If we’re lucky and the current *resident is not re-elected and the Senate has a Democratic majority, we might finally be able to outlaw every damned corporate service agreement that denies consumers and small businesses the right to go to court to be made whole instead of requiring us to go through an arbitration process that’s stacked against us.
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Doubtful. Both halves of the Uniparty are equally in thrall to their masters.
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You really are doing a ground breaking and will overdue service to all hosts by pressing on with this as you have. My hat is off to you.
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Thank you. It’s kind of you to say so, I do find it motivating to be helpful to the host community laboring under these unfair terms.
Getting back to @NordlingHouse’s comment on, basically, would Congress get off its butt and see to these unfair ToS we have to sign …
It looks to me, reading this link, that contract law is left to the states, rather than federal law. I couldn’t find anything (in a quick search) on Congress’s legislative search website, nor the FTC (regulatory vs legislative).
Which basically means, for those unhappy with unfair ToS, in the US, you can:
- sue in your local courts, and be ready to for Air to appeal until someone gets a “win” that is precedent you can point to on unfairness
- ask your local state House and Senate members to propose bills on this (for your state)
- ask your U.S. Rep & Senators to sponsor legislation (at federal level)
TT Club: TT Talk - Unfair Contract Terms: generally in common law
Overview of the United States
Unlike many other countries there is no US national law regarding contracts. Rather, each state has its own contract law, so it is important to determine which state law would actually be applicable to any given contract. Of course, there is much commonality between states for what is required to form a contract and also in relation to enforcing terms. In general, courts may not uphold a contract if one or more of the following is found: Lack of Capacity, Duress, Undue Influence, Misrepresentation, Nondisclosure, Unconscionability, Public Policy, Mistake, Impossibility.For the most part, unfair terms fall within the ambit of ‘unconscionability’. In the US, unconscionability means that a term in the contract or something inherent in or about the agreement was so shockingly unfair that the contract simply cannot be allowed to stand as is. The idea here again is to ensure fairness; in such cases, a court will consider:
- whether one side has grossly unequal bargaining power;
- whether one side had difficulty understanding the terms of the agreement; or
- whether the terms themselves were unfair.
If a court does find a contract unconscionable, it has options other than just voiding the agreement altogether. It may instead choose to enforce the conscionable parts of the contract and rewrite the unconscionable term or clause, for example.
The US often use the term ’contract of adhesion’ when describing the scenario of standard terms and conditions. These are contracts drafted by one party in a position of power, leaving the weaker party to ’take it or leave it’. Adhesion contracts are generally created by businesses providing goods or services in which the customer must either sign the boilerplate contract or seek services elsewhere. Courts in the US may look at such agreements more skeptically than a contract that has been fully negotiated between the parties. Of course, other factors will be considered, including how onerous the terms are in the contract and the sophistication of the aggrieved party.
In conclusion of this high-level summary in relation to unfair contract terms in the US, it is worth emphasizing that a court in California and a court in New York may look at the same contract and come to very different conclusions.
If I can be of any help in brainstorming the possibility of a complaint against the guest with a false bedbug claim, please chime in. It would help to know where you are (approximately) and where the guest is from (approximately).
This is in re your post in TheInsider thread:
Thank you for the lead. Its an interesting situation - and what an ordeal… Our listing is in the Bahamas, so we dont seem to be able to File a small claim in the U.S. We contacted Fairbnbclaim dot com in Ireland. They indicated that they would take on the claim with other international claimants. I have not come across any hosts who have used them and would be interested in their experiences.
@PuppyLover - That would be great. We are in The Bahamas and the Guest was from The West coast of The U.S. We tracked them down on Facebook.
OK. Since you live in the Bahamas and the incident was in the Bahamas, you can file in Bahamian Small Claims court.
So you will have to think what your goals are –
- Get a review re: bedbugs that is still lurking on your listing taken down as defamatory?
- Get monetary damages as well, based on whatever hit you think you took from the review?
Part 1: The Guest
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Let’s start with the idea of filing a $5K claim (I think the max for the Bahamas) against the guest. Get the form for a small claim from your courthouse. You will need to fill out what happened and attach evidence such as the booking email, the review and the notice that you were bedbug free. Label each piece of evidence Exhibit 1, Exhibit 2, etc. List expenses such as the visit by the exterminator and estimated lost bookings. You will need to list the address of the guest on the West Coast. You should be able to sleuth it on sites like BeenVerified, Spokeo, etc. If you can’t, your West Coast process server may be able to do what is called a “skip trace” and find the guest party. You can also list the guest as “John Doe” and subpoena AirBNB for the name. If you have the guest’s phone number, that should also lead to last name/address etc.
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State that you want both $$$ AND for the guest to call and correct the record. The judge may not be able to order the latter, but just throw it in there.
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Pay the filing fee for the court and find a process server who serves your guest’s area. It may be a private company, a sheriff, etc. You might be looking at $150 or so for these two items.
Part 2: AirBNB
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File a 2nd claim against AirBNB. This one should rearrange your evidence to focus on how CSX did not respond to your complaints of a defamatory review. Ask for relief in terms of getting the review taken down. IN ADDITION, if you want to ask for money damages, you will HAVE to check your Terms of Service agreement. If you have the U.S. style where you signed away everything, add some arguments to your complaint that this is unfair and onerous to hosts. If you have the EU style where apparently there is an appeal mechanism, note that this was not offered to you and you are seeking $$$.
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Get a process server to deliver this document to either Air’s SF offices at 888 Brannan St. or to a corporate representative in the Bahamas – it might be called something like “Corporation Service Company.”
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This will get Air’s attention and with any luck, one of their attorneys will call you a few weeks before the trial date and offer a settlement of maybe just the review removal OR also some cash.
EDIT TO ADD: The above is what I did in the U.S. state of Md. I am pretty much guessing that something comparable can be done in the Bahamas. If you are near a Bahamian law school with a library and a copy of something that might be called “Pleadings in the Bahamas”, or if Westlaw or a similar legal codes company is online, read through the legal articles or book chapters they have on filing small claims.
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Updates roundup:
- Here’s a podcast on this case with Evelyn Badia of The Hosting Journey.
The Hosting Journey: How One Review Can Delist Your Airbnb
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I’ve edited the audio for the 2nd trial (vs. Air itself) and next will add video components … stay tuned for that link.
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Anticipate having a “limited-scope” attorney help with strategy/mechanics for the appeals of both trials (guest and Air). Limited scope means they charge you only for doing the parts of the case you need help with. Got a VERY intrigued and amused attorney from a local reduced-rate legal aid group, who can affordably help me on figuring out a lot of the procedural aspects in the Maryland Civil Process laws that are murky for these non-cookie-cutter cases. Which we decided meant we can just make an informed guess on the correct paperwork (we both interpreted the CivProc laws identically, as allowing latitude in seeking greater damages) so that’s that.
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Just listened to the entire podcast and the court proceedings. Absolutely amazing! So proud of you!
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Thank you!
My inspiration is Legally Blonde j/k
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I am delighted for you and well done in taking this action. You have helped all hosts by forcing Air to listen and hopefully (now) accept their policies are not beyond the legal system. You have dis proved the hosts who have said this couldn’t be done.
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Thanks Reader. I had a long legal strategy session yesterday with an attorney so as to figure out how to construct my appeal.
AirBNB won’t accept that its (non-European Union) policies are not only inhumane, but unfair and lack due process, until the Supreme Court says so and orders its current language struck (my opinion). So this is just an early step on a long road.
Hosts here and elsewhere have long said that “Air shoves ALL the costs and responsibility on the hosts.” It’s true and enough is enough.
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The very best of luck to you. Really respect your resilience and determination.
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Thank you.
I got notified by Airbnb today that they reviewed my case after I made a complaint via BBB.
ABB has now refunded us in full, and admitted that proper guidelines were not followed.
Its amazing that we have to go to so much trouble and effort for an “intelligent” appeal and review process.
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Here is the video on the 2nd trial against AirBNB itself:
YouTube: Lawsuit against AirBNB over removal from platform
As with the lawsuit against the guest –
YouTube link: Taking Defamatory AirBNB Review to Court for Damages
… the judge RIPS into the defense attorney in a rather entertaining fashion.
VIEWING GUIDE
If you ONLY have 10 minutes free, watch the judge rip AirBNB steadily starting at 23:30
If you ARE CONTEMPLATING a case against AirBNB, watch the entire video to see the process.
0-12:36 FIRST 12 minutes — wrangle over motion to dismiss
12:36-23:20 Judge says she wants to hear FACTS of case first, so we have 10 minutes (edited) of this
23:30-end Judge RIPS AirBNB. She denies motion to dismiss, hammers at AirBNB for its lack of talking to me in its “investigation”
25:14 “This investigation was fraud.”
26:42 “This investigation was bogus.”
29:04 “I think AirBNB owes you an apology.”
30:21 “It’s NOT. RIGHT what AirBNB is doing.”
30:33 “If you want people to bring you to court … do what you did to her.”
30:52 “This woman has been making money for you, and being a Superhost, and then all of a sudden, you don’t even want to talk to her?”
31:22 “I think it’s wrong for AirBNB to even have somebody sign that [the terms of service]. I really do.”
32:27 (WITH FEELING) "AirBNB needs to at least tell the truth. Tell the truth. And if not done, we’re going to hold them in contempt.”
** FREE BONUS **
Movie nods to Legally Blonde, My Cousin Vinny, Oliver Twist, The Pink Panther, Chocolat, Take the Money and Run, and Erin Brockovich
LINK to separate discussion on this forum of the case against the guest
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Ha ha, she didn’t order Superhost status.
If you want to get a false review removed, you might innocently ask CSX about its legal service address (888 Brannan St., FYI) for service of an injunction to remove the review and for your court costs.
voluntarily signing the TOS
Sigh, no kidding. I’m gonna write an amended claim noting the ToS are 90 gorillion percent in favor of AirBNB and 0 percent fair to its “voluntary” signees, the hosts.
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I just love how composed you were in court. You have a talent for it 
.
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Thank you! The complete fear and terror I felt at Trial 1 seemed to go away at Trial 2. I was standing very straight, often facing the AirBNB attorney, rotating to the judge, sometimes I did 360-degree turns to exchange glances with the entertained onlookers.
I had a boldly lettered index card in my trial folder reading only:
CALM
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wha’ happened – you did talk to CSX about the defamatory review & legal action?
Bravo, I will say it again your have done what some hosts posting here for years said was impossible. Delighted for you, you have done all hosts a huge favour.
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