FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS Hon. William G. Young, U.S. District Judge
C. Traficonte for appellant.
Jonathan M. Albano, with whom Amanda V. McGee and Morgan,
Lewis & Bockius LLP were on brief, for appellee.
Lynch, Stahl, and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
into parting with thousands of dollars to reserve a vacation
rental property in Belize that apparently did not exist,
plaintiff Peter Hiam sued the owner of the website on which
he found the ersatz tropical villa, claiming that the
website's guarantee misled him. The district court
granted summary judgment to the website's owner,
HomeAway.com, Inc. ("HomeAway"). On appeal, Hiam
argues that the district court incorrectly applied
Massachusetts consumer protection law. Finding no error in
the judgment, we affirm.
we are reviewing an order granting summary judgment to
HomeAway, we recite the facts in the light most favorable to
Hiam, the nonmoving party. Walsh v. TelTech Sys.,
Inc., 821 F.3d 155, 157-58 (1st Cir. 2016). Hiam
enlisted the help of his adult son, Christopher, to plan a
family vacation for the end of 2014. In April 2014,
Christopher (on behalf of his father) checked for possible
opportunities on VRBO.com, a website owned and operated by
HomeAway. The parties agree that VRBO.com (short for
"vacation rentals by owner") is a website-based
business that allows property owners to advertise their
vacation rentals to the public. VRBO.com acts like a
searchable online bulletin board; it allows property owners
to list their properties, but HomeAway does not itself own or
manage any properties, nor does it make itself a party to any
contracts between property owners and renters.
browsing VRBO.com's offerings, Christopher identified a
promising option purportedly located in Placencia, Belize.
The "Jewels of Belize" estate advertised itself as
a beachfront property with room for fourteen people, a
private chef, transportation around Belize, and other
amenities. Communicating at first through the VRBO website
and then directly by email with a purported representative
from the estate, Hiam and his son decided to book the
property for a one-week period at the end of 2014 into early
2015. The total cost for the rental was $46, 565, which Hiam
sent to the purported proprietors in two equal installments
paid in April and October of 2014. Silence then ensued, and
Hiam shortly thereafter realized he had been taken. The
Jewels of Belize, it appears, did not even exist.
December of 2014, Hiam directed his son to contact HomeAway
for help. Two months later, HomeAway customer service
informed the Hiams that HomeAway removed the listing for the
property from the VRBO site "because [HomeAway was]
uncertain of the availability of the property" and
because no response had been received from the owner.
Nonetheless, HomeAway told the Hiams that it had concluded
that the property was real and legitimate, and offered them
no further assistance. By this point in time, HomeAway had
received customer service inquiries from Brooke Hutchens and
two other unnamed individuals, each of whom claimed that the
Jewels of Belize had similarly defrauded them of thousands of
dollars. And previously, in August 2014, other individuals
had written in to alert HomeAway that the listing was "a
totally bogus scam" and depicted a property located on a
time, HomeAway maintained a limited refund policy called the
"Basic Rental Guarantee" (the
"Guarantee"). We attach a copy of the Guarantee as
an appendix to this opinion. The Guarantee offered a maximum
$1000 refund to customers who fell victim to "Internet
Fraud, " as determined and defined by HomeAway, but only
when customers satisfied a series of conditions and
requirements. To qualify, the customer needed to have been a
"Registered Traveler" within the meaning of the
Guarantee's terms, have paid for the rental through a
covered payment method (excluding wire transfer services like
Western Union), have been denied a refund from the payment
provider and the property owner, and have reported the
alleged fraud to HomeAway within just seven business days of
the first event giving rise to the refund request.
Additionally, the $1000 refund was only payable if HomeAway
determined, in its "reasonable discretion, " that
the complained-of listing constituted "Internet Fraud,
" meaning it was "fictitious or illegitimate"
because the property did not exist or because it was
advertised with the intent of defrauding travelers.
does not seek the $1000 refund offered by the Guarantee.
Rather, he claims that the Guarantee caused him to lose $46,
565 by misleading him into believing that HomeAway made
reasonable efforts to keep fraudulent listings off its site.
And because it seems that HomeAway does nothing to check out
offerings before posting them, Hiam argues that HomeAway is
liable for common law fraud and for engaging in unfair or
deceptive trade practices under Massachusetts' Chapter
93A. Mass. Gen. Laws ch. 93A, § 2(a) ("Chapter
93A"). The district court concluded as a matter of law
that the Guarantee was not deceptive or fraudulent in the
manner alleged, and disposed of the three counts in
Hiam's complaint that hinge on accepting his construction
of the Guarantee as a deceptive representation. Hiam v.
HomeAway.com, Inc., 267 F.Supp.3d 338, 352 (D. Mass.
2017). Hiam appeals this ruling.
arguments on appeal train principally on the use of the word
"guarantee" in the title of the "Basic Rental
Guarantee." The pivotal question, one we consider de
novo, is whether under Massachusetts law we should construe
the use of the word "guarantee" as a representation
or warranty by HomeAway to its users that some degree of
pre-screening or verification of listings takes place.
argues that the answer is yes, but this argument fails in the
starting blocks because there is no language at all in the
Guarantee that makes any such representation or warranty. The
document simply establishes a process for obtaining a refund
of up to $1000, subject to various conditions. The document
also references a separate program in which, for a fee,
HomeAway offers the ability to participate in a broader
refund plan that covers more risks and pays up to $10, 000.
The only mention at all of any screening whatsoever by
HomeAway takes the form of a condition to payment; that is,
HomeAway will not pay a refund claim unless, among other
things, the "listing is subsequently determined to be,
in HomeAway's reasonable discretion, fictitious or
illegitimate." In other words, when a qualified user
timely makes a claim for a limited refund, HomeAway at that
time checks out the listing and pays the specified refund if
it determines in its reasonable discretion that the offering
in this arrangement implies that HomeAway checked out the
listing before receiving a claim under the Guarantee. And if
there were any doubt on this point, the website's terms
and conditions (by which all "Registered
Traveler[s]" agree to be bound) would eliminate it.
HomeAway states in those terms and conditions that "[w]e
have no duty to pre-screen content posted on the Site by
members, travelers or other users." HomeAway also
"specifically disclaim[s] any and all liability arising
from the alleged accuracy of the listings" and advises
customers that they are "solely responsible for
verifying the accuracy of . . . content and
by the force of the Guarantee's actual terms, Hiam points
to regulations adopted under Chapter 93A. See 940
Mass. Code Regs. 3.01 & 3.03. Hiam construes these
regulations as transforming the word "guarantee" as
used in any consumer advertising into some type of
"representation" about "some characteristic of
the product or service." In the case of VRBO.com
listings, Hiam says that the implicit
"characteristic" of the products offered on the
site is their reasonably verified authenticity as a result of
reviewed the subject regulations de novo, Smith v.
Jenkins, 732 F.3d 51, 70-71 (1st Cir. 2013), we find
nothing that deems every "guarantee, " no matter
how worded, to be a representation of some fact concerning
the guaranteed product. To the contrary, one subsection of
the regulations describes that an additional duty by a seller
is triggered "[w]here guarantees are employed in such a
manner as to constitute representations of material
facts." 940 Mass. Code Regs. 3.03(7). That wording
plainly presumes that the word "guarantee" can be
used in some other manner (such as, for example, to assure a
refund in the event the consumer is not satisfied).
93A regulations identify several characteristics that a
guarantee should have in order to avoid being deceptive: it
should "clearly and conspicuously disclose" the
"nature and extent of the guarantee, " including
"[w]hat product or part of the product" is covered,
what part of the product is excluded, the "duration of
the guarantee, " and what a claimant "must do
before the guarantor will fulfill his obligation under the
guarantee." 940 Mass. Code Regs. 3.03(1). Further, it
must clearly identify the guarantor and disclose
"exactly what the guarantor undertakes to do under the
guarantee." Id. 3.03(1)(b). In turn, and
tellingly, the regulation lists a "refund" as an
example of what a guarantor may undertake to do. Id.
HomeAway Guarantee performs each of these functions. It
clearly discloses that the "nature and extent of the
guarantee" is a conditional limited refund of 50% of the
amount paid, up to $1000. Any amount lost above that is
excluded from coverage. Section 4.9 of the Guarantee
specifies the duration of the guarantee, requiring the
consumer to notify HomeAway within seven business days of the
"first event giving rise to" the reimbursement
request. Section 1 requires the claimant to do a number of
things before becoming eligible under the Guarantee,
including requesting and being denied a refund from the
property owner. The Guarantee lists these prerequisites in
bullet points in a section that begins, "You qualify for
the Program if you do all of the following." Subsequent
sections add further detail to those requirements. Finally,
the Guarantee explains exactly what the guarantor will do
upon receiving a qualifying complaint: pay up to $1000 if
funds are lost as a result of "Internet Fraud, " a
agree with the district court that a factfinder could
determine that HomeAway implicitly promises to conduct some
kind of after-the-fact investigation before denying an
otherwise qualifying refund claim. Hiam, 267
F.Supp.3d at 352. We also share Hiam's bewilderment that,
after claiming to investigate the listing, HomeAway concluded
that the Jewels of Belize property was legitimate. HomeAway
could not even reach the putative owners, and by the time it
responded to Hiam, it had received the complaints of several
others who, during the same timeframe, lost money to the
fraudsters and complained to customer service or otherwise
wrote in to alert HomeAway that the listing was a "bogus
scam booking." But Hiam does not argue that he otherwise
qualified for a refund (i.e., that he was a "Registered
Traveler" who made a timely claim, etc.). Nor does he
argue that any deficiency in HomeAway's investigation of
his complaint otherwise caused him any harm. Hiam also
expressly disavows any attempt to claim a refund under the
actual terms of the Guarantee. He also failed to develop in
the district court or on appeal, in other than a fleeting and
cursory manner, any contention that HomeAway owed him a duty
of care in investigating the complaints of others and caused
him harm by breaching that duty. CMM Cable Rep, Inc. v.
Ocean Coast Props., Inc., 97 F.3d 1504, 1525-26 (1st
Cir. 1996) (arguments not made before the district court
cannot be raised for the first time on appeal); United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(arguments made in only a perfunctory manner are deemed
waived). In sum, Hiam's claim concerning the effect of
HomeAway's Guarantee is limited, and so too is our
holding in response: we agree with the district court that
the Guarantee itself is not misleading or deceptive under
Massachusetts law in the manner alleged by Hiam.
also sought to hold HomeAway liable under a regulation that
prohibits any "seller of travel services" from
making deceptive or misleading representations. 940 Mass.
Code Regs. 15.02 & 15.03. The district court rejected
this claim because it decided that HomeAway was not a
"seller of travel services" as defined in the
applicable regulations. 267 F.Supp.3d at 348. The district
court also determined that even if the regulations applied in
this instance, they would be preempted by Section 230 of the
Communications Decency Act ("CDA"), 47 U.S.C.
§ 230. 267 F.Supp.3d at 348-49.
argues that HomeAway "arranges" travel services, so
it fits the regulation's definition of a "seller of
travel services." 940 Mass. Code Regs. 15.02. And as a
seller of travel services, Hiam argues, HomeAway violated the
regulation (and therefore Chapter 93A) by "representing
to Peter Hiam that the fictitious property . . . was
'legitimate, '" a false representation made in
contravention of 940 Mass. Code. Regs. 15.03.
already rejected Hiam's argument that the Guarantee
itself entailed any representation concerning the
authenticity of listings. So we assume that Hiam is referring
to the specific representation that "the property is
legitimate" made by HomeAway in an email response to
Hiam's customer service complaint. While the record would
adequately support a finding that this after-the-fact
representation was false, Hiam says nothing at all regarding
how such an after-the-fact misrepresentation caused him any
injury, nor does he develop any argument that he can prevail
without proof of some injury. See Hershenow v. Enter.
Rent-A-Car Co. of Bos., Inc., 840 N.E.2d 526, 533 (Mass.
2006) (recovery under Chapter 93A's private right of
action requires a showing of loss). Thus, without deciding
whether HomeAway is a "seller of travel services"
or whether the CDA would apply if so, we affirm the grant of
summary judgment as to this claim.
final grievance on appeal is that he was unfairly ambushed by
the district court's resolution of the merits of his
claims, given that HomeAway sought summary judgment on the
grounds that the CDA, which immunizes websites from liability
for content posted by third parties, barred his suit. We see
no such ambush. HomeAway's request to resolve the entire
case based on CDA immunity reasonably put Hiam on notice of
the need to show that he had viable claims that did not rely
on the mere maintenance of the website or on the actions of
third parties, but rather relied, in Hiam's words, on
"HomeAway's own actions and representations."
See Universal Commc'n Sys., Inc. v. Lycos, Inc.,
478 F.3d 413, 419 (1st Cir. 2007) (interactive computer
service providers remain liable for their own speech). And in
opposing summary judgment, Hiam did, "in an abundance of
caution, " marshal his ammunition in support of the
merits of his claims, submitting a statement of material
facts and a memorandum that used the merits of his claims as
reasons for rejecting CDA immunity. At that point in the
proceedings, discovery had come to a close, save for one
deposition of a HomeAway representative whose statements may
have shed light on HomeAway's investigatory activities
generally. Hiam filed no request under Federal Rule of Civil
Procedure 56(d) to obtain more discovery before the court
ruled on the summary judgment motion. ...