“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.
“I would presume that if they’re at the forefront of doing this, and it turns out to work for them, then other airlines will do this, too,” Dr. Hensler said. “There’s also no evidence that corporations in a similar line of business would somehow view it as competitively useful to say, ‘Well, we’ll let you sue us, so therefore you should join our club.’”
“Loyalty is supposed to be rewarded”
Points-and-miles obsessives are circulating a theory of their own: British Airways could be preparing to change the value of Avios and girding itself for blowback. Loyalty programs pivot every couple of years, and airlines can make adjustments at will, including how many miles it takes to buy a flight. British Airways declined to comment on whether these measures are afoot.