Hiam v. Homeaway.com, Inc.
887 F.3d 542
1st Cir.2018Background
- Plaintiff Peter Hiam paid $46,565 to book a Belize rental advertised on VRBO.com (owned by HomeAway) that turned out to be a scam; the advertised property apparently did not exist.
- Hiam contacted HomeAway customer service; HomeAway removed the listing for uncertainty but later told Hiam it had concluded the listing was legitimate and offered no further relief.
- HomeAway maintained a “Basic Rental Guarantee” (the Guarantee) providing up to $1,000 (50% of payments up to $1,000) for losses from "Internet Fraud," subject to numerous conditions (registration, covered payment method, denial from payment provider/owner, notice within seven business days, and HomeAway’s discretionary determination that listing was fictitious).
- Hiam did not seek payment under the Guarantee; instead he sued for common-law fraud and Chapter 93A violations, arguing the Guarantee (and HomeAway’s representations) implied pre-screening/verification of listings and thereby misled consumers.
- The district court granted summary judgment to HomeAway, concluding the Guarantee was not deceptive as alleged; Hiam appealed only the claims tied to the Guarantee and related representations.
- On appeal the First Circuit reviewed whether the term “guarantee” or HomeAway’s communications created an actionable representation that HomeAway pre‑screened listings, and whether other regulatory or CDA arguments altered the outcome.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Basic Rental Guarantee creates a representation/warranty that HomeAway pre‑screens or verifies listings | Hiam: the word “Guarantee” and the program implied HomeAway performed pre‑listing verification of authenticity | HomeAway: the Guarantee plainly describes a conditional, limited refund process and disclaims any duty to pre‑screen listings in site terms | Held: No. The Guarantee is a conditional refund program, not a pre‑screening warranty; site terms disclaiming pre‑screening support that reading |
| Whether Chapter 93A regulations convert any use of “guarantee” into a factual representation about product/service characteristics | Hiam: regulations require treating “guarantee” as representing characteristics such as authenticity | HomeAway: regulations require clear disclosures for guarantees; they do not automatically convert every guarantee into an affirmative factual representation | Held: Regulations do not automatically convert all “guarantees” into factual representations; the Guarantee met disclosure elements and listed a refund as an example of guarantor obligations |
| Whether HomeAway’s after‑the‑fact email stating the property was “legitimate” made it liable as a seller of travel services under 940 Mass. Code Regs. 15.02–15.03 | Hiam: HomeAway’s email represented that the property was legitimate, violating travel services regs and Chapter 93A | HomeAway: disputed applicability (not a “seller of travel services”); also argued CDA immunity could preempt claims | Held: The court did not resolve seller/regulatory scope or CDA preemption; affirmed summary judgment because Hiam failed to show how the after‑the‑fact misrepresentation caused him provable injury under Chapter 93A |
| Whether the district court unfairly ambushed Hiam by deciding on merits other than CDA immunity | Hiam: district court resolved merits beyond HomeAway’s CDA immunity argument without adequate notice | HomeAway: its CDA defense put Hiam on notice to show claims not based solely on third‑party content; Hiam had opportunity and submitted merits evidence in opposition | Held: No ambush. Hiam had notice and opportunity; he did not seek additional discovery or identify further evidence that would change outcome |
Key Cases Cited
- Walsh v. TelTech Sys., Inc., 821 F.3d 155 (1st Cir. 2016) (summary judgment facts viewed in favor of nonmovant)
- Smith v. Jenkins, 732 F.3d 51 (1st Cir. 2013) (de novo review of statutory/regulatory interpretation)
- CMM Cable Reps., Inc. v. Ocean Props., Inc., 97 F.3d 1504 (1st Cir. 1996) (issues not raised below generally cannot be raised on appeal)
- United States v. Zannino, 895 F.2d 1 (1st Cir. 1990) (arguments made perfunctorily are deemed waived)
- Universal Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007) (interactive computer services remain liable for their own speech despite CDA protections)
- Hershenow v. Enterprise Rent‑A‑Car Co. of Bos., Inc., 840 N.E.2d 526 (Mass. 2006) (Chapter 93A private cause of action requires showing of loss)