Continental - Ethical?

If you are serious about this, do some research on law firms that have successfully sued airlines over changes in their frequent flyer programs, and talk to those law firms.

The claims of breach of contract, tort, misrepreseentation, DTPA, etc. are preempted by the Airline Deregulation Act. Bottom line - consumers are SOL against the airlines. You have to follow the tariff and are not allowed to recover under any other theory.

Gordo, is that you?

There may or may not be other causes of action, but the "broke the contract" one definately won't fly. A person suing over changes to AAdvantage a few years ago tried this. AA's response to the court basically was, "You want to talk about the contract? Well, judge, here's a copy of the contract" and pointed out the specifics that were in the Contract of Carriage and AAdvantage terms and conditions. You can't say they "broke the contract" and then just make up what you think a fair contract, in your opinion, would say.

Can this be?
If an airline advertised a certain deal, and their agent affirmed the deal, and in full reliance upon their word I bought a ticket... and the airline did not keep their part, never intended to keep their part, and in fact intentionally misled me, is that not fraud? Or have the airlines somehow been granted a license to commit fraud?

--Not an attorney

Let's rephrase your arguement:

If I buy a unrestricted ticket, so I may change it, should I choose to do so, without penalty... should the airline refund the difference in fare (between a restricted fare and my full fare) if I don't change anything?

You are buying a higher fare ticket that you have the ability to upgrade should it become available. If the airline doesn't make it available (that's another arguement) you've gambled and lost.


Just another way of looking at it...

Vegas agent, I appreciate your insight, but prefer not to rephrase my question, just waiting for an answer to it as given. It was given in response to a statement by a poster here, and not necessarily in direct response to a specific incident.

I did a very small bit of research to try to clear up this pending question. If others of you have more time to flush this out, please correct or expand upon what I have said.

I started with treatises and law reviews to try to get some general background on the Airline Deregulation Act. The best synopsis of what HoustonAttorney was alluding to is the following passage, taken from the Journal of Air Law and Commerce, 66 J. Air L. & Com. 1187:

Additionally, the ASTA feels that the airlines are currently taking advantage of a portion of the Airline Deregulation Act of 1978 designed to prevent the states from regulating the airlines, which would effectively negate the purpose of the Deregulation Act.

The Deregulation Act prohibited states from 'enacting or enforcing any law ... relating to rates, routes, or services.' ... That federal preemption provision, shielding airlines from state regulation, has now been turned by the airlines into a sword with which they bar the general public and small businesses from holding them accountable under the same state law that applies to every other industry in the country.

This allows airlines to claim immunity from the requirements of state laws, while at the same time holding others accountable under the same laws. For example, in Smith v. Comair, Inc., the U.S. Court of Appeals for the Fourth Circuit held that a passenger's suit against an airline was barred by the preemption provision in the Deregulation Act even though the passenger was treated rudely and unprofessionally in not being allowed to board his flight.

Here's the basic way I see it. State claims are preempted by federal law. Therefore, HoustonAttorney is partially correct in that state tort claims and state contract claims are preempted by federal law.

This does not mean, however, that there is no cause of action remaining for certain violations. If you can find a federal law that airlines are violating you can sue the airline. Preemption is not immunity, as indicated.

And, you can sue in either state or federal court, but you need to come in under federal law. (Think of all the "small claims luggage suits" as proof of applicability of state court as venue).

I next searched for cases involving airlines to back up my analysis. There are lots of them. There are breach of contract cases (alleging breaches of the contract of carriage, as well as of advertising materials and other things held out by the airlines which are alleged to be "incorporated" into the contract. There are consumer protection cases brought in under federal statutes. On and on.

That's the way I see it - but I did this in like 15 minutes, so I definitely stand to be corrected.

I do not think, however, that the broad claim made by HoustonAttorney is the full picture. Just search for "AMR" or "United Airlines" in the mega case database on Lexis and you'll see tons of cases against airlines for all types of causes of action.

[This message has been edited by thesilb (edited 07-07-2002).]

But does pre-emption apply to frequent flyer programs, which are arguably not "a price, route, or service" of an airline? I would think that such an argument offers a way around pre-emption. I would note that Galbut v. American Airlines, Inc., E.D.N.Y.1997, 27 F.Supp.2d 146, would suggest that at least upgrades pursuant to a frequent flyer program are pre-empted, but then again, that's only a mere trial court ruling that's not binding on any other court.

I don't think that any case law completely forecloses any claims based on contract, fraud, deceptive trade practices, or illegal lotteries.

I just ask that whoever brings the class action gets us more than a few stinking coupons.

What would be interesting is to have someone file a suit that would force CO to reveal how many OP members actually bought a HoKeY fare and sought to upgrade versus how many actually WERE upgraded. This information might provide real ammuniton for a class action suit.

Venk,

Thanks for a rather interesting thread. I'm not a lawyer, but I know right from wrong.

What Continental is doing is plain wrong. Something needs to be done to correct this.

Despite what the lawyers are saying on this board, I suggest you file in small claims court in Houston.

The filing fee is nominal, you'll get a lot of attention, and you may be able to drudge up a lot of info on CO's Hokey upgrade practices...BTW even though you'll probably lose in court, it will be interesting to see what info you could garner.

That is horrible advice.

You could actually be sued yourself for abuse of process if you file a lawsuit without a proper purpose and a good faith belief that you have a claim under the law (or, a good faith attempt to change the law).

Venk has not even stated that he himself has an injury to redress, much less all this discussion of whether a claim would exist for the injury had he even been injured.

I hate HOKEY as much as the next guy, but advising someone to file a lawsuit in the home town of the corporation just to get media attention is not good advice. The legal system is not properly used for this purpose.

If you have been injured and can come up with something even remotely colorable, then file a suit if you wish. That's your right. But do not abuse the legal system just to get media attention.

By the way, if you guys are interested in getting corporate information, and you'd need a corporate lawyer to flush out whether this is possible and how to go about it, you might explore the area of shareholder's rights to inspect and copy corporate records. In a general sense, every shareholder is an "owner" of the corporation and has a right to inspect and copy "his" records, to some extent.

There are many subrules and nuances I'm no longer familiar with. I do recall that it would not be a proper purpose to attain shareholder status for the sole purpose of making an inspection, so you would need someone who has had shareholder status for some length of time and has a true business purpose in seeking the information (such as preparing proxy materials and so forth). Just a thought.

Thesilb,

I have to disagree with you here. You and I know that many many lawsuits are filed just to get the other party to blink, without any real intention of actually going to court. My wife is a lawyer and explains to me that this type of posturing is done ALL the time.

The mere intention to gain media attention is not necessarily a bad thing, because CO has seemingly got away with Hokey fares...informing more travel consumers about this practice would definitely be beneficial to all airline travellers.

It does appear that venk has played the Hokey game before and lost, see this thread for details: http://www.flyertalk.com/forum/Forum...L/004494.html.

It may make more sense to have a class action lawsuit filed instead of a single case Venk vs. Continental airlines. It may be worth speaking about this with a class action lawyer in Houston. Perhaps thesilb or Houstonattorney can comment on the pros/cons of a class action case??