SEATTLE (CN) – A federal judge allowed a deceptive advertising class action against Expedia to proceed and threatened the online travel company with a $1,000-a-day fine for withholding discovery documents, calling its objections “obstructionist muck.”
Lead plaintiff Jeffrey Weidenhamer claims Expedia used a pop-up ad to offer a bogus discount and misled consumers about luggage fees.
Weidenhamer said he paid $650 in baggage fees because Expedia falsely promised one free checked bag, and says he was not given a promised 5 percent discount for using Expedia’s mobile application.
Expedia eventually refunded Weidenhamer the amount of the discount but did not reimburse him for baggage fees. It claimed Weidenhamer had no case on the discount claim because he got a refund, and sought dismissal for lack of standing.
U.S. District Judge Richard Jones on Monday denied Expedia’s motion, saying Weidenhamer still suffered a “loss of time” in getting the refund.
“Mr. Weidenhamer alleges more than one concrete injury. Confronted with a website that would not allow him to make airfare purchases, he accepted Expedia’s representations (via the pop-up window) that if he downloaded the Expedia app, he could not only complete his purchases, he would receive a 5% discount. He did not receive the discount. Because of that, he expended time attempting to wheedle a credit out of Expedia. When he met with no success, he expended more time complaining to the Attorney General of Ohio,” Judge Jones wrote.
Jones ruled that a “full” refund is not full compensation unless “it comes with compensation for the lost time value of the money.”
He said that Weidenhamer’s claim is no different that “virtually every other false advertising claim.”
“Expedia’s focus on its refund also gives short shrift to the third injury apparent on the face of Mr. Weidenhamer’s complaint. When confronted with a website that was not serving its intended purpose (facilitating the purchase of airfare), he relied on a pop-up window offering a 5% discount as an inducement to download an app that permitted him to complete the transaction. As he points out, he might have decided, when confronted with the malfunctioning website, to use one of Expedia’s competitors to purchase airfare. But he did not, at least in part because of the discount offer. Thus, Mr. Weidenhamer paid Expedia nearly $1,600 for airfare he might have purchased from another site,” Jones wrote.
Jones also rejected Expedia’s claim that Weidenhamer was barred from injunctive relief because he would not be “fooled” by the false advertisement again.
“The same reasoning demonstrates Mr. Weidenhamer’s standing to seek injunctive relief as to the app claim. Expedia contends that Mr. Weidenhamer now knows about the deceptive pop-up window, so there is no plausible allegation that he will be fooled if he encounters it in the future. The court rejects Expedia’s Catch-22 defense, which would make federal courts powerless to enjoin false advertising, at least when a duped consumer points it out. In Expedia’s view, it can falsely advertise a discount, induce a plaintiff like Mr. Weidenhamer to make purchases, and continue to ensnare future customers without fear of an injunction because that plaintiff has learned his lesson,” wrote.
The judge had harsh words for Expedia’s “boilerplate objections” to discovery requests.
“Expedia’s responses are obstructionist, dilatory, and, in too many instances, facially false. What ‘privilege’ pertains to the steps Expedia took to confirm the availability of Mr. Weidenhamer’s airfare? How is the identity of the people who helped prepare Expedia’s interrogatory responses a ‘trade secret’ or ‘propriety information’?” the judge asked in the 15-page ruling.
He gave Expedia 14 days to issue new responses or face sanctions of $1,000 a day.
He also denied Weidenhamer’s request to extend the class certification deadline past April 16.
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