British Airways is facing a frequent flier class action suit
Back in April, British Airways (BA) lost a judicial action against a group of passengers who have filed a class action suit against BA for adding fuel surcharges to frequent flier reward travel. This class action suit has been continuing since November 2012. Finally, some positive action in the arcane world of federal courts.
After five years of legal battles, a class action was certified on behalf of over 170,000 disgruntled British Airways frequent fliers in New York federal court on March 31, 2017. The class action suit alleges that the fuel charge is arbitrary, and is not in accord with the Frequent Fliers contract. British Airways charges frequent fliers fuel surcharges when using rewards points to pay for flights. The charge can sometimes be up to $500.
The case is: Dover et al. v. British Airways PLC, Case No. 1:12-cv-05567, in the U.S. District Court for the Eastern District of New York.
This is an enormous victory for frequent flier travelers. Currently, a transatlantic flight on BA has additional fuel surcharges tacked onto the frequent flier mile cost of the award ticket. An American Airlines frequent flier award ticket between the exact same two destinations is not assessed a fuel surcharge.
Here is the New York to London frequent flier ticket from British Airways ready to be purchased on AA.com. Note the $521.46 additional charge. Of that charge, $300 is called a carrier-imposed fee (changed from fuel surcharge, as it was once described).
Here is the American Airlines Frequent Flier miles charge for the same New York to London Flight via Philadelphia. Note that the additional charges are only $176.46. There is no fuel surcharge or “carrier-imposed fees.” Note: When the fuel prices dropped dramatically, the airlines changed the term that they used for the surcharge from “fuel surcharge” to “carrier-imposed fees.”
After failing to get the suit dismissed, British Airways changed tactics and argued that the class — which includes U.S. resident Executive Club members who used rewards points to pay for tickets between November 2006 and April 2013 and were forced to pay a fuel surcharge — lacked the commonality required for class status due to the fluctuating cost of fuel throughout the class period. However, the judge rejected this argument, holding that the specific cost of fuel throughout the class period was irrelevant since the class held a uniform meaning of the term “fuel surcharge.”
The case has had many twists and turns. However, this is the closest that consumers have ever come in a class action suit against airlines.
The British Airways fuel surcharge class action lawsuit was initially filed in 2012. The plaintiffs claim that British Airways breached its contract to members of its frequent flyer program by imposing surcharges which, in some cases, exceeded $500. They claim that this fee is not an actual surcharge that is determined based on the cost of fuel.
British Airways has vigorously fought against the litigation and maintains there was nothing improper about assessing a fuel surcharge to help the airline compensate for high fuel costs. The airline asked the court to dismiss the fuel surcharge class action lawsuit, arguing that the plaintiffs’ breach of contract claim was preempted by the Airline Deregulation Act.
Judge Dearie rejected the airline’s motion to dismiss the fuel surcharge class action lawsuit in November 2013.
In his decision denying British Airways’ dismissal bid, Judge Dearie found that the U.S. Supreme Court had ruled in 1995 that the Airline Deregulation Act did not preempt contract claims.
Prior to changing the name of the additional fee to “carrier-imposed fees” from “fuel surcharge,” BA claimed that “this fee is not an actual surcharge that is determined based on the cost of fuel.” It was another blatant case of airline doublespeak. The consumers won that legal battle and managed to get the judge to determine that the “fuel surcharge” was a breach of contract claim.
Travelers United is watching the developments in this class action lawsuit carefully.
Charlie Leocha is the President of Travelers United. He has been working in Washington, DC, for the past 11 years with Congress, the Department of Transportation and industry stakeholders on travel issues. He was the first consumer representative to the Advisory Committee for Aviation Consumer Protections appointed by the Secretary of Transportation from 2012 through 2018.