Originally Posted by
Adam1222
It could, if the promotion was the contract. But you'd have to argue that the T&C of this particular provision were incorporated into the contract to purchase a specific ticket. I think the better argument is the contract was for the ticket, which they are refunding. And since miles don't become your property anyway, it's a bit of a stretch to argue you contracted to buy miles.
The Iberia Plus program is an entirely separate program/contract, governed by its own T&Cs. I think the better claim on the merits would be some sort of consumer fraud/deceptive practices claim, which is where promotional offers usually can better be challenged. But such claims are preempted under American Airlines v. Wolen.
Most of it is probably moot, though, since there would be problems with jurisdiction in the United States for many folks at issue here, who bought tickets that don't touch the US (and many aren't US-based either).
Certainly they would have serious problems with consumer fraud claims but agree its probably preempted. On the other hand, if I was a California class action plaintiffs attorney (I'm not), I'd probably try a 17200 claim and argue that Ginsberg didn't address the argument that everything with a frequent flyer program and that a promotion award points before flying (and arguably with no requirement to fly) isn't covered by the ADA. Additionally, since many of these purchases were for internal Spanish flights marketed on a US website, I'm not sure whether the ADA applies at all. All in all, not a bad class case. Also, as an edit,
Hickcox-Huffman v. US Airways is a pretty helpful case with such claims as the 9th Circuit held that the ADA doesn't preempt claims for breach of contract of a voluntary undertaking in connection with baggage fees.
As for me, if I get the inconsistencies email that everyone else is getting, I might go the simple breach of contract route in small claims court. Since Iberia doesn't fly from my state and I need to think through the state jurisdictional issues, it might be easier to file a small claims case in Illinois or California since they fly there. Of course, there is the value of time fighting this but while I understand your unclean hands argument, here it appears they are denying to anyone with a new account without any explanation.
Also, the cost of buying 90,000 is 1647 euro so if one had 200-300 US purchasers in the class, I'd be shocked if this didn't result in a 2-3 million settlement.