir. 1990 )( jurisdiction based upon solicitation and contract formation in the forum ); Afflerbach v. Cunard Line, Ltd., 14 F. Supp. 2d 1260 ( D. Wyo. 1998 ) ( national advertising and selling tours through travel agents insufficient contact ).

State Courts:

California: Silk Air v. Superior Court, 2003 WL 40818 ( Cal. App. 2003 )( " It is true that case law holds jurisdiction cannot be assumed over a foreign corporation based solely upon sales by independent non-exclusive agents " ).

Connecticut:Hersey v. Lonrho, Inc., 807 A. 2d 1009 ( Conn. App. 2002 )( no jurisdiction over parent hotel based on solicitation of subsidiary in the forum ).

Illinois: Stein v. Rio Parismina Lodge, 296 Ill. App. 3d 520, 521, 695 N.E. 2d 518, 231 Ill. Dec. 1 ( 1998 )( transaction of business through travel agents insufficient contact ); Kadala v. Cunard Lines, Ltd., 226 Ell. App. 3d 302, 304, 589 N.E. 2d 802, 168 Ill. Dec. 402 ( 1992 ) ( solicitation of business in the forum insufficient contact ).

New York: Sedig v. Okemo Mountain, 204 A.D. 2d 709, 612 N.Y.S. 2d 643 ( 1994 ) ( mere solicitation insufficient ).

Texas: M.G.M. Grand Hotel, Inc. v. Lee Castro, 8 S.W. 3d 403 ( Tex. App. 1999 )

208. See e.g.,

Second Circuit: Brown v. Grand Hotel Eden, 214 F. Supp. 2d 235 ( S.D.N.Y. 2002 ) mod'd, Brown v. Grand Hotel Eden, 2003 WL 21496756 ( S.D.N.Y. 2003 ); Rodriquez v. Circus Circus Casinos, Inc., 2001 U.S. Dist. LEXIS 61 ( S.D.N.Y. 2001 ); In re Ski Train Fire in Kaprun, Austria, 2002 U.S. Dist. LEXIS 14929 ( S.D.N.Y. 2002 )...

Third Circuit: Imundo v. Pocono Palace, Inc., 2002 WL 31006145 ( D.N.J. 2002 ); Snyder v. Dolphin Encounters Limited, 2003 WL 31771189 ( E.D. Pa. 2002 ) ; Decker v. Circus Hotels, 49 F. Supp. 2d 743, 748 ( D.N.J. 1999 ); Romero v. Holiday Inn, Utrecht, 1998 U.S. Dist. LEXIS 19997 ( E.D. Pa. 1998 );. Weber v. Jolly Hotels, 977 F. Supp. 327 ( D.N.J. 1997 )..

Fourth Circuit: Pearson v. White Ski Company, Inc., 228 F. Supp. 2d 705 ( E.D. Va. 2002 ).

Fifth Circuit: Arriaga v. Imperial Palace, Inc., 252 F. Supp. 2d 380 ( S.D. Texas 2003 ).

Eighth Circuit: Bell v. Imperial Palace Hotel/Casino, Inc., 200 F. Supp. 2d 1082, 1087-1088 ( E.D. Mo. 2001 ).

Tenth Circuit: Smith v. Basin Park Hotel, Inc., 178 F. Supp. 2d 1225 ( N.D. Okla. 2001 ).

State Courts:

209. See e.g., Imundo v. Pocono Palace, Inc., 2002 WL 31006145 ( D.N.J. 2002 )( " personal jurisdiction has been found over operators of Web sites who could enter into contracts through the Web site to provide goods and services over the Internet. CompuServe, Inc. v. Patterson, 89 F. 3d 1257 ( 6^th Cir. 1996 )( contracts to distribute software over the Internet ); Zippo Manuf. Co. v. Zippo Dot Com, 952 F. Supp. 1119 ( W.D. Pa. 1996 )( contracts to provide news service over the Internet ); Thompson v. Handa Lopez, Inc., 998 F. Supp. 738, 744 ( W.D. Tex. 1998 )( continuous interaction with players on their casino Web site )" ). See also: American Eyewear, Inc. v. Peeper's Sunglasses, 106 F. Supp. 2d 895, 899-903 ( N.D. Tex. 2000 )( personal jurisdiction proper over defendant which established virtual store on its web

210. See e.g., Bell v. Imperial Palace Hotel/Casino, Inc., 200 F. Supp. 2d 1082, 1087-1088 ( E.D. Mo. 2001 )

( " Although reservations can be made over the internet this case is clearly distinguishable from those where goods may be ordered over the internet...In internet cases involving the sale of goods, the entire transaction ( order, payment and confirmation ) can be completed online. The resident can bring about the transmission of the goods into the forum state through the order alone. Hotels, on the other hand, are somewhat unique in the internet context. Neither party anticipates that goods, services or information of intrinsic value will be transmitted or provided in the forum state as a result of the interest exchange of information. To the contrary, both parties recognize that the internet exchange is simply preliminary to the individual traveling outside the forum state to use the service. In this respect, the exchange of information over the internet is not unlike a toll-free reservation hotline. The purpose of the internet interaction is not achieved until the resident customer leaves the forum state and arrives at the hotel

211. See e.g.,

Second Circuit: Brown v. Grand Hotel Eden, 214 F. Supp. 2d 235 ( S.D.N.Y. 2002 ) mod'd, Brown v. Grand Hotel Eden, 2003 WL 21496756 ( S.D.N.Y. 2003 )

( " The only interactivity Hotel Eden's website allows is the opportunity for users to inquire into room availability. Upon receiving these inquires, 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. This type of interaction is similar to corresponding through a telephone and is insufficient to establish jurisdiction over the defendant " );

Rodriquez v. Circus Circus Casinos, Inc., 2001 U.S. Dist. LEXIS 61 ( S.D.N.Y. 2001 )( " For jurisdictional purposes, there is no material difference between using the Internet to make a reservation with an out-of-state entity and placing a telephone call to that entity for the same purpose " ).

Third Circuit: Romero v. Holiday Inn, Utrecht, 1998 U.S. Dist. LEXIS 19997 ( E.D. Pa. 1998 )

( " an Internet connection allows a consumer to contact a hotel chain for reservations directly and without charge. The distinction of using a computer hooked to a telephone/data line is not relevantly different from using a handset connected to that same line; one is in writing and one is by voice-a distinction without difference in this context " ).

Eighth Circuit: Bell v. Imperial Palace Hotel/Casino, Inc., 200 F. Supp. 2d 1082, 1087-1088 ( E.D. Mo. 2001 )( " the exchange of information over the internet is not unlike a toll-free reservation hotline " ).

State Courts:

California: Cervantes v. Ramparts, Inc., 2003 WL 257770 ( Cal. App. 2003 )

( " Maintenance of an Internet Web site accessible from California also does not support general jurisdiction. Such an activity is directly analogous to maintaining an ' 800 ' telephone number...

212. Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 ( W.D. Pa. 1997 ).

213. Id at 952 F. Supp. 1121

( " Dot Com's Web Site contains information about the company, advertisements and an application for its Internet news service...A customer who wants to subscribe ...fills out an on-line application...Payment is made by credit card over the Internet or the telephone. The application is then processed and the subscriber is assigned a password which permits the subscriber to view and/or download Internet newsgroup messages that are stored on the defendant's server in California " ).

214. See

Second Circuit: American Homecare Federation, Inc. v. Paragon Scientific Corp., 1998 WL 790590 ( D. Conn. 1998 )

( " The Website does not list...products which are sold nor does it provide any process for ordering..No sales..occur through the Website and an individual accessing the site cannot order..It does not provide anyone with files to download nor does it link to anyone else's Website " );

Edberg v. Neogen Corp., 17 F. Supp. 2d 104 ( D. Conn. 1998 )

( " there is no evidence that any user in Connecticut accessed Neogen's Web site or purchased products based upon the Web site advertisement...Internet users could not order products directly from the Web site...it required them to call an ' 800 ' number in Michigan or write Neogen in Michigan or Kentucky " );

Hearst Corp. v. Goldberger, 1997 WL 97097 ( S.D.N.Y. 1997 ) ( Web site with E-mail contact ); Benusan Restaurant Corp. v. King, 937 F. Supp. 295, 301 ( S.D.N.Y. 1996 ), aff'd126 F. 3d 25 ( 2d Cir. 1997 )( Missouri nightclub's passive web site ).

Third Circuit: Remich v. Manfredy, 1999 WL 257754 ( E.D. Pa. 1999 )( passive web site offering general information and advertising insufficient contact with forum ); Molnlycke Health Care AB v. Dumex Medical Surgical Products Ltd., 1999 WL 695579 ( E.D. Pa. 1999 )( passive website does not confer jurisdiction ); Grutkowski v. Steamboat Lake Guides & Outfitters, Inc., 1998 U.S. Dist. LEXIS 20255 ( E.D. Pa. 1998 )( web site contains information, photographs, map and e-mail connection; reservations can not be made on the web site ).

Fourth Circuit: American Information Corp. v. American Infometrics, Inc., 2001 U.S. Dist. LEXIS 4534 ( D. Md. 2001 )( " A visitor ( to Web site ) may not enter into a contract, purchase goods or services or transact business on the Web site " ); Roche v. Worldwide Media, Inc., 90 F. Supp. 2d 714 ( E.D. Va. 2000 )( pornograhic web site can only be described as passive ); Esab Group, Inc. v. Centricut, LLC, 1999 WL 27514 ( D.S.C. 1999 )( web page which provides information but requires customer to place an order through an 800 telephone number is insufficient for assertion of personal jurisdiction ).

Fifth Circuit: Mink v. AAAA Development, L.L.C., 190 F. 3d 333 ( 5^th Cir. 1999 )( no long arm jurisdiction based upon printable mail-in order form and toll free number and e-mail address ); Amazon Tours, Inc. v. Wet-A.Line Tours, LLC, 2002 U.S. Dist. LEXIS 1649 ( N.D. Tex. 2002 )( tour operator's Web site

" provides information about tours offered by the company. It includes a bulletin board that allows customers to post messages...a fishing report...a form to request a brochure...If a user wants further information about a tour, he or she must contact the company at its offices in Georgia " );

Lofton v. Turbine Design, Inc., 100 F. Supp. 2d 404 ( N.D. Miss. 2000 )

( " the primary purpose of the website is for advertising. The website does not contain a price list for services, contract for engagement of services, or order form. It is not suited for shopping or ordering online " );

Nutrition Physiology Corp. v. Enviros Ltd., 87 F. Supp. 2d 648 ( N.D. Tex. 2000 )( passive web site does not confer jurisdiction ); Broussard v. Deauville Hotel Resorts, Inc., 1999 WL 62152 ( E.D. La. 1999 )( slip and fall in Florida hotel; no long arm jurisdiction based upon passive website ); Mid-City Bowling Lanes & Sports Palace, Inc. v. Ivercrest, Inc., 35 F. Supp. 507 ( E.D. La. 1999 )( no personal jurisdiction based upon passive website ).

Sixth Circuit: Bailey v. Turbin Design, Inc., 86 F. Supp. 2d 790 ( W.D. Tenn. 2000 )( " there is no indication whatsoever that TDI's website is anything other than wholly passive " ).

Seventh Circuit: MJC-A World v. Wishpets Co., 2001 U.S. Dist. LEXIS 13178 ( N.D. Ill. 2001 )( passive Web site and sale of 90 toys insufficient basis for jurisdiction ); ( Dow v. Abercrombie & Kent International, Inc., 2000 U.S. Dist. LEXIS 7290 ( N.D. Ill. 2000 )( passive web site touting quality of services ); First Financial Resources v. First Financial Resources, Corp., 2000 U.S. Dist. LEXIS 16866 ( N.D. Ill. 2000 )( web " site does not allow customers to enter into contracts or receive financial planning services over the Internet " ).

Ninth Circuit: Cybersell, Inc. v. Cybersell, Inc., 130 F. 3d 414, 419 ( 9^th Cir. 1997 ) ( " conducted no commercial activity over the Internet in Arizona. All that it did was post an essentially passive home page on the Web " ); McDonough v. Fallon McElligott, Inc., 1996 WL 753991 ( S.D. Cal. 1996 )( " fact that ( defendant ) has a web site used by ( forum state residents) cannot establish jurisdiction by itself " ).

Tenth Circuit: Soma Med. Int'l v. Standard Chartered Bank, 196 F. 3d 1292 ( 10^th Cir. 1999 )( no jurisdiction based on web site that only provided information ); SF Hotel Company, L.P. v. Energy Investments, Inc., 985 F. Supp. 1032, 1035 ( D. Kan. 1997 )( " Boto's advertisement in a trade publication appears on the Internet. Boto did not contract to sell any goods or services...over the Internet site " ).

Eleventh Circuit: JB Oxford Holdings, Inc., 1999 WL 1068444 ( S.D. Fla. 1999 )( web site providing connections to Internet, listing of national toll free telephone number and a pending application to do business in Florida provided insufficient contacts with Florida to permit exercise of personal jurisdiction ).

District of Columbia Circuit: GTE New Media Serv. Inc. v. Bellsouth Corp., 199 F. 3d 1343 ( D.C. Cir. 2000 )( Yellow Pages accessibility insufficient for long arm jurisdiction ); Mallinckrodt Medical, Inc. v. Sonus Pharmaceuticals, Inc., 989 F. Supp. 265, 272 ( D.C.D.C. 1998 ) ( " The act of posting a message on an AOL electronic bulletin board-which certain AOL subscribers may or may not choose to access ( is not sufficient for personal jurisdiction ) " ).

State Courts:

California: Jewish Defense Organization, Inc. v. Superior Court, 85 Cal. Rptr. 2d 611 ( Cal. App. 1999 )( defamation action; a passive web site delivering only information insufficient contact with forum for assertion of personal jurisdiction ).

New Jersey: Ragonese v. Gaston Rosenfeld, 318 N.J. Super. 63, 722 A. 2d 991 ( 1998 )( foreign air carrier's passive web site insufficient for jurisdiction ).

New York: Nationwide Insurance Co. v. Holiday Inn, New York Law Journal, Jan. 27, 2000 ( N.Y. Sup. )( passive web site and 800 number insufficient for jurisdiction; Messelia v. Costa, New York Law Journal, Feb. 14, 2000 ( N.Y. Civ. )( passive web site providing information insufficient for assertion of personal jurisdiction ).

215. See

Second Circuit: Inset Systems, Inc. v. Instruction Set, Inc., 937 F. Supp. 161, 164 ( D. Conn. 1996 )( Web site and toll free number; " advertising via the Internet is solicitation of a sufficient repetitive nature " ).

Fourth Circuit: Bochan v. La Fontaine, 1999 WL 343780 ( E.D. Va. 1999 )( posting of libelous messages on the Internet by Texas and New Mexico residents sufficient grounds for the assertion of personal jurisdiction in Virginia where web site was accessed ).

Ninth Circuit: Panavision Int'l, L.P. v. Toeppen, 938 F. Supp. 616 ( C.D. Cal. 1996 )( fraud claims; jurisdiction based upon Web site contact alone ).

216. Weber v. Jolly Hotels, 977 F. Supp. 327 ( D.N.J. 1997 ).

217. See Meier v. Sun International Hotels, 288 F. 3d 1264, 1274 ( 11^th Cir. 2002 )

218. See Hasbro, Inc. v. Clue Computing, Inc., 994 F. Supp. 34, 38

219. See Digital Equipment Corp. v. Altavista Tech, 960 F. Supp. 456 ( D. Mass 1997 ).

220. See CompuServe, Inc. v. Patterson, 89 F. 3d 1257 ( 6^th Cir. 1996 ).

221. See EDIAS Software Int'l v. BASIS Int'l Ltd., 947 F. Supp. 413 ( D. Ariz. 1996 ).

222. See Catalytic Combustion Corp. v. Vapor Extraction Technology, Inc., 2000 Wisc. App. LEXIS 774 ( Wisc. App. 2000 ).

223. See Amazon Tours, Inc. v. Wet-A-Line Tours, LLC., 2002 U.S. Dist. LEXIS 1649 ( N.D. Tex. 2002 )( presence of booking agent in the forum who booked no tours in the forum insufficient contact ); American Eyewear, Inc. v. Peeper's Sunglasses And Accessories, Inc., 2000 U.S. Dist. LEXIS 6875 ( N.D. Texas

224. See Resuscitation Tech., Inc. v. Continental Health Care Corp., 1997 WL 148567 ( S.D. Ind. 1997 ).

225. See Gary Scott International, Inc. v. Baroudi, 981 F. Supp. 714 ( D. Mass. 1997 ).

226. See Citigroup Inc. v. City Holding Co., 97 F. Supp. 2d 549

227. See TY, Inc. v. Max Clark, 2000 U.S. Dist. LEXIS 383 ( N.D. Ill. 2000 )( no jurisdiction; " However, at the same time, the defendants do not clearly do business over their web site, for they do not take orders nor enter into contracts over the web

228. See People Solutions, Inc. v. People Solutions, Inc., 2000 U.S. Dist. LEXIS 10444 ( N.D. Tex. 2000 ).

229 See e.g.,

Second Circuit: Andrei v. DHC Hotels, 2000 U.S. Dist. LEXIS 4107 ( S.D.N.Y. 2000 ) ( tourist injured at Aruba hotel made reservations through American Airlines website but actual hotel reservations were confirmed when tour operator GoGo Tours contacted Aruba hotel ; no jurisdiction over Aurba hotel ).

Tenth Circuit: Smith v. Basin Park Hotel, Inc., 178 F. Supp. 2d 1225 ( N.D. Okla.

230. See e.g.,

First Circuit: Dagesse v. Plant Hotel, N.V., 113 F. Supp. 2d 211 ( D.N.H. 2000 ) ( although hotel had interactive reservations Web site plaintiff failed to show that any reservations were actually made using the Web site ).

Third Circuit: Hurley v. Cancun Playa Oasis Hotel, 1999 U.S. Dist. LEXIS 13716 ( E.D. Pa. 1999) ( Mexican hotel's Georgia booking agent had 800 number and interactive reservations Web site but plaintiff used neither and failed to show that any actual reservations were made using Web site ).

Tenth Circuit: D.J.'s Rock Creek Marina v. Imperial Foam, 2002 U.S. Dist. LEXIS 13470 ( D. Kan. 2002 ). Defendant's Web site had the capacity for accepting orders but there was no evidence of sales or other activity in Kansas.

" CW has had no actual Internet-based contacts with residents of Kansas: no sales, no inquiries, no requests for quotes, no emails, nor any phone calls, letters or contacts emanating from the web site information...CW has never made a sale to a Kansas resident.");

Smith v. Basin Park Hotel, Inc., 178 F. Supp. 2d 1225 ( N.D. Okla. 2001 )

231. See e.g.,

Eighth Circuit: Bell v. Imperial Palace Hotel/Casino, Inc., 200 F. Supp. 2d 1082 ( E.D. Mo. 2001)

( " The central reason why plaintiffs fail to establish the necessary minimum contacts for specific jurisdiction, however, is because they have failed to demonstrate that their cause of action has any relation to Imperial Palace's contacts with Missouri. From the record before the Court, the defendant's only contact with Missouri is a website that is accessible to residents in Missouri. The subject matter of plaintiff's suit is a slip and fall accident that occurred on the hotel premises in Las Vegas. That event is entirely unrelated to the defendant's website. While the Court is not suggesting that these facts would necessarily change the analysis, the plaintiffs do not maintain that they used the website to make reservations with the Imperial Palace, that their travel agent used the website to secure their reservations, or that they were enticed by the website to visit the Imperial Palace. In fact, they do not claim to have ever viewed the website prior to their visit to the defendant's hotel. The Court can see no causal link or connection between Mr. Bell's accident and the sole forum contact by Imperial Palace, its website " ).

Contra:

Second Circuit: Rodriguez v. Circus Circus Casinos, Inc., 2001 WL 21244 ( S.D.N.Y.

232 See e.g.,

Second Circuit: American Network, Inc. v. Access America/Connect Atlanta, Inc., 975 F. Supp. 494 ( S.D.N.Y. 1997 )( subscriptions for Internet services sold to customers in the forum through contracts entered into on Web site ).

Third Circuit: Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 ( W.D. Pa. 1997 ).

Fourth Circuit: Easb Group, Inc. v. Centricut, LLC, 1999 WL 27514 ( D.S.C. 1999 ) ( web page which provides information but requires customer to place an order using an 800 telephone number is insufficient to confer jurisdiction ).

Fifth Circuit: Origin Instruments v. Adaptive Computer Systems, 1999 U.S. Dist. LEXIS 1451 ( N.D. Texas 1999 )( no jurisdiction; failure to show sales in forum through interactive Web site ); Thompson v. Handa-Lopez, Inc., 998 F. Supp. 738 ( W.D. Tex. 1998 )( corporation subject to personal jurisdiction in Texas based upon entering into contracts to play casino games with Texas citizens ); Mieczkowski v. Masco Corp., 997 F. Supp. 782, 785 ( E.D. Texas 1998 )

( " Web site lists various categories...individuals can view various furniture selections..individual pieces of furniture can be viewed..as well as price information..an order form can be printed..(customers may) check the status of their purchases.. information is available regarding freight costs..communicate directly with ' on-line ' sales representatives " ).

Eighth Circuit: Uncle Sam's Safari Outfitters, Inc. v. Uncle Sam's Army Navy Outfitters, 96 F. Supp. 2d 919 ( E.D. Mo. 2000 ) ( inoperable interactive web site still under construction insufficient for jurisdiction ).

Ninth Circuit: Stomp, Inc. v. NeatO, 61 F. Supp. 2d 1074 ( C.D. Cal. 1999 )( web site functioned as a " virtual store " where " consumers [ could ] view descriptions, prices and pictures of various products [ and could ] add items to their " virtual shopping cart " and " check out " by providing credit card and shipping information ); Park Inns International v. Pacific Plaza Hotels, Inc., 5 F. Supp. 2d 762, 764-65 ( D. Ariz. 1998 )( interactive Web site accepted seven hotel reservations from customers in the forum ).

District of Columbia Circuit: Gorman v. Ameritrade Holding Corp., 293 F. 3d 506 ( D.C. Cir. 2002 )( continuous and systematic sale of securities on Internet Web site sufficient basis for personal jurisdiction ); Blumenthal v. Drudge, 992 F. Supp. 44, 56 ( D.C.D.C. 1998 )

( " The Drudge Report's web site allows browsers..to directly e-mail defendant..thus allowing an exchange of information..browsers who access the website may request subscriptions to the Drudge Report, again by directly e-mailing their requests to Drudge's host computer..the Drudge Report is..sent..to every e-mail address on his subscription list..constant exchange of information and direct communication " ).

State Courts:

Connecticut: Gates v. Royal Palace Hotel, 1998 Conn. Super. LEXIS 3740 ( Conn. Super. 1998) ( jurisdiction based upon concentrated advertising, bookings through travel agents and " invitation to Connecticut citizens to make reservations and other arrangements directly through the Internet " ).

233 See also:

Eleventh Circuit: Butler v. Beer Across America, 83 F. Supp. 2d 1261 ( N.D. Ala. 2000 )( interactive web site allowing consumers to purchase beer by using a credit card does not confer jurisdiction; " Beer Across America's site does not even anticipate the regular exchange of information across the Internet...Rather it is closer to an electronic version of a postal reply

234. See e.g., Bell v. Imperial Palace Hotel/Casino, Inc., 200 F. Supp. 2d 1082, 1087-1088 ( E.D. Mo. 2001 )

( " Although reservations can be made over the internet this case is clearly distinguishable from those where goods may be ordered over the internet...In internet cases involving the sale of goods, the entire transaction ( order, payment and confirmation ) can be completed online. The resident can bring about the transmission of the goods into the forum state through the order alone. Hotels, on the other hand, are somewhat unique in the internet context. Neither party anticipates that goods, services or information of intrinsic value will be transmitted or provided in the forum state as a result of the interest exchange of information. To the contrary, both parties recognize that the internet exchange is simply preliminary to the individual traveling outside the forum state to use the service. In this respect, the exchange of information over the internet is not unlike a toll-free reservation hotline. The purpose of the internet interaction is not achieved until the resident customer leaves the forum state and arrives at the hotel

235. Smith v. Basin Park Hotel, Inc., 2001 WL 1682810 ( N.D. Okla. 2001 ).

236. Cervantes v. Ramparts, Inc., 2003 WL 257770 ( Cal. App. 2003 ).

237. Brown v. Grand Hotel Eden-A Summit Hotel, 2002 U.S. Dist. LEXIS 7773 ( S.D.N.Y. 2002 ).

238. Brown v. Grand Hotel Eden-A Summit Hotel, 2003 WL 21496756 ( S.D.N.Y. 2003 )

( " Hotel Eden withholds from Summit the right to book rooms during time periods of Hotel Eden's choosing and thus Summit's power to reserve rooms is subject to the hotel's grant of authority. Absent an outright grant of authority to confirm reservations, an agent is not

239. Decker v. Circus Circus Hotel, 49 F. Supp. 2d 743, 748 ( D.N.J. 1999 ).

240. Grutkowski v. Steamboat Lake Guides, 1998 U.S. Dist. LEXIS 20255 ( E.D. Pa. 1998).

241. Rodriguez v. Circus Circus Casinos, Inc.,2001 WL 21244 ( S.D.N.Y. 2001 ).

242. Imundo v. Pocono Palace, Inc., 2002 WL 31006145 ( D.N.J. 2002 ).

243. Snyder v. Dolphin Encounters Limited , 2003 WL 31771189 ( E.D. Pa. 2002 ).

244. Bell v. Imperial Palace Hotel/Casino, Inc., 200 F. Supp. 2d 1082 ( E.D. Mo. 2001 ).

245. Arriaga v. Imperial Palace, Inc., 252 F. Supp. 2d 380 ( S.D. Texas 2003 ).

246. Silk Air v. Superior Court, 2003 WL 40818 ( Cal. App. 2003 ).

247. In re Ski Train Fire in Kaprun, Austria, 2002 U.S. Dist. LEXIS 14563 ( S.D.N.Y. 2002).

248. Dee Lewis, Avoiding Internet Litigation in Inconvenient Forums, New York Law Journal, May 14, 2002, p.

( " Such precautions...include having users of Internet services or products enter into binding agreements before using the services or products in which they agree on how and where any dispute that arises will be resolved.").

249. Decker v. Circus Circus Hotel, 1999 WL 319056 ( D.N.J. 1999 ).

250. Carnival Cruise Lines, Inc. v. Shutte, 499 U.S. 585, 111 S. Ct. 39, 113 L. Ed. 2d 622

251. Kessler v. Royal Caribbean Cruises, Ltd., 2002 WL 32130105 ( E.D. Pa. 2003 ).

252. Elliott v. Carnival Cruise Lines, 231 F. Supp. 2d 555 ( D. Tex. 2002 )

253.Moeller v. Cruiseshipcenters, 2001 WL 34057009 ( N.D. Cal. 2001 ).

254. Effron v. Sun Line Cruises, Inc., 67 F. 3d 7 ( 2d Cir. 1995 ).

255. Schaff v. Sun Line Cruises, Inc., 999 F. Supp. 924 ( S.D. Tex. 1998 ).

256. Hodes v. SNC Achille Lauro, 858 F. 2d 905 ( 3d Cir. 1988 ).

257. O.C. Harden v. American Airlines, 178 F.R.D. 583 ( M.D. Ala. 1998 ).

258. Jewel Seafoods Ltd. v. M/V Peace River, 39 F. Supp. 2d 628 ( D.S.C. 1999 ).

259. Carron v. Holland America Line-Westours, Inc., 51 F. Supp. 2d 322 ( E.D.N.Y. 1999 ).

260. Rawlins v. Clipper Cruise Lines, 1998 American Maritime Cases 1254 ( N.D. Cal. 1995).

261. Hollmann v. Cunard Line Limited, 1998 American Maritime Cases 2168 ( N.Y. Sup. 1996 ).

262. Doe v. Sun International Hotels, Ltd., 20 F. Supp. 2d 1328

263. Shea v. Global Travel Marketing, Inc., 2003 WL 1916874 ( Fla. App. 2003 ).

264. Sachs v. TWA Getaway Vacations, Inc., 125 F. Supp. 2d 1368 ( S.D. Fla. 2000 ).

265. Rodriquez v. Class Travel Worldwide, 2000 U.S. Dist. LEXIS 1926 ( E.D. La. 2000 ).

266. Paster v. Putney Student Travel, Inc., 1999 U.S. Dist. LEXIS 9194 ( C.D. Cal. 1999 ).

267. World Vacation Travel, S.A. v. Brooker, 799 So. 2d 410 ( Fla. App. 2001 ).

268. Shea v. Global Travel Marketing, Inc., 2003 WL 1916874 ( Fla. App. 2003 ).

269. Milgrim v. Backroads, Inc., 142 F. Supp. 2d 471 ( S.D.N.Y. 2001 ).

270. Kirman v. Compagnie Francaise, 1994 American Maritime Cases 2848 ( Cal. Sup. 1993 ).

271. Jewel Seafoods Ltd. M/V Peace River, 1999 WL 166559 ( D.S.C. 1999 ).

272. Falcone v. Mediterranean Shipping Co., 2002 U.S. Dist. LEXIS 11392 ( E.D. Pa. 2002).

273. Sachs v. TWA Getaway Vacations, Inc., 125 F. Supp. 2d 1368 ( S.D. Fla. 2000 ).

274. Long v. Holland America Line Westours, Inc., 26 P. 3d 430 ( Alaska Sup. 2001 ).

275. Milanovich v. Costa Crociere, SPA, 954 F. 2d 763, 768 ( D.C..Cir. 1992 ).

276. McDowell, The F.T.C. Cracks Down On Travel Scams, New York Times, Travel Section, April 6, 1997, p. 3.

277. Wade, Practical Traveler, Who's Minding The Agents?, Travel Section, New York Times, September 14, 1997, . 3.

278. Brown v. Hambric, supra, at 638 N.Y.S. 2d 874.

279. See Monaghan, A Shopper's Guide to Independent Agent Opportunities, The Intrepid Traveler, New York 1995; Instant Travel Agents, supra, at p. 231.

280. Premier Travel International, Inc. v. State of Florida, 2003 WL 21663717 ( Fla. App. 2003 ).

281. Brown v. Hambric , 168 Misc. 2d 502, 638 N.Y.S. 2d 873 ( 1995 ).

282. See Petition Of The American Society Of Travel Agents, Inc. For Rulemaking filed with the FTC and dated June 30, 1997, at p. 11; Instant Travel Agents, supra, at p. 231

( " The number of instant travel agents is staggering. The International Airlines Travel Agent Network (IATAN) reported that its 1995 membership stood at 237,405 of which 24,383 ID cards were in the possession of non-professional independent contractors. InteleTravel International reported that its 1995 membership stood at 35,000 card holders who generated annual sales of $100 million. " ).

283. See Petition, supra, at pp. 5-6

( " If the supplier does unwittingly accept the identification, full-paying members of the public may be deprived of the availability of accommodations or services while the supplier wastes an incentive or someone who does not sell travel and does not, therefore contribute to its business...At best, credential mills sell, for a price, false identification that places in the hands of the purchaser the means for deceiving travel suppliers..." ).

284.See Travel Law, supra, at § 5.03

( " The need and desire to travel to new and unknown regions has generated a corresponding need for experts with knowledge of the destination and the best means of arriving there safely and well rested...Travel agents are best viewed as information specialists upon whom consumers rely for the provision of accurate and concise information " ).

285.See Petition, supra, at p. 231

( " ' Widespread circulation of [ID cards] retards the industry's struggle to make the public perceive travel agents as professionals. It also dilutes the business with hordes of unqualified do it-yourselfers eager for a cut rate or other handouts from carriers and hotels ' " ).

286. Federal Aviation Act of 1958, amended October 24, 1978, 92 Stat. 1705.

287. Travel Law at § 2.01[2][d].

288. See Kang,"CO Fined for Violating DOT's Rules on Net Ads", Travel Weekly, November 10, 1997, p. 4

( " Continental Airlines was ordered to pay an $18,000 fine for violating the ( DOT's ) advertising regulations on the Internet...the carrier promoted a New York(Newark)-Toronto fare in an ad sent by e-mail to on-line customers...The ad failed to list all of the taxes and fees " ).

289. See Agents Prepare to Fight Proposals for Sellers of Travel Laws in Three States, Travel Agent March 3, 2003, p. 14 [ Travel agents seeking modification of Nevada's Travel Seller statute and opposing legislation seeking to enact Travel Seller statutes in Pennsylvania and Virginia ]. Godwin, Nevada ends agent bond requirement, Travel Weekly, June 2, 2003, p. 9. Travel seller licensing statutes have been unsuccessfully introduced in Arizona, Georgia, Maryland, Massachusetts, Michigan, Missouri, New Jersey, New York, Pennsylvania, Texas and Virginia [ Letter from Burton J. Rubin, General Counsel of ASTA, dated July 24, 1997 ].

290 See Dickerson, Storm Warning, Network '96, International Airlines Travel Agent Network, Lockturn Ltd, London, England 1997 at p. 91

( " It is, indeed, ironic that for over two decades professional travel agents have vigorously opposed nearly every attempt by the states to regulate them. Such shortsightedness has created the very environment which today threatens the professional travel agent. " ).

291. For a discussion of U.S. and Canadian Seller of Travel statutes see National Tour Association's Guide to State Seller of Travel Laws For a discussion of the Sellers of Travel statutes of other countries see Dickerson, The Licensing And Regulation Of Travel Agents, Tour Operators And Other Travel Sellers In The United States, Canada, Australia, Great Britain, Japan And The Members Of The European Community at http://www.courts.state.ny.us/tandv/sgt.html. See 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.

292. California: Cal. Bus. & Prof. Code §§ 17550 et seq.

293. Godwin, With agent laws, enforcement is key, Travel Weekly, August 26, 2002, p. 26

294. See Agencies hit with lawsuit, Travel Weekly, April 15, 2002, p. 74

( " Dozens of travel agencies in California and elsewhere were named in a lawsuit filed...here by a group that claims the agencies are operating unlawfully by not displaying their California Seller of Travel number on Web sites and other promotional material " ).

295. Ricard v. Travel Coordinators, Inc. , 2003 WL 1301540 ( Cal. App. 2003 ).

296. Milligan, Calif. Cracks down on travel swindles, Travel Weekly, June 30, 2003, p. 1.

297. Delaware: Del. L. Title 30 § 2301(a)(26).

298. Florida: Fla. Stat. §§ 559.926-559.939.

299. With agent laws, op. cit. ( " the most common offense is nonregistration...50 of these a year...sends a registration kit to the offenders who get 60 days to register " ). See also: State v. Sobieck, 701 So. 2d 96 ( Fla. App. 1997 )( ticket scalping ).

300 Omega Congress, Inc. v. BAF Tours Services, Inc . , 2003 WL 21658296 ( Fla. App.

301. Premier Travel International, Inc. v. State of Florida, 2003 WL 21663717 ( Fla. App. 2003 ).

302. State v. Sobieck 12.0pt'>, 701 So. 2d 96 ( Fla. App. 1997 ).

303. Hawaii: Haw. Rev. Stat. Ch. 468L.

304. With agent laws, op. cit. ( Hawaii may benefit most from an ad hoc kind of enforcement... The retailers are registered...because some...wholesalers require (it) " ).

305. Illinois: 815 ILCS 420.

306. McCoy v. MTI Vacations, Inc . , 272 Ill. App. 3d 494, 208 Ill. Dec. 911, 850 N.E. 2d 605, 607 ( 1995 ).

307. Iowa: Iowa Code Ch. 9D.

309. Minnesota: Minn. Stat. § 325G.50.

310. Nevada: Nev. Rev. Stat. §§ 598.305-598.395.

311. Godwin, Nevada ends agent bond requirement, Travel Weekly, June 2, 2003, p. 9

312. Ohio: Ohio Rev. Code Ann. §§ 1333.96 et seq.

313. Oregon: Ore. Rev. Stat. §§ 646.185 et seq.

314. Rhode Island: R.I. Rev. L. Ann. §§ 5-21-1 et seq.

315. Virginia: Va. Stat. §§ 59-1-4449 et seq.

316. Washington: Wash. Rev. Code §§ 19.138.010 et seq.

317. British Columbia: RSBC 1996, Ch. 459.

318. Ontario: R.S.O. 1990, Ch. T-19, Ont. Reg. 806/93.

319. Quebec: L.R.Q., Ch. A-10.

320. See McDonald, European Community Tourism Law and Policy, Blackhall Publishing, Dublin, 2003.

321. See Dickerson, The Licensing And Regulation Of Travel Agents, Tour Operators And Other Travel Sellers In The United States, Canada, Australia, Great Britain, Japan And The Members Of The European Community at http://www.courts.state.ny.us/tandv/sgt.html

322. General Business Law §§ 155-159-a. McKinneys Consolidated Laws Of New York, Anno., Vol. 19, General Business Law, Article 10-A.

323. Id. at §§ 157(1)

( " ' Travel consultant '( does not include ) a common carrier or employee of a common carrier, who as principal or agent, sells or offers for sale any travel tickets..." ), 157(2) ( " ' travel promoter ' does not include: (a)...An officially appointed agent of a common carrier and meets standards...for authorized agents of the airline reporting corporation. (b)...a registered member in good standing of the Cruise Lines International Association...an officially appointed agent of one or more ocean carriers..." ).

324. Id. At §§ 158(3), 158-a(5).

325. Id. at § 155.

326. Id. at § 157.

327. Id. at § 158. Travel consultants may not " knowingly "

    (1) Misrepresent any aspect of the contracted for transportation;
    (2) Misrepresent the fares and charges for transportation or other travel services;
    (3) Advertise the availability of transportation tickets and other travel services at rates less than
those in the supplier's filed tariffs or offer rebates or other concessions;
    (4) Misrepresent the availability of special discounts;
    (5) Sell charter transportation without a binding commitment from a carrier ;
    (6) Sell or issue tickets...for transportation which carriers will not honor;

328. Id. at § 159.

329. See Mindell, Outside Counsel, Review of 1990 Consumer Legislation--Part II, New York Law Journal, August 24, 1990, p. 3, col. 1.

330. Id.

331. See e.g., FTC v. World Travel Brokers, Inc . , 761 F. Supp. 68 ( N.D. Ill. 1991 )( travel promoter victimizes 600,000 consumers by selling $29 round trip air fares to Hawaii; $29 air fare conditioned by a requirement that consumers book hotel accommodations through the promoter and stay for a minimum of eight days and seven nights; the inflated hotel cost contained the actual cost of the air fare, a fact not disclosed to consumers ); FTC v. Amy Travel Service, Inc., 875 F. 2d 554 ( 7^th Cir. 1989 )( fraud found in scheme building cost of the airfare into the calculated hotel cost ).

332. See Plutchok v. European American Bank, 143 Misc. 2d 149, 540 N.Y.S. 2d 135, 136 ( 1989 )

( " The plaintiff received a postcard from Holiday Magic Travel Club, Inc....of Miami, Florida, stating that he had been selected to receive a pre-paid luxury cruise plus hotel accommodations. The plaintiff called ' Holiday '...and received details of the vacation offer and ' Holiday's ' money back guarantee, as well as assurances of the company's good standing, including bank references. The plaintiff obtained membership in ' Holiday's ' discount travel club...He paid $249.00 by credit card. ' Holiday '..sent membership materials to plaintiff, who decided ( to cancel. No refund was

333. Id. At § 157(3),(4).

334. Id. At § 157(2),(3).

335. Id. At § 157(2)(a),(b).

336. Id. at § 157-a(1)

a. Name, address and telephone number;
b. Amount, date and purpose of payment;
c. Name, type, size of carrier providing transportation,
date, time and place of departure;
d. Description of other travel services provided;
e. Consumer contract cancellation rights;
f. Cancellation rights in contracts between travel promoter and suppliers of travel services;
g. Description of all limitations and/or conditions in the consumer contract.

337. Id. at § 158-a. Travel promoters are prohibited from

1. Offering free travel services to one person when the actual cost of the " free " services is covered by the cost of the services to another person;

2. Using a merchant account number of someone other than that of the travel promoter;

3. Misrepresenting any aspect of the promised travel services;

4. Misrepresenting fares or charges for travel services;

5. Advertising travel services at rates below those in a supplier's filed tariffs or offering rebates;

6. Misrepresenting the availability of special discounts;

7. Selling charters without a binding commitment from an air carrier;

8. Selling or issue tickets which will not be honored by carriers;

9. Misrepresenting requirements for the purchase of a charter.

338. Ohio Rev. Code. Ann § 1333.96(G)( " A contract for transportation or land arrangements between the purchaser of the arrangements and a tour promoter doing business in this State in violation of this section is voidable at the option of the purchaser " ).

339. See e.g. Omega Congress Inc.v. B.A.T. Tours, 2003 WL 21658296 ( Fla. App. 2003 ); Ungar v. Travel Arrangements, 25 A.D. 2d 40, 266 N.Y.S. 2d 714 ( 1966 ).

340. Ohio Rev. Code. Ann. § 1333.96(G)( "

A contract for transportation or land arrangements between the purchaser of the arrangements and a tour promoter doing business in this State in violation of this section is voidable at the option of the purchaser " ).

341. See e.g.,

Florida: Omega Congress, Inc. v. BAF Tours Services, Inc., 2003 WL 21658296 ( Fla. App. 2003 )( unregistered tour operator can not enforce travel contract )..

New York: Ungar v. Travel Arrangements, Inc., 25 A.D. 2d 40, 266 N.Y.S. 2d 715

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

7] A Modern Travel Seller Statute

8] Proficiency Testing & Annual Registration

9] Financial Stability

10] Advertising And Disclosure Standards

11] Consumer Remedies

FOOTNOTES