It’s very difficult to sue an airline, thanks to the 1978 Airline Deregulation Act. The law which abolished the federal government’s role in deciding which airlines flew what routes, and at what price, also pre-empted state regulation of airlines.
It makes sense that you don’t want 50 different sets of regulation for an airline operating within the United States (sometimes airlines even fly to Delaware for completeness). The Supreme Court has ruled that this doesn’t just mean state legislatures can’t impose rules on airline prices and the like, but that people cannot pursue ‘state-level contract claims’ in the courts.
In many cases if you want ds to be for violating federal law or its own contract of carriage. In Northwest v. Ginsburg the Supreme Court even said you cannot sue an airline frequent flyer program for breaching a duty of good faith and fair dealing, because that too is pre-empted by the Airline Deregulation Act. I’d love to see someone pursue a case who had earned their miles for non-flight activity, and redeemed their miles for non-flight awards.
NV Flyer covers a case where a customer paid for ‘Early Bird Check-in’ in order to board earlier – their flight was cancelled and they were rebooked on another flight, they didn’t receive the earlier boarding they paid for (they had to buy it again!) or a refund of their early check-in fee.
Naturally Southwest Airlines argues the case can’t be pursued because it’s pre-empted by the Airline Deregulation Act. That’s an airline’s first line of defense. They say they didn’t violate their own terms and conditions, so pound sand.
However in Klutho v. Southwest Airlines Co. the U.S. District Court for the Eastern District of Missouri didn’t buy it.
Southwest argued that the ADA preempted the breach of contract claim because it “impermissibly seeks to impose binding standards of conduct on Southwest that operate outside the terms of the Contract of Carriage,” which did not refer to the early boarding fee.
The plaintiff kept his opposition simple. He argued that (i) his payment of the early boarding fee resulted in a unilateral contract that Southwest breached by failing to provide the early boarding he had paid for, (ii) the Contract of Carriage was irrelevant to the unilateral contract, and (iii) the ADA did not preempt his contract claim because he “is not trying to expand the terms of the simple contract agreed to” by the parties.
Southwest’s terms were silent on the issue. So the question is simple: did they take money for something and then fail to deliver the service?
Not having the case thrown out isn’t the same thing as winning. But getting a day in court against n airline can be no simple feat. Ultimately this then should come down to, what did Southwest Airlines sell to the customer?
- Most people think of Early Bird Check-in as ‘getting early boarding’. Southwest Airlines doesn’t assign seats, and the reason you want to be higher up in the check-in queue is because that allows you to board earlier and get a more preferred seat.
- However it doesn’t literally provide ‘early boarding’ or any specific boarding order. It just means you’re assigned a boarding number after full fare and elite customers, but before people who didn’t pay extra and have one assigned when they check in for the flight.
- Here it seems the customer bought early check-in, their flight was cancelled, and that fee wasn’t refunded. They bought early check-in again for their new flights and they want to turn this into a class action suit.
Legally this seems to be just an oversight on Southwest’s part. They could just update their terms and conditions to say that Early Bird check-in is non-refundable even in the case of a cancelled flight, and potentially prevail on pre-emption grounds. (Other potential challenges to this policy are beyond the scope of this discussion.)
What’s strange though is that Southwest’s Early Bird Check-in FAQ says that they will refund the fee in the event of a flight cancellation by the airline. Why they apparently did not do so in this case is unclear.