Originally Posted by
FlyingLasse
oh please just stop steering the conversation in the direction that we are "abusing".
Lasse:
I did not use the word "abusing". I did, however, say that the manner in which the tickets were purchased was relevant.
We can't render any discussion of even the LEGAL implications of the manner in which the tickets were procured into a verboten personal attack. It is not one. Like it or not, the DOT will consider how the tickets were purchased, and they are certainly aware of how they were purchased. As is United Airlines, as is any other regulatory agency that anyone contacts, and as will be any court where a claim was brought.
I have made it very clear on several occasions and I will again here that I don't view the people who bought these tickets as any sort of bad people. There are aviation columnists on the Internet who have taken that position; I do not. I view them as people who were taking a shot, and I don't think there's anything horrible about taking a shot.
I do, however, view the manner of purchase as an extremely relevant issue to how this gets decided. Not because the consumers were doing anything wrong, but because it bears on whether they are within the class of intended beneficiaries of the DOT rule and whether they have a claim under contract law.
(1)Ginsberg wouldn't stop a suit to enforce a contract as written, it would however eliminate arguments involving things such as good faith or fair dealing, (2) I'd bet the history of abusive, etc. is to give UA the maximum flexibility to do whatever it wanted (hard to overcome this without fair dealing, etc.) and (3) I doubt a court would allow what would essentially be a private right of action to enforce DOT regs.
If the DOT were to rule in the passenger's favor a civil suit would seem unnecessary.
2. Contracts of adhesion have to be very specific (that's why they are so long). The scope of such a broad contractual clause will be construed AGAINST United. Indeed, if I were United's lawyer and my only argument in a case were the "abusive / illogical" provision, I would recommend they settle the case. (There's also another problem with it in that a broad interpretation of it renders the consideration illusory. United has to be bound to do SOMETHING in exchange for your money.)
3. I have on a couple of occasions, WON the argument that a federal law or regulation that does not create a private right of action can nonetheless be taken into account when interpreting or determining the scope of state law. All no private right of action means is you can't sue directly under it. It doesn't mean anything else.