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In Fine Print, Airlines Make It Harder to Fight for Passenger Rights

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As air travel reopens and flight bookings begin to creep up, AvGeeks — aviation geeks — and others may notice some new legalese in the fine print when they buy plane tickets.

More and more carriers are adding clauses that require passengers to settle disputes with the airline in private arbitration, rather than in court, and bar passengers from starting or joining class-action lawsuits.

In early April, American Airlines updated its contract of carriage, a standard industry document that outlines the legal responsibilities of a ticket holder and an airline, with a class-action waiver. British Airways followed in late May, adding a class-action waiver and binding arbitration agreement in the terms and conditions of Executive Club, its loyalty program, for residents of the United States and Canada. British Airways notified members by email.

“What the airline is saying is: If you ever have a dispute with us, the only way you can pursue this is in private,” said Deborah Hensler, Ph.D., a professor of law at Stanford Law School. “These types of agreements are usually an effort to prevent people from having an effective way of challenging a company on what might arguably be a legal violation.”

The timing hardly seems coincidental. Airlines of all sizes are being sued for withholding billions of dollars from passengers whose flights were canceled because of Covid-19. American Airlines was named in a class-action lawsuit in April; a similar one was filed against British Airways in early May. Also in April, separate but similar class actions were filed against the low-cost carriers Frontier Airlines and Spirit Airlines, both of which had “No Class Action” clauses in their contracts of carriage before the coronavirus was declared a pandemic.

These lawsuits have more than 100 class members and seek more than $5 million in combined claims. All claim that the airlines are either breaching their own contracts of carriage — which usually codifies a passenger’s right to a cash refund when a flight is canceled — or sidestepping a Department of Transportation policy that requires airlines to give refunds when flights to, from or within the United States are canceled. Or both.

In a statement, a spokesman for American Airlines said the new class-action waiver is meant to “ensure that customers have an avenue to pursue and resolve disputes with us, including by filing an individual lawsuit. We remain committed to resolving issues customer-by-customer when they arise.”

British Airways and Frontier Airlines declined to comment about their updated agreements. Emails to Spirit Airlines went unanswered.

“This issue really pops out of the pandemic — there hasn’t been this type of mass cancellation of flights before,” said John Albanese, a lawyer at the firm Berger Montague, which jointly filed the British Airways lawsuit along with the firm Girard Sharp. “We suspect — but we don’t know for certain — that changes to the Executive Club agreement were in response to our lawsuit to try to limit the potential claims.”

Last September, Stephen Ide, the lead plaintiff in the British Airways lawsuit, paid about $700 for a round-trip flight from Boston to London that was scheduled to depart in late March. The trip, which was to take Mr. Ide and his wife to Scotland, was meant to celebrate their 35th wedding anniversary.

Then the coronavirus pandemic struck and Mr. Ide’s work as a freelance journalist and Lyft driver dried up. The flight to London was canceled; when Mr. Ide called the airline to request a refund, he was unable to get through. So he settled on the only financial relief he found online: a voucher.

Mr. Ide continued to call the airline in hopes of having his voucher converted into a refund. When he finally connected with an agent, he was told this wouldn’t be possible.

“I don’t fly much, and my wife and I don’t really have cash to travel often,” said Mr. Ide, 60, who lives in Norton, Mass. “The price was right for the tickets. But when they canceled the flight and I had to seek refunds for all aspects of our trip, it was frustrating that British Airways would not provide one.”

Much like cellphone contracts, airline agreements are adhesion — otherwise known as “take it or leave it” — contracts. Passengers cannot individually negotiate the terms, or cross out certain sections, before purchasing a plane ticket or signing up to earn miles.

It is exceedingly difficult for individuals to sue airlines in the United States, even in small-claims court. Class-action lawsuits, which represent a large number of people with similar complaints, are among the only tools available to consumers to get financial restitution against airlines.

“The courthouse door is not locked, but airlines are exempt from state laws and local laws, which account for the vast majority of consumer laws,” said Paul Hudson, the president of FlyersRights.org, an airline-passenger consumer-advocacy nonprofit. “So even if your problem violates a regulation, that doesn’t give you any individual relief. It just means the airline might get fined or admonished.”

Those penalties would come from the federal transportation department, which has an Aviation Consumer Protection Division tracking official complaints against domestic and foreign airlines. According to a May report, 45 refunds-related complaints were filed against British Airways between January and March; it was one of nine (of about 50) international carriers with more than 40 complaints. American Airlines’ 163 complaints made it the second most-complained-about domestic airline on the issue of refunds (after United Airlines’ whopping 653).

Some class-action lawsuits against airlines have been successful. In 2018, British Airways settled a class action suit over the issue of fuel surcharges, ultimately repaying millions of dollars and Avios — its miles currency — to qualifying passengers.

It’s too early to tell whether the new American Airlines and British Airways clauses, if challenged, would be upheld in court and how they will influence the existing class actions, which are in the early stages of often yearslong processes. But Mr. Albanese said courts are generally more reluctant to uphold class-action waivers and arbitration provisions when they’ve been implemented in response to — and to affect — pending litigation.

Nowadays, it’s not uncommon to find arbitration clauses in car leases and class-action waivers in mortgage documents, but they’re still relatively uncommon in airline agreements — for now.

  • Frequently Asked Questions and Advice

    Updated June 12, 2020

    • What’s the risk of catching coronavirus from a surface?

      Touching contaminated objects and then infecting ourselves with the germs is not typically how the virus spreads. But it can happen. A number of studies of flu, rhinovirus, coronavirus and other microbes have shown that respiratory illnesses, including the new coronavirus, can spread by touching contaminated surfaces, particularly in places like day care centers, offices and hospitals. But a long chain of events has to happen for the disease to spread that way. The best way to protect yourself from coronavirus — whether it’s surface transmission or close human contact — is still social distancing, washing your hands, not touching your face and wearing masks.

    • Does asymptomatic transmission of Covid-19 happen?

      So far, the evidence seems to show it does. A widely cited paper published in April suggests that people are most infectious about two days before the onset of coronavirus symptoms and estimated that 44 percent of new infections were a result of transmission from people who were not yet showing symptoms. Recently, a top expert at the World Health Organization stated that transmission of the coronavirus by people who did not have symptoms was “very rare,” but she later walked back that statement.

    • How does blood type influence coronavirus?

      A study by European scientists is the first to document a strong statistical link between genetic variations and Covid-19, the illness caused by the coronavirus. Having Type A blood was linked to a 50 percent increase in the likelihood that a patient would need to get oxygen or to go on a ventilator, according to the new study.

    • How many people have lost their jobs due to coronavirus in the U.S.?

      The unemployment rate fell to 13.3 percent in May, the Labor Department said on June 5, an unexpected improvement in the nation’s job market as hiring rebounded faster than economists expected. Economists had forecast the unemployment rate to increase to as much as 20 percent, after it hit 14.7 percent in April, which was the highest since the government began keeping official statistics after World War II. But the unemployment rate dipped instead, with employers adding 2.5 million jobs, after more than 20 million jobs were lost in April.

    • Will protests set off a second viral wave of coronavirus?

      Mass protests against police brutality that have brought thousands of people onto the streets in cities across America are raising the specter of new coronavirus outbreaks, prompting political leaders, physicians and public health experts to warn that the crowds could cause a surge in cases. While many political leaders affirmed the right of protesters to express themselves, they urged the demonstrators to wear face masks and maintain social distancing, both to protect themselves and to prevent further community spread of the virus. Some infectious disease experts were reassured by the fact that the protests were held outdoors, saying the open air settings could mitigate the risk of transmission.

    • How do we start exercising again without hurting ourselves after months of lockdown?

      Exercise researchers and physicians have some blunt advice for those of us aiming to return to regular exercise now: Start slowly and then rev up your workouts, also slowly. American adults tended to be about 12 percent less active after the stay-at-home mandates began in March than they were in January. But there are steps you can take to ease your way back into regular exercise safely. First, “start at no more than 50 percent of the exercise you were doing before Covid,” says Dr. Monica Rho, the chief of musculoskeletal medicine at the Shirley Ryan AbilityLab in Chicago. Thread in some preparatory squats, too, she advises. “When you haven’t been exercising, you lose muscle mass.” Expect some muscle twinges after these preliminary, post-lockdown sessions, especially a day or two later. But sudden or increasing pain during exercise is a clarion call to stop and return home.

    • My state is reopening. Is it safe to go out?

      States are reopening bit by bit. This means that more public spaces are available for use and more and more businesses are being allowed to open again. The federal government is largely leaving the decision up to states, and some state leaders are leaving the decision up to local authorities. Even if you aren’t being told to stay at home, it’s still a good idea to limit trips outside and your interaction with other people.

    • What are the symptoms of coronavirus?

      Common symptoms include fever, a dry cough, fatigue and difficulty breathing or shortness of breath. Some of these symptoms overlap with those of the flu, making detection difficult, but runny noses and stuffy sinuses are less common. The C.D.C. has also added chills, muscle pain, sore throat, headache and a new loss of the sense of taste or smell as symptoms to look out for. Most people fall ill five to seven days after exposure, but symptoms may appear in as few as two days or as many as 14 days.

    • How can I protect myself while flying?

      If air travel is unavoidable, there are some steps you can take to protect yourself. Most important: Wash your hands often, and stop touching your face. If possible, choose a window seat. A study from Emory University found that during flu season, the safest place to sit on a plane is by a window, as people sitting in window seats had less contact with potentially sick people. Disinfect hard surfaces. When you get to your seat and your hands are clean, use disinfecting wipes to clean the hard surfaces at your seat like the head and arm rest, the seatbelt buckle, the remote, screen, seat back pocket and the tray table. If the seat is hard and nonporous or leather or pleather, you can wipe that down, too. (Using wipes on upholstered seats could lead to a wet seat and spreading of germs rather than killing them.)

    • Should I wear a mask?

      The C.D.C. has recommended that all Americans wear cloth masks if they go out in public. This is a shift in federal guidance reflecting new concerns that the coronavirus is being spread by infected people who have no symptoms. Until now, the C.D.C., like the W.H.O., has advised that ordinary people don’t need to wear masks unless they are sick and coughing. Part of the reason was to preserve medical-grade masks for health care workers who desperately need them at a time when they are in continuously short supply. Masks don’t replace hand washing and social distancing.

    • What should I do if I feel sick?

      If you’ve been exposed to the coronavirus or think you have, and have a fever or symptoms like a cough or difficulty breathing, call a doctor. They should give you advice on whether you should be tested, how to get tested, and how to seek medical treatment without potentially infecting or exposing others.


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