Dear {full_name}:
This is an agreement (the “Agreement”) between you and Bryson Harris Suciu & DeMay PLLC (“Bryson” or the “Firm”) for legal representation regarding your claim(s) against Booking Holdings Inc. d/b/a Booking.com (herein “Booking.com” or “Respondent”) for its violation of your privacy rights arising from its deployment of third-party tracking technologies on its mobile application (the “App”), the mobile browser version of its website, https://www.booking.com/, and the desktop browser version of its website, https://www.booking.com/ (collectively, the “Platform”), pursuant to applicable laws (which may include, but are not limited to, the Federal Wiretap Act, the California Invasion of Privacy Act (“CIPA”), including Cal. Penal Code §§ 631 and 638.51, the California Unfair Competition Law (“UCL”), the Florida Security of Communications Act (“FSCA”), negligence, unjust enrichment, intrusion upon seclusion, any applicable unfair competition and consumer fraud statutes, and any applicable common law).
You understand and authorize the Firm to proceed with filing your claim(s) as an individual arbitration. Arbitration is a simplified means of pursuing legal claims, where the claim is decided by an arbitrator rather than a judge or jury. Booking.com’s Terms of Service Section A20.2 (“Internal Review Procedure”) purports to require that, before initiating arbitration or a small claims action, a claimant submit written notice of a dispute exclusively through a web-based form on Booking.com’s Dispute Resolution page, containing eight specific categories of Required Information and beginning with the phrase “Request Under Arbitration Agreement.” The Firm has taken the position that this web-form requirement is illusory and procedurally unconscionable, because it funnels legal dispute notice through an undefined, unilaterally-administered web-form channel with no legal department contact, no U.S. email or mailing address identified in the Terms for service of formal legal notices, and no mechanism for a represented claimant to provide legal notice through counsel, and the Firm reserves all rights to challenge the enforceability of Section A20.2, and the Arbitration Agreement generally (including its class, collective, and representative action waiver and its Batch Arbitration provisions), on these and other grounds. Without conceding the enforceability of Section A20.2 or any other provision of Booking.com’s Terms, written notice of the dispute, including factual information sufficient to allow evaluation of the dispute and the requested relief, will instead be sent to Booking.com’s legal department at dataprotectionoffice@booking.com, cs.relations.americas@booking.com, and privacy@bookingholdings.com to satisfy any applicable notice requirement. If the dispute is not resolved through the foregoing process, the Firm will initiate individual arbitration with National Arbitration & Mediation (“NAM”) under the NAM Rules referenced in Booking.com’s Terms of Service, pursuant to the Federal Arbitration Act, Booking.com’s Terms of Service, and California or Florida law, as applicable. You authorize the Firm to settle your individual claim(s) with Respondent and execute a release of your individual claim(s) on your behalf. However, this agreement also authorizes the Firm to settle and release your claim(s) as a part of a class action if Respondent chooses to do so. In the event that the Firm enters a settlement with your authority and you choose not to participate in the settlement, you may reject the settlement, continue arbitration individually, and the Firm may withdraw its representation of you. You further authorize the Firm to represent additional individuals who have claims that are the same or similar to yours against Respondent. You confirm and understand any settlement allocation is uniform for each claimant. You expressly understand that you may ask any questions related to a settlement before signing an agreement to receive settlement funds.
The Firm will handle this matter with a contingent fee of the greater of either forty percent (40%), as allowed by state law, of any recovery obtained in this matter or total attorneys’ fees awarded by the arbitrator or court or, alternatively, an amount to be negotiated with Respondent’s counsel. The Firm reserves the right to associate with co-counsel, but the fee will be split between the Firm and any additional firm(s) they associate with. The attorney signing this agreement is a North Carolina lawyer, but the Firm includes attorneys licensed in other jurisdictions, including California, New York, Florida, Massachusetts, Tennessee, Kentucky, Georgia, Louisiana, and Michigan.
The Firm will advance all costs incurred by the Firm during this litigation (e.g., filing fees, travel, etc.). The Firm will be reimbursed for these costs if, and only if, they ultimately obtain a recovery on your behalf. Advanced costs are deducted after the calculation of the contingent fee.
The Firm will keep you informed about the progress of your claim as it moves forward. We will do so via phone calls, emails, and SMS messages. By signing this retainer agreement, you consent to the Firm calling and sending case-related SMS messages to the cell phone number you provided when signing up for representation. If at any time you no longer wish to receive phone calls from the Firm, you can email us at arbitration.clientcare@brysonpllc.com. Similarly, if you no longer wish to receive SMS messages from the Firm, you can reply “STOP” to any SMS message to opt out of receiving additional messages.
You authorize the Firm to withdraw from representation if it determines for sufficient reasons that your claim(s) should not continue. Regardless, the Firm will maintain the file on this matter for at least six years. If requested, these will be returned to you after the conclusion of the representation.
Finally, the Firm does not make any promises or guarantees regarding the outcome of your claim(s). If you have any questions about the foregoing, please advise. We would appreciate your returning a signed copy of this engagement letter to us for our files.
CERTIFICATION
By signing this Agreement, the undersigned Client certifies that they understand that they will not be able to pursue a claim against Booking.com unless they have used the Booking.com App, visited the mobile browser version of Booking.com’s website (https://www.booking.com/), or visited the desktop browser version of Booking.com’s website (https://www.booking.com/) and interacted with the Platform within the applicable time period. If necessary, the Client could testify or produce documents confirming that they have used the Booking.com App or visited the mobile or desktop browser version of Booking.com’s website and interacted with the Platform, and could produce documentation of their reservation history with Booking.com.
Client further certifies that they have not retained any other law firm(s) to pursue their claim(s) against Booking.com and that they will not retain any other law firm(s) to do so. Client understands that, if they do retain or have retained another law firm to pursue their claim(s), the Firm may terminate its representation of the Client in connection with their claim(s) against Booking.com.
COMMUNICATIONS CONSENT
By signing this Agreement, the undersigned Client consents to the Firm keeping them informed about the progress of their claim by calling, emailing, and sending case-related SMS messages to the cell phone number that Client provided to the Firm when signing up for representation. Client understands that, if at any time they no longer wish to receive phone calls from the Firm, they can email arbitration.clientcare@brysonpllc.com. Client also understands that, if they no longer wish to receive SMS messages from the Firm, they can reply “STOP” to any SMS message to opt out of receiving additional messages.
Additionally, Client consents to the Firm calling, emailing, and sending them SMS messages concerning other matters, lawsuits, and investigations that may be relevant or of interest to Client.
PRESERVATION OF EVIDENCE AND LITIGATION HOLD
The Firm is required by court rules and caselaw to document that Client has been provided with notice of a party’s continuing obligation to preserve evidence and electronically stored information (“ESI”). This communication, commonly referred to as a “litigation hold,” sets forth certain obligations relating to the preservation and maintenance of documents, ESI, and evidence in the case discussed in this retainer agreement (herein “the lawsuit”). The Firm is required to provide this information and to maintain a copy for its files. Please review this portion of the retainer agreement carefully and advise of any questions with regard to same.
By this communication, the Firm is advising Client (“you”/“your”) not to destroy, conceal or alter any relevant paper or electronic files and other data generated by and/or stored on your computers, mobile devices (such as mobile phones, iPads, etc.) and storage media (e.g., hard disks, floppy disks, backup tapes, flash/thumb drives), or any other electronic data, such as email, or data on social networking sites controlled by you. This also includes ESI on any cloud-based or third-party remote storage systems, such as, for example, Google Docs, the Amazon Drive, or any other third-party cloud storage systems.
Unfortunately, your failure to comply with this notice can result in severe sanctions being imposed for spoliation of evidence or potential evidence. All data destruction or deletion policies or settings that can potentially impact ESI or other evidence must be suspended or turned off, immediately.
As you know, the arbitration relates to Booking.com and your use of the Booking.com App, the mobile browser version of Booking.com’s website, https://www.booking.com/, and the desktop browser version of Booking.com’s website, https://www.booking.com/, and third-party tracking technologies involving Google, Reddit, and Bing, and information regarding same is important in the case. You need to preserve this information, although that does not mean that all of your online account, browsing, or social media information will be produced in the lawsuit.
Electronic documents and the storage media on which they reside contain relevant, discoverable information beyond that which may be found in printed documents. This data, referred to as metadata, contains information that can be obtained through discovery. Therefore, you may be asked for all documents in their electronic form along with information about those documents contained on the media or storage device. Again, this will be/is an arbitration about Booking.com’s App, the mobile browser version of Booking.com’s website, https://www.booking.com/, and the desktop browser version of Booking.com’s website, https://www.booking.com/, and third-party tracking technologies involving Google, Reddit, and Bing, so that information is important. Please do not delete your social media accounts to the extent they may contain relevant information, your Booking.com account or reservation history (if applicable), browser history, screenshots, cookies, reservation confirmations, payment-related records, or any emails or other communications from Booking.com.
With regard to electronic data created subsequent to the date of delivery of this letter, relevant evidence is not to be destroyed. Please take whatever steps are appropriate to avoid destruction of evidence.
If this correspondence is in any way unclear, please contact the Firm immediately. This litigation hold obligation will continue while the litigation is ongoing. The Firm will inform you when the hold expires. By signing this Agreement, you are confirming your understanding and commitment to abide by this duty to preserve the evidence.