Case 4:20-cv-00022-TWT Document 1 Filed 01/31/20 Page 1 of 30
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ROME DIVISION
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`CIVIL ACTION FILE NO.:
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`COMPLAINT – CLASS ACTION
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`CITY OF ROME, GEORGIA;
`HART COUNTY, GEORGIA;
`CITY OF CARTERSVILLE,
`GEORGIA; AND CITY OF TYBEE
`ISLAND, GEORGIA, and All Other
`Cities and Counties of Georgia
`Similarly Situated,
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` Plaintiffs,
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`AIRBNB, INC. and
`AIRBNB PAYMENTS, INC.,
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` Defendants.
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`
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`CLASS ACTION COMPLAINT
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`Come now City of Rome, Georgia; Hart County, Georgia; City of Cartersville,
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`Georgia and City of Tybee Island, Georgia, and All Other Cities and Counties of
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`Georgia Similarly Situated, Plaintiffs, by and through counsel, and file this their
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`Complaint against Defendants AIRBNB, INC., and AIRBNB PAYMENTS, INC.,
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`(collectively “Defendants”), and state the following:
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`a)
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`Plaintiffs
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`I. PARTIES
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`1.
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`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF GEORGIA
`ROME DIVISION
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`
`
`
`
`CIVIL ACTION FILE NO.:
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`COMPLAINT – CLASS ACTION
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`CITY OF ROME, GEORGIA;
`HART COUNTY, GEORGIA;
`CITY OF CARTERSVILLE,
`GEORGIA; AND CITY OF TYBEE
`ISLAND, GEORGIA, and All Other
`Cities and Counties of Georgia
`Similarly Situated,
`
` Plaintiffs,
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`AIRBNB, INC. and
`AIRBNB PAYMENTS, INC.,
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` Defendants.
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`
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`CLASS ACTION COMPLAINT
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`Come now City of Rome, Georgia; Hart County, Georgia; City of Cartersville,
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`Georgia and City of Tybee Island, Georgia, and All Other Cities and Counties of
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`Georgia Similarly Situated, Plaintiffs, by and through counsel, and file this their
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`Complaint against Defendants AIRBNB, INC., and AIRBNB PAYMENTS, INC.,
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`(collectively “Defendants”), and state the following:
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`a)
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`Plaintiffs
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`I. PARTIES
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`1.
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`Plaintiff City of Rome, Georgia (hereafter “Rome”) is a municipal
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`corporation organized under the laws of the State of Georgia (as of 1847) and is the
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`county seat of Floyd County.
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`2.
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`Plaintiff Hart County, Georgia (hereafter “Hart”) was created in 1853 from
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`parts of Elbert and Franklin Counties.
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`3.
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`Plaintiff City of Cartersville, Georgia (hereinafter “Cartersville”) is a
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`municipal corporation organized under the laws of the State of Georgia (as of
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`1850) and is the county seat of Bartow County.
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` 4.
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`Plaintiff City of Tybee Island, Georgia (hereinafter “Tybee Island”) is a
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`municipal corporation organized under the laws of the State of Georgia and is an
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`island located in Chatham County, and was once known as Savannah Beach.
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`B. Defendants
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`5.
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` Defendants are commonly known as online travel companies and/or short-
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`term rental companies, which market and sell or rent accommodations (including
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`but not limited to rooms, apartments, condominiums and/or entire homes or
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`residences) over the internet within the State of Georgia.
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`6.
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`AIRBNB, INC. is a Delaware corporation with its principal place of business
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`in San Francisco, California. AIRBNB, INC. may be served by and through the
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`Georgia Secretary of State, as its statutory agent for service of process.
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`7.
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`AIRBNB PAYMENTS, INC. is a Delaware corporation with its principal
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`place of business in San Francisco, California. AIRBNB PAYMENTS, INC. may
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`be served through its registered agent, Corporation Service Company, 40
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`Technology Pkwy South, #300, Gwinnett, Norcross, GA 30092.
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`II.
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`JURISDICTION AND VENUE
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`8.
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`All Defendants regularly transact business within and profit by reason of
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`business within the State of Georgia, and the claims asserted herein arise from their
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`business conducted within and relating to this State and within the cities and counties
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`throughout the State. Defendants are thus subject to the personal jurisdiction of this
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`Court.
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`9.
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`This Court possesses subject matter jurisdiction of the claims asserted herein
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`pursuant to 28 U.S.C. §1332 in that there is complete diversity of citizenship
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`between Plaintiffs and Defendants and the amount in controversy exceeds the sum
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`of $75,000.00 exclusive of interest and costs. Furthermore, this case is brought as a
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`class action and seeks more than $5 million in damages such that jurisdiction is also
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`proper under the 28 U.S.C. §1332(d).
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`10.
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`Venue is proper in this Court pursuant to 28 U.S.C. § 1391.
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`III.
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`INTRODUCTION
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`11.
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`This action is one of central importance to Plaintiffs and to the integrity of the
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`tax laws of the State of Georgia, including the applicable local ordinances at issue
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`in this case. This action is brought to remedy violations of state law and
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`corresponding local ordinances enacted pursuant thereto in connection with
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`Defendants’ misconduct in their failure to collect and/or remit taxes due and owing
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`to the named Plaintiff cities and counties and other political subdivisions of the State
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`of Georgia similarly situated. Defendants have failed and refused to comply with
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`transient occupancy and/or excise taxes enacted by the Plaintiffs and the Plaintiff
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`Class. Plaintiffs seek relief from the Defendants’ direct and intentional violations
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`and evasions of taxes due upon the short-term rental accommodations the
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`Defendants list and sell.
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`IV. COMMON ALLEGATIONS
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`12.
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`Defendants are online travel companies (hereinafter sometimes referred to
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`collectively as “Short Term Rental Companies” or Online Travel Agencies
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`(hereafter, STRCs). Generally, STRCs act as online sellers of short-term rental
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`accommodations in premises owned by others (the “Hosts”) offered worldwide,
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`nationwide, and within the State of Georgia to consumers for a profit. The STRCs
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`provide various services in each rental transaction including, inter alia, collecting
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`the price paid by the renter in consideration for occupation of the rental premises.
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`13.
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`As described by Defendant Airbnb, Inc: "The Airbnb Platform is an online
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`marketplace that enables registered users (“Members”) and certain third parties who
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`offer services (Members and third parties who offer services are “Hosts” and the
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`services they offer are “Host Services”) to publish such Host Services on the Airbnb
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`Platform (“Listings”) and to communicate and transact directly with Members that
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`are seeking to book such Host Services (Members using Host Services are
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`“Guests”). Host Services may include the offering of vacation or other properties
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`for use (“Accommodations”), . . . .” Airbnb, Inc. “Terms of Service” §1.1
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`(emphasis as in original).
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`14.
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`Under the Defendants’ business plan, the owners of the rental premises (the
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`“Hosts”) set a price for the rental accommodation (the “Listing Fee”) together with
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`any additional charges such as cleaning fees, security deposits and applicable taxes
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`(collectively the “Total Fees”), which are agreed to be posted on the Defendants’
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`web sites.
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`15.
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`Under Airbnb, Inc.’s agreement with its Hosts, the Hosts must also contract
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`with Defendant Airbnb Payments, Inc., which actually collects and disburses the
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`payments among the entities involved in the online rental transactions.
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`16.
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`To obtain a profit from this general business model, the Defendants charge
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`both the Host and the rental consumer (the “Guest”) a “Service Fee” for each
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`transaction. In order to occupy the rental accommodation, the Guests must agree to
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`pay the total price posted on the Airbnb website platform, which includes the Total
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`Fees and Airbnb’s fees to the Guest.
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`17.
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`For each rental transaction, Defendants are the sole interface between the Host
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`and Guest and bill and collect all monies paid by the Guest for the short-term rental.
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`The Defendants then distribute a portion of the rental proceeds to the Host and retain
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`the rest of the price paid by the Guest: “Your [the Host’s] Payout for a booking will
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`be the Listing Fee less applicable Host Fees and Taxes.” Airbnb Payments, Inc.
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`“Payment Terms of Service” §7.2.3 (bold emphasis added).
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`18.
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`The rooms, lodgings and/or accommodations marketed and sold by
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`Defendants in Georgia (if occupied by the consumer for less than thirty (30) days of
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`continuous occupancy) are “accommodations” subject to the taxation provisions of
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`O.C.G.A. § 48-13-51, et. seq. and the local ordinances of Plaintiffs and the Plaintiff
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`Class enacted pursuant thereto.
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`Occupancy Taxes
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`19.
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`Counties and cities in Georgia may impose excise taxes on the short-term
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`rental of rooms, lodgings or accommodations in their jurisdictions at rates between
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`3 and 8 percent, as provided for in O.C.G.A. § 48-13-50 et seq. The amount of the
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`transient occupancy and/or excise tax is correctly calculated as a percentage of the
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`total price each consumer occupant pays for their accommodations. (Said taxes
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`hereafter referred to as “Excise Taxes” or “Occupancy Taxes”).
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`20.
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`All of the Plaintiffs and members of Plaintiffs’ proposed Plaintiffs’ Class
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`have enacted similar ordinances pursuant to O.C.G.A. § 48-13-50 et seq. imposing
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`Occupancy Taxes on the short term rental of accommodations within their
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`jurisdictions.
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`Rome Ordinances (For example)
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`21.
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`Article VII, Section 8-228 of the Code of the City of Rome, Georgia
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`imposes a tax of “eight percent of the rent for every occupancy of a guest room
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`in a hotel in the city.”
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`22.
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` Article VII, Section 8-226 defines “Rent” as “the consideration received for
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`occupancy valued in money, whether received in money or otherwise, including all
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`receipts, cash, credits and property or services of any kind or nature, and also the
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`amount for which credit is allowed by the operator to the occupant, without any
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`deduction therefrom whatsoever.” (emphasis added).
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`23.
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`Article VII, Section 8-229 further provides that “(a) Every operator
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`maintaining a place of business in the city and renting guest rooms in the city shall
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`collect a tax of eight percent on the amount of rent from the occupant,” and that
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`“(b) Such operator shall provide a receipt to each occupant to whom the tax is
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`charged, showing the amount of rent and the amount of all taxes by category.”
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`(Emphasis added).
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`Hart County Ordinances (For example)
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`24.
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`Similar to the Occupancy Tax imposed by the City of Rome, Hart County
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`imposes a “tax of five percent of the rent for every occupancy of a guest room in a
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`hotel in the unincorporated area of the county.” Article VII, Section 78-192.
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`25.
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`Coinciding with the City of Rome’s definition, Hart County defines
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`“Rent” as “the consideration received for occupancy valued in money, whether
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`received in money or otherwise, including all receipts, cash, credits, and property
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`or services of any kind or nature, and also the amount for which credit is allowed
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`by the operator to the occupant, without any deduction whatsoever.” Article VII,
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`Section 78-191 (emphasis added).
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`Liability for Taxes
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`26.
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`The amount of Occupancy Tax that Hosts (and Defendants) are required to
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`collect and remit to Plaintiff Class Members is independent of and in addition to
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`any “sales and use” or other taxes required on lodging transactions.
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`27.
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`Under Georgia law, both the supplier of accommodations and the consumer
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`of accommodations are liable for payment of Occupancy Taxes. O.C.G.A. §48-13-
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`51 (a)(B)(i) and (ii).
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`28.
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`Hosts (and Defendants) are liable to the Plaintiffs and the Plaintiff Class for
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`said Occupancy Taxes on the total amount collected for the short-term
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`accommodations rental, whether they charge and collect said taxes from the
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`occupier of the accommodations or not.
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`29.
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`In addition to the rental price of the accommodations, all Guests (except for
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`enumerated exceptions) are also required to pay a tax. Georgia law defines the tax
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`to be paid as “the debt of the person obtaining the room, lodging, or accommodation
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`to the person or entity providing such room, lodging, or accommodation until it is
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`paid and shall be recoverable at law by the person or entity providing such room,
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`lodging, or accommodation in the same manner as authorized for the recovery of
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`other debts.” O.C.G.A. § 48-13-51 (a)(B)(ii).
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`Rental Transactions Conducted By Defendants
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`30.
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`In each rental transaction with Defendants, the consumer ("Guest")
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`contractually agrees with Defendants that Defendants will collect from the Guest, at
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`the time of booking the accommodation, the applicable Occupancy Tax due for
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`rental of the accommodation. Specifically, the Guest and Defendants agree:
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`a. “You may not use the Payment Services [of Defendants] except as authorized
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`by United States law, the laws of the jurisdiction that is your country of
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`residence, and any other applicable laws.” Airbnb Payments, Inc. “Payment
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`Terms of Service” §1.4;
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`b. “All applicable fees, including the Listing Fee, Security Deposit (if
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`applicable), Guest Fee and any applicable Taxes1 (collectively “Total Fees”)
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`will be presented to you prior to booking a Listing. You [Guest] agree to pay
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`the Total Fees for any booking requested in connection with your Airbnb
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`1 "Taxes" is a defined term which specifically includes occupancy taxes. Airbnb,
`Inc. "Terms of Service" §13.1
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`Account. Airbnb “Terms of Service” §8.1.1 (underline emphasis added);
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`c. “Airbnb will collect the Total Fees at the time of the booking request.” Id.
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`§8.2;
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`d. “Airbnb Payments will collect the Total Fees in the manner agreed between
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`you [Guest] and Airbnb Payments via the Airbnb Platform.” Airbnb
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`Payments, Inc. “Payment terms of Service” §8.1.; and
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`e. “Each Purchasing Member [Guest] acknowledges and agrees that, . . . Airbnb
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`Payments acts as the Providing Member’s [Host's] payment collection agent
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`for the limited purpose of accepting payments from you on behalf of the
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`Providing Member.” Id. §9.3.
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`31.
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`Similarly, the Hosts, by contract, appoint Defendants as their agents for
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`collection and remittance of Occupancy Taxes in jurisdictions which levy such taxes
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`and Defendants assume the role as the Host’s agents in the collection and remittance
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`of Occupancy Taxes from consumers. The Defendants and Hosts agree:
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`a. “You may not use the Payment Services [of Defendants] except as authorized
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`by United States law, the laws of the jurisdiction that is your country of
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`residence, and any other applicable laws.” Airbnb Payments, Inc. “Payment
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`Terms of Service” §1.4;
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`b. “Generally speaking, Airbnb Payments will collect the Total Fees from a
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`Guest at the time the Guest’s booking request is accepted by the host, or at
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`any other time mutually agreed between the Guest and Airbnb Payments.” Id.
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`§7.1 (emphasis added);
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`c. “Members [registered users of the Airbnb platform] and third parties who
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`offer services are “Hosts” and the services they offer are “Host Services” . .
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`. Host Services may include the offering of vacation or other properties for
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`use (“Accommodations”) . . . .” Airbnb Terms of Service §1.1 (bold as in
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`original);
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`d. “Each Member collecting payment for services provided via the Airbnb
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`Platform (such as Host Services . . . ) hereby appoints Airbnb Payments as the
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`Providing Member’s [Host’s] payment collection agent solely for the limited
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`purpose of accepting funds from Members purchasing such services. Airbnb
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`Payments, Inc. “Payment Terms of Service” §9.1; and
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`e. “Your [the Host's] Payout for a booking will be the Listing Fee less applicable
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`Host Fees and Taxes.” Id. §7.2.3. (Emphasis added).
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`32.
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`As a result these contractual agreements, Defendants currently collect
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`occupancy taxes from consumers and remit them to appropriate governments in
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`forty-eight (48) of the states of the United States, plus the District of Columbia,
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`Puerto Rico and the U.S. Virgin Islands. See Defendants’ web page setting forth the
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`jurisdictions in which they collect and remit taxes attached as Exhibit “A” hereto.
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`33.
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`In addition to the above contractual agreements and obligations requiring the
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`collection of taxes in every online transaction on the Airbnb platform, Defendants,
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`pursuant to their contracts with Hosts, have the absolute and sole ability to collect
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`and remit Occupancy Taxes from or on behalf of Guests or Hosts if a jurisdiction
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`“asserts Airbnb or Hosts have an Occupancy Tax collection and remittance
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`obligation.” Airbnb “Terms of Service” §13.4.
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`34.
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`Plaintiffs have repeatedly asserted that Defendants and their Guests and Hosts
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`are obligated to collect and remit Occupancy Taxes for accommodation rentals in
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`Plaintiffs jurisdictions and demanded that Defendants collect and remit Occupancy
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`Taxes to Plaintiffs. Yet, Defendants have failed and refused to collect and remit the
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`Occupancy Taxes owed to Plaintiffs and the Plaintiff Class.
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`35.
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`By letter of February 10, 2015, counsel for Plaintiffs made demand upon
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`Defendants that they collect and remit the applicable excise taxes due Plaintiffs and
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`the Plaintiff Class. A true and correct copy of counsel’s February 10, 2015 letter to
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`Airbnb is attached hereto as Exhibit “B”. Defendants refused the demand.
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`36.
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`By letters of letters of January 27, 2017 and January 23, 2019, demand was
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`again made upon Airbnb to fulfil, its excise tax collection and remittance obligations
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`to Plaintiffs. See true and correct copies of said demand letters attached hereto as
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`Exhibits “C” and “D” respectively. Defendants have never responded to either
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`demand.
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`37.
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`Through contract and by being the sole contact between the owners of the
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`accommodations and the consumers, Defendants have inserted themselves into the
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`tax collection process and stepped into the shoes of the accommodation owners.
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`38.
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`By entering into agreements with both the owners of Georgia short-term rental
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`accommodations and the consumers occupying such Georgia accommodations and
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`representing that Defendants will collect and are collecting applicable Occupancy
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`Taxes due on such rentals, Defendants are bound and required to actually collect and
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`remit appropriate Occupancy Taxes to Plaintiffs and members of the Plaintiff Class.
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`V. PLAINTIFF CLASS ALLEGATIONS
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`39.
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`Plaintiffs respectfully request that the Court certify their claims as a class
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`action. This Complaint seeks relief for (1) Violation of O.C.G.A. § 48-13-50 et
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`seq.; (2) Violation of county and municipal ordinances promulgated under
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`O.C.G.A. § 48-13-50 et seq.; and (3) Violation of O.C.G.A. § 10-1-370 et seq.
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`Further, Plaintiffs seek a declaratory judgment and injunctive relief requiring
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`future compliance with the Occupancy Tax laws.
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`40.
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`Plaintiffs seek to certify a state-wide class of all Georgia cities, counties
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`and governments who have enacted Occupancy Taxes on lodging.
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`41.
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`Plaintiffs bring this action pursuant to Rule 23 of the Federal Rules of Civil
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`Procedure. The Class meets the prerequisites for the maintenance of a class action
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`in that:
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`a. The Class is so numerous that joinder of all Class members is
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`impractical. Plaintiffs are informed and believe the practices
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`complained of herein affect over one hundred counties and hundreds
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`of municipalities and other government entities, although the exact
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`number and identities of the members of the Class are currently
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`unknown to Plaintiffs, as the full scope and extent of the transactions
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`within Georgia are not known [Georgia has 159 counties and over 600
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`cities];
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`b. Nearly all factual, legal, and statutory relief issues that are raised in
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`this Complaint are common to each of the members of the Class and
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`apply uniformly to every member of the Class;
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`c. The claims of the representative Plaintiffs are typical of the claims of
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`each member of the Class. Plaintiffs, like all other members of the
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`Class, sustain damages arising from Defendants’ violations of law,
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`including: (1) Violations of O.C.G.A. § 48-13-50 et seq.; (2)
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`Violations of county and municipal ordinances promulgated under
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`O.C.G.A. § 48-13-50 et seq.; and (3) Violations of O.C.G.A. § 10-1-
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`370 et seq. The representative Plaintiffs and the members of the Class
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`were and are similarly or identically harmed by the same unlawful,
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`deceptive, unfair, systematic and pervasive pattern of misconduct;
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`d. The representative Plaintiffs will fairly and adequately represent and
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`protect the interests of the Class. There are no material conflicts
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`between the claims of the representative Plaintiffs and the members of
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`the Class that would make a class certification inappropriate;
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`e. The counsel selected to represent the Class will fairly and
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`adequately protect the interests of the Class. They are experienced
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`trial lawyers who have experience in complex litigation, including
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`class actions and issues of collection of occupancy taxes, and are
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`competent counsel for this class action litigation. Counsel for the
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`Class will vigorously assert the claims of all members of the Class.
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` f. Counsel for the Class have been appointed as Class Counsel in City
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` of Rome, et al vs, Hotels.com, et al., USDC, NDGA, Rome Division,
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` Case No. 4:05-CV-249-HLM, a similar excise tax case.
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`42.
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`This action is properly maintained as a class action in that common questions
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`of law and fact exist as to the members of the Class and predominate over any
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`questions affecting only individual members, and a class action is superior to other
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`available methods for the fair and efficient adjudication of the controversy,
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`including consideration of:
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`a. The interests of the members of the Class in individually controlling
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`the prosecution or defense of separate actions;
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`b. The extent and nature of any other proceedings concerning the
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`controversy already commenced by or against members of the
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`Class;
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`c. The desirability or undesirability of concentrating the claims in a
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`single forum; and
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`d. The difficulties likely to be encountered in the management of a
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`class action.
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`43.
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`
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`Class action status is also appropriate pursuant to Rule 23(b)(2) because
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`Defendants have acted in the same illegal manner with respect to all class members.
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`Defendants have failed to collect and remit appropriate Occupancy Taxes as
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`required by law to all Georgia cities, counties and governments who have enacted
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`Occupancy Taxes on lodging.
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`44.
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`
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`The class therefore seeks a declaratory judgment and injunctive relief
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`requiring future compliance with the Occupancy Tax laws. Because the putative
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`class challenges Defendants’ conduct through declaratory and injunctive relief that
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`would apply the same relief to every member of the class, certification under Rule
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`23(b)(2) is appropriate and necessary.
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`
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`45.
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`- 19 -
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`Case 4:20-cv-00022-TWT Document 1 Filed 01/31/20 Page 20 of 30
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`Injunctive relief compelling Defendants to comply with all applicable
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`Occupancy Tax laws will similarly protect each member of the class from being
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`subjected to Defendants’ unlawful failure to pay Occupancy Taxes. A declaration
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`finding Defendants’ business practices unlawful and deceptive and injunctive relief
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`requiring future compliance with the Occupancy Tax laws would provide relief to
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`every member of the class. Therefore, declaratory and injunctive relief with respect
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`to the class as a whole is appropriate.
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`46.
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` The Plaintiffs contemplate the eventual issuance of notice to the proposed
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`class members which would set forth the subject and nature of the instant action.
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`The Defendants’ own business records and electronic media can be utilized for the
`
`contemplated notices. To the extent that any further notices may be required,
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`Plaintiffs contemplate the use of additional media and/or mailings.
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`47.
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`Among the numerous questions of law and fact common to the Class are:
`
`a. Whether Defendants have committed violations of O.C.G.A. §
`
` 48-13-50 et seq. and ordinances enacted pursuant thereto;
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`b. Whether Defendants have committed violations of O.C.G.A. §
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` 10-1-370 et seq.;
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`- 20 -
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`
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`
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`Case 4:20-cv-00022-TWT Document 1 Filed 01/31/20 Page 21 of 30
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`
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`c. Whether Plaintiffs and the Plaintiff Class are entitled to injunctive
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`relief;
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`d. The appropriate remedy for the Plaintiff Class; and
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`e. Whether, and in what amount, the Plaintiff Class members are
`
`entitled to recover court costs and attorneys’ fees.
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`VI.
`
` CAUSES OF ACTION
`
`
`
`COUNT I: VIOLATIONS OF GEORGIA’S EXCISE TAX ON
`ROOMS, LODGINGS, AND ACCOMMODATIONS (O.C.G.A. § 48-
`13-50 et seq.)
`
`48.
`Plaintiffs incorporate each of the above allegations by reference as if fully
`
`rewritten herein.
`
`49.
`
`Plaintiffs and Class members are counties and municipalities, which are
`
`“authorized to levy certain excise taxes” and to pursue the collection of such
`
`taxes pursuant to O.C.G.A. § 48-13-50 et seq.
`
`50.
`
`Defendants have failed to collect and remit to Plaintiffs and the Class the
`
`amounts due and owing to them for Occupancy Taxes. For example, pursuant to
`
`- 21 -
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`
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`
`
`
`
`
`
`Case 4:20-cv-00022-TWT Document 1 Filed 01/31/20 Page 22 of 30
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`Article VII, Chapter 8, Section 228 of the Codified Ordinances of the City of
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`Rome; Article VII, Chapter 78, Section 192 of the Codified Ordinances of Hart
`
`County; and all other similar ordinances, Plaintiffs and the Class are entitled to
`
`collect from Defendants the Excise Taxes owed and penalties and interest to be
`
`determined by and in accordance with these city and county ordinances.
`
`51.
`
`Defendants have further violated, and are currently violating, Georgia laws
`
`and ordinances by failing to properly identify, categorize, and quantify the
`
`Occupancy Taxes actually due and/or being paid by the occupant during
`
`accommodation purchasing transactions.
`
`
`
`
`
`
`
`COUNT II: VIOLATION OF GEORGIA’S UNIFORM DECEPTIVE
`AND UNFAIR TRADE PRACTICES ACT
`
`52.
`
`Plaintiffs incorporate each of the above allegations by reference as if fully
`
`rewritten herein.
`
`53.
`
` By entering into agreements with both the owners of Georgia short-term
`
`rental accommodations and
`
`the consumers occupying
`
`such Georgia
`
`accommodations and representing that Defendants will collect and are collecting
`
`
`
`- 22 -
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`
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`Case 4:20-cv-00022-TWT Document 1 Filed 01/31/20 Page 23 of 30
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`applicable Occupancy Taxes due on such rentals, and further actually collecting
`
`and remitting such taxes in virtually every other taxing jurisdiction in the nation
`
`other than Georgia,2 Defendants have created and will continue to create confusion
`
`regarding the payment of taxes in the Georgia short-term rental market.
`
`54.
`
`Defendants engage in deceptive, unlawful, unfair, and fraudulent business
`
`acts and practices by misrepresenting to consumers and owners that Defendants
`
`are displaying and collecting Occupancy Taxes, which in fact Defendants do not
`
`display or collect. Defendants have created (and will continue to create) the
`
`likelihood of confusion with respect to the Occupancy Taxes due to the Plaintiff
`
`government recipients and the taxes being paid by lodging room consumers and
`
`owners.
`
`55.
`
`By engaging in the above-described acts and practices, Defendants have
`
`committed one or more acts of conducting consumer transactions in a deceptive,
`
`and unlawful manner within the meaning of O.C.G.A. § 10-1-372. Specifically,
`
`Defendants violated subsection 12 of that section, which makes unlawful “any other
`
`
`2 According to the Airbnb website, Hawaii is the only other jurisdiction besides
`Georgia for which Defendants are not actually collecting and remitting taxes from
`consumers. See, Exhibit “A” attached hereto.
`- 23 -
`
`
`
`
`
`Case 4:20-cv-00022-TWT Document 1 Filed 01/31/20 Page 24 of 30
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`conduct which similarly creates a likelihood of confusion or of misunderstanding.”
`
`56.
`
`Plaintiffs individually and on behalf of the Class seek a declaratory
`
`judgment declaring Defendants’ business practices illegal, deceptive, and
`
`unlawful and for restitution and all other relief allowed under Georgia law.
`
`57.
`
`The Georgia UDTPA is expressly intended to protect “persons” from
`
`potentially confusing or deceptive trade practices. The Georgia UDTPA expressly
`
`defines “persons” as follows: “‘Person’ means an individual, corporation,
`
`government, or governmental subdivision or agency, business trust, estate, trust,
`
`partnership, unincorporated association, two or more of any of the foregoing having
`
`a joint or common interest, or any other legal or commercial entity.” (emphasis
`
`added). Thus, Plaintiffs are “persons” “likely to damaged” by Defendants’ ongoing
`
`deceptive trade practices and ongoing deficient remittance of taxes.
`
`58.
`
`As provided by O.C.G.A. § 10-1-371, Plaintiffs and the Class seek an
`
`injunction against Defendants “under the principles of equity and on terms that the
`
`court considers reasonable. Proof of monetary damage, loss of profits, or intent to
`
`deceive is not required.”
`
`
`
`- 24 -
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`
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`Case 4:20-cv-00022-TWT Document 1 Filed 01/31/20 Page 25 of 30
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`59.
`
`Defendants have willfully engaged in the trade practice knowing it to be
`
`deceptive. Pursuant to O.C.G.A. § 10-1-373 (b)(2), Plaintiffs are entitled to recover
`
`their reasonable attorneys' fees and expensed incurred herein.
`
`
`
`
`
`
`
`COUNT III: DECLARATORY JUDGMENT
`
` 60.
`
`Plaintiffs incorporate each of the above allegations by reference as if fully
`
`rewritten herein.
`
`
`
`61.
`
`Defendants have engaged in, and continue to engage in, deceptive, unlawful,
`
`and fraudulent business acts and practices, in violation of O.C.G.A. §§ 10-1-370 et.
`
`seq., and 48-13-50 et seq. by failing to remit taxes due and owing to the Plaintiffs
`
`and the Plaintiff Class, and by creating the likelihood of confusion and
`
`misunderstanding by unlawfully failing to identify and categorize the specific taxes
`
`being collected and paid.
`
`
`
`62.
`
`Plaintiffs, on behalf of the Class, seek a declaratory judgment against all
`
`Defendants finding Defendants’ business practices unlawful and deceptive in
`
`violation of O.C.G.A. §§ 10-1-370 et. seq. and 48-13-50 et seq.
`
`
`
`- 25 -
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`
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`Case 4:20-cv-00022-TWT Document 1 Filed 01/31/20 Page 26 of 30
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`63.
`
`Further, Plaintiffs and the Class seek a declaratory judgment from the Court
`
`asking it to declare the rights and obligations of the Defendants with respect to the
`
`Plaintiffs relating to their tax obligations under the Georgia code sections cited
`
`herein and under related county and city ordinances.
`
`
`64.
`
`A justiciable controversy is stated herein concerning Excise Tax liability.
`
`Such a declaratory judgment is proper under O.C.G.A. § 9-4-1 et seq. and 28
`
`U.S.C. §2201.
`
`COUNT IV: INJUNCTIVE RELIEF
`
`
`65.
`
`Plaintiffs request that the Court enjoin Defendants from further, future
`
`violation of the all applicable Occupancy Tax laws and that Defendants be ordered
`
`to: (1) collect said taxes from the public to whom they sell accommodations; (2)
`
`identify, categorize and quantify to the required governmental entities the taxes
`
`due and being paid (3) and remit the taxes due to Plaintiffs and Plaintiff Class
`
`Members.
`
`
`
`
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`- 26 -
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`Case 4:20-cv-00022-TWT Document 1 Filed 01/31/20 Page 27 of 30
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`
`
`COUNT V: ATTORNEYS FEES
`
`
`
`
`
`66.
`
`Plaintiffs respectfully request, on behalf of themselves and the Class, that
`
`they recover all penalties, interest, and reasonable and necessary attorneys’ fees
`
`they are entitled pursuant to O.C.G.A. §10-1-373 (b)(2).
`
`67.
`
`Plaintiffs respectfully request expenses of litigation to be paid by Defendants
`
`pursuant to O.C.G.A. § 13-6-11, because "Defendants have acted in bad faith, been
`
`stubbornly litigious, and caused the Plaintiffs unnecessary trouble and expense.
`
`
`
`68.
`
`Plaintiffs and the Plaintiff Class request both prejudgment and post-
`
`
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