United States District Court, W.D. North Carolina, Charlotte Division
C. Mullen United States District Judge
matter is before the Court upon Defendant's Motion to
Compel Arbitration (Doc. No. 8). This motion has been fully
briefed and is ripe for disposition.
Frank Moreno (“Plaintiff”) initiated this lawsuit
against Defendant Expedia (“Defendant”) on
January 30, 2018, asserting a claim under the Consumer
Protection Act (RCW 19.86) of the State of Washington and a
claim under the Federal Trade Commission Act
(“FTCA”) for “false or misleading”
advertising arising out of Plaintiff's decision to
utilize Expedia's website to book travel accommodations
near Charleston, South Carolina in December 2017.
is a travel company based in the State of Washington that,
among other things, owns and operates travel booking websites
including www.expedia.com (the “Website”) through
which consumers may investigate, and reserve, a variety of
travel-related products, including, as it relates to this
litigation, hotel rooms. As referenced above, consumers who
utilize the Website agree to the then-applicable terms of
use. Specifically, consumers are required to acknowledge that
they have read and accepted the applicable Rules &
completing a reservation and submitting payment.
(See Doc. No. 8-1 ¶5; see also Doc.
carefully, as they contain important information about
limitations of liability and resolution of disputes through
arbitration rather than in court[, ]” and warned
consumers that by “using this Website, booking any
reservations for travel products or services on this Website,
or contacting our call center agents, you agree that the
“Disputes” section that provides, in pertinent
You agree to give us an opportunity to resolve any disputes
or claims relating in any way to the Website, any dealings
with our customer service agents, or any services or products
provided, any representations made by us, or our Privacy
Policy (“Claims”) by contacting Expedia Customer
Support or 1-877-787-7186. If we are not able to resolve your
Claims within 60 days, you may seek relief through
arbitration or in small claims court, as set forth below.
Any and all Claims will be resolved by binding
arbitration, rather than in court, except you may
assert Claims on an individual basis in small claims court if
they qualify…. There is no judge or jury in
arbitration, and court review of an arbitration award is
limited. However, an arbitrator can award on an individual
basis the same damages and relief as a court (including
statutory damages, attorneys' fees and costs), and must
Arbitrations will be conducted by the American Arbitration
Association (AAA) under its rules, including the AAA Consumer
Rules. Payment of all filing, administration and arbitrator
fees will be governed by the AAA's rules, except as
provided in this section. If your total Claims seek less than
$10, 000 we will reimburse you for filing fees you pay to the
AAA and will pay arbitrator's fees….
(Id. at pp. 2-3) (emphasis in original). The Terms
of Use also included a choice of law provision providing that
any dispute between the parties would be governed by the FAA
and federal arbitration law. (Id. at p. 3)
Complaint alleges that on December 2, 2017, Plaintiff and his
wife travelled from their home in Charlotte, North Carolina
to Charleston, South Carolina to celebrate their wedding
anniversary. Plaintiff had made a hotel reservation through
the Website for a hotel in North Charleston. Upon arrival at
the hotel, Plaintiff learned that his reservation was for
December 24th. Plaintiff alleges that this mistake
was caused by the Website. After being told that the price
for the night of December 2nd would be higher than
what Plaintiff believed he had reserved, Plaintiff and his
wife decided to look for a hotel closer to the beach.
thereafter alleges that he went to the Website to identify
alternative accommodations closer to the beach and noted that
the Seaside Inn in Isle of Palms, South Carolina, had rooms
available for $119. Plaintiff and his wife called
Expedia's customer service line to cancel that
reservation, refund their credit card, and see if they could
get a room at the Seaside Inn.
alleges that the number of rooms available and the prices
shown online differed materially from what the customer
service representative was telling them over the phone.
Plaintiff alleges that Defendant's representative urged
him to quickly book before the room was taken by someone
else. Plaintiff felt pressured and booked a room for $159.
Defendant's records reflect that Plaintiff reserved a
room at the Seaside Inn through the mobile version of the
Website. When Plaintiff and his wife arrived at the Seaside
Inn, the woman at the desk told them the price was only $119.
Additionally, plaintiff alleges that 75% of the hotel was
complete his reservations for hotel accommodations through
Expedia, Plaintiff was required to click a “Complete
Booking” button. Above the button was a hyperlink to
complete his reservation, Plaintiff was required to click a
button acknowledging that he had read and accepted the Terms
of Use, which contained the arbitration provision. Mr. Moreno
does not deny that he has agreed to abide by Expedia's
argues that Defendant's action constitutes a “bait
and switch” in violation of Washington's Consumer
Protection Act and the FTCA. Defendant argues that ...