British Airways Plans to Appeal Cert. in Fuel Surcharge Class Action

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British Airways PLC reportedly plans to appeal a judge’s order granting certification to a Class of consumers who allege the airline charged improper fuel surcharges, and the airline has asked the judge not to set a trial date.

The plaintiffs last week asked U.S. District Judge Raymond Dearie to set a trial date for the British Airways class action lawsuit after July 7 in order to provide enough time to notify putative Class Members about the case, the court documents indicate.

British Airlines subsequently asked Judge Dearie to reject the plaintiffs’ request to set a date for trial because it plans to challenge the Class certification order. The airline also says that the parties’ summary judgment motions and challenges about expert testimony are currently still pending and that it would be premature to set a trial date until those matters are resolved.

On March 31, Judge Dearie granted certification to a Class of U.S. residents who are members of the British Airways’ Executive Club who redeemed frequent flyer miles for a ticket between Nov. 9, 2006 and April 17, 2013 and who paid a fuel surcharge imposed by British Airways. The plaintiffs initially filed their motion for Class certification in December 2015.

In their motion for Class certification, the plaintiffs informed the judge that British Airways may attempt to appeal the certification order, but that granting a stay in the litigation because of the possibility of a reversal from an appeals court is “ordinarily not reasonable.” They also asserted that it would be “highly unlikely” that the 2nd U.S. Circuit Court of Appeals would reverse Judge Dearie’s Class certification order.

The British Airways fuel surcharge class action lawsuit was initially filed in 2012. The plaintiffs claim that British Airways breached its contract to members of its frequent flyer program by imposing surcharges which, in some cases, exceeded $500. They claim that this fee is not an actual surcharge that is determined based on the cost of fuel.

British Airways has vigorously fought against the litigation and maintains there was nothing improper about assessing a fuel surcharge to help the airline compensate for high fuel costs. The airline asked the court to dismiss the fuel surcharge class action lawsuit, arguing that the plaintiffs’ breach of contract claim was preempted by the Airline Deregulation Act.

Judge Dearie rejected the airline’s motion to dismiss the fuel surcharge class action lawsuit in November 2013.

In his decision denying British Airways’ dismissal bid, Judge Dearie found that the U.S. Supreme Court had ruled in 1995 that the Airline Deregulation Act did not preempt contract claims.

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