Southwest Airlines Sued For Denying Early Bird Check-in Then Refusing Refunds

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.

About Gary Leff

Gary Leff is one of the foremost experts in the field of miles, points, and frequent business travel - a topic he has covered since 2002. Co-founder of frequent flyer community InsideFlyer.com, emcee of the Freddie Awards, and named one of the "World's Top Travel Experts" by Conde' Nast Traveler (2010-Present) Gary has been a guest on most major news media, profiled in several top print publications, and published broadly on the topic of consumer loyalty. More About Gary »

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Comments

  1. Not at all typical of WN customer relations. They certainly need to revisit this situation to resolve the bad publicity, assuming things are as stated

  2. Disgusting conduct by SouthWest. I just booked 4 flights with another airline that I was going to book with SouthWest. The Evil clowns at WN can pound sand.

  3. So my question is whether this could turn into a class action lawsuit. If so, it would be interesting to see how much WN has received in these forfeited fees and what they may have to settle for.

  4. Same question as Stuart. Who cares if dirtbag lawyers got all the money at least WN would be made to pay.

  5. I have voluntarily changed flights and “moved” the early bird to the new flight (at the risk of losing my ability to cancel the flight though up to 10 minutes before)

  6. I’m all in for the class action suit. Southworst stole my early bird check-in the exact same way a couple of years ago. I challenged the gate rep. when she moved me to another flight and told me my fee did not transfer. When I asked for a refund she explained how I could go pound sand.

  7. I would like to speak to an attorney.
    I have a hearing/vision disability and the airline denied me to board early and or change my seat.
    The ticket agent insinuated I didnt have a disability

  8. I don’t fly Southwest enough to know their policies. The idea of transferring or refunding the fee seems like a no brainer. Otherwise it does sound like an outright rip off. Why don’t they??

  9. I agree SWA has changed/gone downhill. SWA flight promotion spring 2020 will have September 7th 2022 expiration date so not to worry about covid-19.
    Checked SWA discussion to confirm. When expiration shown April 2021 called SWA, said computer glitch. SWA change flight numerous times and even put me on non-existent flight, again computer glitch explanation. When cancelled flight in October due to covid-19 cancelled event, expiration still April 202. When called told that travel funds are created when cancelled, I.e. “funds involving travel” (SWA written words) are not travel funds. I will lose those funds in April 202. When use all SWA points and all SWA funds (other cancelled events in summer) will cancel SWA card and not fly SWA. Not first time this type of games played by SWA. SWA claimed no responsibility for bag tried to charge for oversized until showed bag was a purchased SWA bag. Just one of so many other examples that have occurred in recent years.

  10. Not a good look for Southwest and truly adding insult to injury when canceling someone’s flight then keeping their dough. And for what? I can’t believe this generates much revenue.

  11. I have been flying for years with southwest since covid it’s been a joke. All my direct flights are cancelled and I clearly paid more for those and they gave no refund on any of these price differences on the cheap layover flights . South west is going downhill.

  12. SWA repeatedly tells people fares are refundable but hides in fine print that the early boarding option is not refundable. I get better service on Sprint and Frontier for lots less now. SWA is losing its edge over this.

  13. In my opinion the best thing ever about Southwest airlines was that it treated to all check-ins based on merit! First come first served no exceptions! Looks like this now-evil airline has implemented a caste system just like India and the evil virus that is American airlines and United airlines has now been spread to Southwest airlines!

  14. Stupid article!
    If SWA denied early bird in the first place HOW could the refuse refunds? They took care of my mother ! We will ONLY fly Southwest?

  15. I also have been denied a refund on early bird check-in on a flight last June canceled due to Covid-19.
    It is highway robbery by SWA not to refund the $50 I paid. Shame on SWA & the Fed Govt & BBB for this unjust practice to the consumer.
    Let’s do something about it.

  16. I LOVE Southwest! The refunded my mom’s lost bag out of LAS! Wonderful customer care! They are all we fly! My family is impressed!

  17. Got to love America the land of nothing but a bunch a people looking for any reason to sue someone or big corporations.

  18. Well as someone that worked for Southwest for 26 years, its really hard to believe this. If a flight is canceled by Southwest, earlybird is automatically refunded by the computer system. But there is not a way to get EB on a flight with less than 24 hours before departure, boarding passes have been issued. I don’t think anyone would like giving up their boarding position. Now if a passenger changes their reservation with 24 hrs before new flight the EB will change to the new flight. But if you change with less than 24 hours before you forfeit your money for the EB because your money was pulled by the computer when it pulled your boarding pass. If you just cancel your reservation, you forfeit your EB.

  19. I’m a Southwest fan for decent price and a schedule I like for a destination I want. I’m not that petty to piss and moan about a few bucks as long as I basically get the normal service. I wouldn’t take a free flight on Frontier or Spirit because it certainly wouldn’t be free.

  20. WN has been my favorite airline for quite some time. I would prefer to select a seat when booking, but have learned to tolerate the open seating. I have done both — bought Early Bird or done the “Exactly 24 Hours method.”
    This situation is sad because WN has historically had the attitude of, “Don’t sweat the small stuff. Keep the customer happy.”

  21. I’m trying to get them to extend a voucher due to covid and my not receiving a vaccine yet and they are refusing. They won’t even give me a nsme and address I can send a certified letter to in customer relations. If anyone has it let me know. Such a lack of empathy. Disgusting.

  22. Gregorio,
    I have a sense of perspective to your point, however, only a fool allows his money to be stolen from him.

    Tef

  23. @Gregory Johnson – what if you are flying with your spouse or family and it’s more than $25? By your reasoning, if you got the tab for dinner at a restaurant and they overcharged you $25, you’d shrug that off too? I doubt it.

  24. I find this case highly suspect… I have never had anything but steller customer service from southwest. I cannot imagine calling them up and not being refunded the early bird fee.
    Sure, the gate agent may have not been able to do anything about it (they tend to have far less power than phone agents) But I question if the customer properly followed up.

  25. I have been a SWA faithful customer and most times have received excellent customer service in face of cancelled flights (by me or SW) delays or other changes. They try to sell their Early Bird Checkin for each flight I book. Occassionally I have done it – assuming at the time that what I am paying for is an “A” position or at least boarding before families. Finding myself in the B group anyway when they are still selling A1-15 for even more fees at the gate is beyond frustrating and insulting. This happened as recently as 2/16/21. And yes, I have been told to pound sand also. I am hopeful that a class action or other lawsuit will force them to restructure that program for their loyal customers. I am also investigating other airlines to use. I do love SWA and have their CC and frequent flyer program and have considered myself a loyal customer. Fly safe, fly well everyone!

  26. I don’t find this kind of behavior from WN to be surprising at all, based on my own experiences with those thieves.

    Several years ago, WN started a nonstop LAX-PVR flight. It was a big deal, as WN previously had served PVR out of SNA only, and that is not a convenient airport for most of us in LA proper. I was booked on the flight for what would have been the 3rd day of operations. Unfortunately, Southwest did not have all of their paperwork in order and could not operate the flight. We did not learn that our flight would not be operating until about 16 hours before departure, and it was only because one of the other members of my traveling group decided to check the flight based on some early news reports. Southwest did not proactively notify us of the cancellation.

    Changing the trip was not an option for us, as we had prepaid for a villa with staff in PVR. Because WN doesn’t have any interline agreements, they refused to accommodate us on another airline. They had no idea when their paperwork would be in order so they couldn’t guarantee when (if at all) they could accommodate us out of LAX. All other WN combinations with connections were naturally oversold. We ended up booking on another airline at a considerably increased cost since it was basically a walk-up fare.

    When I demanded a refund from WN for their failure to operate the flight, they balked and refused, instead offering “store credit.” Since I did not regularly fly WN and was only taking them on this route because 4 of the 6 in my traveling group were loyal WN flyers, I had no desire to get a credit voucher that I wouldn’t use. After much back and forth with nasty customer no-service representatives, I simply put the charge into dispute with Chase.

    Southwest challenged my dispute with Chase. They didn’t challenge it on any contractual (i.e., terms of carriage) basis, but instead actually had the audacity to lie to Chase by saying that they operated the flight! I ended up spending quite a bit of time and money tracking down historical flight records as well as countless newspaper clippings and media reports from around the country about people having honeymoons, destination weddings, family vacations, and the like put into limbo or bring ruined by Southwest’s failure to operate these flights for several days, including the very flight that they claimed that they operated. Frankly, had Chase not sent me a copy of the letter from Southwest in which they claimed to have operated the flight, I would not have believed that someone from WN would be willing to put such a blatant and provably false lie onto paper. I of course prevailed on my appeal with Chase, and the charge was ultimately reversed.

    Since then, I have not gotten on a WN flight, and if I can help it, I never will. And I promised myself that I would share this story with as many people as I can whenever it is appropriate to do so. And to the lawyers at WN, if you are thinking about suing me for defamation, bring it on! Truth is the best defense to any such action and I’ll hit you with an anti-SLAPP before you can screw another passenger!

  27. Southwest would save themselves alot of bad will for an otherwise innovative and timely airline if they just limited the availability of Earlybird checkin. Once A16-60 is full of Earlybirds, they can shut it down for that flight…still leave room for the Premium A1-15 boarding $$ too. I am not against the system, just that they oversell it.

    …and Tim, if you’re that tired go to bed. Sleep well.

  28. I have never once purchased Early Bird in all my days of traveling on Southwest, and I never will. Huge waste of money. Whoever invented the concept has made Southwest billions for nothing.

    Just check in right at T-24 and you will typically get a good B boarding position. Perfectly fine.

    I have never once failed to get my preferred aisle seat, even once boarding in the bad Cs on a late change.

    Another problem with early boarding even if you are the first guy on the plane: you cannot control if a huge fat guy with broad shoulders sits next to you later. When you board in a mid-level position, often YOU get to pick your seat partner. Look for a small woman.

  29. I have purchased Early Bird seating for years this December, I purchased on both of my round trip tickets. At the 24 hour check-in I confirm my ticket on the first part of the trip and received a A39 position. On the way back again right on the 24-hour check-in start received a B36 seat position. I was surprised at such a high number? When I arrived at the airport and ran into some people I know who had A seating … I inquired how they received it? They received it on check-in at the airport with the comment they never use EB. I felt that I was charged for a service and did not receive the benefit. The gate person pushed selling upgrade positions for $40.00 but would not discount it from the $25. already paid… her answer was “NO” for an airline that promotes itself for customer service. During boarding only 6 people were passengers continuing on from a previous flight and there was 10 people for special needs boarding and I was behind family boarding which had 25+ passengers… and ending toward the back of the plane I contacted customer service and received an apology and $25.00 refund which I never received.

  30. Major misunderstanding here. Southwest Airlines offers a certain number of “Early Boardings” depending on several factors. These are NOT THE SAME as Early Bird. One of the factors is how many unclaimed A 1-15 spots are available. They announce this availability overhead at some point prior to boarding, for example “We have three boarding positions available in A1-15 for a cost of $40 each. See the agent if you wish to purchase one of these boarding positions” They don’t say which exact positions are available, whether A-1 or A-4 or A-6 or whatever. Anyone with a boarding pass can dash up there and purchase one of the positions. For some people it is desirable to get earlier boarding even if they have to pay extra. So whomever is first to get to the agent’s desk, pays $40 per position with credit card; their Boarding Pass is changed from, say C-25 to A-3 or whatever. I did it one time when three of us were doing a trip together, and I thought it would be fun to get us on the plane first. When I got to the agent’s desk she told me I qualified (somehow ?) to be refunded for two of the upgraded positions (was it dollars or points? I don’t remember). I forked over $40 each for the three upgrades. It was not the smartest thing I’ve ever done since we had already paid for Early Bird and our original positions weren’t that bad. Anyway, that’s when I learned about Early Boarding, versus Early BIRD. I can imagine that if for some reason the flight got cancelled before boarding, that $40 for Early Boarding might not be refunded. I know they will refund Early BIRD if THEY cancel the flight and can’t accommodate you on another flight within a reasonable # of hours, because I’ve had it done. We have always loved Southwest and still do.

  31. How did this even turn into a situation when it is stated in their FAQ’s that they will refund early-bird paid fees IF the flight is cancelled??
    I suspect MUCH more to the story. I have always had excellent service from Southwest Airlines, and they have always gone “above and beyond” to accommodate any situations I have had.

  32. Interesting to read through the comments. The ones written by the PR firm seem pretty obvious…

    The basis of this legal case is simple – it is one of the Law of Contract: you pay for a service and you are entitled to that service. No service = full refund as the counter party has not fulfilled their terms of service. It doesn’t matter how the details are dressed up, propagated in different directions, deflected, etc. those are the facts: pure and simple.

    Of course, the 1978 Airline Deregulation Act was a result of intense lobbying. Pity there is no association to lobby for the Rights of Passengers.

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