Glen v. Trip Advisor LLC
| Decision Date | 30 March 2021 |
| Docket Number | C.A. No. 19-1809-LPS,CA. No. 19-1870-LPS |
| Citation | 529 F.Supp.3d 316 |
| Parties | Robert M. GLEN, Plaintiff, v. TRIP ADVISOR LLC, Tripadvisor, Inc., Orbitz, LLC, Trip Network, Inc. d/b/a CheapTickets, Kayak Software Corporation, Booking Holdings, Inc., Expedia, Inc., Expedia Group, Inc., Hotel.com, L.P., Hotel.com, GP, LLC, and Travelscape LLC d/b/a Travelocity, Defendants. Robert M. Glen, Plaintiff, v. Visa Inc., Visa U.S.A. Inc., Visa International Service Association, Mastercard Incorporated, and Mastercard International Incorporated, Defendants. |
| Court | U.S. District Court — District of Delaware |
Jessica Zeldin, Andrews & Springer LLC, Wilmington, DE, Craig A. Boneau, Ryan M. Goldstein, and Scott Saldana, Reid Collins & Tsai LLP, Austin, TX, Attorneys for Plaintiff.
Jonathan A. Choa, Potter Anderson & Corroon LLP, Wilmington, DE, Sean Haran, Jacob Gardener, and Derek Borchardt, Walden Macht & Haran LLP, New York, NY, Attorneys for Defendants Tripadvisor LLC and Tripadvisor, Inc.
John P. DiTomo, Morris, Nichols, Arsht & Tunnell LLP, Wilmington, DE, Michael A. Duffy and Michael C. McCutcheon, Baker Mckenzie LLP, Chicago, IL, L Andrew S. Riccio, Baker Mckenzie LLP, New York, NY, Attorneys for Defendants Kayak Software Corporation and Booking Holdings Inc.
Beth Moskow-Schnoll and Brittany M. Giusini, Ballard Spahr LLP, Wilmington, DE, David D. Shank, Cheryl Joseph, and Jane Webre, Scott Douglass & Mcconnico LLP, Austin, TX, Attorneys for Defendants Orbitz, LLC, Trip Network, Inc. d/b/a CheapTickets, Expedia, Inc., Expedia Group, Inc., Hotels.com, L.P., Hotels.com GP, LLC, and Travelscape LLC d/b/a Travelocity.
Beth Moskow-Schnoll and Brittany M. Giusini, Ballard Spahr LLP, Wilmington, DE, Martin Domb, Akerman LLP, New York, NY, Augusto E. Maxwell, Akerman LLP, Miami, FL, Attorneys for Defendants Visa Inc., Visa U.S.A. Inc., and Visa International Service Association.
Robert S. Brady, Kevin A. Guerke, and Michael S. Neiburg, Young Conaway Stargatt & Taylor, LLP, Wilmington, DE, Nicholas P. Crowell, Sidley Austin LLP, New York, NY, Kwaku A. Akowuah, David W. McAloon, and Emmanuel Hampton, Sidley Austin LLP, Washington, DC, Attorneys for Defendants Mastercard Incorporated and Mastercard International Incorporated.
Carmella P. Keener, Cooch and Taylor, P.A., Wilmington, DE, Samuel J. Dubbin, Dubbin & Kravetz, LLP, Coral Gables, FL, Attorneys for Amici Curiae Dan Burton and Robert Torricelli.
Pending before the Court are Defendants Tripadvisor LLC and Tripadvisor, Inc. (collectively, "Tripadvisor"), Kayak Software Corporation and Booking Holdings Inc. (collectively, "Booking"), Orbitz, LLC, Trip Network, Inc. d/b/a CheapTickets, Expedia, Inc., Expedia Group, Inc., Hotels.com, L.P., Hotels.com GP, LLC, and Travelscape LLC d/b/a Travelocity (collectively, "Expedia"), Visa Inc., Visa U.S.A. Inc., and Visa International Service Association (collectively, "Visa"), and Mastercard Incorporated and Mastercard International Incorporated's (collectively, "Mastercard") motions to dismiss, filed pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (See, e.g. , D.I. 36, 38, 40)1 The Court has reviewed Plaintiff, Robert M. Glen's ("Plaintiff" or "Glen"), operative complaints (see, e.g. , D.I. 33), the parties’ briefs (see, e.g. , D.I. 37, 39, 41, 43, 46-48, 54), notices of subsequent authority (see, e.g. , D.I. 52, 55-58; see also C.A. No. 19-1870 D.I, 60), the parties’ supplemental briefs (see, e.g. , D.I. 62-65), and the amicus brief (D.I. 44-1).2 The Court also held a telephonic hearing on December 7, 2020, at which it heard argument from both sides and from amici , who appear in support of Plaintiff. (See D.I. 67) ("Tr.")
For the reasons stated below, the Court will grant Defendants’ motions to dismiss.
Glen is a naturalized citizen of the United States. (D.I. 33 ¶ 11) In the late 1950s, Glen's mother and aunt owned two contiguous plots of beachfront land ("the Subject Properties") located in Varadero, Cuba. (Id. ¶¶ 37-48) In connection with the Cuban revolution, the communist Cuban government confiscated the Subject Properties. (Id. ¶ 49) When Glen's aunt and mother died in 1999 and 2011, respectively, their claims to the Subject Properties passed solely to Glen by inheritance. (Id. ¶ 51) The Subject Properties have been used for beachfront hotels ("the Subject Hotels") since at least 1996. (Id. ¶ 53) The Cuban government maintains possession of the Subject Properties, and worked with hotel chains to build, develop, and operate the Subject Hotels on the Subject Properties, without paying any compensation to Glen or his family. (Id. ¶¶ 54, 55)
Defendants Tripadvisor, Booking, and Expedia operate travel booking websites; they profit when website users book guestrooms at the hotels listed on these Defendants’ websites. (Id. ¶¶ 66, 80, 114, 115, 121, 122, 124) Within the two years prior to the filing of this action, these Defendants provided online booking services for the Subject Hotels in Cuba. Travelers could book guestrooms at the Subject Hotels via these Defendants’ websites. (Id. ¶¶ 101-110, 119,120,130-32)
Defendants Visa and Mastercard operate cross-border payment networks and earn a fee when merchants utilize their network services to complete business transactions. (C.A. No. 19-1870 D.I. 24 ¶¶ 58-65) These Defendants offered network services to merchants in Cuba, including the Subject Hotels. (Id. ¶¶ 66-67) The guests of the Subject Hotels were able to pay for stays using credit cards branded by these Defendants. (Id. ¶¶ 68-70) These Defendants collected fees derived from these uses of credit cards. (Id. )
Glen initiated the two instant civil actions on September 26 and October 4, 2019, respectively. He filed the operative complaints on March 16, 2020. In those complaints, Glen asserts a single cause of action against Defendants under the Cuban Liberty and Democratic Solidarity (LIBERTAD) Act of 1996 ("Helms-Burton Act"), 22 U.S.C. § 6021 et seq. (See D.I. 33 ¶¶ 134-48) The Helms-Burton Act provides U.S. nationals who hold a claim to property that was confiscated by the communist Cuban government with a private cause of action against persons who have "trafficked" in such property. See 22 U.S.C. § 6082(a).
Defendants filed the pending motions to dismiss on May 11, 2020. After briefing was completed, on August 3, 2020 the United States District Court for the Northern District of Texas issued a decision in Glen v. Am. Airlines, Inc. , No. 4:20-cv-482-A D.I. 93("Glen I "), dismissing Glen's Helms-Burton Act claim against American Airlines for alleged "trafficking" in the Subject Properties by allowing customers to book accommodations at the Subject Hotels on its hotel booking website.3 See generally Glen v. Am. Airlines, Inc. , 2020 WL 4464665 (N.D. Tex. Aug. 3, 2020). On August 28, 2020, Glen appealed the district court's decision to the United States Court of Appeals for the Fifth Circuit (see Glen I D.I. 95), which remains pending as of the date of this memorandum opinion. Pursuant to the Court's Order (D.I. 60), the parties submitted supplemental briefs (see, e.g. , D.I. 62-65) addressing the potential impact of the dismissal in Glen I on the pending motions here.
"[W]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim." B&B Hardware, Inc. v. Hargis Indus., Inc. , 575 U.S. 138, 148, 135 S.Ct. 1293, 191 L.Ed.2d 222 (2015) (internal citation omitted). Under Third Circuit law, issue preclusion applies when "(1) the identical issue was previously adjudicated; (2) the issue was actually litigated; (3) the previous determination was necessary to the decision; and (4) the party being precluded from relitigating the issue was fully represented in the prior action." Jean Alexander Cosmetics, Inc. v. L'Oreal USA, Inc. , 458 F.3d 244, 249 (3d Cir. 2006) (internal citation omitted). The party asserting issue preclusion bears the burden of proving its applicability to the case at hand. See Greenway Ctr., Inc. v. Essex Ins. Co. , 475 F.3d 139, 147 (3d Cir. 2007).
Under the doctrine of non-mutual issue preclusion, a litigant "may [ ] be estopped from advancing a position that he or she has presented and lost in a prior proceeding against a different adversary." Peloro v. United States , 488 F.3d 163, 175 (3d Cir. 2007). "For defensive collateral estoppel – a form of non-mutual issue preclusion – to apply, the party to be precluded must have had a ‘full and fair’ opportunity to litigate the issue in the first action." Id. (quoting Parklane Hosiery Co. v. Shore , 439 U.S. 322, 328, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) ).
The "irreducible constitutional minimum" of standing consists of three elements. Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , 578 U.S. 330, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). The "[f]irst and foremost" of standing's three elements is "injury in fact." Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 103, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). "To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ " Spokeo , 136 S. Ct. at 1548 (quoting Lujan , 504 U.S. at 560, 112 S.Ct. 2130 ).
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