Andriyko

It is not even trivial, it just does not make any sense. I fail to see how a refusal to enter a lounge after an advance (and a very well displayed) warning that this may be the case can be viewed as quantifiable damage...or, in fact, damage at all. To me, this amounts to as great of a damage as not getting your first choice of the main course (I doubt that someone would actually question cabin crew about it demanding "proof" that all desired meals are, in fact, gone). In both cases, we are made aware that something may not be provided to us. It is upsetting, of course. But if I were in this situation and I really wanted to go to the BA lounge the only thing I would do is write to BA to ask them to clarify the rules (or put a notice near the lounge's entrance) to the effect that due to the capacity issues this particular lounge is restricted to passengers on BA services only as permitted by OneWorld rules.
Paying for lounge access and not getting it is one thing, but being turned away from the preferred lounge to the designated one is akin complaining that the CW food was not gourmet enough although BA promised on its website that it would. Not worth the hassle.

Zalmistinks

It is very confusing at the BOS lounge. I have been denied with a business partner when flying IB as a BA Gold (and also in Business class). We intended to have a meeting and the BA employee flat out would not even dialogue with me about this when I showed by BA Gold card, pointed to the OW information and asked to speak to a manager. As it was a business meeting I did not spend more than a few minutes as raising any kind of issue would have been even more embarrassing. I found out later that IB directs passengers to the AF lounge, the information about the VS lounge is out of date. BA created an unfortunate situation for me while conducting business and it shouldn't have happened, especially as the employee could not even provide a cogent reason except to tell me I was not allowed in (As if I was trying to sneak in) - even the way she said it created embarrassment in front of someone I was trying to finalize a significant deal with.

As an aside at BOS the VS lounge is nicest in terms of amenities followed by the BA First and Galleries.

CMK10

I hate that this is still going on. Seven years ago I was at MIA flying to SCL in AA Business. I was OW Sapphire and my Dad OW Emerald so we were eligible to use the BA lounge twice times over each. The agent on duty said BA only and then added "we don't care what the Oneworld rules are here".

wanderingtheearth

Very pointedly not getting into the general debate, but I'm startled that people think that "we will provide A service, unless B condition exists," is not a meaningful promise. If I entered into such a contract, I would certainly consider that I *had* been promised A service. The only contractual excuse would be the actual existence of B condition. If B condition obtained, then fine. But otherwise I would regard refusal to provide A service on the grounds that "you knew you weren't 100% guaranteed the service under all conditions!" to be absurd and a breach of the contract.

Honestly, though, I wish someone with a better case WOULD sue BA, because they have clearly realized that they can get away with refusing lounge access to some percentage of the people who are entitled to it and so pay bleep-all attention to training the lounge staff properly on the admittance rules. For all the fussing about the dreadful litigious Americans, we are at least marginally less likely to be taken advantage of by companies who can rely on their customers not being so petty as to insist on getting what they paid for.

Tobias-UK

The OP's friend got what they paid for, a lounge was provided by the airline he had a contract with, BA were not a party to this contract

Jimmie76

Can someone please tell me what is wrong with the AF lounge at Logan? From what I've seen of it (admittedly a few years ago) it looked alright and apart from the pre flight supper, which you would need to be in Club to have access to anyway the facilities were comparable.

Any lounge at Logan is better than being in the main terminal at "E". I've been turned away from the F lounge at Logan (when travelling with a BA GCH) because of capacity constraints and we both used the used the normal one instead. It happens and wasn't a big deal for us, although having said that I did like the old F lounge a lot. Especially when I was flying alone and could watch the Sox on the TV in the partitioned off tv space

Dr. HFH

It's been a long time since I've been quite so entertained by an FT thread! Some random comments:

First, in the interest of full disclosure, I'm a licensed attorney in Massachusetts; although my primary area of practice is neither consumer law nor administrative practice before the DOT or any other administrative agency. I've been a courtroom litigator since 1988. Yikes!! That's nearly 30 years. Enough!!

As he has already mentioned elsewhere on FT, bedelman is a regular at DOT, and has already shared some of his other DOT complaints against airlines in another thread. In fact, he's doing us all a favor by writing an FAQ to guide consumers through the DOT process, as he also mentioned in another thread here. That's both generous and incredibly helpful.

Now, -- AFAICT, the OW rules do provide that bedelman's "friend" have access to the BA lounge, but also provide BA with a number of outs, capacity, it seems to me, being the easiest and most effective for BA. There are three BA departures from BOS within a 3½ hour window between 7:15 p.m. and 10:45 p.m., all "heavy" aircraft, either a 744 and two 772s or two 744s and one 772, depending on which website you search. So that's either 206 or 230 premium seats (J and F) per evening (not counting the morning flight), plus some number of Avios elites traveling in Y, plus some number of other OneWorld elites traveling in Y, as well. I've been in the BA lounge in BOS. Way too many people for that place. I wonder if the legal capacity as determined by the fire department is even that high. That's likely to be a pretty convincing argument should bedelman's friend go to Small Claims court. And, as another poster has pointed out, BA is not required to wait until the lounge actually reaches capacity; it has the right to plan/anticipate reasonably. So given the demand and capacity, I can see BA instituting a policy of only BA pax in the BA BOS lounge at all times; and I believe that a court would back that. (Side note: It will be interesting to see what CX does about a lounge in BOS. IIRC the scheduled departure is something like 1:45 a.m. four days per week.)

If the friend goes the court route instead of the DOT route, I think that s/he will be unsuccessful. Without getting too deep into legal terms, the friend is going to have to establish both liability and damages.

Liability: As some have pointed out upthread, it might appear, at first glance, that the friend has a privity of contract problem. His/her contract is with IB, not with BA. BA undoubtedly has agreements with OneWorld. Since BA and IB are now both part of the same company, IAG, there may or may not be a separate contract between them. OTOH, BA's publication of lounge access rules could (and, IMO, would) be interpreted to be an offer for a unilateral contract which the friend accepted both by purchasing an IB ticket and, separately, by being AA EXP, OW EMD. So there is, indeed, an enforceable contract.

But the existence of a contract, by itself, doesn't make it enforceable, of course; that depends on the contract's terms.

In this case, BA has put a capacity limit on the offer of lounge admission. So while bedelman's friend would normally be entitled to admission to the BOS BA lounge by having accepted an offer for a unilateral contract, that contract also provides that BA doesn't have to admit the friend if there is a lounge capacity issue.

A similar situation might be an automobile advertisement in a newspaper. The dealer puts in the ad something like, "Quantity limited." When it sells out of the advertised model, that's it. 10,000 people can't walk in and get the advertised vehicle at the advertised price. There's a limit. Same with lounge capacity; and BA has fully disclosed that sometimes this is going to be an issue. The BA BOS lounge long predates three "heavy" aircraft departures in three hours. Remember, AA no longer flies BOS-LHR. It used to handle a lot of the traffic and departed from terminal B. (BA uses terminal E at BOS.) So at some airports, lounge capacity issues may sometimes limit admission. At others, perhaps like BOS, capacity issues may dictate that no other carriers' pax are ever allowed into a particular BA lounge.

Damages: The friend needs to be able to establish both liability and damages. What are the damages? Friend was offered the ability to use another lounge. S/he preferred the BA lounge. One can't always get one's preference. If you reserve a window seat but end up in an aisle seat due to whatever reason, does the airline owe you anything? Have you incurred any damages? I suggest that the answer to both questions is no. Bedelman's friend was offered accommodation at another lounge which was arguably similar. I'm sure that it has everything that the BA lounge does, though likely implemented in a slightly different manner. The friend preferred the BA lounge? Well, sometimes these things happen. Friend needed a quiet place to work? A place to get a free drink? A snack, etc.? I'd love to see the friend try to convince a judge (well, in Massachusetts Small Claims sessions, the hearing is actually conducted by a Clerk-Magistrate) that the proffered lounge was so deficient that it wasn't a reasonable substitute.

In one his posts (#20), bedelman says that his friend is not inclined to pursue this. Notwithstanding his loss of face, I don't see that bedelman has any ability to pursue this on his own, without the friend. He wasn't the passenger; he wasn't denied lounge access. In legal terms, he doesn't have standing. I would imagine that either a court or the DOT would make quick work of that.

And I agree with Captain Schmidt about the degree to which the U.S. is court happy. Not every problem or disappointment which one experiences in life can be solved by litigation. As a society, we in the U.S. need to learn that.

I completely disagree that this would be an easy case under G.L. 93A, the Massachusetts consumer protection statute. That statute provides for up to triple damages plus attorney fees for plaintiffs who can establish that they were the victims of consumer fraud (which is very clearly defined in the statute). But there are no damages.

Several posters have questioned whether DOT would have jurisdiction should the friend decide to file a complaint. I'm fairly certain that it would. And, IIRC, it has already exercised jurisdiction in other cases in which the issue wasn't the actual air travel itself. When you buy a ticket, you're entitled to all of the appurtenant benefits which come with it; and I believe that DOT wouldn't have any problem taking that on in appropriate cases.

I disagree with bedelman's statement that, "Couching such denial in 'capacity', whether or not the lounge is actually at capacity (or is reasonably expected to soon reach capacity) -- again, both unfair and deceptive. We're talking about passengers on $$$$ tickets." [emphasis mine]. In fact, I expect that this argument will guarantee a certain loss, regardless of whether his friend is in court or at DOT. "To sum up, then sir/madam, you consider it unfair and deceptive for BA not to have allowed you into the lounge even though the lounge was at that time already over the legal capacity as determined by the fire department? And you apparently believe that the fact that you paid a lot for your ticket entitles you to an exception to the law?"

In short, I believe that the friend did have a valid contract with BA (apart from whatever lounge rights he may have had with IB as part of his ticket); but that the capacity problem, which is very real in that particular lounge, and the exception for capacity problems which BA makes very clear, will result in a defeat for the friend if s/he takes legal action.

Andriyko

Dr. HFH, thanks for posting! Very informative.

I just don't understand how can a description of eligibility rules may be construed as a unilateral contract? BA is not offering people to buy a OW J ticket and get into its lounges. BA is explaining who may seek access. Also, should not lounge access be the primary reason for purchasing the ticket? If a person buys a ticket specifically to get access to a BA lounge then it would be one thing but entering into a contract for transportation is something different, but I hope the absolute majority would buy a ticket because they need to fly from A to B, not because they need to get into a specific lounge at A?

Zalmistinks

Nothing is wrong with the AF lounge at BOS - but that's not quite the issue and its obfuscating the point. Others, including myself a GCH, trying to access the BA lounge when flying a OW partner and in business class no less, and being turned away by saying (at least in my case) you aren't allowed is the issue. The IB (I think contract staff) not directing me (and possibly others) to the correct lounge is also a separate issue for them not BA.

Ldnn1

Thanks, Dr HFH.

Given your conclusion that "the friend did have a valid contract with BA", I wonder if the doctrine of unilateral contract is perhaps more broadly applied in US law than in English law.

In England, while the doctrine certainly exists, it is quite limited in scope and I think quite rarely applied. Thus my instinct (without delving into it at all), and I think that of the other English lawyers upthread, is that the friend would probably have a hard time arguing this point in court. It's very interesting to read the perspective from the other side of the pond though.

Edited to add: having just had a quick look at the English ABTA case, the point does look stronger than I first thought. Would be interesting to see it played out.

Dr. HFH

You are most welcome.


Well, from a legal perspective, it's more than a description of the rules. An offer for a unilateral contract looks something like this:(Obviously there are a lot of considerations which affect this; but this is the very basic concept. I do not intend this to be legal advice or a substitute for law school!!) So BA is essentially saying something like:This is where I believe that those who advocate taking legal action miss the boat. Yes, one of the provisions of the contract is that if you buy a Business Class ticket on a OW partner, you can get into the lounge. But one of the other provisions is that the lounge must have the capacity to accommodate you. So, yes, IMO there is a contract, one of the terms of which is that it's capacity controlled.

bedelman

As usual Dr. HFH offers a cogent and careful analysis. Let me chime in on two areas where I see things importantly differently --

Capacity. HFH write: "In this case, BA has put a capacity limit on the offer of lounge admission." Indeed. But we need to give meaning to the word capacity. HFH posits "even though the lounge was at that time already over the legal capacity as determined by the fire department." Respectfully, the thread suggests no such thing! I stand prepared to claim, and my friend prepared to report, that the lounge did not look busy at all, was not at capacity, and was not expected to reach capacity and indeed did not reach capacity in the relevant period. My friend arrived at 4:30, 165 minutes before departure of the first BA flight. IB flight scheduled to depart, as I understand it, 105 minutes before the first BA flight. (So my friend would have left at least 125 minutes before the departure of the first BA flight.)

Sure the lounge gets busy sometimes. But are we really to believe that the lounge is busy 165 minutes before BA's first departure?

If BA wanted to avail itself of the capacity exception, it should have mentioned it in some way. Failure to do supports an adverse inference -- that the BA lounge attendant knew, and passengers attempting to gain access to the lounge could easily see (by looking sideways into the lounge, in each direction; those who have been there know that this is possible) that it is plainly false.

Fact is, BA is excluding IB passengers whether or not there's capacity in the BA lounge. If one were to get the opportunity to conduct discovery, I'm sure training documents and depositions would reveal that BA lounge staff are trained to exclude IB passengers categorically, whether or not the lounge is at capacity or is reasonably expected to reach capacity during the period when such passengers would remain.

BA could have written terms that said something like "We may admit you if we want, or we may not." Passengers could participate in BA/Oneworld's marketing program, or not, depending on how valuable they found that offer. But instead BA found it advantageous to make a much firmer argument, with a far narrower exception. BA got the benefit of the bargain -- customers who voted with their wallets and favored BA and its partners with extra spending to reach elite status. Passengers then rightly expect to hold BA to its word. If the lounge is actually busy or will become so soon, fine, but otherwise the exception just doesn't apply.

Damages. Is there a serious claim that the Air France business lounge is as good as the BA first lounge? Again, consider what would happen in discovery, were that available. We'd be able to find out what one carrier pays another for use of the BA lounge, versus the AF lounge. we'd be able to find out per-passenger expenditure on catering. We'd also learn how much BA spent on lounge renovations & when, versus AF, to compute depreciation and impute value from there. BA proudly touts the millions of dollars it spends on lounges. This would go fine for a passenger.

I referenced the passenger's pricey ticket not to say that people who pay a lot don't have to comply with fire codes (Dr. HFH's stylized restatement of this point) but to point out that damages are more readily high for such a passenger. If the bundle of benefits for a business class passenger is collectively worth $6000, it's not unreasonable to think the lounge could be worth $100. Intercarrier billing, catering cost, apportioned depreciation and capital expense, and other calculations would be in accord.

Is $100 a lot for an hour of lounge access? Sure. But parking in my neighborhood is free, whereas parking at Logan is $6+/hour. Rent at Logan is also far above rent in a suburban office park. Logan is a classic high-rent district. Everything costs more there, including lounges. Damages are correspondingly higher when a passenger is denied access.

Standing. I was not denied access. I plainly lack standing. This is not in dispute.

wanderingtheearth

I was speaking more generally about lounge access. This forum abounds with stories of people denied access to lounges that they were actually, unquestionably entitled to, and I myself have had to argue my way into BA lounges when it shouldn't have been a question. Less assertive people in my situation would have walked away. BA is clearly not too bothered by its agents shutting out entitled passengers, and it's easy to see why: cost.

IceTrojan

Thanks, Dr. HFH, for your reply. It's weird that posters, citing who BA "answers" to, forget that due to BA's presences, the jurisdiction is in the City of Boston, County of Suffolk, Commonwealth of Massachusetts, in the United States of America, and subject to all authorities and jurisdictions therein (and pretty illustrative on why I rarely ever post on the BA board).

I believe the capacity control claim could be overcome if the challenger could prove that the reason for lounge denials weren't based on capacity, but rather by a systemic intent to uniformly deny IB passengers, evidenced by a chronic pattern of behavior of NEVER letting IB pax in. Without capacity and all other things being equal, BA then seems to violate it's own unilateral contract.

Of course, this is a LOT of work to prove, and whether the amount of effort expended to disprove the capacity claim is worth lounge access is a matter for another discussion.

evanderm

Your friend's Business Class ticket is not what would have granted him access to the BA First lounge therefore the $6000+ value is completely irrelevant in your argument. You're comparing apples with oranges in your assessment. It is the EXP status that would have granted the entry privilege. Your friend could have bought the cheapest economy class fare and had the same opportunity of being admitted. IB (through AF) provide a comparable business class lounge for their passengers.

BA can reasonably expect their lounges (Especially the smaller First sections) to reach capacity given the number of premium passengers and status passengers on their own flights. Having seen the queues here at YYZ start at 3pm and snake through the tensa maze in the premium lines for a 19:00 flight I don't think it's unreasonable. There's also the potential for a delay last minute which would put the IB passengers in the lounge well into the time when the BA flights are gearing up to leave.

I'm sure BA have a lot of experience in this and they've set this policy for good reason. I'd be royally peeved if I were flying BA only to be told, sorry we can't offer you lounge access because the lounge is full with passengers from other airlines. We're dealing with so many hypothetical situations right now and it seems fruitless to keep debating this but I hope that you realize that BA have the right to decline access under the guidelines that are visible to us, the travelling public.

I believe LAXative makes a very valid point saying that it would be a lot of work to prove that BA are violating the terms of the unilateral contract. I believe that BA could definitely find ways to reasonably argue that the denials are a capacity issue. If anything, I hope that a proportionality test is applied in any case.

On jurisdictional matters, I suppose BA are renting the space from Massport so that would make them a local actor but is that where the contract was formed? On every page of the website there is a link to a legal disclaimer which lists a link to the website terms and conditions. Furthermore when visiting the webpage for the first time you give implicit consent to the T&Cs through the splash page. These T&Cs state:

Bolding mine. Source.

This would seem to form a choice of jurisdiction clause that would form part of any unilateral contract when basing oneself on information from the website, or am I seeing this incorrectly.