Cert. Sought In British Airways Fuel Surcharge Class Action Lawsuit

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Last week, the plaintiffs in a class action lawsuit accusing British Airways of unfairly charging frequent fliers high fuel surcharges filed a motion to certify the proposed Class in New York federal court.

Lead plaintiffs, four members of British Airways’ Executive Club, filed the class action lawsuit in November of 2012. The plaintiffs alleged that British Airways charged the club members fuel surcharges not based on fuel costs, but amounted to hundreds of dollars per ticket purchased with through a mileage program. The plaintiffs further alleged that the charges added up to more on the rewards flights than they would have been charged for economy flights on the same route.

The class action survived a motion to dismiss in November of 2013 and last week the plaintiffs asked U.S. District Court Judge Raymond Dearie to certify their proposed Class. The plaintiffs argued in their motion that they present a question of breach of contract common to all proposed Class Members. Further, the plaintiffs claim that approximately 170,000 putative Class Members who used U.S. addresses to redeem frequent flier miles and paid surcharges between November 2006 and April 2013 were affected by the breach of contract.

According to the motion, whether the “breach of contract claim will rise or fall in unison” is the question common to all Class Members.

“The answer to that question is yes: Either the contract permitted all of BA’s ‘fuel surcharges,’ or it permitted none of them (because they were not fuel surcharges),” the plaintiffs say in their motion seeking certification of the class action lawsuit. The plaintiffs also argue that British Airways should be liable to the full Class if it is liable for the lead plaintiffs’ claims.

In their motion, the plaintiffs also point out that damages should be easy to determine for all Class Members since a database of members is readily available to identify them and their purchases.

In response, British Airways filed a motion opposing the plaintiff’s request for certification. In their motion, the airline argued that the fuel surcharges were clearly permitted. British Airways also contends that the circumstances are not uniform for thousands of Class Members because some may not be U.S. citizens.

Additionally, the airline argued, varying charges were assigned to each proposed Class Member and represent over 38,000 route combinations. British Airways argued that damages cannot be easily calculated for the class if the airline is found liable. “Quite the contrary,” said the airline in its motion, “the particularized inquiries that must be undertaken in an attempt to prove breach and damages here foreclose class certification.”

British Airways also contended that, under English law, they can collect fuel surcharges so long as it is not irrational in doing so and according to the plaintiffs’ industry expert only one route out of 240 over charged for fuel. “The purported existence of a single allegedly overrecovered route, on which no named plaintiff flew, for one snapshot in time does not establish classwide liability, injury or damage for that one route, let alone all,” the airline aruged.

The plaintiffs are represented by David S. Stellings, Nicholas Diamand, Jason L. Lichtman and Douglas I. Cuthbertson of Lieff Cabraser Heimann & Bernstein LLP.

The British Airways Fuel Surcharge Class Action Lawsuit is Russell Dover, et al. v. British Airways PLC, Case No. 1:12-cv-05567, in the U.S. District Court for the Eastern District of New York.

UPDATE: On April 7, 2017, British Airways said it planned to appeal a judge’s order granting certification to a Class of consumers who allege the airline charged improper fuel surcharges. The airline asked the judge not to set a trial date.

UPDATE 2: On April 13, 2018, British Airways and a group of passengers are seeking preliminary approval of a $42 million settlement to end a long-running class action lawsuit.

UPDATE 3: June 2018, the British Airways fuel surcharge class action settlement is now open. Click here to file a claim.