Airbnb COVID-19 Arbitration Claims - Sharing What We Have Learned - Oct 3 2020 Update

Welcome to the October 2nd Airbnb host arbitration update. My name is Enrico Schaefer. As you know, I'm an attorney representing Airbnb hosts against Airbnb for COVID-19 refunds that violated The strict cancellation policy of hosts. We've been at this since April of 2020. We've filed a lot of arbitration cases, and we have a large number of arbitration cases still in the hopper. Some of those may be yours if you are clients. So I wanted to take this moment to kind of bring you up to speed as to where we are with the Airbnb arbitrations. And what's going to happen next. So I want to hit really 4 points today. The first is what we've learned, and we've learned a lot. We've learned a lot. Every single month that's gone by, we've been able to really get smarter about our cases, our clients, Airbnb, Airbnb's defenses, and what the possibilities are here moving forward. I also want to talk about the fact that Airbnb, and in these arbitrations brought by hosts, that the data suggests that Airbnb is resolving these cases, perhaps in anticipation of the upcoming IPO, brought by individual claimants, individual hosts who are acting essentially as their own attorneys in these arbitrations. So the self-help arbitrations Are getting resolved. We can't see the results of those, but if they don't go all the way to the end, that typically means that they're settled along the way in many of those cases. And so we're seeing some of that data come in. We are representing clients, as you know, on the larger claims, typically over $15,000, and we have been moving those cases forward, and we're about to start another big push of filing arbitrations with our new arbitration demand. I also want to talk about what's next. So what have we learned? Well, we certainly have learned all of Airbnb's defenses. We, we are a long way down the line. We have arbitrators assigned in many of these cases. There have been case management hearings, there have been scheduling orders, there's been motion practice. So we now see the entire battlefield with Airbnb, and we're encouraged. We have not seen a single defense or tactic that concerns us. To date, we still believe that we are going to win these cases on behalf of hosts, and we wouldn't be in it if we didn't. Airbnb is really engaged in a lot of procedural delay as a tactic. They don't want to go to the merits of these cases. You might recall in the terms of service they say they're committed to consumer arbitration. They've asked you to give up your right to a class action or collective action because They're committed to fast, efficient consumer arbitration. Well, guess what? It turns out they're not committed to that at all, and that was one of many misrepresentations in the terms of service. They are not committed to resolving your case on the merits. They're committed to trying to stall and avoid the merits of the case, which of course, as you'll see, really raises some questions as to whether or not the terms of service And specifically the dispute resolution and specifically the class action waiver are even enforceable. So we'll talk about that more in a minute. So our claims are stronger than what we knew when we started this. We knew there were viable claims. We knew there were major red flags with the change of the word endemic to epidemic and the way Airbnb had hid that fact from the world and tried to pretend as though the ECP, the Extenuating Circumstances Policy, had always said epidemic, when in fact they changed that on about March 13th and then tried to apply that new policy, which had— to which you had not been given your 30 days notice, retroactively to existing contracts to which Airbnb is not a party. Even saying that, right, is a major red flag. And I think that what we're seeing, even with the arbitrators, the antennas are going up The red flags are going up that it just doesn't sound right what they did. All right, so the premise of this whole thing is that Airbnb cannot change the rules of the games after the fact, and that that's what they did with regards to the COVID-19 refunds. Okay, so what do we know? That there is some data that's available through the American Arbitration Association. There have been— 2,000. You know, over 100 cases filed against Airbnb, and there, of course, with— through our firm and others, there's many more cases in the works. And many of those cases were filed after April 1st, 2020. So what does that mean? That means that in all likelihood, those are COVID-19 refund cases. And so many of those are ours. Some of those are people that are using a self-help platform such as 10,000hosts.com. And so not all of them are COVID-19 refund cases, I would assume, but many, many of them are. What we also know is that only 42 of the cases are still pending. So that means that dozens of cases have closed, and I think it's a fair inference that many of the self-help cases that have closed have been resolved. And that leads to the inference that they have been settled. So in order for a case to settle, both parties have to agree, and we don't know exactly how many pennies on the dollar hosts may have achieved in self-help against Airbnb, but there's a strong suggestion that Airbnb in August and September has really started to settle COVID-19 refund claims and trying to put those behind them, right? So self-help claims appear to be being resolved. And self-help consumers can use the 10,000Host.com platform, which guides you through the process of filing your arbitration yourself if you want to do so. If you have a smaller claim and we're not willing to or able to represent you, then you can use that self-help platform. Those cases are closing at AAA. To us, this suggests that you've got a reasonable chance of recovering your COVID-19 refunds. And balancing the scales between hosts and guests. Okay, so we're representing clients on larger claims. None of ours have settled, and we've never even raised the prospect of settlement or a willingness to settle with Airbnb. Why? Because we're going for maximum leverage. We want to continue to get rulings in our favor, and we've had many, many rulings in our favor to date. And we want to get to the discovery of documents which Airbnb does not want anyone to see. We want to see why and how Airbnb came to the conclusion that it was going to prefer guests over hosts, that it was going to ignore your strict cancellation policy, that it was going to apply your strict cancellation— it was going to override your strict cancellation policy, your rental agreement with your guests. that had already been in place, that it was going to somehow modify those agreements, even though Airbnb is not even a party to those agreements. And we certainly have shown, I think without any question, a willingness to litigate all the way to the end of these cases in order to get to the result. Of course, that's one of the benefits you get if you have aggressive counsel on your side, is the expertise and the resources to take the case All the way to the end if necessary. So we've never been as confident that we can win these cases and that we can change the game on your behalf, now knowing what we know. How many months now? 6 months, 5 months into these arbitration cases. So we continue to push forward for our clients, and so we want to talk about a little bit about what's next. So we've got this new Arbitration demand that's been amended based on everything that we know. And one of the things we learned is that our arbitrators don't necessarily understand how Airbnb works. They don't understand how the terms of service work. So what we realized is we really needed to up our game on the demand for arbitration. So what we did is we really baked in, in over 130 Separate allegations that we've included in our new amended demand, which we're now filing for our clients. If you haven't had yours filed yet, we're going to put you into a system that's going to generate this new amended demand. If you are already filed as one of our clients, we're going to amend your demand to this version. If you are not one of our clients and you want to gain access to this document, you can do so through the 10,000hosts.com platform. which is going to customize this very document for your case to go ahead and file. So you can see, let me just kind of go through the general approach that we've taken in this 130+ allegation demand. We're really providing background information for the arbitrator about what Airbnb is, how it works, that it is just a platform. It's just a directory of your listings. And then making those available through search to potential travelers. So, we go through everything from the clickwrap agreement, which is, oh, there's your terms of service, the payment terms, right? Clickwrap agreement, which from our point of view is an adhesion contract, which makes it susceptible to attack if the language and the terms are not absolutely objectively clear and enforceable from an objective standpoint. We also really spent some time helping the arbitrator understand that Airbnb's own terms of service make it extremely clear that Airbnb is not a party to your rental agreement with your guest. Many hosts don't even understand that because they don't necessarily go back and look at the terms of service all the time, right? Your rental agreement is strictly between you and your guest, and that includes your cancellation policy. Airbnb is not a party. To your contract or to your cancellation policy that you choose. We really stress that Airbnb makes it very clear. They make you agree and the traveler agree that it has no involvement in hosting or managing properties. Well, if it has no involvement in that, how does it retain the right to do whatever it wants with your host payouts? We also make it clear that they have to provide you 30 days' notice by email before they can change the contract between you and them, which of course didn't happen in any of the updates to the ECP or the new COVID-19 policy they came up with in March and then applied not only, you know, without 30 days' notice, but then applied it retroactively to existing contracts, which of course violates contract law, again, from our point of view. So we really try and emphasize some key points to the arbitrator. Airbnb is fighting arbitration despite the fact that they say in their terms of service that they are committed to consumer arbitration with AAA for all disputes for all members, okay? And they do that in exchange for the class action waiver. Well, if they're not really committed to AAA consumer arbitration for all disputes for all members is a very good argument that they waived the class action waiver, and we're going to be getting to that shortly. All right, so here's some more. Go through the cancellation policies: flexible, moderate, strict. You picked strict. You're entitled to enforce your strict cancellation policy and to manage that with your guests without involvement from Airbnb. We go through all of that. We show how the guest actually selects a cancellation policy, how it's their choice, how there's nothing in any of this about the ECP. It's just simply 48 hours after booking and they can cancel, 100% refund. After— until 7 days before, they can get a 50% refund. Then they lose their entire payout. That's what your rental contract says, to which Airbnb is not a party. We also talk about Airbnb's expected IPO because we believe, and I think anyone would believe, that that played a big part in their decision on COVID-19 refunds. We talk about the pandemic. You can see how detailed this is. If you're an arbitrator, you're gonna have all the context you need to understand why this host feels like they have been aggrieved, why Airbnb didn't follow their own terms, And why these refund claims should not have been allowed. If Airbnb wanted to provide $2 billion worth of refunds to its travelers in order to bolster its IPO valuation, should have paid for it itself. It shouldn't have used hosts as insurers of the pandemic. So you can see we go through all of this fraudulent change of the word endemic to epidemic, all of it. The travel Credit scam, which you— has been— you know about, right? This has been one of the things that I've really heard from hosts, this scam of the travel credit, where maybe they haven't taken that as money yet for unused credits, but certainly when they put this system into place, they reserve their right to actually convert your payouts in unredeemed credits into revenue to Airbnb. Okay. So this is what you're getting now with the new amended arbitration demand. So if you think you haven't heard from me because we haven't been busy, you can see actually the very opposite is true. We've been fighting really hard against Airbnb and we've been upping our game every single day in order to win these cases. All right. So for all our clients, you're gonna get into this version. If you go to 10,000hosts.com, this is the version you're going to get for your own arbitration. Okay? We do have clients that want to file a class action based on what we now know Airbnb says the terms mean. No reasonable consumer, no reasonable member under their definition in the terms would have ever guessed that Airbnb would be taking the legal positions it's taking now. Even I, who draft these documents for a living representing major platforms across the globe would ever have been able to read the terms and guess that Airbnb was going to say they meant what they are now saying they meant? Well, here's a basic contract principle. In order for there to be a contract, there has to be a meeting of the minds on material terms. And in an adhesion contract context, they have an obligation since they're the drafter and you have no say to make whatever they're gonna apply against you as terms very clear, very definite. And if I can't even understand or couldn't have anticipated that they were gonna now be arguing what they're gonna argue, how would you have ever known what you were agreeing to? That gives you an argument that these are unenforceable terms, that they're invalid terms to the extent that they're trying to claim those terms and enforce them against you, okay? So, our goal ultimately is gonna be to give clients the option. If you're filing an arbitration with us, you're in the strongest possible position. And if you wanna be represented by us either in arbitration or class action, you have to be filed in arbitration through us or through 10,000hosts.com, okay? So, it still makes sense to file these arbitrations. You need to do that if you want us to be representing you. So it's not a one or the other proposition in terms of our representation. Airbnb still is kind of counting on the— they're kind of sensing, oh, this is gonna all blow over, right? They're counting on hosts to stay silent, to lose their attention because maybe they're doing well again, or to simply move on. Remember, this is more— this is about more than COVID-19 refunds. This is about how hosts are being treated within the platform. This is about Airbnb being forced to comply with its own terms of service. This is about Airbnb being required to draft clear and objectively discernible terms in their terms of service so you know what you're signing up for. This is about having your strict cancellation, moderate cancellation, Flexible cancellation, your cancellation policy in your rental agreement applied, and to let you work with your guests on any changes to that contract. So keep in mind, getting involved, yes, it's going to potentially get you thousands, tens of thousands, or hundreds of thousands of dollars back on the COVID-19 refunds, which we say were a breach of the terms of service. But the future of the platform is also at stake. How Airbnb is going to treat hosts into the future is really what we're fighting for here. Really what we're fighting for here. And we need your help. I'm a host. You're a host. If we're all in this together, we can really change the game. So get involved because at stake is fairness. And you're building your business, making investments, taking risk based on this platform that you know isn't being fair to you. You have a right to expect fairness. The contract law is on your side in terms of imposing fairness and adhesion contracts such as these terms. So making Airbnb accountable and transparent in its dealings with you at the house is going to benefit you for years into the future. It is more than the money that's at stake here. The money that you are going to make in the future, the risk that you are taking in the future is really the key thing that's at stake. All right, so that's what's going on. You are now up to date, and I promise now that we're rolling again, we'll try and get you some more of these updates. Feel free to share this video and spread the word and ask any questions that you want of me. Of course, at any time, I'm always happy to engage with hosts. My name is Enrico Schaefer, and we'll see you next time. Thank you.