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Case No. 16-cv-07243-BLF 

DEFENDANT AGODA COMPANY PTE. LTD.’S ANSWER TO PLAINTIFF’S COMPLAINT 

Colin H. Murray (State Bar No. 159142)

 Colin.Murray@bakermckenzie.com 

Teresa H. Michaud (State Bar No. 296329) 

 Teresa.Michaud@bakermckenzie.com 

Anne M. Kelts (State Bar No. 298710) 

 Anne.Kelts@bakermckenzie.com 

BAKER & McKENZIE LLP 

Two Embarcadero Center, 11th Floor 

San Francisco, California 94111 

Telephone: + 1 415 576 3000 

Facsimile: + 1 415 576 3099 

Attorneys for Defendants 

AGODA COMPANY PTE. LTD., 

AGODA INTERNATIONAL USA INC., and 

THE PRICELINE GROUP INC.

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

AN PHAN, as an individual and on behalf of all 

others similarly situated, 

Plaintiff, 

v. 

AGODA COMPANY PTE. LTD., a Singapore 

private limited liability company; and DOES 1 

through 50, 

Defendants. 

Case No. 16-cv-07243-BLF 

Removed from the California Superior Court, 

County of Santa Clara on 

December 19, 2016 - 

Superior Court Case No. 16CV302647 

Date of Filing of Action in the 

Superior Court: November 14, 2016 

DEFENDANT AGODA COMPANY 

PTE. LTD.’S ANSWER TO 

PLAINTIFF’S CLASS ACTION 

COMPLAINT 

Before the Honorable Beth Labson Freeman 

Courtroom 3 - 5th Floor 

San Jose Courthouse 

280 South 1st Street, San Jose, CA 95113
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Case No. 16-cv-07243-BLF 

DEFENDANT AGODA COMPANY PTE. LTD.’S ANSWER TO PLAINTIFF’S COMPLAINT 

Defendant Agoda Company Pte. Ltd. (“Agoda” or “Defendant”), by and through its 

attorneys, hereby answers the Class Action Complaint of Plaintiff An Phan (“Plaintiff” or “Phan”) 

filed on November 14, 2016 (“Complaint”). 

INTRODUCTION 

1. Agoda admits the allegations in Paragraph 1 that it is a Singapore private limited 

liability company and that Defendants Agoda International USA, Inc. (“Agoda USA”) and The 

Priceline Group, Inc. (“Priceline”) are Delaware corporations.1 Agoda further admits that Plaintiff 

purports to bring this action as a class action on behalf of himself and all others similarly situated 

against Defendants, but denies that Plaintiff or the putative class are entitled to any relief on the 

claim and denies that class treatment is appropriate for this case. As to the remaining allegations of 

this paragraph, Agoda lacks knowledge or information sufficient to form a belief about the truth of 

these allegations and on such basis denies them. 

2. Agoda denies the allegations in Paragraph 2. 

3. The allegations in Paragraph 3 are legal conclusions or arguments for which no 

response is required; however, to the extent that a response is required, Agoda denies the same. 

JURISDICTION AND VENUE 

4. The allegations in Paragraph 4 are legal conclusions or arguments for which no 

response is required; however, Agoda denies that this Court has subject matter jurisdiction over this 

action because Plaintiff has not suffered any injury or harm cognizable under Article III of the 

United States Constitution and, therefore, lacks standing to bring suit. To the extent that a response 

is required to any of the remaining allegations in this Paragraph, Agoda denies the same. 

5. The allegations in Paragraph 5 are legal conclusions or arguments for which no 

response is required; however, to the extent that a response is required, Agoda denies the same. 

PARTIES 

6. Agoda lacks knowledge or information sufficient to form a belief about the truth of 

the allegations in Paragraph 6 and, on such basis, denies them. 

 

1

 Notably, Plaintiff stipulated to the voluntary dismissal without prejudice of Agoda International 

USA, Inc. and The Priceline Group, Inc. on January 23, 2017 [ECF No. 12]. 
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Case No. 16-cv-07243-BLF 

DEFENDANT AGODA COMPANY PTE. LTD.’S ANSWER TO PLAINTIFF’S COMPLAINT 

7. Agoda admits the allegation in Paragraph 7 that it is a Singapore private limited 

liability company with its principal place of business located at 30 Cecil Street, Prudential Tower 

#19-08, Singapore 049712. The remaining allegations in this Paragraph are legal conclusions or 

arguments for which no response is required; however, to the extent that a response is required, 

Agoda denies the same. 

8. Agoda admits the allegation in Paragraph 8 that Defendant Agoda USA is a Delaware 

corporation with its principal place of business located at 350 Fifth Avenue, Empire State Building, 

47th Floor, Suite 4700, New York, New York 10118. The remaining allegations in this Paragraph 

are legal conclusions or arguments for which no response is required; however, to the extent that a 

response is required, Agoda denies the same. 

9. Agoda admits the allegation in Paragraph 9 that Defendant Priceline is a Delaware 

corporation with its principal place of business located at 800 Connecticut Avenue, Norwalk, 

Connecticut 06854. The remaining allegations in this Paragraph are legal conclusions or arguments 

for which no response is required; however, to the extent that a response is required, Agoda denies 

the same. 

10. The allegations in this Paragraph are legal conclusions or arguments for which no 

response is required; however, to the extent that a response is required, Agoda denies the same. 

GENERAL ALLEGATIONS 

11. Agoda admits the allegations in Paragraph 11 to the extent they allege that Agoda 

provides through its website, agoda.com, and a mobile device application (an “app”), a leading 

online accommodation and reservation service through which consumers can book hotel reservations 

around the world, including in California. Agoda further admits the allegations that it has 

established a widely used and recognized e-commerce brand. Agoda denies the remaining 

allegations in Paragraph 11. 

12. Agoda admits that Agoda USA is an affiliated entity, but denies the remaining 

allegations in Paragraph 12. 

13. Agoda admits that Priceline wholly owns Agoda’s parent corporation, but denies the 

remaining allegations in Paragraph 13. 
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Case No. 16-cv-07243-BLF 

DEFENDANT AGODA COMPANY PTE. LTD.’S ANSWER TO PLAINTIFF’S COMPLAINT 

14. Agoda admits the allegations in Paragraph 14. 

15. Agoda denies the allegations in Paragraph 15. 

16. Agoda admits the allegations in Paragraph 16 to the extent they allege that it is 

possible for a consumer to make a hotel reservation using the Agoda mobile app. Agoda denies the 

remaining allegations in Paragraph 16. 

17. The allegations in Paragraph 17 are legal conclusions or arguments for which no 

response is required; however, to the extent that a response is required, Agoda denies the same. 

ALLEGATIONS CONCERNING PLAINTIFF’S EXPERIENCE 

18. Agoda lacks knowledge or information sufficient to form a belief about the truth of 

the allegations in Paragraph 18 and, on such basis, denies them. 

19. Agoda lacks knowledge or information sufficient to form a belief about the truth of 

the allegations in Paragraph 19 and, on such basis, denies them. 

20. Agoda lacks knowledge or information sufficient to form a belief about the truth of 

the allegations in Paragraph 20 and, on such basis, denies them. 

21. Agoda lacks knowledge or information sufficient to form a belief about the truth of 

the allegations in Paragraph 21 and, on such basis, denies them. 

22. Agoda lacks knowledge or information sufficient to form a belief about the truth of 

the allegations in Paragraph 22 and, on such basis, denies them. 

23. Agoda lacks knowledge or information sufficient to form a belief about the truth of 

the allegations in Paragraph 23 and, on such basis, denies them. 

24. The allegations in Paragraph 24 are legal conclusions or arguments for which no 

response is required; however, to the extent that a response is required, Agoda denies the same. 

25. Agoda lacks knowledge or information sufficient to form a belief about the truth of 

the allegations in Paragraph 25 and, on such basis, denies them. 

26. Agoda lacks knowledge or information sufficient to form a belief about the truth of 

the allegations in Paragraph 26 and, on such basis, denies them. 

27. Agoda denies the allegations in Paragraph 27. 

28. Agoda denies the allegations in Paragraph 28. 
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Case No. 16-cv-07243-BLF 

DEFENDANT AGODA COMPANY PTE. LTD.’S ANSWER TO PLAINTIFF’S COMPLAINT 

29. Agoda denies the allegations in Paragraph 29. 

CLASS-ACTION ALLEGATIONS 

30. Agoda admits that Plaintiff seeks to represent a class action against Defendants, but 

denies that Plaintiff or the putative class are entitled to any relief on the claim and denies that this 

action may properly proceed as a class action under the provisions of any applicable law. The 

remaining allegations of Paragraph 30 are legal conclusions or arguments for which no response is 

required; however, to the extent that a response is required, Agoda denies the same. 

31. Agoda admits that Plaintiff purports to reserve the right to amend or modify the 

proposed class, but denies that this action may properly proceed as a class action under the 

provisions of any applicable law. Further, the allegations of Paragraph 31 are legal conclusions or 

arguments for which no response is required; however, to the extent that a response is required, 

Agoda denies the same. 

32. Agoda denies the allegations in Paragraph 32 and further denies that this action meets 

the mandatory prerequisites for class treatment or that this case is appropriate for class treatment. 

33. Agoda denies the allegations in Paragraph 33 and further denies that this action meets 

the mandatory prerequisites for class treatment or that this case is appropriate for class treatment. 

34. Agoda denies the allegations in Paragraph 34 and further denies that this action meets 

the mandatory prerequisites for class treatment or that this case is appropriate for class treatment. 

35. Agoda denies the allegations in Paragraph 35 and further denies that this action meets 

the mandatory prerequisites for class treatment or that this case is appropriate for class treatment. 

36. Agoda denies the allegations in Paragraph 36 and further denies that this action meets 

the mandatory prerequisites for class treatment or that this case is appropriate for class treatment. 

FIRST CAUSE OF ACTION 

Violation of the TCPA 

47 U.S.C. § 227 

37. Agoda admits the allegation that Plaintiff intends in Paragraph 37 to incorporate by 

reference each and every allegation set forth in his Complaint into Paragraph 37, and hereby 

incorporates by reference Agoda’s responses to the allegations in each of the preceding paragraphs 

as if set out in full herein. 
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Case No. 16-cv-07243-BLF 

DEFENDANT AGODA COMPANY PTE. LTD.’S ANSWER TO PLAINTIFF’S COMPLAINT 

38. The allegations in Paragraph 38 are legal conclusions or arguments for which no 

response is required; however, to the extent that a response is required, Agoda denies the same. 

39. The allegations in Paragraph 39 are legal conclusions or arguments for which no 

response is required; however, to the extent that a response is required, Agoda denies the same. 

40. The allegations in Paragraph 40 are legal conclusions or arguments for which no 

response is required; however, to the extent that a response is required, Agoda denies the same. 

41. Agoda denies the allegations in Paragraph 41. 

42. The allegations in Paragraph 42 are legal conclusions or arguments for which no 

response is required; however, to the extent that a response is required, Agoda denies the same. 

PRAYER FOR RELIEF 

Agoda denies the allegations in Plaintiff’s Prayer for Relief and further denies that Plaintiff 

or the putative class are entitled to any relief whatsoever in this action. 

DEFENSES AND AFFIRMATIVE DEFENSES 

Agoda hereby asserts the following defenses and affirmative defenses to Plaintiff’s claims, 

without assuming the burden of proof on any issue for which Plaintiff bears the burden of proof. 

Agoda further reserves the right to raise other defenses, affirmative or otherwise, that may become 

evident during discovery and during any other proceeding in this action, including additional unique 

defenses and affirmative defenses applicable to individual members of Plaintiff’s proposed putative 

class. Agoda also reserves the right to amend and/or delete any affirmative defenses in the event that 

discovery indicates it may be appropriate to do so. 

FIRST DEFENSE 

(Failure to State a Claim) 

1. Plaintiff’s Complaint fails to state a claim upon which relief can be granted. 

SECOND DEFENSE 

(No Damage/Injury)

2. The Complaint and each cause of action contained therein is barred on account of 

Plaintiff’s lack of any injury or harm, or Plaintiff’s harm was de minimis.
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Case No. 16-cv-07243-BLF 

DEFENDANT AGODA COMPANY PTE. LTD.’S ANSWER TO PLAINTIFF’S COMPLAINT 

THIRD DEFENSE 

(Lack of Causation)

3. Plaintiff’s own conduct, or the conduct of third parties or entities outside of Agoda’s 

control and responsibility, caused or contributed to Plaintiff’s damages, if any. 

FIRST AFFIRMATIVE DEFENSE 

(Consent) 

4. The Complaint and each cause of action contained therein is barred on account of 

Plaintiff’s “prior express consent” under the Telephone Consumer Protection Act, by providing his 

cellular telephone number, which consent was not revoked. 

SECOND AFFIRMATIVE DEFENSE 

(Lack of Subject Matter Jurisdiction - Article III Standing) 

5. This Court lacks subject matter jurisdiction because Plaintiff has not alleged nor 

suffered any injury or harm cognizable under Article III of the United States Constitution and seeks 

only statutory damages. 

THIRD AFFIRMATIVE DEFENSE 

(Established Business Relationship) 

6. The Complaint and each cause of action therein is barred because of Plaintiff’s 

“established business relationship” with Agoda since at least November 2013 under the Telephone 

Consumer Protection Act. 

FOURTH AFFIRMATIVE DEFENSE 

(Good Faith; Lack of Willful or Knowing Violation) 

7. Agoda did not act willfully or knowingly with respect to any alleged violation of the 

Telephone Consumer Protection Act. Instead Agoda acted in good faith and without intent to harm 

Plaintiff or the putative class or to engage in any known wrongful act or violation of law. Any 

violation that may have occurred, which allegation is denied, occurred notwithstanding the 

maintenance of procedures reasonably adopted to avoid wrongful acts or violations of law. 
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Case No. 16-cv-07243-BLF 

DEFENDANT AGODA COMPANY PTE. LTD.’S ANSWER TO PLAINTIFF’S COMPLAINT 

FIFTH AFFIRMATIVE DEFENSE 

(Unconstitutional – Violations of the Fifth and Fourteenth Amendments) 

8. Interpretations of the Telephone Consumer Protection Act upon which Plaintiff’s 

Complaint is based are unconstitutionally vague and overbroad and thus violate the due process 

clause of the Fifth Amendment to the United States Constitution, and the due process provisions of 

the Fourteenth Amendment to the United States Constitution. Furthermore, the Fifth and Fourteenth 

Amendments to the United States Constitution would be violated if the statutory damages claimed 

by Plaintiff, in the absence of any actual injury to Plaintiff or the putative class, were to be imposed 

against Agoda because they would be grossly excessive, arbitrary and disproportionate to any 

“harm” suffered by Plaintiff or the putative class. 

SIXTH AFFIRMATIVE DEFENSE 

(Assumption of the Risk) 

9. Plaintiff’s claim is barred in whole or in part due to Plaintiff’s intentional submission 

of his cellular telephone number to encounter the known risk of which he now complains. 

 SEVENTH AFFIRMATIVE DEFENSE 

(Waiver, Acquiescence and Estoppel)

10. Plaintiff’s claim is barred in whole or in part by the doctrines of waiver, acquiescence 

and/or estoppel due to Plaintiff’s intentional submission of his cellular telephone number to 

encounter the known risk of which he now complains. 

EIGHTH AFFIRMATIVE DEFENSE 

(Laches)

11. Plaintiff’s claim is barred in whole or in part by the doctrine of laches. 

NINTH AFFIRMATIVE DEFENSE 

(Unclean Hands)

12. Plaintiff’s claim is barred in whole or in part by the doctrine of unclean hands. 
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Case No. 16-cv-07243-BLF 

DEFENDANT AGODA COMPANY PTE. LTD.’S ANSWER TO PLAINTIFF’S COMPLAINT 

TENTH AFFIRMATIVE DEFENSE 

(Failure to Mitigate Damages)

13. Plaintiff’s claim is barred in whole or in part due to Plaintiff’s failure to mitigate his 

damages, if any. 

WHEREFORE, Agoda seeks judgment against Plaintiff and prays as follows: 

1. Denying all relief sought by Plaintiff and the putative class and dismissing the 

Complaint in its entirety, with prejudice; 

2. Entering judgment in favor of Agoda; 

3. Awarding Agoda its costs of suit incurred in defense of this action to the maximum 

extent permitted by law; and 

4. Granting Agoda any such other and further relief as the Court deems just and proper. 

 

Dated: January 26, 2017 BAKER & McKENZIE LLP

By: /s/ Teresa H. Michaud

 Teresa H. Michaud 

Attorneys for Defendants 

AGODA COMPANY PTE. LTD., 

AGODA INTERNATIONAL USA INC., 

and THE PRICELINE GROUP INC.