Is this an illegal practice by an airline?
 

Hi there guys, I think I caught an airline doing something really shady, which I'm calling "shadow cancels", and which I think may be illegal. You seem like the best guys to ask (other than an attorney)...

Say you book a flight 3 months in advance.

Then say, a few weeks later (about 6 weeks before departure), the airline messages you saying "change your flight for free or get a travel voucher". But they absolutely do not say the flight is cancelled! At the same time, they no longer list that flight when you search, nor do they take any new bookings for it, e.g. when you call in to get an extra seat on the same flight for your friend (which they said was an open seat, but then decline to sell it when you ask to buy it). But, when you called the airline, they say the flight is still scheduled to depart.

Then say, a few weeks after this, they cancel the flight.

Here's what I'm thinking... there's an airline who knows right now that future flights are canceled but they want everyone to change flights, or to get the voucher so that they can keep the money, rather than have to issue the refund, as would be required by law.

If I'm right, there is an airline right now who truly knows the flights are basically canceled, but they want people to "voluntarily" move onto another flight before they reveal the flight is canceled. Would it be illegal if they were "shadow canceling" flights like this and deceiving the customers into thinking it's a voluntary thing, when in reality they are really liable for refunding 100% when they cancel the flight?

I'm thinking about those passengers who would have otherwise wanted to have cancel the flight and taken the refund because of covid, but who didn't do so for not wanting to lose some (or all) of what they paid. With the airline knowing in advance that the flight is really canceled but not revealing as such to the consumers before having them change flights... something tells me that's a class action suit.

Thoughts?

I know from experience that since March, carriers and passengers have been playing "chicken" with cancellations. I myself had to wait from April (when I knew travel to my destination would be restricted) until June (7 days before departure) for an international carrier to cancel the flight. I must say once they cancelled my full refund was remitted quickly and with no hassle.
But, yeah, they weren't in any rush to officially cancel a flight that everyone knew months before had been effectively cancelled by circumstance and governmental action and wasn't going to go. And they flogged the free change/voucher option pretty hard.
I didn't view this as illegal business practice. Nor did I find it surprising.

What country, what route, and what airline?

There is no simple worldwide answer.

However, if the airline knew in advance that the flight would not be flying (they stopped displaying that flight and taking new reservations), then they have essentially "robbed" some passengers on that flight of their option to get a full refund, since those passengers were "scammed" into taking the voucher or changing the flight. I feel that many of those passengers would have otherwise taken the refund, had they known it would be an option. That can't be legal, if you can prove the airline knew it would be canceled but did not present the option to passengers. Some will just have been scared to fly and will have taken the voucher, even though they might not have the intention to fly at any point - but the airline then gets to keep the funds.

Gotta be a class action suit there.

Edit: Oh and for the record, I have not changed the flight... I will make them refund me 100% if they don't fly. However, I still think this is really unfair to people who didn't know about this dynamic (which I'm sure is the majority, who just jumped at the change/voucher).

USA to Europe. I don't want to say the airline just yet.

I don't see it. Until they officially cancel the flight, the flight isn't cancelled. Even if they know they're going to cancel it, if their practice, maybe even their policy, is to cancel flights no earlier than 7 days before departure (a reasonable proposition in a world of uncertainty) I don't think you can sue on the basis of they played on the passengers' insecurity and got them to jump for a voucher before official cancellation. I find it a pretty shoddy way to treat customers and sort of predatory in an ethical sense, but not illegal or even consequentially actionable.

Just curious... What if an airline was subpoenaed and records were found indicating that this was a systemic strategy by the airline(s), i.e. they had internal emails back and forth wherein they acknowledged - well in advance of any official cancellation - that flights would be canceled but that they would conceal this until much later. Would that change your mind on whether this was legal, or an intentional attempt to defraud passengers of their right to a refund?

What was found to be their strategy? That they only officially cancel flights close to the departure date and that because of the pandemic they offered passengers who wished to change their plans a way of doing that which under normal circumstances would not be available? But that they were not going to cancel scheduled flights at the first moment they perceived the flight would be restricted because the governmental restrictions were changing weekly, even daily?
Also, many Europe-based carriers offered vouchers that themselves were refundable if not used within a year. What was clear here was that the strategy was actually one of managing cash flow, not scamming their customers.
At best a complaint could be made that to be ethical and transparent the airlines could have notified flyers intending to accept a voucher. Something like "This flight may be cancelled by us before the departure date. In the event we do cancel the flight, passengers who have not changed their bookings or accepted a voucher for future travel will be able to claim a full cash refund for the value of their ticket. However, if we operate the flight, those passengers would forfeit the value of their ticket should they choose not to fly. Voucher offers and free changes are available until 14 days before departure."
That's pretty thin gruel for a class action.

Without the carrier and the specifics, you will get broad-based advice. If you search, you will see that there are hundreds of threads about this topic under specific air carriers and they all come down to the following.

There are perhaps a hundred other threads about roughly the same conduct by carriers operating to/from the US or departing the EU or which are EU carriers. In all circumstances, all that is required under express US (14 CFR) and EU (EC 261/2004) law is that if the carrier cancels the flight that the passenger is due a full refund. There is no requirement that a carrier cancel at any particular time in advance (although it gets a bit more complex under the EU Regulation.

You use terms such as "truly knows that the flights are basically cancelled," but that is not a thing. The flight is either cancelled or it is not. If it is cancelled, you may have a refund. If not, you are subject to the fare rules (including any pandemic waiver).

This is why the same advice appears throughout all of these threads. If you do not wish to travel, do not cancel. Rather, wait until the carrier cancels (or significantly changes the schedule) or the last minute (last minute may depend on specific carrier, so not saying which carrier is a risk). At worst, you cancel last minute and have your flight credit.

Just an update... yesterday I emailed five travel-law attorneys to see what they think. Three have so far responded saying that there is something here (two have not yet responded). Of the three who responded, two agree that it meets the requirements for class action.

I personally have not been affected by this (since I still have my ticket), but I'm going to "set it up" and provide them with my findings (and whatever else I find) so that they can go chase it and get the other passengers reimbursed.

An email legal opinion about class certification based on a hypothetical?

Please let us know how it goes.

You guys seem to be apologists for airlines. Do you work for airlines? Are you attorneys? Very questionable!

There is clearly wrongdoing here if an airline is knowingly shadow-cancelling flights for the sole purpose of deceiving customers. If the flights are not canceled, then why are they no longer listed and nobody is allowed to buy seats on them, even when they confirm a seat is available?

Clearly Flyer Talk isn't the venue for unbiased discussion when it comes to airlines. But hey... if you don't mind being screwed over that's fine. I'm sure there are tens, if not hundreds of thousands of people who have been screwed by this tactic want their full refunds in lieu of vouchers they will not use in the foreseeable future.

You know... I have an oceanfront property in Nevada, if either of you guys are interested!?

If the airline is based in EU or one of the flight departs from the EU then the airline would fall under EC261 regulation (This includes USA-EU return bookings which will have a leg EU-US). In these cases, if the airline wasn't sure yet about whether they would operate the flight then it may make sense to stop taking new bookings since their liability for compensation claims would go up the more passengers they had booked (i.e. the possible financial loss from accepting new passengers may be much higher than the revenue they would gain from taking those bookings and they may not want to take the risk). This doesn't nescessarily mean they are 100% about cancelling.

Also bear in mind some flights may go ahead depending on cargo loads etc. so I think an airline may have a suspicion that a flight will be cancelled but until they are 100% why should they cancel?

I personally don't see what the customer has lost here. You really want to start a class action suit?... If you saw someone drowning, would you take pleasure in pushing them further underwater?

The airline is European, the ticket however is a one-way US to Europe business ticket (there was no EU to US leg). Therefore, according to what you've stated, EC261 does not apply (in my case anyway, but this isn't about me, it's about systemic collusion to rob passengers of their right to a full refund).

Respectfully, your argument about freight makes no sense... If the flight may or may not be going because of freight, why not sell an open seat and get the incremental revenue? Makes no sense, other than that of being deceitful.

Moreover, all daily flights from this airline spanning a month or more have been "shadow canceled" in the way I have described... This alludes to a systemic practice of deception, not one affecting a single flight or small group of flights.

>> I personally don't see what the customer has lost here. You really want to start a class action suit?

Really? You don't see that conning people into taking a voucher so that the airline can keep the money - rather than being straight and offering the refund - is a material loss for the passengers? People need money in this time, not a voucher for some travel they might never use, but were conned into thinking was their only way to not lose 100% of their fare.

>> If you saw someone drowning, would you take pleasure in pushing them further underwater?
So you truly are an apologist for the airline. Just because an airline is struggling does not excuse them from coning people out of their entitlement to a full refund.

You are wrong on so many levels but I will start here. If your flight was on an EU airline, then it falls under EC261. For an EU carrier, there is no requirement for the flight to depart from a member state. That requirement only applies to non-EU carriers. This is such a basic component of EC261 and the fact that you don’t know this is telling.

This forum has a huge wealth of knowledge to offer. The members here are not airline apologists nor are they employees but they often know far more than the airlines themselves. I suggest you start listening; you will learn a lot if you drop the attitude.

Edit: since I am sure you will call me an apologist, he is the relevant text for your education:

https://eur-lex.europa.eu/legal-cont...LEX:32004R0261


Article 3

Scope

1. This Regulation shall apply:

(a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies;

(b) to passengers departing from an airport located in a third country to an airport situated in the territory of a Member State to which the Treaty applies, unless they received benefits or compensation and were given assistance in that third country, if the operating air carrier of the flight concerned is a Community carrier.