Late last week, Kiwi.com Inc. and Kiwi.com SRO filed a notice of appeal with the Fifth Circuit Court of Appeals challenging a September 30 order banning the online travel agency to remove data from Southwest Airlines Co.’s website After dismissing Kiwi’s motion to dismiss in August, the North Texas District Court ruled that a preliminary injunction was warranted given the likelihood of Southwest’s success on the the merits of her breach of contract claim, the possibility that she will suffer irreparable harm and the weight of public interest factors.
The January 2021 lawsuit alleges Southwest retains exclusive online distributor rights to sell its tickets. Kiwi violated the airline’s terms of service by scraping flight data from its pages for commercial purposes. Specifically, Kiwi purchased tickets directly from Southwest’s website and then resold the flights to more than 170,000 customers.
Kiwi reportedly padded Southwest’s fares and charged additional fees on those tickets. The airline informed Kiwi of its alleged violations through cease and desist letters, but apparently to no avail. The lawsuit is suing for violation of the Computer Fraud and Abuse Act (CFAA), the Texas Computer Crime Act, and for breach of contract and trademark infringement.
“Kiwi violated the Terms by extracting flight data and fares from Southwest from the Southwest website, presenting Southwest flight data on kiwi.com and selling Southwest flights without authorization,” said the court as to the first step of the analysis. The defendant’s affirmative defenses, failures and unfairness, were not convincing. As for the cowards, Kiwi claimed Southwest waited too long to seek an injunction, making it unfair.
As to its second line of defense, Kiwi argued that “the adherence nature of Southwest’s terms and conditions, its excessive and selective application against competitors in the service of a detrimental consumer monopoly on flight and fare data, and the overwhelming public interest in preserving the freedom to discuss publicly available information raises serious questions of inequity. The court dismissed both, ruling summarily that at this point Kiwi had failed to prove either.
The court also found that Kiwi had caused irreparable harm to Southwest by interfering with relationships with customers, charging for flyers and encouraging them to book problematic rates for “hidden cities”. The Fifth Circuit will now hear Kiwi’s interlocutory appeal.
Southwest is represented by Munck Wilson Mandala LLP. Kiwi.com is represented by McCarthy Garber Law LLC, Carrington Coleman Sloman & Blumenthal LLP and Bates PLLC.