Why United Airlines And Orbitz Are Suing An Entrepreneur Who Helps People Find Cheaper Flights

from the because-you-can't-reveal-the-airlines'-secrets dept

Nearly two years ago, I wrote up an article on some super scammy airline pricing practices I had discovered in the process of trying to book a multi-city trip. Basically, I found that if you go to a travel search site and try to book the entire multi-city trip as a single trip, it would cost around twice as much more than if you booked the individual legs of the trip separately. In the comments to that post, some more experienced travel experts revealed even more questionable airline pricing practices, and even provided a few more tips on how to get even cheaper fares. These days, more and more sites are popping up to help people sniff out these questionable practices and ways around them. For example, I recently learned about FlightFox, which basically gathers up some expert flight bookers, who know all the tricks, and will help you find cheaper fares (you have to pay them, but if they can save you more than you have to pay them, then it’s worth it). While there’s some irony in the idea of basically going back to the age of when an “agent” helps you book your flight, it also shows the power of the internet to get around crappy airline pricing practices.

Another such site is Skiplagged — a site that focuses on finding what’s known as “hidden city pricing.” This is when you book a flight where the layover city is your real destination, but the flight is still cheaper than if you flew directly to that city. For example, if you wanted to fly from New York to San Francisco, booking a direct flight would be more expensive than booking a flight from New York to Reno — but which has a layover in San Francisco. So you book the NY to Reno flight and just leave when you get to San Francisco (just make sure you don’t check your bags). The site, Skiplagged, has built a clever search engine to sniff out those kinds of deals. I only just heard about it via a post on Boing Boing noting that the 22 year-old entrepreneur who runs the site (as a side project from his day job), Aktarer Zaman, has been sued by United Airlines and Orbitz over the site.

The claim seemed so ridiculous that I did some digging and pulled up the actual lawsuit [pdf], which is well worth reading. Zaman also did an interesting Reddit AMA about a month ago after the suit was served (incorrectly, on his mother). The lawsuit makes a bunch of claims that just seem unlikely to stand up in court — but there are also a few details left out of all of the press coverage (a few of which may — slightly — harm Zaman’s case).

The airlines make a really big deal about how “hidden city” traveling breaks “the rules.” But, for the most part, the rules in question are for the travelers — and Zaman didn’t agree to them. So, instead, Orbitz and United are going with a “tortious interference with contract” claim, arguing that Zaman is interfering with Orbitz’s agreements with airlines. There’s also an “unfair competition” claim — though it’s hard to see how that makes any sense at all when all Zaman is doing is accurately showing flight pricing that is available via airlines’ own sites and search engines like Orbitz’s.

The lawsuit relies heavily on the fact that Zaman signed up for Orbitz’s affiliate program, and, in doing so, agreed to abide by Orbitz’s terms of service. In response to this, Zaman (in his AMA) notes that he only was exploring the affiliate program and didn’t actually use it (in part because it wouldn’t work in a way that fit Skiplagged’s service). In fact, he posted a screenshot showing a grand total of six (six!) impressions and zero orders via his Orbitz affiliate account:

Some of the claims in the lawsuit are so hyperbolic as to be ridiculous. The claims of problems caused by hidden city ticketing seem greatly exaggerated:

“Hidden city? ticketing also causes irreparable harm to United?s relationships with prospective customers. Any time a passenger foregoes a leg of travel, the passenger essentially takes away a seat that could have been sold to a prospective United customer. The prospective United customer may switch to another airline as a result, especially if his or her desired flight is full. In such case, United likely would also lose ancillary sales for other services, such as car rentals and lodging, and a number of disappointed customers may switch from United for all future travel if United?s flights are consistently ?full.? United has no adequate remedy at law.

Yet, it turns out that people do this all the time. If you look on various travel guru sites, lots of people discuss this trick, and people appear to use it all the time. The “damage” done to airlines seems minimal.

Orbitz also makes some ridiculous claims about how people using Skiplagged and ending up on Orbitz’s site for the booking will somehow automatically assume an agreement between the two sites:

To the average internet user of Skiplagged, the transition from the Skiplagged site to Orbitz?s website is seamless and strongly suggests an affiliation or identity between Skiplagged and Orbitz that does not exist. Indeed, online travel agencies such as Orbitz enter into agreements with airlines to use and publish the airlines? data, all with the prior consent and cooperation of the airlines and according to financial terms that compensate all parties involved. By creating a website that operates in much the same manner as an online travel agency, and by linking that site to Orbitz?s site, Zaman is attempting to confuse and mislead the public into believing that his website, and the ?hidden city? ticketing it employs, is done with the approval (if not the outright authorization and sponsorship) of Orbitz and the airlines.

That seems like a massive stretch. To the average traveling public, they won’t be aware of any such deals and will assume (mostly correctly) that Skiplagged works like any search engine, linking to websites and information on the open internet with no direct agreement with those sites. That’s not illegal.

Even more ridiculous is Orbitz’s argument that because Zaman uses meta-refresh to get people to the right page for booking, Orbitz’s team of engineers can’t figure out how to block him. If I were a developer at Orbitz, I’d be insulted by this:

[W]ith the help of a redirector service, Skiplagged redirects users to the unique Orbitz URL when they select ?Book Now.? This redirection process is accomplished through the use of an antiquated html technique called ?meta refresh.? In its most basic form, a ?meta refresh? will automatically refresh the user?s current web page after a specified time interval. With a few tweaks of the html code, ?meta refresh? can also be used to automatically transfer users to a new page on a different website. This is done by instructing the browser to fetch a different URL and setting a low refresh time interval. Here, Skiplagged instructs the user?s browser to refresh automatically to the unique Orbitz URL that Skiplagged?s program has identified.

When Zaman causes the redirect to Orbitz, he also causes the user?s computer to initiate a pre-populated search utilizing his algorithm to cause searching on Orbitz?s site that would not be replicable by the typical user or otherwise through authorized use of the site. Once on the Orbitz website, because of the Zaman search (conducted without the user?s knowledge) the user is presented with the exact flight itinerary that was selected on Skiplagged. This is akin to ?deep linking,? which transfers a user to a specific, indexed piece of web content on another website, rather than the website homepage. Just as with ?deep linking,? Zaman uses the ?meta refresh? and related algorithm to seamlessly transfer a user from Skiplagged to Orbitz?s site, which creates the impression that Skiplagged and Orbitz are partners or one-in-the-same.

To counteract Zaman?s conduct, Orbitz is continuing to investigate ways in which it may detect customers originating on Skiplagged and prevent the ?hidden city? bookings from being made on the Orbitz site. Nevertheless, Zaman?s repeated variation in redirection strategies and his use of technical approaches like the ?meta refresh? technique have frustrated Orbitz?s efforts. Injunctive relief will be necessary to ensure that Zaman does not further alter his software in an effort to circumvent Orbitz?s corrective actions.

This all seems to assume that “deep linking” is illegal. But it’s not. And just because this 22-year-old on his side job is able to outwit Orbitz’s team of computer programmers doesn’t suddenly make what he’s doing illegal.

Where it gets slightly trickier for Zaman is in his pre-lawsuit dealings with Orbitz (and possibly United). The lawsuit claims that when approached by Orbitz’s lawyers, Zaman agreed to stop linking to Orbitz, but then proceeded to just block Orbitz’s IP addresses, so that when people at Orbitz’s offices checked it looked like he was blocking Orbitz, but everyone else could get there:

On the same day, Zaman responded to Orbitz Worldwide by email and promised to ?stop redirecting users to Orbitz and partners by end of business week.?

Zaman, however, did not stop redirecting Skiplagged users to Orbitz, but instead has blocked Orbitz IP addresses from accessing the Skiplagged website. Starting on or around October 2, 2014, when Orbitz personnel attempted to perform a search on Skiplagged, they received an error message that read ?Sorry for the inconvenience, but Skiplagged is unable to process your booking request.? Zaman, in other words, was trying to hide his improper conduct from Orbitz, so that he could go on redirecting Skiplagged users to Orbitz?s site, without Orbitz?s permission or knowledge. Orbitz believed and relied upon Zaman?s promises and believed for a time that Zaman was complying with his promises based on several tests from Orbitz computers that seemed to show that Zaman had complied with his promises. As such, Orbitz initially refrained from bringing this lawsuit.

It’s possible that his email telling Orbitz that he would remove it, and then his failure to do so (along with just blocking Orbitz’s own IPs) could lead to at least some trouble in the form of promissory estoppel.

Separately, Zaman and United’s lawyers had a conversation where Zaman agreed to “remove all United references” on Skiplagged. And here he got creative. Whenever a United flight showed up, he wrote “censored” and had a notification that said “Sorry for the inconvenience, but United Airlines says we can’t show you this information.”

In this case, depending on what was actually said, it’s unclear if this would reach the same “promissory estoppel” level that the email to Orbitz might reach — though he did send United an email saying “United is removed from our services.” It could be argued whether or not that’s accurate.

On the whole, the lawsuit really is ridiculous. Suing this guy for showing accurate information about flight prices seems tremendously questionable. However, the situation is complicated somewhat by Zaman’s promises to both companies. No matter what, it’s well known that airlines play really obnoxious fare-pricing games, and Zaman was trying to shed some light on it with a simple side project. And, really, if your entire business can supposedly be undermined by a 22-year-old kid in his spare time accurately showing the prices of various flights, perhaps the real problem is with your business model, and not with the kid.

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Companies: orbitz, skiplagged, united airlines

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Comments on “Why United Airlines And Orbitz Are Suing An Entrepreneur Who Helps People Find Cheaper Flights”

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33 Comments
Michael (profile) says:

Re: Re:

He didn’t pay for anything. He directed other people to a way to book the same flight for less money. This “harms” the airlines because they would have been able to screw their customer out of more money had they not been using this service.

This is basically the same as a sleazy car dealer suing someone for telling a prospective buyer that a car was overpriced and helping them negotiate a better deal.

Anonymous Coward says:

A lot of legalese however it’s likely to be thrown out when no damages can be shown i.e. the airline received the full fare they agreed to. In fact many flights are overbooked and with the passenger not using the second leg of a flight many times that second leg is resold at a very high profit.

Some comparable’s would be a hotel booking for and being paid for two nights but the room being for only one night. A BOGO sale at a grocery store where the consumer only takes one and not two goods. A car rental being returned early but the entire rental period being paid for etc…

I’m sure they will respond that damages occur by stating the individual leg would have sold more if it didn’t include a connecting and continuing flight. However again they’ve been made whole and paid in full to deliver more services than is ultimately used. i.e the first leg isn’t a loss leader and the second is where the profit factors in because both legs are paid in full.

Anonymous Coward says:

Re: Re:

…Some comparable’s would be a hotel booking for and being paid for two nights but the room being for only one night…

This may depend on the individual business. Some years ago I had a 2 day business trip and booked 2 nights at the local hotel. The 2nd morning I had a family emergency arise and checked out early. I was only charged for the 1 day.

Anon says:

Re: Costs

Exactly. generally in Canadian lawsuits, the loser pays the winner’s legal fees. It has its downside (one class action lawsuit was denied because the “class” lawyers could not put up a bond guaranteeing the defendant’s legal fees) but on the plus side, a lawsuit is a waste of money only for you unless you have a really good chance of winning.

The “OJ Simpson” strategy – you may win the case, but go broke anyway.

Anonymous Coward says:

as is the usual situation in the USA, the ‘established methods’ cannot and refuse to put up with any innovative challenge to the way they have done things for years. they refuse to adapt to the changing era or ways of doing/using something and expects the courts and Congress, because of the way the members can easily be bought and gained as allies to the cause, to dispel the innovative, new companies and methods, thereby keeping the monopolies, again which are far to common in the USA, and the profits at a maximum level for minimum outlay!! obviously here the hope is that the threat of a law suit by 2 massive companies will scare the shit out of the defendant for the failure to have enough funds to defend himself, let alone be able to pay any restitution if he loses the case. a probable outcome would be the taking over of the site and the methods used, thereby keeping them locked away under copyright/patent, never to be used again!
as is usual also in this type of David and Goliath match, the real losers will be the paying public!! good old American justice working in it’s usual unopportunistic way, and contrary to the ‘Land of Opportunity’ that is so often touted about the USA

Brad (profile) says:

Conclusion says it all.

The thought I kept having the entire article finally was mentioned in the conclusion. If they’re so upset about people skipping legs of flights to get to their destination, they should try this insane notion of making the flight directly to the destination cheaper than the one that stops there on the way to somewhere else. Problem solved.

Ian Turner says:

No Promissory Estoppel

I don’t think Promissory Estoppel applies here because there was no reliance on the promise. Neither United nor Orbitz did something differently in their business as a result of Mr. Zaman’s communications, which is a key element of promissory estoppel. Damages from the promisor’s actions are irrelevant, it’s damages from the promisee’s reliance that count.

http://legal-dictionary.thefreedictionary.com/Promissory+Estoppel

This is not legal advice, obviously.

G Thompson (profile) says:

Re: No Promissory Estoppel

Not only no reliance on the promise there was also no equitable consideration for either sides. In fact dependent on the communication that was entered into there was most likely no arbitration equity at all and more likely instead duress by Orbitz and United towards the respondent.

PE does not come into this at all though a lot of butthurt and convoluted readings of what the want the law to be because of weird ideas of “we deserve money” and other petulant attitudes on the side of Orbitz/United

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