Airline tries to ‘pick off’ irate customer
There must be a special place in Hell reserved for airline executives. Any doubt about that was erased a few years ago when they started charging extra for checked-in luggage.
Yet, we can be thankful for those airline passengers who decide they just won’t take it anymore and battle the Darth Vaders of the airline industry tooth and nail.
Andrea Barber is one of those guerilla fighters, and her battle with American Airlines provides a lesson for consumer attorneys in how to parry a tactic that businesses often use to short-circuit class actions.
No refund for you!
Barber’s tale began when she booked a flight from Chicago to White Plains, New York, scheduled for Aug. 11, 2008.
Barber showed up at Chicago O’Hare Airport for the flight and was greeted by the news that American Airlines had just started charging passengers extra for luggage.
So Barber forked over an additional $40 for two suitcases that she checked in.
As if that bitter pill wasn’t tough enough to swallow, American Airlines proceeded to cancel her flight.
Barber’s annoyance turned to outrage when American Airlines said her baggage fee was non-refundable.
According to Barber, a ticket agent told her that American Airlines was entitled to keep her $40 because she requested a refund of her ticket instead of accepting a later flight.
Four days later, Barber sued for breach of contract in Illinois court. She alleged that nothing in American Airline’s baggage policies authorized the company’s retention of baggage fees in the event of a cancelled flight.
What got the airline’s attention was that Barber filed a class action claim on behalf of those customers who were also out their baggage fees following a cancellation.
American Airlines evidently figured it had a problem on its hands, so the corporate wheels slowly started to grind to make the problem go away.
Six weeks after Barber sued, American Airlines credited her credit card account with a refund of the baggage fee.
Problem solved. At least that’s how the trial judge saw it, concluding that Barber’s case had been rendered moot by the refund and granting American Airlines’ motion to dismiss.
‘Pick off’ move foiled
Barber knew what had happened. American Airlines had “picked her off” before she could develop her class action. But could she revive the suit?
Earlier this month, the Illinois Appellate Court said she could.
The court acknowledged that one huge problem for Barber was that American Airlines had tendered the refund before she had even filed a motion for class certification, let alone getting her class certified. That generally means that the case is over.
But the court gave Barber some room to maneuver.
It said that when a “when a plaintiff makes a ‘pick-off’ allegation, and a defendant’s refund occurs before plaintiff’s motion for class certification, a court must consider ‘whether, under the circumstances, the plaintiff exercised the required reasonable diligence in pursuing his class action claim.’”
Fortunately for Barber, she was sufficiently diligent in pursuing her class claim to negate American’s Airlines attempted pick-off move.
The court was impressed by the fact that Barber had started the discovery process to identify class members one month after serving American Airlines with her complaint. Shortly thereafter, Barber moved to compel discovery.
“By seeking discovery promptly and filing a motion to compel it, plaintiff ‘exercised the required reasonable diligence’ in pursuing her class action claim,” the court said.
It concluded that Barber’s “‘pick-off’ claim survives the tests articulated by this court….. Thus, defendant’s unilateral act of crediting plaintiff’s credit card did not make plaintiff’s claim moot.” (Barber v. American Airlines)
— Pat Murphy
