Ryanair DAC v. Booking Holdings Inc.

636 F.Supp.3d 490

RYANAIR DAC, Plaintiff, v. BOOKING HOLDINGS INC., Booking.com B.V.,KAYAK Software Corporation, Priceline.com LLC, andAgoda Company Pte. Ltd., Defendants.

Civil Action No. 20-1191-WCB

United States District Court, D. Delaware

Signed October 24, 2022

R. Touhey Myer, Kratz & Barry LLP, Wilmington, DE, Anthony J. Fuga, Pro Hac Vice, Lisa M. Kpor, Pro Hac Vice, Chicago, IL, Cynthia A. Gierhart, Pro Hac Vice, Washington, DC, R. David Donoghue, Pro Hac Vice, IL, for Plaintiff.

Darina Shtrakhman, Pro Hac Vice, John H. Hemann, Pro Hac Vice, Lauren Pomeroy, Pro Hac Vice, San Francisco, CA, Jessie Simpson LaGoy, Pro Hac Vice, Palo Alto, CA, Jeffrey L. Moyer, Tyler E. Cragg, Valerie A. Caras, Richards, Layton & Finger, PA, Wilmington, DE, Kathleen Hartnett, Pro Hac Vice, for Defendants.

MEMORANDUM OPINION AND ORDER

WILLIAM C. BRYSON, UNITED STATES CIRCUIT JUDGE

On September 4, 2020, plaintiff Ryanair DAC ("Ryanair") filed its original complaint against the defendants. Dkt. No. 1. The defendants moved to dismiss the original complaint on the grounds of forum non conveniens and failure to state a claim, Dkt. No. 16, and Judge Stark denied that motion, Dkt. No. 43. The case was then transferred to me, after which the defendants filed a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c). Dkt. No. 64. Ryanair then moved to amend its complaint to address matters raised in the defendants' motion, Dkt. No. 66, and I allowed the amendment, Dkt. No. 75.

On July 22, 2022, Ryanair filed its first amended complaint. Dkt. No. 76. The defendants then filed a motion to dismiss the first amended complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 80. In support of their motion to dismiss, the defendants have also moved for the court to take judicial notice of the contents of several documents. Dkt. No. 82. At the defendants' request, I held a telephonic oral argument on those two motions on October 18, 2022. For the reasons set forth below, the request for judicial notice is DENIED and the motion to dismiss is GRANTED IN PART and DENIED IN PART.

I. Background

Ryanair is a low-fare airline based in Ireland that offers flights in Europe and North Africa. Defendants Booking.com B.V. ("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.¹ 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. After creating an account, a user may view and purchase flights in the "myRyanair" section of the Ryanair website. Ryanair alleges that the myRyanair section of the website is not public, and that there are various contractual and technical mechanisms in place to ensure that unauthorized users are not able to access the myRyanair section of the Ryanair website or make unauthorized use of materials found in that section of the website.

Ryanair's complaint alleges five claims under the Computer Fraud and Abuse Act ("CFAA"), 18 U.S.C. § 1030. The key allegation underlying Ryanair's 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 then 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. Ryanair further alleges that such conduct violates the terms of use for the Ryanair website and that in conducting their screen scraping activities the defendants circumvent technology that Ryanair employs to prevent unauthorized users from accessing the myRyanair portion of the website.

One example of the technology that is referenced in Ryanair's complaint is a program called "Shield." Dkt. No. 76 at ¶¶ 98-102. Ryanair alleges that Shield "has blocked unauthorized users such as the Defendants . . . from scraping the Ryanair Website and selling Ryanair inventory." Id. at ¶ 99. Specifically, Ryanair alleges that Shield employs "a machine learning blocking algorithm" that "determine[s] whether a user accessing the Ryanair website is an unauthorized party"; if the user is unauthorized, Shield "block[s] that user from accessing the Ryanair Website." Id. at ¶¶ 100-01. Ryanair further alleges that the defendants or their agents "circumvent Shield and Ryanair's other technological and non-technological limitations on access to the Ryanair Website." Id. at ¶ 253.

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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).

Requests for judicial notice are governed by Federal Rule of Evidence 201. Under Rule 201, "[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known throughout the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(b). Moreover, if a party requests judicial notice and "the court is supplied with the necessary information," the court "must take judicial notice." Fed. R. Evid. 201(c).

In deciding a motion to dismiss, "courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint[,] and matters of public record." Pension Ben. Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). However, "a court may consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Id.

III. Request for Judicial Notice

I begin by addressing the defendants' request for judicial notice. The defendants ask that the court take judicial notice of ten documents: seven agreements between the defendants and various third parties; two documents from the Irish High Court; and the 2021 Form 10-K that BHI filed with the Securities and Exchange Commission.

Third-Party Agreements. As for the seven agreements between the defendants and various third parties, I disagree with the defendants' assertion that Ryanair's claims are "based on" those documents. See Pension Ben., 998 F.2d at 1196. The Third Circuit has generally permitted district courts to consider a document that a defendant attaches to a motion to dismiss only if the plaintiff relied on that document in the complaint. See Levins v. Healthcare Revenue Recovery Grp. LLC, 902 F.3d 274, 279 (3d Cir. 2018). That is because "the primary problem raised by looking to documents outside the complaint—lack of notice to the plaintiff—is dissipated where the plaintiff has actual notice and has relied upon those documents in framing the complaint." Id. (cleaned up). There is no indication, however, that Ryanair relied on the specific contents of the agreements offered by the defendants when it drafted either its original complaint or its first amended complaint. See Dkt. No. 92 at 7. Moreover, there are disputes regarding the authenticity of at least some of the third-party agreements. See id. at 8; Silverman v. Crown Cork & Seal Co. Pension Plan, No. 06-CV-5438, 2007 WL 9812749, at *1 n.1 (E.D. Pa. Aug. 24, 2007) ("Because at least some dispute exists as to the authenticity and completeness of the documents, the Court is unwilling to consider their substance for the purpose of ruling on Defendant's Motion to Dismiss."). Accordingly, the defendants' request for judicial notice is denied with respect to the seven third-party agreements.

Documents from the Irish High Court. The records of another court may generally be noticed, but "only to establish the fact of the litigation and [the] actions of that court." Trevino v. Merscorp, Inc., 583 F. Supp. 2d 521 (D. Del. 2008) (quoting 1 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 201.12[3] (2d ed. 2008)). In this case, the defendants seek to use two documents from the Irish High Court to establish a judicial admission on the part of Ryanair. Specifically, the defendants point to a declaration that Ryanair filed with the Irish High Court, which they argue establishes that Ryanair is capable of ascertaining who visits its website. See Dkt. No. 81 at 9; Dkt. No. 83-1, Exh. 10, at ¶¶ 39-45. Ryanair disputes that it is capable of doing so, in particular given its allegation that the defendants mask their IP addresses when accessing the Ryanair website. Dkt. No. 92 at 4. Accordingly, I find that the defendants' intended use of these two documents goes beyond the proper scope of judicial notice for documents from other courts. The request for judicial notice of the two documents from the Irish High Court is denied.

BHI's 10-K Filing. It is true, as the defendants argue, that SEC filings are public records and therefore are...