Mark Pestronk
Q: I know that some corporations let their employees book travel on any public website, as long as they follow corporate travel policy regarding classes of airline service, classes of hotels, travel times and the like. These arrangements are called "open booking policies." I also know that there is software that enables TMCs and other travel agencies to aggregate all such bookings and turn them into useful management reports for the corporate client. However, don't the major public booking websites contain very anti-consumer disclaimers and releases in their fine-print terms and conditions? Shouldn't our agency discourage corporations from letting employees use those websites?
A: Public booking websites do indeed have online terms and conditions that make consumers give up rights that they would have under the law. Almost without exception, courts uphold those terms and conditions in suits brought by injured or disgruntled consumers.
As an example, Expedia's "terms of use" state the following:
"To the maximum extent permitted by law and subject to the limitations in these Terms, our Group of Companies will not be liable for any direct, indirect, punitive, special, incidental or consequential losses or damages arising from ... the use of our Service ... [or] any delay or inability to use our Service ... whether based in negligence, contract, tort, strict liability, consumer protection statutes or otherwise, and even if our Group of Companies has been advised of the possibility of such damages."
Thus, if Expedia does not transmit the booking you thought you made on the website, and you have to pay more to make a last-minute booking, or if Expedia does not provide a refund due to you, you cannot sue Expedia for a breach of contract. The disclaimer would also cover the OTA's failure to warn about destination dangers and supplier financial problems.
By the way, the phrase "to the maximum extent permitted by law" does not limit the disclaimers, as there are no U.S. laws that forbid online disclaimers of negligence or breach of contract in most cases. So, the phrase is nearly meaningless.
Further, the Expedia site states:
"You and we agree that any and all proceedings to resolve Claims will be conducted only on an individual basis and not in a class. ... The arbitrator may not consolidate more than one party's Claims and may not otherwise preside over any form of any class or representative proceeding. You and we further acknowledge that you are each waiving your right to a jury trial."
As far as I can determine, these mandatory arbitration clauses, class-action waivers and jury trial waivers have always been upheld by the courts.
Most of the other popular U.S. travel booking websites have similar terms, as most are now owned by Expedia. These include Hotels.com. Orbitz, Travelocity, Vrbo, Hotwire and Cheaptickets.
The online booking offerings of TMCs and other travel agencies do not contain terms such as these. Instead, employees' rights are determined solely by your contract with the corporation.
For these reasons, you should definitely discourage corporate clients from having open booking policies.