A federal trial court in
Southwest Airlines is a
On the other hand, BoardFirst assists customers with getting class A seating at Southwest flights. A Southwest ticket holder can supply BoardFirst with his name, flight information, credit card number, and make BoardFirst his agent to obtain class A seating for a fee of $5. Then, BoardFirst’s employees log onto the Southwest website at the appropriate time, obtain a pass, and allow customers to print their boarding pass at the airport. BoardFirst has been in operation since 2005 and serves less than 100 customers per day.
In court, Southwest argued that BoardFirst’s circumvention of Southwest’s first come, first served policy is a breach of contract. The terms of this contract were posted on Southwest’s website under a link titled “Terms and Conditions.” These terms specifically prohibited commercial use of the Southwest’s website—unless the user was an approved travel agent. Furthermore, Southwest specifically prohibited the services that BoardFirst provided, stating: “third parties may not use the Southwest web sites for the purpose of checking Customers in online or attempting to obtain for them a boarding pass in any certain boarding group.”
In similar circumstances, defendants have argued that they had no knowledge of these terms and that the small hyperlink at the bottom of the website gave insufficient notice. However, BoardFirst did not raise these arguments because Southwest sent two cease and desist letters before starting this lawsuit. The court held that a contract between BoardFirst and Southwest formed at least as early as when BoardFirst received the first cease and desist letter and then continued the use of Southwest’s website.
The case is Southwest Airlines Co., v. BoardFirst, L.L.C., No. 3: 06-CV-0891-B (N.D. Tex., Sept. 12, 2007).