Sw. Airlines Co. v. Roundpipe, LLC

• Decision Date: 22 March 2019
• Docket Number: CIVIL ACTION NO. 3:18-CV-0033-G
• Parties: SOUTHWEST AIRLINES CO., Plaintiff, v. ROUNDPIPE, LLC, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

375 F.Supp.3d 687

SOUTHWEST AIRLINES CO., Plaintiff,

v.ROUNDPIPE, LLC, et al., Defendants.

CIVIL ACTION NO. 3:18-CV-0033-G

United States District Court, N.D. Texas, Dallas Division.

Signed March 22, 2019

Jason A. Wietjes, Michael D. Pegues, Polsinelli PC, Dallas, TX, for Plaintiff.

Charles Lynn Roberts, Pro Hac Vice, Salt Lake City, UT, for Defendants.

MEMORANDUM OPINION AND ORDER

A. JOE FISH, Senior United States District Judge

Before the court is the motion of the defendants Roundpipe, LLC ("Roundpipe"), Chase Roberts ("Roberts"), and Pavel Yurevich ("Yurevich") (collectively, "the defendants") to dismiss counts one and six of the plaintiff Southwest Airline Company ("Southwest")'s complaint pursuant to the Texas Citizens Participation Act ("TCPA") and to dismiss the entirety of Southwest's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). See Motion to Dismiss (docket entry 23). Also before the court is Southwest's request to dismiss the portions of the defendants' motion to dismiss brought under the TCPA. See Request to Dismiss Defendants' TCPA Ground and Request for Attorney's Fees ("Request to Dismiss") (docket entry 29). In this motion, Southwest also requests that the court grant Southwest the court costs and reasonable attorneys' fees it incurred as a result of having to defend against the defendants' TCPA motion to dismiss. See id. For the reasons stated below, the defendants' motion to dismiss is denied and Southwest's request to dismiss and motion for attorneys' fees is also denied.

I. BACKGROUND

A. Factual Background

As noted above, the plaintiff in this suit is Southwest, a Texas corporation with its principal place of business in Dallas, Texas. Complaint (docket entry 1) at 2. Southwest offers and sells its goods and services under and in conjunction with a number of registered trademarks and service marks, including the following: (1) SOUTHWEST AIRLINES®, registration number 1,738,670; (2) SOUTHWEST®, registration number 3,129,737; (3) SOUTHWEST CARGO®, registration number 4,670,508; (4) SWA®, registration number 2,313,710; (5) SOUTHWEST AIRLINES CARGO®, registration number 4,024,786; (6) SWABIZ®, registration number 3,011,430; (7) SWABIZ MEETINGS®, registration number 4,537,010; (8) SWACARGO.COM®, registration number 4,033,508; (9) SOUTHWEST.COM®, registration number 2,623,807; (10) SOUTHWEST VACATIONS®, registration number 4,331,036; (11) the Southwest plane mark, a visual mark consisting of a profile of an airplane that is colored blue on the front and middle body of the plane, as well as the engines of the plane, with color bands of silver, yellow, silver, red, silver, and blue at the rear of the plane, and the colors yellow and red on the vertical ends of the main wings of the airplane, registration number 4,770,643; (12) the Southwest heart mark, a visual mark consisting of a stylized silver heart with blue, red, and yellow bands running diagonally starting from the top left, registration number 4,720,322; and (13) the Southwest word and heart mark, consisting of the word "SOUTHWEST" in blue, positioned to the left of a stylized heart with blue, red, and yellow bands running diagonally starting from the top right, registration number 5,149,729. Id. at 5-6; Additional Attachments to Complaint (docket entry 2), Exhibit A-Exhibit M.

Southwest also maintains a privately-owned computer system, which includes Southwest's website, www.southwest.com, as well as other supporting services. Complaint at 8. Although Southwest makes its websites available to consumers, consumers must agree to the terms and conditions of Southwest's use agreement, which makes clear to consumers that the systems and data displayed on Southwest's websites are proprietary and owned by Southwest. Id. This use agreement is referenced by an interactive link on each page of Southwest's websites, including the pages shown to Southwest customers as they search, select, and purchase flights online. Id. at 9. Additionally, Southwest's use agreement does not permit page-scraping or the use of other automated tools designed to access or monitor Southwest's website, its content, or its underlying fare databases. Id. ; Additional Attachments to Complaint, Exhibit O. In fact, under the section of the use agreement entitled "Restrictions and Prohibited Activities," the agreement states in pertinent part that a customer will not:

(ii) use the Service or Company Information for any commercial purpose, with the exception of authorized Southwest travel agents/agencies;

* * *

(v) harvest any information from the Service;

* * *

(viii) interfere with the proper operation of or any security measure used by the Service;

* * *

(xiv) use any deep-link, page-scrape, robot, crawl, index, spider, click spam, macro programs, Internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor any portion of the Service or Company information;

(xv) use the Service in any way which depletes web infrastructural resources, slows the transferring or loading of any web page, or interferes with the normal operation of the Sites;

* * *

(xvii) disguise the origin of information transmitted to, from, or through the Service;

(xviii) circumvent any measures implemented by Southwest aimed at preventing violations of the Terms. You may not violate the restrictions in any robot exclusion header; or

(xix) otherwise violate these Terms or any Applicable Additional Terms.

Complaint at 10; Additional Attachments to Complaint, Exhibit O.

The defendants in this case are Roundpipe, Yurevich, and Roberts. Roundpipe is a Utah limited liability company with its principal place of business in Salt Lake City, Utah, whose sole member is Roberts. Complaint at 2. Roberts is a resident of Utah, as well as the programmer who helped design the website at issue in this case, www.SWMonkey.com. Id. ; Memorandum in Support of Defendants' Motion to Dismiss (docket entry 24) at 1. Yurevich is a resident of Washington as well as the person who thought of the idea for www.SWMonkey.com. Complaint at 2; Memorandum in Support of Defendants' Motion to Dismiss at 1. None of the defendants in this case has any rights or ownership interest in Southwest's trademarks, nor are they authorized to use them. Complaint at 7.

This dispute revolves around the website www.SWMonkey.com, created by Yurevich and Roberts and launched through Roundpipe in early November 2017. Memorandum in Support of Defendants' Motion to Dismiss at 1. As noted above, the idea for the website was originally conceived by Yurevich, who knew that Southwest had a policy allowing customers to change their tickets without paying a fee. Id. Yurevich recognized that Southwest's no-fee policy essentially meant that if a customer's ticket was reduced in price after the customer's purchase, the customer could use this policy and exchange his original ticket for the lower-priced ticket, thereby saving the difference in fare. Id. Yurevich also recognized, however, that to take advantage of this policy consumers would have to constantly monitor Southwest's website to determine if their ticket price had dropped. Id. To get around this problem Yurevich conceived the idea of providing a price monitoring service in the form of a website which would provide consumers an alert when their ticket price dropped so that they would know when to exchange their tickets to reap savings. Id. Accordingly, Yurevich reached out to Roberts, a programmer who had experience building programs designed to pull data from websites, and the two developed www.SWMonkey.com and launched it in early November, 2017. Id. ; see also Additional Attachments to Complaint, Exhibit S (explaining that to make the website, Yurevich contacted Roberts, "who had experience building scrapers, or programs that pull data from websites.").

The original version of the SWMonkey website operated by scraping information about ticket fares off Southwest's website and using that information to alert customers who signed up through www.SWMonkey.com that their ticket prices had dropped. Complaint at 11; Additional Attachments to Complaint, Exhibit Q (travel blog post explaining that the defendants' website would monitor ticket prices on Southwest's website for customers; the owner of the travel blog informed the defendants that their scraping activities would undoubtedly be met with legal action from Southwest); Additional Attachments to Complaint, Exhibit S. The original www.SWMonkey.com website also required consumers pay a three-dollar charge to utilize the automatic price-checking service, provided the customer saved ten dollars or more through using the defendants' website. See Additional Attachments to Complaint, Exhibit R ("There is a $ 3 dollar charge for this service to check your flight price daily and text you if your [f]light decreases in price. You only pay, however, IF they are able to save you $ 10 or more."); Memorandum in Support of Defendants' Motion to Dismiss at 1 ("Roundpipe stood to make three dollars if it saved this customer at least ten dollars.").

Upon its launch, www.SWMonkey.com was met with initial success. On November 6, 2017, www.SWMonkey.com got its first customer. Memorandum in Support of Defendants' Motion to Dismiss at 1. On the same date, a travel blog posted about the defendants' website and promoted the services it offered. Additional Attachments to Complaint, Exhibit Q. Ultimately, about 40 people signed up to use www.SWMonkey.com during its launch. Additional Attachments to Complaint, Exhibit S (blog post explaining that "[a]bout 40 people signed up for the service, which convinced [Yurevich and Roberts] the business was viable."). The momentum generated by the initial success of the defendants' website was slowed, however, as Southwest began to send cease-and-desist letters to ...