Alaska is clearly feeling emboldened by recent decisions holding that claims for bad faith in implementing their frequent flier contracts are pre-empted. But I think they are taking it one step too far, and since they have a number of frequent fliers who are lawyers, they probably ought to tread with caution here. It's one thing to find preemption when a pax challenges how the program awards miles or changes how they can be redeemed.

But AS seems to be taking the position that so long as they have terms in their program that say they can close your account for any reason, they are bullet proof. Either they don't have very sophisticated lawyers, or they don't care because they think nobody will sue. I don't think they want to be a test case here. If an airline takes your cash to sell you miles -- either directly or indirectly by taking the cash from US Bank, SPG, Citi, Chase etc. -- then refuses to let you use them, I don't think it would be too hard to draft a complaint that avoids ADA preemption arguments. That's a straight unjust enrichment or conversion claim. It's theft, basically. Their argument would be you agreed to the terms and so you agreed to let them unjustly enrich themselves. I doubt that would hold up in most states. Maybe. Unlikely. But the point is, this would be their defense and it would be much more difficult for them to get preemption on that kind of defense.

Maybe they would. I think it would be risky, though. The airlines have gotten about as much mileage as they can in their frequent flier programs out of ADA preemption. If they try to push the envelope like this, they are going to get burned. Flyertalkers love to say, in posts like these with respect to those who push the boundries of frequent flier programs that pigs get fat and hogs get slaughtered. The same is true about frequent flier programs. They have pretty broad latitude to be piggish under recent preemption decisions. Taking cash from third parties and then restricting you from using the miles they sold? That is bordering on hoggish.

(This is not legal advice. Don't rely on the internet for legal advice anyway. If you decide you want to sue an airline, get a lawyer.)