Five elements to required disclosures

Mark Pestronk

Q: In your June 5 Legal Briefs column, “Advice from ChatGPT is advice from you,” you stated that a travel advisor has “a legal duty to disclose reasonably obtainable, relevant information about destinations, suppliers or properties that a reasonably informed consumer would not necessarily know.” Does your formulation come from a particular court precedent or statute? If not, what is the basis for it? Would you elaborate on it? Would you apply it to other players in the travel industry, such as tour operators? If such companies do not deal directly with the public, would you still apply the same standard?

A: The quoted words are my own formula that synthesizes many state court precedents on the subject of the duty of travel agents as well as my own observation about what travel professionals do. The closest precedent is probably Hofer v. Gap Inc., a 2007 Massachusetts federal court case, but many courts in other states have similar precedents.

There are five parts or elements in my formulation:

First, the information must be “reasonably obtainable.” This means that it must be readily available to the travel advisor without excessive research in relation to the nature of the sale. On the one hand, a single sentence in a 20-page State Department review of street crime in a particular country is not “reasonably attainable,” but an article in the trade press about such crime in a particular resort area certainly qualifies.

Second, the information that you must disclose has to be “relevant.” Although you can read articles about carjackings on Mexican highways, that information would not be relevant to a client planning a cruise to a few Mexican ports.

Third, what you need to disclose must be information or facts, not mere opinions. If a colleague has told you that a particular resort does not deserve the “luxury” rating that it holds, you do not really need to disclose that opinion to the client.

Fourth, the information must be about a destination, supplier or property. So you need to disclose when a visa is required for Americans to visit a destination. Conversely, you don’t need to tell the client that airfares have come down since they purchased their tickets.

Fifth, the information must be something that a reasonably informed client would not necessarily know. The financial trouble of Crystal Cruises in early 2022 would be a good example of that. On the other hand, since a traveler should have enough common sense to know not to leave valuable jewelry behind in a hotel room, you should not be blamed for failure to disclose the possibility of theft.

Tour operators have different legal duties. If they are not dealing directly with the public, then they have no duty of disclosure to clients. Instead, they have a duty to choose suppliers or subcontractors with due care, based on their own experiences, the supplier’s reputation in the trade and customer complaint record and other criteria that the best operators have adopted from time to time. 

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