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Here is an update on my appeal of a lawsuit seeking damages against Airbnb for an unfair delisting.
In March, the Small Claims judge ruled that my due process rights were violated, and ordered a defamatory review taken down on penalty of contempt of court. But she found that she could not award the damages I sought due to Airbnb’s Terms of Service, which do not allow for damages in the U.S. and elsewhere. Only in the EU are damages permitted.
Here is the May appeal, it’s something of a lovefest with the judge on some levels.
Earlier threads in March and February respectively:
And finally, a huge thanks to @FunWithJim and @rossh who I think were the main parties (pls advise if I missed someone) who pointed out that the ToS in the European Union DO make Airbnb liable for damages, which really intrigued the judge in my case and hopefully will pry the lid off getting Airbnb’s U.S. contract changed, if either myself at the Md Court of Appeals or someone else in another state can get traction on this matter.
I cannot believe it myself. I’ve been to 4 hearings so far and I’ve gone from a complete basket case @ the 1st one to some kind of alternate universe where something (economic desperation???) makes me realize I HAVE to articulate what is going on for us hosts to those who can help us.
YOU GENIUS, you see the missile that is the table starting at 20:14 (the link below cues it up) – it is from the amazing article Relational Contracts of Adhesion by David Hoffman of U Penn Law School. He makes 99% of the needed case here that the Airbnb contract is like other digital platform contracts, a hybrid that is neither a consumer nor a commercial contract. There are THREE parties in these digital platform hybrids (see also Amazon Seller, eBay, Etsy, Uber, Lyft) – two are businesses (in our case, Airbnb and the hosts) and one is a sort-of consumer (the guest).
POINT BEING – while the Supreme Court has gone nutso wildo for decades now on the theory of smooth commercial relations being paramount in U.S. law – so our economy can fly along – THESE HYBRID CONTRACTS are MASSACRE-ING small entrepreneurs such as us hosts. SO – the elites make out like bandits, and the rest of us little businesses “enjoy” painful bumpy “commercial relations.”
EDIT: Second point being, these contracts are a “first impression” (new area of law), brand-new hybrids, that need to be carefully addressed by courts and they cannot rely on dusty old rulings regarding commercial law, consumer law and what-not.
There is a “download this paper” button at the bottom of the link. The paper nails many of the absurd problems a contract such as Airbnb’s create.
The author notes, and we quoted this in the brief to the Md. Court of Appeals:
But unlike traditional relational contracts between firms, these contracts are not negotiated, the parties are at best loosely bound, and the users are both merchants and consumers at the same time. That is, successful precatory terms are neither fish nor fowl: they take on aspects of both the fabled past of individualized contracting and the cynical present of exploitative standard terms.
Would Looooovvvveeeee your feedback. Enjoy. I plan to get in touch w/ Hoffman and two or three other law profs who have written about what a dumpster fire these contracts are, to see if they want to file amicus briefs should the Md Court of Appeals take this case.
Just got the chance to watch and I like this judge. In summary: Go to the legislature.
AirBnB would be well served to institute some due process in their contract provisions before regulators get their hands in the mix. That case history was a whole litany of states whose constituents are AirBnB hosts in ever increasing numbers.
It’s always better to self regulate. Right now they think it’s cheaper to bend over a random host here and there than to go to the internal expense of giving hosts an appeal process. Time isn’t on their side.
AGREE. AWESOME judge. Totally put out a trail of breadcrumbs. I am told by courtwatchers that he NEVER hands out idle compliments or extraneous verbiage, so his incredibly complementary remarks at multiple junctures are sincere.
If the Md Court of Appeals sends the case back to him, it will be dandy. He is careful and very very very smart.
YES also re: “AirBnB would be well served to institute some due process.” Here’s my thoughts. Airbnb thinks it wants to win my case. It doesn’t or at least it shouldn’t. Airbnb is creating so much ill-will, cynicism and mistrust that the brand is just zeroing out as a laughingstock. Due process is the only road back.
Our Legislature is a tricky proposition. Our delegation from Baltimore’s Waterfront district is completely awesome, accessible (I run into them just going around my business in the 'hood), REALLY helped our waterfront hosts from four years ago onward with much sympathy and handholding on Airbnb legislation.
Overall though, it’s an assembly that is beholden to lobbyists, and unless we can hire lobbyists and make campaign donations, we can NEVER compete with Airbnb itself (which is vociferously anti-host leverage, as we see here, and worked HARD in Md. to get cr@p legislation passed) or for that matter, Marriott the hotel giant with its HQ here.
Insofar as the courts also make law via rulings that at least theoretically can help the little guy, and don’t require lobbying clout and a treasure chest as at the Legislature, my current approach is, I believe, the best one.
P.S. It is not say that hosts in a populous state packed with Airbnbs might indeed gather together and lobby, but there are so many obstacles – finding other hosts without the help of Airbnb, Airbnb’s own massive lobbying warchests, etc.
Up till now, Pups, most people including myself would have assumed that litigation against Airbnb was impossible. The terms are so thick with legalese that one would assume that lawyers had covered it in depth. I would not want to tackle it.
However the judge’s comments, and the fact that they have done four rounds, suggests otherwise.
Ordinarily a corporation would want quick closure to a relatively minor case because of the time and expense. These guys are making a meal out of it. Why?
Good question. Airbnb’s attorney in Portland, Ore., offered me $3,500 in Feb. to settle and I countered $10K + no non-disclosure agreement, which they did not accept.
So now the company is at some risk of having a major contract change forced on them (bye-bye to Sections 15 + 17), at huge expense, so that $10K would have been the bargain of the century.
But as noted above, the company needs to become radically more fair to hosts to have any chance at reputational survival, so money spent to set up an appeals process and pay damages would be money well spent.
So it may be forced to change against its will but for the betterment of all parties. Who knows?
Not likely. Every company you sign an agreement with, from your phone to your local utility companies, requires you to use arbitration to determine damages and not sue them. Disruption-based companies like Air and Uber are even worse.
The minute a state legislator introduces a bill to actually restore the consumer’s right to sue, a phalanx of corporate lobbyists will descend on the state Capitol to kill the bill.
Believe me, I know — I spent most of 2 months last year trying to persuade legislators to vote against or at least amend Uber’s bill before they passed it, since the bill took away the rights of municipalities to regulate “ride sharing” including their ability require adequate insurance or real background checks.
I agree with you on this. We aren’t going to be adopting European style consumer friendly (or as some call it, socialist) business policies anytime soon. Still, the fight is worth having. If you never fight you can never win. That’s why suing isn’t a solution or option for 99.9% of hosts.
The answer, of course, would be to get a huge majority of hosts to create an association that, like a union, would be able to effective shut down Air until they have business practices, rules, and contracts that don’t screw over hosts like they do now. Also highly unlikely.
This brings me to the end game here (assuming I can even get to the Md Court of Appeals), which is the Supreme Court.
And it is now Chaos City, given that the libs would all (speculation) rule for an EU type contract (pro host), and Gorsuch and Kavanaugh are much more wild-cards than one could have anticipated.
RBG would LOoooovvveee this case as she has issued fine dissents on problems with these kooky contracts. I will check my files to find the one that I really love.
I need to pitch an article to the Atlantic or somewhere noting the conservative, pro-small business aspect of kneecapping these arrogant tech giants. And see if a 9-0 is remotely possible.
OK I think RbG is getting sick and tired of enforced arbitration, and the main cases are Epic Systems Corp. v. Lewis and Varela v Lamps Plus. In other words, arbitration isn’t working as planned to lighten the load on courts, and the constitutional rights of folks like Airbnb hosts are going out the window.
From opposing the hot mess that arbitration has become, it is just another do-able step to take down the Section 17 matter of liability for damages.
Just gotta figure out a way to make it clear to the conservative wing that it is small business people who are getting destroyed in these digital platform contracts. Not just lowly “consumers.”
Never underestimate our chances in the People’s Republic of Maryland, with a heavily female Court of Appeals (which probably will not be too wild about a company that exploits its spectacular senior female hosts) … not saying to get hopes up wildly, but there is a chance of success.
What was the source of the table you showed in the video at 20:30?
