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.