Ryanair DAC v. Booking Holdings Inc.

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RYANAIR DAC, Plaintiff, v. BOOKING HOLDINGS INC., BOOKING.COM B.V., KAYAK SOFTWARE CORPORATION, PRICELINE.COM LLC, and AGODA COMPANY PTE. LTD., Defendants.

Civil Action No. 20-1191-WCB

United States District Court, D. Delaware

April 7, 2023

MEMORANDUM OPINION AND ORDER

WILLIAM C. BRYSON, UNITED STATES CIRCUIT JUDGE.

Plaintiff Ryanair DAC brought this action against several defendants alleging violations of the Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C. § 1030. After Ryanair amended its complaint, Dkt. No. 76, the defendants filed a motion to dismiss the amended complaint, Dkt. No. 80. I granted that motion in part and denied it in part. Dkt. No 105. The defendants then filed an answer and defendant Booking.com, B.V., (“Booking.com”) brought five state law counterclaims against Ryanair. Dkt. No. 111. Ryanair now moves to dismiss the counterclaims under Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 121. For the reasons set forth below, the motion is DENIED, except with respect to Booking.com's allegations of defamation relating to Ryanair's public statements.^[1]

I. Background

Ryanair is a low-fare airline based in Ireland that offers flights in Europe and North Africa. Defendants Booking.com, KAYAK Software Corporation (“KAYAK”), Priceline.com LLC (“Priceline”), and Agoda Company Pte. Ltd. (“Agoda”) are travel companies that allow consumers to purchase flights, hotel reservations, rental cars, and other travel services. Defendant Booking Holdings Inc., (“BHI”) is a holding company whose wholly owned subsidiaries include Booking.com, Priceline, Agoda, and KAYAK.

Ryanair sells flight reservations to the public on its website.^[2] In order to book a flight on the Ryanair website, a user must create an account by selecting a username and password. The key allegation underlying Ryanair's CFAA claims is that the defendants or their agents (referred to as “aggregators”) engage in “screen scraping,” i.e., automatically collecting data from the myRyanair section of the Ryanair website. Ryanair alleges that the defendants use the data they obtain to allow users to book Ryanair flights on the defendants' websites, often at higher fares than those flights are priced on the Ryanair website.

Booking.com's counterclaims focus on statements made by Ryanair in public and to Booking.com's customers regarding third-party travel sites such as Booking.com, KAYAK, Priceline, and Agoda. For example, Booking.com alleges that Ryanair sends emails to customers who book a Ryanair flight using a third-party travel site requesting additional information from those customers. Dkt. No. 111, Counterclaims ¶¶ 25-26. According to Booking.com, those emails make several statements about third-party travel sites, including that the sites are “unauthorized,” that the sites “may apply massive mark-ups to fares or ancillary products,” that the sites use “screen scraper” software to “mis-sell” Ryanair flights, and that the sites provide “false payment and contact details” to Ryanair. Id. ¶¶ 25-33.

Booking.com similarly alleges that Ryanair has made statements on social media regarding third-party travel sites. One such post, identified in the Booking.com's counterclaim allegations, recited as follows: “A small number of passengers who booked through unauthorised 3rd party travel agents have not and will not receive refunds unless they request their refund by filling in the Customer Verification Form on the Ryanair website so that Ryanair may route any refund directly to them.” Id. ¶ 46. Ryanair added in a subsequent post that “[t]his is to avoid cases where travel agents have not passed on refunds to the customer. Ryanair will not refund unlicensed 3rd party intermediaries who made unauthorized bookings in breach of Ryanair's terms and conditions, and provided Ryanair with fake contact/payment details.” Id.

Booking.com also points to an Internet article in which Ryanair was described as having warned customers about a “bogus discount,” i.e., a scheme in which “customers purchase discounted Ryanair flights through an intermediary which has no affiliation to Ryanair.” Id. ¶ 47. That article explains that the “bogus” third-party travel site “uses the customer's payment details to secure their flight booking and stores the customer's payment details for fraudulent use at a later date.” Id. The article further states that “Ryanair is cautioning customers to avoid potential scams by booking direct.” Id.

II. Legal Standards

Under Federal Rule of Civil Procedure 12(b)(6), a complaint should be dismissed if it “fail[s] to state a claim upon which relief can be granted.” The Third Circuit has instructed district courts to conduct a “two-part analysis” in evaluating a motion to dismiss for failure to state a claim. Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). First, the district court must separate the factual and legal elements of the claims. Id. That is, the court “must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.” Id. at 210-11. Second, the court “must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.'” Id. at 211 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)).

III. Discussion

Booking.com has brought five state-law counterclaims against Ryanair.^[3] The counterclaims are for (1) tortious interference with business relations, (2) unfair competition, (3) defamation, (4) trade libel, and (5) deceptive trade practices. Ryanair has moved to dismiss each of those counterclaims.

A. Tortious Interference

Ryanair first moves to dismiss Booking.com's counterclaim for tortious interference with business relations. Under Delaware law, there are two distinct torts regarding tortious interference with business relations: tortious interference with existing contractual relations and tortious interference with prospective business relations. Triton Const. Co. v. E. Shore Elec. Servs., Inc., No. CIV.A. 3290, 2009 WL 1387115, at *17 (Del. Ch. May 18, 2009), aff'd, 988 A.2d 938 (Del. 2010). Booking.com does not expressly state in the pleadings which tort it is asserting against Ryanair, but the briefing makes clear that it is asserting a claim of tortious interference with prospective business relations. See Dkt. No. 129 at 4-7 (focusing on “prospective business opportunities”).

The elements of tortious interference with prospective business relations are (1) a “reasonable probability of a business opportunity”; (2) “intentional interference by [the] defendant with that opportunity”; (3) “proximate causation”; and (4) “damages.” Empire Fin. Servs., Inc. v. Bank of N.Y. (Del.), 900 A.2d 92, 98 n.19 (Del. 2006) (citation omitted); see also Mondero v. Lewes Surgical & Med. Assocs., P.A., No. 14-588, 2018 WL 1532429, at *4 (D. Del. Mar. 29, 2018). Ryanair argues that Booking.com has not sufficiently alleged the first and third elements, i.e., a reasonable probability of a business opportunity and proximate causation. Dkt. No. 122 at 6-7.

1. Reasonable Probability of a Business Opportunity

With respect to the first element, Booking.com alleges that Ryanair's communications with Booking.com's customers “have in fact interfered with Booking.com's business relations with one or more customers, who have not made additional travel reservations through Booking.com's platform since receiving Ryanair's communication.” Dkt. No. 111, Counterclaims ¶ 60. Booking.com further alleges that Ryanair's conduct has “cause[d] injury and harm to Booking.com due to the loss of revenue from repeat customers.” Id. ¶ 61. In support of those allegations, Booking.com points to a message received from a customer who “express[ed] shock” that Booking.com allegedly was not authorized to sell her a Ryanair ticket. Id. ¶ 51. That customer added that she has “used [Booking.com] many times in the past to book accommodation,” and that the message caused her to be “uncertain about Booking.com services, about the legitimacy of her ticket, and about her ongoing relationship with Booking.com.” Id. ¶¶ 52-53. More generally, Booking.com has alleged that it “routinely receives repeat business from its existing customers.” Id. ¶ 56.

Ryanair argues that those allegations are insufficient because a claim of tortious interference requires a “reasonable probability that a contract will arise from the parties' current dealings,” and that Booking.com does not have any “current dealings” with customers after they purchase a ticket from Booking.com and complete their trip. Dkt. No. 122 at 6 (quoting Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 1015 (3d Cir. 1994)).

In response, Booking.com cites two cases for the proposition that allegations of “a reasonable probability of repeat business” are sufficient to establish the first element of a claim for tortious interference with prospective business relations. Dkt. No. 129 at 5. In Beard Research Inc. v. Kates, the Delaware Court of Chancery found the first element of the tort to be satisfied because the plaintiffs “had a reasonable probability of obtaining repeat business” from customers who had previously done business with the plaintiff's company either through catalogs or for a specific customer project. 8 A.3d 573, 611 (Del. Ch. 2010), aff'd sub nom. ASDI, Inc. v. Beard Rsch., Inc., 11 A.3d 749 (Del. 2010). And in Aureus Holdings, LLC v. Kubient, Inc., the Superior Court of Delaware held that it was proper, at the pleadings stage, to “infer from [the plaintiff's] reputation and ongoing customer relationships that there was a reasonable probability of repeat business.” No. CVN20C07061EMDCCLD, 2021 WL 3465050, at *6 (Del. Super. Ct. Aug. 6, 2021). The court added that “the existence of...