Yesterday British Airways announced a change to its frequent flyer program purporting to preclude members from taking it to court or participating in any class action lawsuit.
The ‘binding arbitration’ provision would, in theory, protect BA from a future version of the US$42 million and over 2.2 billion frequent flyer miles the fuel surcharge class action settlement cost them for deceptive practices.
Commenter RTS pointed out that no airline can impose such a requirement in its contract of carriage aimed at U.S. travel. Here the clause applies specifically to U.S. members. 14 CFR § 253.10 says,
§ 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).
British Airways would say that the change wasn’t made to their contract of carriage, it was made to their frequent flyer program terms. However it’s still British Airways rule limiting the ability of U.S. passengers to sue the airline in U.S. courts.
And the Supreme Court ruled in Northwest v. Ginsberg that frequent flyer programs were part and parcel of airline air transportation (that miles are effectively a rebate on travel).
It seems like it might be time for another formal DOT complaint, this time against British Airways.