I was not aware that Venk had suffered an actual injury, so, I stand corrected on that (I don't read every CO thread, just ones that catch my eye).

I've pretty much stated why I don't think this would be a viable case and why I don't think you'd get much attention from a class action lawyer.

That being said, this isn't even close to my area of specialty and if Venk or anyone is really serious about trying to go against Continental, it definitely would be advisable to speak with an attorney to determine what your exact legal rights are.

Personal opinion: I don't think small claims would get you too far in a case like this, and, I can't personally see how you would come up with a legitimate cause of action which is not preempted because my personal belief is that a frequent flyer program is, in its plain language, a "service" of an airline and thus covered under the ausipices of the Deregulation Act. I don't think Continental would try to go for abuse of process, but if your claim is outlandish and they're really angry, certainly they could try that. In other words, don't just stroll into small claims without a valid claim. That's all I was trying to say.

I think the three best things that can be done about what I would call "Continental's poor treatment of its elite passengers with respect to international upgrade benefits" are:

1. Vote with your wallet and don't fly CO
2. Try to alert the media, friends and family, as to why CO is poor
3. Cast your vote in the Freddies (although many of us who took that action had our votes tossed out merely because we had strong negative attitudes year over year)

I found it just easier and better to take your CO miles and either use miles for a free ticket or upgrade on a code share NW or Alitalia which both confirm immediate upgrades, not this possible 30 day maybe stuff. At least they have for me many times...I don't even fly International with CO anymore, only domestic.

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I've had the orneriness to file small claims actions against many large corporate defendants over time. Not one of them thought that I had a valid claim, and all of them were mad at me.

I've had the opportunity to perform legal discovery for pertinent documents against them. This is not an abuse of process, this is the very essence of process, where money does not determine what is right.

None has ever dared sue me back for abuse of process. Because of course I could counter sue right back again, and in a superior court this time, and who stands to lose more?

Don't let the &&@#$! carborundum etc.

Didn't Randy categorically say that no votes were tossed out due to low scores?

HoustonAttorney:

1) The Airline Deregulation Act only applies to domestic flights.....the post in question relates to intl flights and is not covered under the ADA.
2) Airlines can be sued and have been sued and lost cases involving breach of contract, fraudulent misrepresentation, fraud, unjust enrichment, discrimination, etc.....even for domestic services.

While the ADA broadly favors the airlines instead of the consumer..the consumer does have common law remedies available.

I think we've about beat this to death. But, that's exactly the opposite of the issue at hand. No matter if they think your claim is invalid. Its when you can't even come up with a colorable reason you're suing (i.e., "I'm not suing because I really believe I have a good lawsuit, I just want some media attention!") that there's trouble.

Would a big corporation turn around and sue for abuse of process? Almost certainly not. I agree with you completely. But, if you don't have a good faith basis for your claim, what you are doing is definitely illegal, and my opinion is unethical as well.

You're taking the public resources (court time, etc.) for an improper purpose, potentially depriving others with legitimate needs to access to the tribunal you are clogging.

First, thanks to all for turning this into an interesting and civil discussion.

My observations and comments from discussions so far:

The question has split into three components:

1. Can CO be sued for its practices that may constitute fraud?

I doubt that CO or any airline has complete immunity to fraud and misrepresentation and the cases noticed by people here are a testament to that. If they are indeed immune then we need to change the laws!

2. Is CO committing fraud or misrepresentation for the particular case of its HoKeY upgrade policies?

I still believe that CO is doing wrong with its policy and that it is unethical. As to whether this can be covered by an existing law is still an open question that can only be discovered by an attorney consultation.

3. How can CO be sued if it is indeed committing fraud?

There appear to be two suggestions: small claims court and class-action lawsuit. Neither of them are appealing to me. Small claims do not generate the momentum needed to change CO's policies (which is my main goal) and has the ethical issues raised by thesilb. However, I believe a small claim can be brought about ethically on this issue if someone paid extra money for an upgrade with explicit representation from the agent and did not obtain an upgrade as seats were only released within the 72 hours and the plane flew with empty BF seats.

A class action lawsuit on the other hand only generates money for the lawyers and in most cases free advertising and a promotion opportunity for the company. The typical result is likely to be lawyers getting several million dollars in cash while the plaintiffs get a $25 off a $600 or more ticket voucher or worse just continental currency. The company will admit to no wrongdoing and may not even have to change its policies much.

What I would like ideally is for CO to change its policies or make proper representation with or without admission of guilt so that people do not continue to be "swindled" in my opinion. Lawsuits are one way to force that but it appears to me that lawsuits are most effective when a specific injury is to be redressed and the injury in this case is a bit tenuous.

Media attention is another avenue but I am not sure what would prompt that other than a lawsuit. CO seems to be well entrenched with major media for the media to take attention. This particular issue does not have headlines power that will override the friednship between CO and the media unless the grandma from Peoria that I alluded to earlier is brought in to make the headlines.