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Case 4:20-cv-07842-JST Document 1 Filed 11/05/20 Page 1 of 19
`
`
`Michael L. Schrag (SBN 185832)
`Geoffrey A. Munroe (SBN 228590)
`Joshua J. Bloomfield (SBN 212172)
`GIBBS LAW GROUP LLP
`505 14th Street, Suite 1110
`Oakland, California 94612
`Telephone: (510) 350-9700
`Facsimile: (510) 350-9701
`mls@classlawgroup.com
`gam@classlawgroup.com
`jjb@classlawgroup.com
`
`Enrico Schaefer (pro hac vice application forthcoming)
`TRAVERSE LEGAL, PLC
`810 Cottageview Drive, Unit G-20
`Traverse City, Michigan 49684
`Tel.: (231) 932-0411
`Fax.: (231) 932-0636
`enrico@traverselegal.com
`
`Adrianos Facchetti, Of Counsel (SBN 243213)
`TRAVERSE LEGAL, PLC
`301 East Colorado Boulevard, Suite 520
`Pasadena, California 91101
`Tel.: (626) 793-8607
`Fax.: (626) 793-7293
`adrianos@facchettilaw.com
`Counsel for Plaintiff and the Proposed Class
`
`
`UNITED STATES DISTRICT COURT FOR THE
`NORTHERN DISTRICT OF CALIFORNIA
`
` Case No. 3:20-cv-7842
`
`CLASS ACTION COMPLAINT
`DEMAND FOR JURY TRIAL
`
`
`
`
`
`ANTHONY FARMER, on behalf of
`himself and all others similarly situated,
`
` Plaintiff,
`
`v.
`
`AIRBNB, INC.; AIRBNB
`PAYMENTS, INC.,
`
` Defendants.
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`1.
`
`INTRODUCTION
`As the COVID-19 pandemic reached the United States earlier this year,
`Airbnb announced that it would allow Guests to cancel their reservations for a full refund
`and no cancellation fees.
`2.
`Airbnb is planning an IPO for later in the year and needed the positive press.
`But that press came at the expense of Hosts, who had negotiated their own cancellation
`policies with Guests and were hurt as much as anyone by the pandemic’s sudden impact
`on travel.
`3.
`
`Airbnb soon apologized to Hosts and announced that it was establishing a
`$250 million fund to help pay Hosts for cancelled bookings. It turns out, however, that this
`was yet another ruse to burnish the company’s public image, and that Airbnb was in effect
`paying Hosts with their own money.
`4.
`Airbnb had not actually issued full refunds to Guests as it said it would.
`Instead, Airbnb rejected many Guests’ refund requests, forced others to accept travel
`credits that expire next year, and issued only partial refunds to still more Guests.
`5.
`Airbnb then kept the remaining funds for itself—ignoring its fiduciary and
`contractual obligations to remit any such money to Hosts.
`6.
`Plaintiff is one of the hundreds of thousands of Hosts who have been
`shortchanged by Airbnb. He brings this proposed class action in an effort to stop Airbnb’s
`unlawful conduct, compel Airbnb to make a full accounting to Hosts, and require Airbnb
`to compensate Hosts for profiting at their expense.
`JURISDICTION
`The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332(d)(2)
`because this is a class action in which the amount in controversy exceeds $5,000,000,
`exclusive of interest and costs; in the aggregate, there are more than 100 members in the
`proposed class; and at least one class member is a citizen of a state different from
`Defendant.
`
`7.
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`9.
`
`8.
`
`INTRADISTRICT ASSIGNMENT
`Assignment to the San Francisco Division or Oakland Division is appropriate
`under Local Rule 3-2(c), as both defendants are headquartered in San Francisco and their
`applicable terms of service require judicial proceedings to be brought in San Francisco.
`PARTIES
`Plaintiff Anthony Farmer is a Texas citizen who previously offered vacation
`rentals through the Airbnb platform.
`10. Defendant Airbnb, Inc., is a Delaware corporation headquartered in San
`Francisco, California.
`11. Defendant Airbnb Payments, Inc., is a subsidiary of Airbnb that is also
`incorporated under the laws of Delaware and headquartered at the same address in San
`Francisco, California. Plaintiff alleges upon information and belief that Airbnb wholly
`owns and controls Airbnb Payments.
`FACTUAL ALLEGATIONS
`A.
`Airbnb’s Obligation to Pay Hosts in the Event of Cancelled Bookings
`12. Defendant Airbnb operates an online marketplace for vacation rentals. It
`makes money by connecting “Hosts” who own vacation properties with “Guests” in need
`of accommodations—and taking a percentage of each booking. The company recently
`valued itself at more than $25 billion.
`13. Airbnb stresses in its Terms of Service that it is only an intermediary. When
`users “make or accept a booking, they are entering into a contract directly with each other.
`Airbnb is not and does not become a party to or other participant in any contractual
`relationship between [users].” Terms, ¶ 1.2.
`14. Although Airbnb is not supposed to participate in transactions between its
`users, it does provide users a vehicle to pay one another through a subsidiary corporation
`called Airbnb Payments.
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`15. Airbnb users are required to agree to Payments Terms of Service, which
`appoint Airbnb Payments as the Hosts’ agent for collecting payment from Guests and
`obligates Airbnb Payments to turn over collected fees to Hosts.
`16.
`In a typical transaction, Airbnb Payments will collect payment from the Guest
`at the time of booking, hold that payment until after the designated check-in time, and then
`transfer the payment to the Host after deducting taxes and Airbnb’s service fee.
`17.
`In the event that a Guest cancels a confirmed booking, the Payments Terms
`require Airbnb Payments to “remit a Payout of any portion of the Total Fees due to [the
`Host] under the applicable cancellation policy.” Payments Terms, ¶ 7.2.4.
`18.
`The “applicable cancellation policy” is the cancellation policy displayed on
`the property listing and agreed to by the Guest at the time of booking. As Airbnb states in
`its Terms of Service, “Upon receipt of a booking confirmation from Airbnb, a legally
`binding agreement is formed between you and your Host, subject to any additional terms
`and conditions of the Host that apply, including in particular the applicable cancellation
`policy.”
`19. Hosts may choose from among six cancellation polices to include with their
`listings: “Flexible,” “Moderate,” “Strict,” “Long Term,” “Super Strict 30 days,” and “Super
`Strict 60 days.” See https://www.airbnb.com/home/cancellation_policies.
`20. Depending on which of these policies was agreed to by the Host and Guest, a
`portion of the Guest’s payment may be non-refundable upon cancellation. Under the
`Payments Terms, that non-refundable portion—less taxes and Airbnb’s service fee—must
`be turned over to the Host by Airbnb Payments. Payments Terms, ¶ 7.2.3-7.2.4.
`B.
`Airbnb’s Extenuating Circumstances Policy
`21.
`The portion of the Payments Terms concerning “Payouts” does not include
`any exception for extenuating circumstances, but a section dealing with “Fees improperly
`paid to you as a Host” provides that if “Airbnb issues a refund to the Guest in accordance
`with the Airbnb Terms, Guest Refund Policy, Experiences Guest Refund Policy,
`Extenuating Circumstances Policy, or other applicable cancellation policy, you agree that in
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`the event you have already been paid, Airbnb Payments will be entitled to recover the
`amount of any such refund from you, including by subtracting such refund amount out
`from any future Payouts due to you.”
`22. Airbnb’s Terms of Service also makes reference to the Extenuating
`Circumstances Policy, stating in relevant part, “Unless extenuating circumstances exist, any
`portion of the Total Fees due to the Host under the applicable cancellation policy will be
`remitted to the Host by Airbnb Payments pursuant to the Payments Terms.” Terms, ¶ 9.2.
`23.
`Similarly, in answer to the question, “What happens to my payout if my
`guest cancels,” Airbnb’s Help Center states, “If a guest cancels (either before or during a
`trip), they’re automatically refunded according to your cancellation policy, unless the
`cancellation qualifies for an additional refund under the Guest Refund Policy or because of
`a documented extenuating circumstance.”
`24.
`The hyperlinks concerning extenuating circumstances in the Payments Terms,
`Terms of Service, and Help Center all currently direct the user to
`https://www.airbnb.com/help/article/1320/extenuating-circumstances-policy, which
`describes Airbnb’s current Extenuating Circumstances Policy. That same Extenuating
`Circumstances Policy is also referenced and hyperlinked three additional times in the
`Term’s section on Booking Modifications, Cancellations and Refunds.
`25. Airbnb’s Extenuating Circumstances Policy is reserved for rare and
`unforeseen events that arise between booking and the scheduled check-in date, and
`requires supporting documentation or special review before Airbnb will approve refunds.
`26.
`The Extenuating Circumstances Policy currently states that Airbnb may be
`able to offer a full refund in the event of certain unexpected events, including death;
`serious illness or injury; urgent travel restrictions or severe security advisories; natural
`disaster; or epidemic disease.
`27.
`The Extenuating Circumstances Policy has changed somewhat over time,
`however, and while the precise dates of all such changes are not clear from publicly
`available information, Plaintiff alleges upon information and belief that prior to the
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`COVID-19 pandemic, the Extenuating Circumstances Policy did not refer to epidemic
`diseases or pandemics—it referred only to endemic diseases such as Chagas Disease, Zika,
`and Ebola.
`28.
`
`In addition to changing its Extenuating Circumstances Policy to cover
`epidemic diseases rather than endemic diseases, Airbnb also recently announced that it will
`update the Extenuating Circumstances Policy to include pandemics as well—effective
`January 20, 2021.
`29.
`In all versions of the Extenuating Circumstances Policy, Airbnb is only
`authorized to provide Guests a refund. No version of the Extenuating Circumstances Policy
`permits Airbnb to offer travel credits instead of refunds, and no version of the Extenuating
`Circumstances Policy permits Airbnb Payments to retain money paid by Guests rather than
`refunding it to Guests or paying it out to Hosts.
`C.
`Airbnb’s Public Response to the COVID-19 Pandemic
`30. When the COVID-19 pandemic began spreading across the United States
`earlier this year, Guests were often unable or unwilling to travel and decided to cancel
`bookings they had made with Hosts for vacation rentals.
`31. As businesses throughout the country struggled with how to respond to
`widespread requests for refunds, Airbnb quickly announced that it would offer full
`refunds to Guests who booked their vacation rentals on or before March 14, 2020—even if
`the agreement between the Guest and Host did not provide for a full refund. Airbnb said it
`would be offering these refunds under its Extenuating Circumstances Policy.
`32.
`In many cases, the refunds Airbnb claimed it was offering would come
`directly out of Hosts’ pockets. The Guests and Hosts had previously agreed on a
`cancellation policy that allocated the risk between each respective side, and Airbnb was
`now overriding the terms of the Guest-Host contract and siding entirely with one group of
`Airbnb users (the Guests) and against another group of users (the Hosts).
`33. Airbnb ultimately apologized to Hosts, with its CEO writing that he was
`“sorry that we did not consult you—like partners should.” At the same time, Airbnb
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`publicly announced it had set aside $250 million to help pay Hosts for cancelled bookings.
`Hosts would be eligible to receive 25% of what they would’ve received from a Guest under
`the cancellation policy in place at the time of the booking.
`34.
`Both Airbnb’s announcement that it would issue full refunds to Guests and
`its subsequent announcement that it would set aside $250 million for Hosts were widely
`covered in the press and helped enhance the company’s public appeal prior to its
`upcoming IPO.
`D.
`Airbnb Shortchanges Guests and Hosts
`35. Airbnb has not lived up to its public promises. Rather than issuing full
`refunds to Guests who cancelled bookings, Airbnb is giving Guests travel credits, issuing
`partial refunds, or denying Guests any compensation whatsoever.
`36. Hundreds of Guests have complained about Airbnb’s refund process, which
`has often required Guests to contact customer service repeatedly, navigate a confusing web
`interface designed to force Guests to accept a travel credit rather than a full refund, and
`upload a variety of supporting documentation to support their claim.
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`37.
`
`The screenshot below illustrates how Airbnb is using “dark patterns” to
`withhold full refunds from Guests and instead steer them toward a travel credit or other
`inferior options.
`
`38. Airbnb’s web interface appears to offer only two cancellation options: the
`Host’s cancellation policy, which in this case would provide the user with no refund; or a
`€334.75 option that, upon closer examination, is actually for a “travel credit” that must be
`used by the end of next year.
`39.
`The option for a “full cash refund” appears only at the bottom of the
`webpage, without its own radio button, and is accompanied by a warning that it will
`“require submitting official documentation.” (To make the “travel credit” and “full cash
`refund” options more apparent, red underlining has been added to the photo.)
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`40.
`
`If Guests recognize they are being offered travel credits rather than full
`refunds, and find the link to “Get started” on the full refund process, Airbnb then requires
`them to justify why they can’t travel due to COVID-19—even though Airbnb’s public
`pronouncements included no such limitation.
`
`41. Guests are then required to submit documentation to support their stated
`justification, which Airbnb often rejects as insufficient.
`42.
`The end result is that many Guests are forced to accept travel credits they are
`unlikely to use, partial refunds (under the Host’s cancellation policy), or nothing at all.
`43. At the same time, Airbnb is forcing Hosts to accept 25% of the amount called
`for by their own cancellation policies, or nothing at all. Airbnb Payments is uniformly
`refusing to pay Hosts the money they are owed under the Payments Terms—even if that
`money has not been refunded to the Guest.
`44.
`By shortchanging both Hosts and Guests, Airbnb has been able to retain large
`sums of money that Airbnb Payments was holding in escrow when the pandemic started.
`This money doesn’t belong to Airbnb.
`E.
`Airbnb Changes Its Terms to Authorize Similar Conduct in the Future
`45. Airbnb recently announced that it is changing its Terms of Service, Airbnb
`Payments’ Payments Terms of Service, and its Extenuating Circumstances Policy. These
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`terms are effective immediately for new Airbnb users and on January 20, 2021, for existing
`Airbnb users.
`46.
`The new Extenuating Circumstances Policy now provides that Airbnb may
`issue travel credits or other consideration instead of a refund, while the new Terms of
`Service now provide that Airbnb may reduce the Host’s payout by the amount of any costs
`Airbnb incurs as a result of a cancellation (including, presumably, the face value of travel
`credits).
`47.
`
`The new Terms of Service also now provide that Airbnb’s Extenuating
`Circumstances Policy may preempt the Host’s cancellation policy and that Airbnb may
`delay payment to Hosts if it reasonably expects to provide a refund under the Extenuating
`Circumstances Policy.
`
`48.
`
`PLAINTIFF’S EXPERIENCE
`Plaintiff Anthony Farmer is a Host who regularly used Airbnb to list vacation
`rentals. He is currently unemployed and previously depended on Airbnb for a large
`percentage of his income.
`49. As a result of Airbnb’s practices and Airbnb Payments’ failure to remit
`payment for cancelled reservations, Plaintiff has lost at least $655.
`50.
`For example, one Guest booked two nights in Plaintiffs’ vacation property,
`with check-in scheduled for March 27, 2020, and agreed to a “Strict” cancellation policy
`under which Plaintiff would retain 50% of the nightly rate if the Guest cancelled more than
`7 days prior to check-in. The Guest cancelled the booking on March 12, 2020, and under the
`Payments Terms, Plaintiff was entitled to receive 50% of the nightly rate from Airbnb.
`51. Airbnb Payments initially paid Plaintiff $99.91 in cancellation fees owed to
`him under his cancellation policy, but then reversed the transaction two weeks later. It did
`not allow him to retain even 25% of the cancellation fee as Airbnb had told the public it
`would under its $250 million Host relief fund.
`52.
`Plaintiff contacted Airbnb Support to ask why Airbnb was “taking back the
`$99 that’s already hit my account,” and noting that with him “trying to count every penny
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`and make ends meet, this is an absolutely devastating blow and seemingly is coming out of
`nowhere.”
`53. Airbnb Support declined to reverse the transaction or provide Plaintiff with
`any portion of the amount Plaintiff was owed by Airbnb Payments under the cancellation
`policy he and his Guest had agreed to. When Plaintiff requested to speak to someone on
`the phone, Airbnb Support took 18 days to respond and said it was “not able to do a phone
`call.”
`
`54.
`
`Plaintiff tried once more to get someone from Airbnb to speak with him, but
`Airbnb again refused, writing instead, “[W]e decided that what we have provided is
`sufficient for your query. We consider the decision final.”
`55.
`Collectively, Airbnb Payments has paid Plaintiff only $185.03 for six bookings
`that were cancelled by Guests in March or April 2020. Under the cancellation policies that
`the Guests agreed to at the time of booking, Plaintiff should have been paid at least $840.03
`by Airbnb Payments for those six bookings.
`56. Airbnb Payments has not provided a full and accurate accounting to Plaintiff
`stating whether his Guests were refunded in full or were instead given travel credits or
`some lesser cash payment. In fact, with respect to the Guest scheduled to check in on
`March 27, Airbnb indicated that the Guest was only refunded $135.50 of the $225 that
`Airbnb Payments originally collected from the Guest.
`ARBITRATION AND CHOICE OF LAW ALLEGATIONS
`57. Airbnb’s Terms of Service and Airbnb Payments’ Payments Terms of Service
`both include an arbitration clause that required Plaintiff to initially file his claims with the
`American Arbitration Association (AAA). Terms, ¶ 19; Payments Terms, ¶ 23.
`58.
`Plaintiff filed his claims with AAA on July 28, 2020, and AAA sent the parties
`an initiation letter on August 31, 2020, which required Airbnb to pay AAA $1,8000 before
`the arbitration could proceed. Those fees were owed by Airbnb under AAA’s Consumer
`Arbitration Rules and were due by September 14, 2020.
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`59. Airbnb failed to pay the fees required by AAA within 30 days of the due date,
`and as a result the arbitration could not proceed. On October 21, 2020, AAA confirmed by
`letter to the parties that it had yet to receive payment in full from Airbnb.
`60. Under California Code of Civil Procedure § 1281.97(a), Airbnb’s failure to pay
`AAA in full within 30 days of the due date constitutes a waiver of Airbnb’s right to compel
`arbitration.
`61.
`
`Plaintiff has elected to withdraw his claim from arbitration, as permitted by
`Code of Civil Procedure §1281.97(b), and proceed before this Court.
`62. Under both Airbnb’s Terms of Service and Airbnb Payments’ Payments
`Terms of Service, judicial proceedings are required to be brought in state or federal court in
`San Francisco, California. Terms, ¶ 21.1; Payments Terms, ¶ 21.1.
`63. Airbnb’s Terms of Service and Airbnb Payments’ Payments Terms of Service
`also provide that their terms “will be interpreted in accordance with the laws of the State of
`California and the United States of America, without regard to conflict-of-law provisions.”
`Terms, ¶ 21.1; Payments Terms, ¶ 21.1.
`CLASS ALLEGATIONS
`Pursuant to Rule 23 of the Federal Rules of Civil Procedure, Plaintiff seeks to
`pursue his claims on behalf of a class of similarly situated persons. The parameters of the
`class may be refined through discovery and will be subject to Court approval and
`modification, but for purposes of this complaint, Plaintiff proposes the following class
`definition:
`
`64.
`
`All persons residing in the United States who accepted rental bookings
`through the Airbnb platform that were subsequently cancelled by the
`booking party, and who were not paid the amount owed to them under the
`booking’s cancellation policy.
`
`Plaintiff further proposes the following persons be excluded from any certified class:
`Plaintiff’s counsel, members of Plaintiff’s counsel’s immediate families, officers, directors,
`employees of Plaintiff’s law firm and any entity property owners controlled by such people;
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`Defendants, their current or former officers, directors, legal representatives, and
`employees; any and all parent companies, subsidiaries, predecessors, successors, or assigns
`of Defendants; and all judicial officers and associated court staff assigned to this case and
`their immediate family members.  
`65.
`The proposed class meets the requirements for class certification pursuant to
`Rule 23(a), Rule 23(b)(2), and Rule 23(b)(3).
`66. Numerosity: The class is sufficiently numerous such that joinder of all
`members is impracticable. The number of active Hosts in the United States is in the
`hundreds of thousands—far too many to include in one action through individual joinders.
`67.
`Commonality: Plaintiff’s and class members’ claims against Defendants
`present common questions of law and fact, including:
`a. Did Airbnb Payments breach the Payments Terms by failing to turn over
`money owed to Hosts under their cancellation policies?
`b. Did Airbnb breach its Terms of Service by failing to cause Airbnb Payments
`to remit the portion of fees due to Hosts under their cancellation policies?
`c. Was Airbnb authorized under its Extenuating Circumstances Policy to offer
`refunds to any Guest who cancelled a booking made on or before March 14, 2020?
`d. If so, were Defendants permitted to keep money paid by Guests who were
`not fully refunded their money?
`e. Did Airbnb Payments owe Hosts a fiduciary duty to act in the utmost good
`faith with regard to money collected from Guests on Hosts’ behalf?
`f. Did Airbnb Payments earn secret profits while operating as the Hosts’
`collection agent?
`g. Did Airbnb Payments provide Hosts a complete and accurate accounting of
`its disposition of money it collected while acting as an agent for the Hosts?
`h. Is it unfair for Defendants to retain money that Airbnb Payments collects
`from Guests as the collection agent for Hosts?
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`68.
`
`Typicality: Plaintiff’s claims against Defendants are typical of the class’s
`claims. Airbnb Payments acted as collection agent for both Plaintiff and class members, and
`has failed to remit or give a proper accounting of money collected from both Plaintiff and
`class members. In addition, Plaintiff and class members’ claims depend in significant part
`on uniform contractual terms that govern both Airbnb and Airbnb Payments’ provision of
`services, as well as on uniform policies administered by Airbnb.
`69.
`Adequacy: Plaintiff is a member of the proposed class and will fairly and
`adequately protect its interests. Plaintiff’s interests are also properly aligned with those of
`class members, as each seeks to hold Defendants liable for failing to remit or give a proper
`accounting of money collected from Guests on their behalf.
`70.
`Predominance: The common questions identified above are likely to
`predominate at trial when compared to any individualized issues that may arise. The major
`issues upon which Defendants’ liability depends—in particular, the issues of whether
`Defendants were authorized to refund money paid to Hosts by Guests under its
`Extenuating Circumstances Policy, and whether Defendants were authorized to retain
`money that was not actually returned to Guests—are susceptible to generalized proof that
`could establish Defendants’ liability as to all class members through a single trial.
`71.
`Superiority: A class action is superior to other available methods for the fair
`and efficient adjudication of this controversy. Successfully prosecuting class members’
`claims will likely take several years and involve extensive pre-trial litigation against a $25
`billion company, large amounts of electronically stored information, and multiple expert
`witnesses. These are matters that are best handled through unified class-wide
`representation, which can be conducted on a contingency basis and offers class members
`economies of scale unavailable in individual proceedings. A class action also has the
`benefit of comprehensive supervision by a single court and will avoid the risk of
`inconsistent results.
`72.
`Injunctive Relief: Defendants have wrongly withheld funds and failed to
`provide a proper accounting to Plaintiff and class members on common grounds, such that
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`final injunctive relief or corresponding declaratory relief is appropriate respecting the class
`as a whole.
`
`73.
`
`FIRST CAUSE OF ACTION
`Breach of Contract Against All Defendants
`Plaintiff alleges this cause of action on his own behalf and on behalf of the
`proposed class, and in so doing, incorporates all preceding allegations.
`74. Airbnb’s Terms of Service constitute a binding contract between Hosts and
`Airbnb. The Terms of Service incorporate by reference Airbnb’s Extenuating Circumstances
`Policy.
`75. Airbnb Payments’ Payments Terms of Service constitute a binding contract
`between Hosts and Airbnb Payments.
`76.
`Plaintiff and class members have fulfilled their contractual obligations or
`were excused from doing so, but Airbnb and Airbnb Payments have not.
`77. Airbnb Payments breached the Payments Terms by failing to “remit a Payout
`of any portion of the Total Fees due to [Hosts] under the applicable cancellation policy.”
`Payments Terms, ¶ 7.2.4.
`78. Airbnb Payments collected money from Guests as the collection agent for
`Plaintiff and class members, but when Guests later cancelled their rental bookings, Airbnb
`Payments did not remit to Plaintiff and class members the portion of those fees owing to
`them under the cancellation policy that Guests had previously agreed would apply.
`79. Airbnb similarly promised in its Terms of Service that, “[u]nless extenuating
`circumstances exist, any portion of the Total Fees due to the Host under the applicable
`cancellation policy will be remitted to the Host by Airbnb Payments pursuant to the
`Payments Terms.” Terms, ¶ 9.3.
`80. Airbnb breached that promise by failing to cause Airbnb Payments to remit to
`Plaintiffs and class members the money they were owed.
`81. Airbnb also breached the Terms of Service by offering Guests refunds that it
`was not authorized to provide under its Extenuating Circumstances Policy. The
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`Extenuating Circumstances Policy that applied when Guests booked their vacation rentals
`did not authorize Airbnb to offer refunds to entire regions or groups of people affected by a
`new disease. Airbnb was only authorized to offer refunds to regions or groups of people
`affected by endemic diseases, and COVID-19 is not an endemic disease.
`82.
`To the extent the Terms and incorporated Extenuating Circumstances Policy
`afforded Airbnb discretion to decide whether to issue refunds to Guests affected by the
`COVID-19 pandemic, Airbnb breached the implied covenant of good faith and fair dealing
`by exercising that discretion unfairly and in bad faith.
`83. As a result of Defendants’ breaches of their contractual obligations, Plaintiff
`and class members have been denied funds owed to them under Defendants’ Terms of
`Service and Payments Terms and have been damaged in an amount according to proof.
`
`84.
`
`SECOND CAUSE OF ACTION
`Breach of Fiduciary Duty Against Airbnb Payments
`Plaintiff alleges this cause of action on his own behalf and on behalf of the
`proposed class, and in so doing, incorporates all preceding allegations.
`85. Airbnb Payments was appointed to serve as the payment collection agent for
`Hosts under the Airbnb Payments Terms of Service. Payments Terms, ¶ 9.
`86.
`In its capacity as the payment collection agent, Airbnb Payments collected
`money from Guests who purchased services from Plaintiff and class members.
`87. Airbnb Payments owed Plaintiff and class members a fiduciary duty to act
`with the utmost good faith in its handling and disposition of the money it collected.
`88. Airbnb Payments breached its fiduciary duty by knowingly and intentionally
`acting against Plaintiff’s and class members’ interests, secretly profiting from its agency
`relationship, and failing to disclose to Plaintiff and class members all information relevant
`to the subject matter of its agency.
`89. Airbnb Payments failed to remit money it had collected from Guests and that,
`upon the Guests’ cancellation of their bookings, was owed to Plaintiff and class members
`under their contracts with Guests.
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`90. Airbnb Payments also retained money it had collected from Gue

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