dilanesp

I talked about it upthread, but this is a very, very long thread.

I think statutes and regulations are generally interpreted consistent with their purpose. And while I am not the DOT, I think I have some inkling of the purpose of their regulation. I can think of obvious ones:

1. To prevent airlines from canceling tickets as a result of what you might call "seller's remorse", after an intended fare reduction does not have the intended market effect or is determined to have cost the airline too much money, or engaging in similar forms of bad faith conduct with respect to non-mistaken airfares which in retrospect turned out to be dumb business decisions.

2. To protect people who go to an authorized agent of the airline, are quoted a very low fare, pay for a ticket, and go ahead and make travel plans, pay deposits, take time off of work, etc., only to have the airline come back to them and say "pay us thousands of dollars more or you won't fly!".

To prevent these things from happening, the DOT departed from the common law rule of unilateral mistake and said that instead, we would require airlines to honor mistaken fares to prevent against 1 and protect the people in category 2.

The question posed here is that you have a situation that doesn't really relate to either of the two purposes of the rule. United wasn't trial ballooning a ridculously low fare for their elite Global First product only for Danish people (and indeed, the EU regulation arguments made by people early in the thread basically refute that this could possibly be the case, as United wasn't even allowed to do this under EU law and therefore couldn't have been trying). And certainly for the most part, the people who bought these tickets are people whose local currency wasn't even the DKK and whose credit cards did not even actually have a Danish billing address. They clearly understood by their conduct that this was some sort of mistake, that if they booked in a different currency they would be quoted the "real" fare, and the error was discovered very, very fast, which means that a person would have had to have been acting unreasonably if they larded up on non-refundable travel deposits and reservations based on one of these tickets before UA notified them they weren't going to get to travel.

So the legal issue is, does the DOT regulation, which clearly applies where either of its purposes are being served, also apply in a situation where it is completely divorced from its purposes?

I suspect that the DOT will rule that it does not. Because it's entirely possible to protect people from airlines engaging in gamesmanship on their fares or people who innocently book a mistaken airfare and make their plans consistent with it while not applying the rule to a situation where the passengers had to consciously select a particular foreign currency and (perhaps) state an incorrect credit card billing address in order to get the mistake airfare, and did it precisely with the intention of obtaining an airfare that they knew was grossly erroneous.

But I do not say that with certainty. It is also possible-- and this is your best hope, I think-- that the DOT will decide that it is too big a can of worms to open up to start drawing distinctions between passengers who game the website and those who don't, and as a result will decide that the regulation extends to this case as well. (A third possibility is that this will be the straw that breaks the camel's back and the DOT will expedite publication of a rule repealing their regulation-- a result that I would consider very bad, because, as I said, I do think that the current regulation protects a class of travelers whom I think should be protected.)

What I will say with certainty is that I have no doubt that the DOT, and anyone in any capacity deciding any dispute based on these tickets, will at least give consideration to the manner in which they were booked and are certainly going to be aware of it. I realize people want to argue that the manner of booking is all irrelevant, but there's no way the DOT or anyone else is going to see this as exactly the same case as other mistake fares where no gaming of the website was necessary to claim the fare.

FlyingLasse

oh please just stop steering the conversation in the direction that we are "abusing".

nonamethanks

This is a good short version however - the address thing is still being flogged to death. All one had to do was search on Danish website and/or pay in DKK
It was not absolutely necessary to pay using Denmark in address field when paying by card no matter where you or your card are based. This would change perspective on c and e above.

richarddd

(1)Ginsberg wouldn't stop a suit to enforce a contract as written, it would however eliminate arguments involving things such as good faith or fair dealing, (2) I'd bet the history of abusive, etc. is to give UA the maximum flexibility to do whatever it wanted (hard to overcome this without fair dealing, etc.) and (3) I doubt a court would allow what would essentially be a private right of action to enforce DOT regs.

If the DOT were to rule in the passenger's favor a civil suit would seem unnecessary.

dilanesp

Lasse:

I did not use the word "abusing". I did, however, say that the manner in which the tickets were purchased was relevant.

We can't render any discussion of even the LEGAL implications of the manner in which the tickets were procured into a verboten personal attack. It is not one. Like it or not, the DOT will consider how the tickets were purchased, and they are certainly aware of how they were purchased. As is United Airlines, as is any other regulatory agency that anyone contacts, and as will be any court where a claim was brought.

I have made it very clear on several occasions and I will again here that I don't view the people who bought these tickets as any sort of bad people. There are aviation columnists on the Internet who have taken that position; I do not. I view them as people who were taking a shot, and I don't think there's anything horrible about taking a shot.

I do, however, view the manner of purchase as an extremely relevant issue to how this gets decided. Not because the consumers were doing anything wrong, but because it bears on whether they are within the class of intended beneficiaries of the DOT rule and whether they have a claim under contract law.

2. Contracts of adhesion have to be very specific (that's why they are so long). The scope of such a broad contractual clause will be construed AGAINST United. Indeed, if I were United's lawyer and my only argument in a case were the "abusive / illogical" provision, I would recommend they settle the case. (There's also another problem with it in that a broad interpretation of it renders the consideration illusory. United has to be bound to do SOMETHING in exchange for your money.)

3. I have on a couple of occasions, WON the argument that a federal law or regulation that does not create a private right of action can nonetheless be taken into account when interpreting or determining the scope of state law. All no private right of action means is you can't sue directly under it. It doesn't mean anything else.

richarddd

The latitude given to regulatory agencies and doctrines such as prosecutorial discretion would seem to make such a suit by passengers against the DOT highly improbable, at best.

janetdoe

I am not referring to this mistake, I am referring to any ticket I buy that is not a full flex fare. For example, I had a friend who needed a flight on 2/14 and accidentally booked on 3/14 but didn't realize it until a few days before the flight. $200 fee plus the difference between what he bought and full-fare Y. That is normal business for UA. It doesn't matter that he made a mistake, he has no other option than paying triple his original price.
See above. You are misunderstanding my example.
When you get on a plane, there is always a decent chance that the person sitting next you paid 10x or 20x the price you did. UA regularly sells Yugos for Rolls Royce pricing and gets away with it, it is SOP for them. It is their business model. It is the primary driver of their profitability.

In the Economist example, the only thing the customer is entitled to sue for is half the price of his original ticket, the refund he was promised. He has no recourse for the fact that he paid $7000 for a ticket while his neighbor paid $350. Not receiving the $3k refund he was promised was just salt in the wounds.

So yes, that is my argument. If a big bad company makes a billion dollars in profit by selling Yugos at Rolls Royce prices, and penalizing customers for every mistake or change they make, then YES, it is abusive to cancel tickets when the airline makes a mistake and sells a few Rolls Royces at Yugo prices.

And apparently, someone at DOT agreed with me. They made a clear regulation governing this exact situation, which says an airline can't cancel a ticket because of a mistake.

The airlines are abusive and have ridiculous pricing. The behavior is so egregious that the airlines' primary regulatory body took away the 'normal' contractual recourse of unilateral mistake with respect to airline tickets. So yes, it is exactly that - "big bad evil company hurts [consumers], so we all get to hurt big bad evil company back."

If you are still confused, please read the DOT regulations and the DOT FAQ that explain why this regulation is necessary, and if that doesn't help, read the public comments that sparked the regulation. I think I have done all I can to explain my viewpoint to you in this thread.

vision20

Here is the problem with your arguments.

1) Although I do agree with intents 1) and 2) you really didn't read the DOT reg very carefully. They specifically outlined 3) to include (and please read this carefully) "situation where a carrier mistakenly offers an airfare due to a computer problem or human error and a consumer purchases the ticket at that fare before the carrier is able to fix the mistake". Why? They state very overtly that it is UNFAIR. There is nothing in the regulation that indicates that the consumer needed to "know" it was a mistake. That is completely irrelevant. The issue is FAIRNESS. They recognize that a consumer will make plans based on the purchase price which includes nonrefundable lodging, transportation etc. Since much of this also affects also same-day travelers, they decided not to impose a time-restriction.

2) There was no "gaming of the system". The term "gaming" seems to imply that the users fraudulently broke into the system to produce these fares. All of these consumers simply used the site as the site was designed. The address as others have already indicated is irrelevant as well. Continuing to harp on the "manner in which the system was accessed" really shows poor understanding of global e-commerce. Only a person who does not routinely make purchases outside of US would think of this as "gaming" the system. To give you a simple example, let's say Katie Melua's new CD was being sold on the UK version of Amazon for $.99 at 90% less than what it was selling on the US version of the site. Would it be considered "gaming the system" if consumers went to that site and purchased the CD to have it shipped to the states? Hardly.

The DOT reg is not divorced from its purpose as I CLEARLY indicated. The reg specifically states its purpose which fits this scenario EXACTLY. That is why UA is repeatedly trying to frame this as a "third-party" error, which as we all know is another faulty argument doomed for failure.

Ultimately I don't know how the DOT will respond either but I'm hopeful they will do the right thing.

Clincher

I am glad you checked into this thread today too...


I am amazed at how well this describes the real reason so many are taking the airline to task. Someone who has never experienced these issues will never understand. Fortunately (hopefully), those who we as consumers rely on to set matters straight are probably tired of the same issues.

A related story, I once I got a parking ticket once in front of a Starbucks 5 minutes before the free parking limit was up. The judge I was in front of when fighting the ticket was a Starbucks coffee drinker and showed me mercy.

vision20

Nothing else to add but ^^

AA_EXP09

What about cases, in this case, then, where there was MPM overage as a result of deliberately obtaining partner metal.
(I know for the Australia fare, it was possible to book
UA LONCHI
UA CHISIN
QF* operated by EK SINMEL)
Also, in your case, even honouring F on international fare components may require interline with other carriers
i.e. the return of this ticket
QF MELSYD
UA SYDSFO
UA SFOCHI
UA CHILON

luv2ctheworld

What were the circumstances of the wideroe.no deal?

I recall specifically 2 UA internal system issues they honored: the mileage award mistake and the pricing one.

But in reality, many companies use that similar line of excuse. Amazon does it all the time when something is mispriced. Why can't UA?

And if OTA doesn't agree to the debit memo and turns around and cancels the tickets?

Or if Amadeus covers the mistake, the point is UA doesn't feel compelled to honor it.

NYBanker

The majority of ticket buyers would.

dilanesp

1. You assume that because the agency said that it is generally unfair, that means that every single expected application of the principle is unfair.

Consider this example. A lot of people criticize US drug laws as draconian. It is unfair, they argue, to lock up casual drug users for long sentences. However, suppose there is a local drug dealer who sells hard drugs exclusively to young children. That drug dealer is prosecuted under the same law, the Controlled Substances Act.

The Controlled Substances Act can be both GENERALLY unfair and totally fair when applied to that particular drug dealer.

The DOT certainly did not go through and hypothesize every single possible scenario in which a mistake fare was offered. Rather, they made a rule based on the principle of protecting people who purchased such tickets and then acted in reasonable reliance thereon, only to later face a demand for a much higher fare or cancellation of their trip. That, the DOT determined to be unfair.

Do you really believe that the DOT also determined that it would be unfair to cancel, within a few hours, the ticket of a person who deliberately exploited an error in the coding of an airline's website by engaging in conduct that could be called dodgy-- purchasing in a currency they had no reason to use and perhaps including an inaccurate credit card billing address-- to get a fare that's 100 fold too low?

I don't think that the DOT ever made THAT determination. Maybe they did. Or maybe they determined that they didn't want to go down that road even though they knew it was a possibility. I think that's your best hope.

But I suspect the DOT is likely to see the manner of ticketing as relevant here.

2. "Gaming" is different than fraud (though bear in mind that with respect to RESCISSION of a contract, fraud doctrines do not require a showing that the buyer lied, merely that he or she misled or did not tell the full truth). If you have ever played poker, there's a distinction between cheats and angle shooters.

A cheat is someone who deliberately violates explicit rules. For instance, putting cards up your sleeve is cheating. The equivalent here might be a person who uses a stolen credit card to purchase an airline ticket, and flies on it. That's cheating.

An angle-shooter is someone who always maintains an argument that he or she is in technical compliance of the rules, but does not believe there is any such thing as the "spirit of the law" and believes that any action that maintains technical compliance but pursues an advantage is permissible.

An example in poker is a player who, while the player to her right is deciding how to act, makes a motion with her cards as if to fold them. The player to her right then bets out, and rather than folding, she raises. According to the rules, her action out of turn is not binding, and she is entitled to raise. However, she is shooting an angle-- doing something in technical compliance with the rules but which gives her a weak claim should something go wrong.

And that last part is the point-- let's say she makes that folding motion and the cards fly out of her hands and into the muck. If she has had a history of trying to trick players with that action, do you think the floorman is going to allow her to retrieve her cards?

I am undecided as to exactly what representations were being made by United's customers here. I do think there are plausible arguments that you weren't EXACTLY asked for your residence. But at the same time, you WERE asked a bunch of questions that at least are related to residence, and those questions were answered in a way that they would not have been answered, in most instances, absent the fact that the user knew there was a mistake fare that could be claimed if the buyer appeared Danish to the website.

I think that's clearly a form of gamesmanship. It's shooting an angle. And I'm coming to believe that a number of people don't realize that there are gradations of user conduct that fall somewhere between "full and complete adherence with the letter and spirit of all regulations and complete and upfront dealing without relying on technicalities of any sort" and "despicable fraud".

I am suggesting that "gaming" is a good description for such in between cases. If you think there's a better description, however, I am all ears.

Finally, don't read too much into United's invocation of "third parties". They are not required to reveal their legal arguments to you. I assure you, if their lawyers aren't screaming from the rooftops about user conduct to the DOT, they aren't doing their jobs.

Deltahater

If anybody adds anything substantive, rather than their opinions, legal musings, or just false information etc in the next 12 hours, I will send them a bottle of great tequila.