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`Case 3:21-cv-00098-E Document 105 Filed 09/30/21 Page 1 of 16 PageID 2310Case 3:21-cv-00098-E Document 105 Filed 09/30/21 Page 1 of 16 PageID 2310
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF TEXAS
`DALLAS DIVISION
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`
`§
`SOUTHWEST AIRLINES CO.,
`§
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`
`§
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`Plaintiff,
`§
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`
`§
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`
`§
`v.
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`§
`
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`KIWI.COM, INC. AND KIWI.COM S.R.O., §
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`
`§
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`Defendants.
`§
`
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`MEMORANDUM OPINION AND ORDER
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`Before the Court is Plaintiff Southwest Airlines Company’s Motion for Preliminary
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`CIVIL ACTION NO. 3:21-cv-00098-E
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`Injunction (Doc. 18). After careful consideration, for reasons that follow, the Court grants the
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`motion.
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`Background
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`Southwest filed this lawsuit against Defendants Kiwi.com, Inc. and Kiwi.com s.r.o.
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`(collectively “Kiwi”) in January 2021. The following allegations are taken from Southwest’s First
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`Amended Complaint. Since it began operating in 1971, Southwest has become one of the most-
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`flown airlines in the United States, with more than 4,000 daily departures in peak travel seasons
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`in 2019. Southwest maintains unique customer-friendly policies, including a “Bags Fly Free”
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`policy (each customer can check two bags for free, subject to weight and size limits) and a “No
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`Change Fees” policy (Southwest does not charge fees to change or cancel flights, though fare
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`differences may apply).
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`Southwest offers and sells flights to the public through its website at www.southwest.com
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`and its mobile application (collectively, “Southwest Digital Platforms”). Southwest maintains the
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`exclusive online distribution rights to sell Southwest tickets through the Southwest Digital
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`Platforms and does not allow online travel agencies (“OTAs”) to sell Southwest flights without
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`express written approval. The Southwest Digital Platforms provide links to the “Terms and
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`Conditions” for use of the Southwest website (“the Terms”), which govern use of the Southwest
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`Digital Platforms. Users are alerted that “Use of the Southwest websites and our Company
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`Information constitutes acceptance of our Terms & Conditions.” The Terms expressly prohibit
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`attempts to “page scrape” flight data and use of the website for any commercial purpose without
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`authorization from Southwest.
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`Southwest alleges that Kiwi operates an OTA and has engaged in repeated, unlawful
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`activity on the Southwest website, including unauthorized scraping of flight and pricing data and
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`unauthorized sales of Southwest tickets. According to Southwest, Kiwi purchased tickets directly
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`from Southwest’s website and then resold the flights to over 170,000 customers. Southwest alleges
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`Kiwi inflates Southwest fares and charges service fees that are not collected by Southwest.
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`Southwest has sent written cease-and-desist demands in emails and letters to Kiwi’s chief legal
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`counsel and registered agents in the United States referencing the Terms. Kiwi has ignored the
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`cease-and-desist letters. Southwest alleges that since filing this suit, it has implemented security
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`measures in an effort to stop Kiwi’s activities, but Kiwi has continued to hack the Southwest
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`website and sell Southwest flights without permission.
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`Southwest asserts the following causes of action: (1) breach of contract/the Terms; (2)
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`trademark infringement under 15 U.S.C. § 1114; (3) false designation of origin and unfair
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`competition under 15 U.S.C. § 1125(a); (4) dilution under 15 U.S.C. § 1125(c); (5) violation of
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`the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030; (6) violation of the Texas Harmful
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`Access by Computer Act; and (7) unjust enrichment. Southwest asks the Court for a preliminary
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`injunction prohibiting Kiwi’s unauthorized sales of its flights. Southwest argues it is likely to
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`succeed on the merits of its breach of contract claim and can establish the remaining requirements
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`for injunctive relief.
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`Kiwi acknowledges it has been collecting and publishing Southwest’s flight data for over
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`seven years, but disputes that Southwest is entitled to injunctive relief. Kiwi argues Southwest has
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`been aware of Kiwi’s activities since September 2015, when it sent a cease-and-desist letter to
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`Kiwi’s predecessor Skypicker. According to Kiwi, Southwest’s five-year-plus delay in seeking
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`an injunction means Southwest cannot obtain injunctive relief.
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`Applicable Law
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`The purpose of a preliminary injunction is “merely to preserve the relative positions of the
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`parties until a trial on the merits can be held.” University of Tex. v. Camenisch, 451 U.S. 390, 395
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`(1981). A preliminary injunction is an extraordinary remedy that should be granted only if the
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`movant establishes (1) a substantial likelihood of success on the merits; (2) a substantial threat of
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`irreparable injury if the injunction is not issued; (3) that the threatened injury if the injunction is
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`denied outweighs any harm that will result if the injunction is granted; and (4) that the grant of an
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`injunction will not disserve the public interest. Texans for Free Enter. v. Tex. Ethics Comm’n, 732
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`F.3d 535, 536–37 (5th Cir. 2013); see also FED. R. CIV. P. 65. “The decision to grant or deny a
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`preliminary injunction is discretionary with the district court.” Miss. Power & Light Co. v. United
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`Gas Pipe Line, 760 F.2d 618, 621 (5th Cir. 1985). A plaintiff is not required to prove its
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`entitlement to summary judgment in order to establish a substantial likelihood of success on the
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`merits for preliminary injunction purposes. Byrum v. Landreth, 566 F.3d 442, 446 (5th Cir. 2009).
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`But the movant must make a clear showing that the injunction is warranted, and the issuance of a
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`preliminary injunction “is to be treated as the exception rather than the rule.” Miss. Power & Light,
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`760 F.2d at 621.
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`Analysis
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`Success on the Merits
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`Southwest contends it is likely to succeed on its breach of contract claim. It maintains the
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`Terms of its website are a valid contract between the parties.
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`To establish a breach of contract claim under Texas law, a plaintiff must prove (1) the
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`existence of a valid contract; (2) the plaintiff’s performance or tendered performance; (3) the
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`defendant’s breach of the agreement; and (4) the plaintiff’s resulting damages. Southwest Airlines
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`Co. v. BoardFirst, L.L.C., No. 3:06-CV-0891-B, 2007 WL 4823761, at *4 (N.D. Tex. Sept. 12,
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`2007) (Boyle, J.) (citing Dorsett v. Cross, 106 S.W.3d 213, 217 (Tex. App.—Houston [1st Dist.]
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`2003, pet. denied)). Southwest asserts this Court should find that Kiwi is contractually bound by
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`the Terms just as another district judge in the Northern District of Texas found in the BoardFirst
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`case.
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`In BoardFirst, Southwest sued BoardFirst for allegedly violating the terms and conditions
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`of Southwest’s website. BoardFirst, 2007 WL 4823761, at *1. BoardFirst’s business was to assist,
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`for a fee, Southwest passengers in securing boarding passes with a high priority boarding group.
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`It did so by logging onto Southwest’s website to check passengers in. Id. Southwest sent cease-
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`and-desist letters to BoardFirst apprising it that Southwest’s terms and conditions prohibit the use
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`of its website for commercial purposes. Id. at *2. When BoardFirst continued operations,
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`Southwest filed a lawsuit alleging breach of contract and other claims. In seeking summary
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`judgment on its contract claim, Southwest argued the terms of its website created a binding contract
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`with BoardFirst once BoardFirst began using the website with knowledge of the terms. Id. at *4.
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`The district court found that BoardFirst had knowledge of the terms at the time its founder received
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`the first cease-and-desist letter from Southwest. Id. Southwest asserted that BoardFirst effectively
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`manifested its acceptance of Southwest’s offer to use the website subject to the terms by continuing
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`to use the website after having actual knowledge of the terms. The district court agreed and ruled
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`that BoardFirst was bound by the contractual obligations imposed by the terms. Id. at *7.
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`Kiwi responds that in the fourteen years since the BoardFirst case was decided, the law
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`has “shifted significantly.” Kiwi argues that “Courts, scholars, and commentators broadly agree
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`there is a clear distinction between public and private data, and that private companies cannot
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`unilaterally restrict public access to publicly available information.” Kiwi asserts the leading
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`federal precedent on the accessibility of public data is a Ninth Circuit case, hiQ Labs v. LinkedIn,
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`938 F.3d 985 (9th Cir. 2019). LinkedIn, the professional networking website, sought to prevent
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`competitor hiQ from collecting and using information from the public profiles of LinkedIn users.
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`The district court granted hiQ’s request for a preliminary injunction, forbidding LinkedIn from
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`denying hiQ access to publicly available LinkedIn member profiles. The appellate court
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`considered, among other things, whether hiQ’s state law claims were preempted by the CFAA
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`which LinkedIn argued hiQ violated. Id. at 999. The CFAA states that whoever intentionally
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`accesses a computer without authorization or exceeds authorized access and obtains information
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`from any protected computer shall be punished by fine or imprisonment. 18 U.S.C. §
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`1030(a)(2)(C). In hiQ, the “pivotal CFAA question” was whether once hiQ received LinkedIn’s
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`cease-and-desist letter, any further scraping and use of LinkedIn’s data was without authorization
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`under the meaning of the CFAA. hiQ, 938 F.3d at 999. If so, hiQ could not succeed on any of its
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`state law claims and was not entitled to a preliminary injunction. Id. The Ninth Circuit upheld the
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`preliminary injunction, finding it likely that when a computer network generally permits public
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`access to its data, a user’s accessing that publicly available data will not constitute access without
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`authorization under the CFAA’s prohibition on accessing a computer without authorization. Id. at
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`1003. The Ninth Circuit noted, however, that entities that view themselves as victims of data
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`scraping are not without resort; they may have other causes of action, including breach of contract.
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`Id. at 1004. Recently, the United States Supreme Court vacated the judgment in hiQ and remanded
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`the case to the Ninth Circuit for further consideration in light of Van Buren v. U.S., 141 S. Ct. 1648
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`(2021). LinkedIn Corp. v. hiQ Labs, Inc., No. 19-1116, 2021 WL 2405144 (June 14, 2021); see
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`Van Buren, 141 S. Ct. at 1662 (holding that individual exceeds authorized access when he accesses
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`computer with authorization but then obtains information located in particular areas of computer,
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`such as files, folders, or databases, that are off limits to him).
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`The Court is not persuaded the hiQ case means that Southwest cannot establish a likelihood
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`of success on the merits for its breach of contract claim. hiQ involved whether a preliminary
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`injunction was appropriate under the CFAA. The opinion acknowledges a plaintiff could have a
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`breach of contract claim even in the absence of a CFAA violation. Further, the Supreme Court
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`recently vacated the hiQ judgment and remanded for further consideration in light of new authority
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`on the application of the CFAA.
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`Kiwi also argues that Southwest has not shown Kiwi’s “reasonable manifestation of assent”
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`to the Terms. Kiwi contends its conduct did not reflect its intent to be bound by the Terms because
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`Kiwi was not acting in accordance with the contract terms. In other words, conduct that inherently
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`constitutes a breach cannot show assent to a contract’s terms. Kiwi has not directed the Court to
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`any case law that it finds persuasive on this argument under the facts of this case. See SK Plymouth,
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`LLC v. Simmons, 605 S.W.3d 706, 718 (Tex. App.—Houston [1st Dist.] 2020, no pet.) (cited for
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`proposition that party’s intent to be bound by contract may be evidenced by conduct reflecting that
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`it was acting in accordance with terms of contract); Effel v. McGarry, 339 S.W.3d 789, 792 (Tex.
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`App.—Dallas 2011, pet. denied) (cited for proposition that in breach of contract case, assent can
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`be implied, but conduct must reflect agreement to contract alleged). As Southwest notes, none of
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`the cases Kiwi cites support the idea “that an immediate breach negates assent.”
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`Kiwi has purchased over 20,000 flights on the Southwest Digital Platforms. In connection
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`with its sales of Southwest flights, Kiwi specifically acknowledges that: “All services provided by
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`Southwest Airlines are subject to their Terms and Conditions. More information is available on
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`their website.” The Terms are hyperlinked at the bottom of each page of Southwest’s website with
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`a statement that use of the website constitutes acceptance of the Terms. For all online purchases,
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`the user must affirmatively acknowledge and accept the Terms by clicking a button that states:
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`“By clicking ‘Purchase,’ I agree to the Terms and Conditions below, the privacy policy, and the
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`contract of carriage,” which appears just above a yellow “Purchase” button with hyperlinks to the
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`Website Terms, Privacy Policy, and Contract of Carriage. For each purchase, Kiwi affirmatively
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`accepted the Terms. Southwest sent multiple cease-and-desist notices to Kiwi’s chief legal
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`counsel, Kiwi’s CEO, and to Kiwi’s registered agents in the United States. Southwest specifically
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`referenced the Terms and attached a copy of them, pointing out examples of how Kiwi’s conduct
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`violated the Terms. Kiwi acknowledged receipt of one such cease-and-desist notice in September
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`2019. As in BoardFirst, when Kiwi continued to use the Southwest website in connection with
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`Kiwi’s business with actual knowledge of the Terms, Kiwi “bound itself to the contractual
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`obligations imposed by the Terms.” See BoardFirst, 2007 WL 4823761, at *7.
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`The Court finds Southwest has established the existence of a valid contract. It has also
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`demonstrated the other elements of a breach of contract. Southwest performed its obligations
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`under the Terms. Kiwi breached the Terms by scraping Southwest flight data and fare from
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`Southwest’s website, presenting Southwest flight data on kiwi.com, and selling Southwest flights
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`without authorization. As will be discussed more below, Kiwi’s breaches have caused Southwest
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`to suffer damages, including damage to its reputation and loss of goodwill from customer
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`complaints and increased customer service burdens and disruption to operations.
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`Kiwi maintains it has affirmative defenses that make it unlikely Southwest can prevail on
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`a breach of contract claim. If the plaintiff demonstrates, as Southwest has, it is likely to succeed
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`on its claim, the defendant may refute that by showing it is likely to succeed on an affirmative
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`defense. Janvey v. Alguire, No. 3:09-CV-724-N, 2010 WL 11619267, at *6 (N.D. Tex. June 10,
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`2010) (Godbey, J.) (citing Gonzales v. O Centro Espirita Beneficente Uniao de Vegetal, 546 U.S.
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`418, 429 (2006) (“the burdens at the preliminary injunction stage track the burdens at trial”)).
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`Here, while Kiwi mentions Southwest’s delay in seeking an injunction often in its briefing,
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`the entirety of Kiwi’s legal argument and authority regarding the affirmative defense of laches, as
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`well as the affirmative defense of unconscionability, is as follows:
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`Given Southwest’s years-long delay, both laches and limitations present serious
`obstacles, evidence on the face of the complaint, to showing it will succeed in
`procuring permanent injunctive relief. See, e.g., Abraham v. Alpha Chi Omega,
`708 F.3d 614, 626 (5th Cir. 2013) (“There is no doubt that laches may defeat claims
`for injunctive relief[.]”). Equally, the adhesionary nature of Southwest’s Terms and
`Conditions, its overreaching and selective enforcement against competitors in the
`service of a consumer-harming monopoly on flight and fare data, and the
`overwhelming public interest in preserving the freedom to discuss publicly
`available information raise serious questions about unconscionability. See, e.g., Ski
`River Dev., Inc. v. McCalla, 167 S.W.3d 121, 135–39 (Tex. App.—Waco 2005,
`pet. denied) (voiding contract in light of evidence of “unfair bargaining positions,
`unfair terms, gross disparity in the value exchanged,” and other aspects of
`substantive and procedural unconscionability).
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`The Court concludes Kiwi has not met its burden on its affirmative defenses at this stage.
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`Irreparable Injuries
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`Next, Southwest must show it will suffer irreparable injuries if a preliminary injunction is
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`not issued. An injury is irreparable only if it cannot be undone through monetary remedies.
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`Enterprise Int’l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d 464, 472 (5th Cir.
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`1985).
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`Southwest’s evidence in support of its motion indicates it does not allow its flights to be
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`published or sold on OTA websites. This approach allows Southwest “to deal directly with its
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`customers, control the customer experience, ensure customer satisfaction, protect customers from
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`misinformation, control costs, and promote other travel services like hotels and car rentals.”
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`Southwest communicates with its customers via email or text at various points before a flight.
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`Each communication is tailored to provide relevant information about any changes related to the
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`trip. When Kiwi books a Southwest flight, it does not include the customer’s email address or
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`phone number, which interferes with direct customer notifications from Southwest. Southwest is
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`unable to communicate directly with the booked customer about flight schedule revisions or other
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`information.
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`In addition, Southwest has shown that Kiwi’s unauthorized sales of Southwest’s flights
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`divert customers away from Southwest’s website, misrepresent Southwest’s policies and
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`procedures, provide false booking information, upcharge customers fees for services and features
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`that Southwest offers for free, and encourage customers to book “hidden city” fares in violation of
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`Southwest’s Contract of Carriage. For example, Kiwi advertises some Southwest flights as a “no-
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`checked-bag itinerary,” but all Southwest fares include two free checked bags. Further, when Kiwi
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`completes a reservation of a Southwest flight, Southwest is negatively impacted because it loses
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`the ability to market or sell its EarlyBird Check-in service to its customers and is unable to offer
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`“value added services such as car rental deals, hotel deals, or deals for future travel.”
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`Southwest does not permit hidden city fares. A hidden city fare is when a passenger’s
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`intended final destination is not the ticketed final destination, but instead a connecting city. In
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`other words, the passenger purchased a ticket from City 1 to City 2 to City 3, but does not travel
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`beyond City 2. Southwest’s Contract of Carriage prohibits purchasing a ticket without intending
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`to fly all flights to gain lower fares. Kiwi presents hidden cities to its customers as a “travel hack,”
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`i.e., a way to save money.
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`The declaration of Southwest’s Senior Manager–Standards & Compliance in the Ground
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`Operations Department, Biljana Obrenic, states that Southwest prohibits this practice because of
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`logistical, operational, and public safety concerns. The practice negatively affects Southwest’s
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`ability to estimate passenger headcounts, causes disruptions at the airport gate, and requires
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`maintenance adjustments, such as variations in the amount of fuel needed. Attached to Obrenic’s
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`declaration are operational records demonstrating some of the impact of hidden city fares. The
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`challenges include passenger confusion about why they have received two boarding passes instead
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`of one and airport managers trying to locate Kiwi passengers for the connecting flight. In addition,
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`Southwest requires bags to be checked to the final destination. For the hidden city fares, there is
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`confusion when passengers try to check bags to their final destination, the connecting city.
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`According to Obrenic, Southwest has been forced to take multiple flight delays due to operational
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`challenges arising from Kiwi passengers traveling on a hidden city ticket.
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`After the briefing on the motion for preliminary injunction and opposition was complete,
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`Kiwi filed a stipulation regarding hidden city fares. Without conceding that such fares are unlawful
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`or are harming Southwest, “to assist the Court in deciding the motion for preliminary injunction
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`by narrowing the number and scope of issues under consideration,” Kiwi stipulated that as of April
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`29, 2021, it ceased advertising or brokering the sale of itineraries that include a hidden city flight
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`segment on Southwest. It also stipulated it will continue to do so until final resolution of this suit.
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`Southwest asserts Kiwi’s unauthorized sales of its flights have led to a flood of customer
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`complaints. A Senior Director in the Customer Relations Department at Southwest, Michelle
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`Buckley, states that her department utilizes computer systems to track customer inquiries. Buckley
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`attached records from Southwest’s customer relations database to her declaration. According to
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`Buckley, the records show hundreds of complaints and issues related to flight purchases, travel
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`experiences, or refund requests for trips booked through Kiwi. Complaints include customers not
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`receiving notice about schedule changes or delays, customers unable to make changes or
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`cancellations to reservations, customers confused about baggage policies and fees charged by
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`Kiwi, and customers blaming Southwest for Kiwi’s conduct.
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`The declaration of Mark Hursh, a Director in the Marketing Department at Southwest,
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`indicates Kiwi’s conduct is harmful to Southwest’s business and customers. Hursh states that
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`Kiwi’s conduct damages Southwest’s business reputation, customer relationships, and goodwill.
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`According to Hursh, because of the nature of the harm, it is difficult to quantify the precise amount
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`of financial harm caused by Kiwi’s conduct. For example, it is difficult to calculate the amount of
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`money damages to Southwest caused by interference with customer communications, disruptions
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`to flight schedules, increased costs for baggage handling and customer services, and for the injuries
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`caused by misrepresentations concerning Southwest policies. In addition, it is difficult to know
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`how much Kiwi customers might have spent on ancillary services offered by Southwest on its
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`digital platforms.
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`Kiwi argues that Southwest cannot show irreparable harm for four reasons: 1) Southwest’s
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`delay in seeking relief means any harms it faces are not irreparable; 2) Southwest cannot justify
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`an injunction by invoking harms to third parties, its passengers; 3) Southwest cannot justify an
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`injunction based on harms that are “mere incidents of market competition;” and 4) Southwest’s
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`“remaining harms,” which Kiwi identifies as potential lost goodwill and the effects of hidden city
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`tickets, are not irreparable.
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`On the issue of delay, Kiwi argues Southwest has been aware of its activities since at least
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`September 2015, when it sent a cease-and-desist letter to Kiwi’s predecessor Skypicker. Kiwi
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`maintains Southwest’s delay in seeking an injunction shows that any harm caused by Kiwi’s
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`conduct is not irreparable.
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`Southwest responds that it did not unreasonably delay. Southwest points out that Skypicker
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`did not respond to its letters and Kiwi responded for the first time in September 2019. Southwest
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`contends the situation changed fundamentally in late 2020, when Southwest received escalating
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`reports from personnel in ground operations and customer service about angry customers not
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`receiving refunds and disruptive hidden city fares. These complaints arose from Kiwi bookings.
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`Southwest maintains it promptly took action. Its December 2020 cease-and-desist letter was the
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`first sent to Kiwi.com, Inc. Southwest says there is substantial evidence that reputational problems
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`surfaced in late November 2020. Southwest argues an injunction is necessary now as a result of
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`recent problems. The February 2021 declaration of Obrenic states that problems related to
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`Southwest flights purchased through Kiwi have recently been increasing. In recent months,
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`employees have submitted reports or notified supervisors about operational problems arising from
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`passengers with Kiwi reservations. The complaints documented in the declaration are from late
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`2020 to early 2021 and support Southwest’s position that the harm caused by Kiwi escalated
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`recently. Southwest also points to multiple recent flight delays due to reservations associated with
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`Kiwi passengers. The Court is not persuaded that the cases Kiwi cites mandate the denial of
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`injunctive relief in this case. See, e.g., Dillard v. Sec. Pac. Corp., 85 F.3d 621, 1996 WL 254971,
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`at *4 (5th Cir. Apr. 18, 1996) (per curiam) (plaintiff could not prove irreparable injury in part
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`because he waited almost six years to request injunctive relief; he also could not prove substantial
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`likelihood of success on merits); Leaf Trading Cards, LLC v. Upper Deck Co., No. 3:17-CV-3200-
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`N, 2019 WL 7882552, at *2 (N.D. Tex. Sept. 18, 2019) (“Absent a good explanation, a substantial
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`period of delay militates against the issuance of a preliminary injunction.”). Here, Southwest has
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`demonstrated a substantial likelihood of success on the merits of its contract claim and has
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`provided a reasonable explanation for its alleged delay.
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`As for Kiwi’s remaining arguments on the issue of irreparable harm, the Court notes that
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`Southwest has not only alleged harm to third parties, it points to harm to its business operations.
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`And the Court does not agree the alleged unauthorized sales of Southwest flights amount to mere
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`incidents of market competition. As for Kiwi’s argument that any harm to Southwest is
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`compensable via money damages, the Court disagrees. Even with the recent cessation of hidden
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`city ticket sales, Southwest has still shown irreparable injury. Grounds for irreparable injury
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`include loss of control of reputation and loss of goodwill. See Emerald City Mgmt., L.L.C. v. Kahn,
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`624 Fed. App’x 223, 224 (5th Cir. 2015). Southwest has shown that Kiwi’s activities are damaging
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`its reputation and goodwill and these damages cannot be quantified.
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`Balance of Harms
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`Southwest must also demonstrate the threatened injury if the injunction is denied outweighs
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`any harm that will result if the injunction is granted. Southwest argues Kiwi’s business practices
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`interfere with customer communications, misrepresent Southwest customer-friendly policies,
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`charge customers unnecessary fees, divert traffic away from Southwest’s website, and tarnish
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`Southwest’s reputation and goodwill. Southwest argues Kiwi will suffer little if any damage by
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`ceasing unauthorized sales of Southwest flights and that Kiwi’s interest in using the Southwest
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`website for its own commercial purposes is entitled to “scant consideration.” Kiwi can continue
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`its business and sell flights for other carriers.
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`Kiwi alleges the balance of harms tips strongly in its favor. Kiwi argues an injunction
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`poses a significant threat to its business model, reputation, and partner relationships. Kiwi asserts
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`removing Southwest flights from its website will drastically affect its ability to build dynamic
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`travel itineraries for its customers. According to Kiwi, for many key travel routes and destinations,
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`it is impossible to fly without traveling on Southwest. It also contends that an unspecified “threat
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`of further injunctions against brokering ticket sales poses a potentially existential threat to
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`Kiwi.com’s US operation.”
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`The Court concludes the threatened injury to Southwest if the injunction is denied
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`outweighs the harm to Kiwi. Southwest has shown that Kiwi’s unauthorized sales of its flights
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`poses a significant disruption to its customer operations. Kiwi has not convinced the Court that
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`the injunction will significantly threaten its business. As Southwest notes, Southwest is not listed
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`as one of Kiwi’s “top 20 airlines” on its website.1
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`Public Interest
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`The final element is that the public interest will be served by the issuance of an injunction
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`in this case. Southwest contends the public interest is served by an injunction because injunctive
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`relief will protect consumers. It relies on evidence that its customers have been harmed in various
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`1 See https://partners.kiwi.com/technology-services/b2b-partnership-model.
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`ways by Kiwi’s unauthorized sales of its flights, including being deceived and overcharged for
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`services. Kiwi counters that the public interest favors dissemination of public information and
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`competition in the market. It asserts research demonstrates the free-market benefits to the public
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`of online services providing airline price comparisons. The Court concludes the public interest
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`will be served if the preliminary injunction is granted for the reasons put forward by Southwest
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`and because there is an expectation that parties to contracts will honor their contractual obligations.
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`Southwest has satisfied the four requirements for the issuance of a preliminary injunction.2
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`The Court grants Southwest’s motion.
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`Preliminary Injunction
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`For the reasons set forth above, the Court ORDERS as follows:
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`That the Defendants Kiwi.com, Inc. and Kiwi.com s.r.o., as well as their officers, members,
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`managers, affiliates, agents, employees, servants, representatives, any entities owned or controlled
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`by them, and all persons acting under or in concert with them, are preliminarily enjoined
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`throughout the pendency of this lawsuit from: (1) harvesting, extracting or scraping information
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`from the Southwest Website, www.southwest.com, or its proprietary servers, including
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`Southwest’s flight and fare information; (2) publishing Southwest flight or fare information on the
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`kiwi.com website, th