This week we begin a discussion of lawsuits brought on behalf of groups of airline passengers and employees in U.S. federal and state courts. In this article we will identity several airline class actions involving a variety of complaints including physical injuries, flight delays, cancellations, imposition of tourist taxes, frequent flyer programs and much, much more. In a future article we shall examine how airline class actions may be settled with cash payments or the issuance of coupons or vouchers for future airline services. Specifically, we will examine methodologies which can increase the passenger redemption rate of coupons. [see Dickerson, Travel Law, Chapter 6, Law Journal Press (2015) and Dickerson, Class Actions: The Law of 50 States, Law Journal Press (2015)].
Travel Law Update
Hotel Fire In Mecca
In 1000 pilgrims evacuated from burning Mecca hotel, www.eturbonews.com (9/15/2015) it was noted that “About 1,000 Asian pilgrims were evacuated early on Thursday from their hotel in the Saudi city of Mecca, hit by a fire that injured two people…The hajj has been almost incident-free for the past decade, but at least 107 people, including some from Asia, died on Friday when a construction crane collapsed on Mecca Grand Masque”.
Cramped Airline Seats
In Lipsey, Cramped Airline Seats: Are Airlines Violating Our Human Rights?, yahoo.com/travel (9/23/2015) it was noted that “It’s the newest civil rights movement-or, more accurately, civil aviation rights movement. As airlines look to boost passenger capacity, and profits, by reducing the legroom passengers enjoy on flights, some passenger rights groups are getting fed up. They say the increasingly cramped conditions airline passengers (especially those flying economy class) face are no longer a consumer issue; they’re calling it a human rights issue”.
Uber’s ADR Clause Unconscionable
In Miller, Uber’s ADR Clause Unconscionable, SF Judge Says, The Recorder, ALM Media Properties, LLC (9/22/2015) it was noted that “A San Francisco judge has rejected Uber Technologies Inc.’s attempt to force a former driver into arbitration, concluding that the ride-hailing company’s contract is contradictory and ‘substantively unconscionable’”. See also Uber Technologies, Inc v. Berwick, Case No: CGC-15-546378, Order Denying Appellant’s Petition To Compel Arbitration (9/21/2015)(“The motion to compel arbitration is denied. The delegation clause is not enforceable because it is not clear and unmistakable…The contract is contradictory…Plaintiff establishes that the contract is unconscionable citing Gentry v. Superior Court (2007), 42 Cal. 4th 443, 466-473 (reversed on other grounds in Iskanian, 59 Cal. 4th at 366). The contract precludes representative actions, including PAGA claims…The confidentiality clause favors Uber as a repeat player in the arbitration arena. The unilateral modification provision also unfairly favors Uber…”.
Litigating International Torts 2015 Edition
The 2015 revised edition of the treatise, Dickerson, Gould & Chalos, Litigating International Torts in U.S. Courts, Thomson Reuters, has been published.
Transgender Air Traveler
In Rogers, T.S.A. Defends Treatment of Transgender Air Traveler, nytimes.com (9/22/2015) it was noted that “The Transportation Security Administration defended its officers’ treatment of a transgender woman on Tuesday, a day after she says she was harassed and held for 40 minutes while passing through security in Orlando, Fla., causing her to miss a flight… Criticism of the screening process of transgender travelers has been reported at a number of airports across the country, including Los Angeles, Louisville, Seattle and Kennedy Airport in New York”.
Heroic Service Dog Denied Boarding
In Airline stops hero service dog from boarding plane, www.eturbonews.com (9/21/2015) it was noted that “Axel, a heroic service dog that saved the life of one of our nation’s brave warriors and had just been named Service Dog of the Year at the American Humane Association Hero Dog Awards during a star-studded, nationally televised gala at the Beverly Hilton, was denied permission to accompany Captain Jason Haag as they were about to board the airplane for home”.
Early Warning: Risk Of Mass Atrocities
In Countries most at future risk for mass atrocities ranked, www.eturbonews.com (9/22/2015) it was noted that “Today, the Simon-Skjodt Center for the Prevention of Genocide at the United States Holocaust Memorial Museum publicly launched a first-of-its-kind tool to forecast which countries that have the highest risk of state-led mass killings…The Early Warning Project has identified the top 10 countries most at risk of experiencing a new episode of mass killing. They are: Myanmar, Nigeria, Sudan, Central African Republic, Egypt, Congo-Kinshasa, Somalia, Pakistan, South Sudan (and) Afghanistan”.
Lyft In China
In Isacc, Lyft Announces Deal With Didi Kuaidi, the Chinese Ride-Hailing Company, nytimes.com (9/17/2015) it was noted that “The pink mustache is coming to China. And it will receive a warm welcome-not a snub-from its new hosts…a partnership with Didi Kuaidi, China’s pre-eminent ride-hailing company, that will allow the American company to operate in China for the first time. The cross-border deal will also let Didi Kuaidi operate in the United States. The partnership…is perhaps the clearest sign yet of the race to conquer parts of the world in the global ride-hailing industry”.
More Border Controls
In Higgins & Kanter, More Border Controls as Europe Stalls on Migrant Quotas, nytimes.com (9/15/2015) it was noted that “Even as three more countries followed Germany in introducing border checks to control a flood of migrants, the European Union on Monday failed to agree on a modest plan that would force individual countries to take in a share of some of the hundreds of thousands now seeking asylum in Europe”.
In Lyman, Europe Lacks Strategy to Tackle Crises, But Migrants March On, nytimes.com (9/17/2015) it was noted that “Europe’s failure to fashion even the beginning of a unified solution to the migrant crises is intensifying confusion and desperation all along the multicontinent trail and breeding animosity among nations extending back to the Middle East”.
In Erlanger & Kanter, Plan on Migrants Strains the Limits of Europe’s Unity, nytimes.com (9/22/2015) it was noted that “Nearly half a million migrants and refugees have arrived in Europe this year…a number that is only expected to rise. The crisis has tested the limits of Europe’s ability to forge consensus on one of the most divisive issues to confront the union since the fall of Communism. It has set right-wing nationalist and populist politicians against Pan-European humanitarians, who have portrayed the crisis in stark moral terms.”
EC Regulation 261/2004 Clarified
In European Union (EU) Press Release No. 105/15 (9/17/2015), curia.europa.eu. it was noted that “In case of cancellation of a flight, air carriers are required, under EU law, to provide adequate care of the passengers concerned and to pay compensation (between E250 and E600, depending on the distance). However, a carrier is not obliged to pay that compensation if it can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken…Therefore in the course of the activities of an air carrier, that unexpected event is inherent in the normal exercise of an air carrier’s activity, as air carriers are confronted as a matter of course with unexpected technical problems. Furthermore the presence of such a breakdown or the repairs occasioned by it, including the replacement of a prematurely defective component, is not beyond the actual control of that carrier, since the latter is required to ensure the maintenance and proper functioning of the aircraft it operates for the purposes of its business. Therefore, a technical problem cannot fall within the definition of ‘extraordinary circumstances’”. See also EU regulation: Travel complaint handling, www.eturbonews.com (6/5/2014); Travel law: Flight delays-stop making passengers pay, www.eturbonews.com (3/20/2014).
New EU Travel Directive
On or about September 18, 2015 the Council of the EU adopted the new Travel Directive in its final version as of September 2015. It still has to be adopted by the European Parliament under Article 294 TFEU which should happen in October. See the following links.
Council’s reasons: data.consilium,europa.eu/doc/document/ST-9173-2015-ADD-1/en/pdf
The Impact of Class Actions
As noted in Travel Law, Section 6.01 “When confronted with travel problems, the traveler possesses certain rights and remedies against the many and varied entities in the business of marketing and delivering travel services to the general public. However, the existence of such ‘rights and remedies’ may be academic, at best, if the aggrieved traveler is unable to convince an attorney to invest his or her time and resources in prosecuting a travel case on a contingency fee basis. Cases involving severe physical injuries or death and/or egregious forms of misconduct will, typically, be of sufficient monetary interest to the legal profession such that adequate representation will be available. Most of the common travel problems, however, involve such relatively small individual damages that the legal profession can not afford to provide the representation necessary to prosecute these cases which often involve complex marketing systems, complex legal and factual issues…Hence, the rationale and justification for the class action device which permits the aggregation of many small claims on behalf of similarly situated travelers and stimulates the legal profession to invest the time and money necessary to effectively prosecute travel consumer cases”.
“The class action device not only provides a meaningful remedy for groups of aggrieved travelers but also has the salutary effect of stimulating change in the manner in which travel services are marketed and delivered to the general public” [see also Dickerson, Article 9 [New York State Class Actions] of Weinstein Korn Miller, New York Civil Practice CPLR, Lexis Nexis (MB)(2015)].
Class Actions Against Airlines
See Broin v. Philip Morris Company, 24 CCH Aviation Cases 18,074 (Fla. App. 1994) (class of 60,000 flight stewards claim physical injuries from second hand smoke in passenger cabins; certification granted); Hobbs v. Northeast Airlines, Inc., 50 F.R.D. 76 (E.D. Pa. 1970) (crash; death and physical injuries; certification denied).
See Rambarran v. Dynamic Airways, LLC, 2015 WL 4523222 (S.D.N.Y. 2015)(delays on flights between New York and Guyana under Article 19 of the Warsaw Convention; certification denied); Vumbaca v. Terminal One Group Association L.P., 859 F. Supp. 2d 343 (E.D.N.Y. 2012) (“Plaintiff alleges she was locked in an aircraft on the ground without food, water or adequate sanitary facilities for several hours, suffering mental distress. Hers is an appealing case. Yet the law can only give her sympathy, not monetary compensation”, emotional distress damages not available under Montreal Convention); Biscone v. JetBlue Airways Corp., 103 A.D. 3d 158 (2d Dept. 2012)(passenger claims “resulting from the confinement …in an airplane remaining on the tarmac…for several hours without…food, water, clean air and toilet facilities” preempted by Airline Deregulation Act (ADA).
See In re Nigerian Charter Flights Contract Litigation, 520 F. Supp. 2d 447 (E.D.N.Y. 2007)(Public Charter tour operator defaults with “2,752 passengers…stranded in Nigeria”; certification granted); Neilan v. Value Vacations, Inc., 605 F. Supp. 1227 (S.D.N.Y. 1985)(tour operator defaults leaving 2,000 passengers stranded abroad; certification granted)].
Free Drink Coupons
See Levitt v. Southwest Airlines Co., 846 F. Supp. 2d 956 (N.D. Ill. 2013)(“For a number of years, Southwest has offered drink coupons to travelers…redeemable on any Southwest flight for drinks that would otherwise cost five dollars; class action challenges legality of Southwest’s announced plan to limit usage).
Credit Cards Only
See Rosen v. Continental Airlines, Inc., 62 A. 3d 321 (N.J.A.D. 2013)(passenger alleges that air carrier “violated the New Jersey Consumer Fraud Act (CFA)…that defendant’s refusal to accept cash during a flight (for the purchase of a headset and cocktail and requiring use of credit card or debit card) constituted unlawful ‘discrimination against low income individuals’…and caused plaintiff to suffer ‘severe mental anguish and emotional distress’; complaint dismissed as preempted by Airline De-Regulation Act(ADA).
Imposition Of Tourist Tax
See Nelson v. Alaska Airlines, Inc., 2013 WL 3214989 (Cal. App. 2013)(passenger claims “that defendant was not entitled to charge him and similarly situated persons an approximately $22 ‘Mexican tourism tax’ when selling them tickets for travel between California and Mexico”; complaint dismissed as preempted by ADA)].
See Adelman v. UAL, Inc., 932 F. Supp. 331 (D.C.D.C. 1996)(bumped passengers claim discrimination, violation of DOT overbooking regulations and breach of contract; complaint dismissed).
See Frank v. United Airlines, Inc., 216 F. 3d 845 (9th Cir. 2000)(“During the 1960s and early 1970s, the standard practice among large commercial airlines was to hire only women as flight attendants [who were required] to remain unmarried, to refrain from having children, to meet weight and appearance criteria and to retire by the age of 25…requiring female attendants to maintain their weight below certain levels”; class action challenging weight restrictions stated a Title VII sex discrimination claim)].
See Barber v. American Airlines, Inc., 2010 WL 546359 (Ill. App. 2010)(flight cancelled and air carrier allegedly refused to refund $40 bag fee “when that flight is canceled…and the passenger does not accept another flight”; defendant’s effort to “pick off” plaintiff to render individual claims moot rejected).
Frequent Flyer Miles
See Northwest, Inc. v. Ginsburg, 134 S. Ct. 1422 (U.S. Sup. 2014)(“Northwest, Inc. terminated respondent’s membership in its frequent flyer program, apparently based on a provision in the frequent flyer agreement that gave Northwest sole discretion to determine whether a participant abused the program. (Passenger) filed suit, asserting…that Northwest had breached its contract …and violated the duty of good faith and fair dealing (which the Court held is preempted by the ADA); Gordon v. United Continental Holding, Inc., 2014 WL 4354067 (D.N.J. 2014)(members of United’s Mileage Plus program claim a “breach of its contractual obligation to offer awards at a ‘set published amount’ (by using) “‘an algorithim [to] modif[y] the number of miles needed for an award depending on the customer’s number of miles’; complaint dismissed); Kwok v. Delta Air Lines Inc., 994 F. Supp. 2d 1290 (N.D. Ga. 2014)(case “presents the question of whether Delta is contractually required to award frequent flyer miles based upon (1) the direct geographic distance between the origin and destination of the flight or (2) the distance actually flown?”; complaint dismissed)].
Invasion Of Privacy
See In re JetBlue Airways Corp. Privacy Litigation, 379 F. Supp. 2d 299 (E.D.N.Y. 2005) (“Plaintiffs claim that defendant violated privacy rights by unlawfully transferring their personal information to [Torch Concepts, Inc.] for use in a federally-financed study on military base security. Plaintiffs seek a minimum of $1,000 in damages per class member; complaint dismissed).
See In re Passenger Air Transportation Antitrust Litigation, 2011 WL 173738 (N.D. Cal. 2011)(“This case involves allegations that 26 airlines engaged in a ten year international conspiracy to fix the prices of transatlantic air passenger travel in violation of Section 1 of the Sherman Antitrust Act”; motions to dismiss by some airlines granted in part, denied in part); In Re Delta/Air Tran Baggage Fee Antitrust Litigation, Civil Action File Number 1:09-md-2089-TCB, ND-Ga, Decision August 5, 2015 (discussed above).
The above enumerated cases are but a sampling of the types of class actions which have been brought against airlines in U.S. federal and state courts. In a future article we shall discuss how such class actions may be settled.
The author, Justice Dickerson, has been writing about Travel Law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2015) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2015), and over 350 legal articles. For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.
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