Several airlines have tried to sneak in changes during the global pandemic, when few people are watching. United Airlines increased the price of partner award tickets and reduced elite status earning on partners (less than four months after rolling out their new system). American Airlines increased award change fees.
British Airways notified members of a change to its frequent flyer terms and conditions to limit the ability to sue.
- U.S. and Canada members of the program waive the right to sue, waive the right to a class action, and waive the right to represent a class or participate in a class.
- Disputes must be submitted to binding arbitration within two years of becoming aware of an issue.
Many of us certainly saw some justice over the airline’s deceptive marketing of fuel surcharges. That class action cost the airline about US$42 million and over 2.2 billion frequent flyer miles. It’s common for companies to want to forcelose the courts as a mechanism for seeking compensation for harm.
Mandatory arbitration, though, is so 2018. Uber, for one, learned their lesson in a spat with drivers. They were faced with mass individual arbitration filings in California and Massachusetts which they were forced to pay filing fees on as well as address separately. Their arbitrations through JAMS cost $1500 apiece. (American Arbitration Association filing fees can be upwards of $1900 each.)
Now, they tried a couple of frustrating tactics – delaying paying the filing fees as they were required to do, and seeking to consolidate each of these cases into four ‘mass arbitrations.’ They were against class actions… until they weren’t. Ultimately Uber settled the majority of these abitrations for $146 million.
Sneaking in a new arbitration clause could come back to bite British Airways, if we decide to all file separate claims as required under their terms. I’d point out two sections of the terms. First, BA specifically precludes one of Uber’s defenses, “British Airways and you agree that the arbitrator of any Dispute may not consolidate more than one person’s claims” and second on the cost side, “If required for the enforceability of this U.S. Arbitration Agreement under the Federal Arbitration Act, British Airways will pay all arbitrator’s costs and expenses.” Like I said this could get expensive.
It would be a lot more expensive with a large class action case. Binding arbitration is rough for consumers and corporations know it.
Can we reject the arbitration?
Can that really be enforced? What can they do if I decide to sue after all? Sue me?
BA’s normal practice is to attempt to ignore and/or circumvent consumer laws (fuel surcharge class action, secret and illegal “child molester” seating policy etc).
But this is specifically – explicitly – prohibited by DoT. Have this paragraph to hand and use it as soon as BA begin their predictable attempts to flout law again.
§ 253.10 Notice of contract of carriage choice-of-forum provisions.
No carrier may impose any contract of carriage provision containing a choice-of-forum clause that attempts to preclude a passenger, or a person who purchases a ticket for air transportation on behalf of a passenger, from bringing a claim against a carrier in any court of competent jurisdiction, including a court within the jurisdiction of that passenger’s residence in the United States (provided that the carrier does business within that jurisdiction).
[Doc. No. DOT-OST-2010-0140, 76 FR 23163, Apr. 25, 2011]
@Raymond: They bring a motion to dismiss the lawsuit, the judge dismisses the lawsuit and probably orders you to pay some of BA’s legal fees.
@RTS – I assume BA would argue that this applies only to their frequent flyer program and not to the purchase of air travel, a hair that the Supreme Court refused to split in Northwest v Ginsburg
Alex Bachuwa has to be happy with this. He’s pretty handy for consumers in arbitration cases, as I can attest.
Here’s a similar lawsuit(s) that I’m participating in. I was really shocked to learn that US airlines don’t have arb agreements after the brutal AA shutdowns last December. It would have made seeking justice much easier, as arbitrations haven’t stopped due to Covid and you can file from home. For the time being, I think not having an arb clause was a smart decision. Unless someone files a class action!
https://www.reuters.com/article/legal-us-otc-chegg/mass-consumer-arbitration-is-on-ed-tech-company-hit-with-15000-data-breach-claims-idUSKBN22O33E
@Gary well if I need to litigate this, legal people split hairs very true. But customers can also do that. Sometimes they win – we all know BA has already been whacked by people who stand up to their malfeasant misinterpretations in courts of law and who prepare carefully for their encounter with Colonel Blimp and Nigella’s legal weasels.
Litigation of FFP T&C, against which DoT has ruled, is not at all the same as CoC pertaining to the actual transportation, to which they emphatically do apply.
The provision states “purchase” and does not specify points or cash. Precedent. The very fact that the successful class-action was taken vs BA regarding fuel surcharges and that restitution was made to EC members – including me, LOL! – in AVIOS currency demonstrates that FFP do indeed perform an acceptable legal role as “currency” in these proceedings.