Brigette Honaker  |  April 17, 2018

Category: Consumer News

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Second ever build British Airways Airbus A380 still with french manufacturer reg. F-WWSG climbing out of the airbus plant at hamburg finkenwerderBritish Airways and a group of passengers are seeking preliminary approval of a $42 million settlement to end a long-running class action lawsuit.

British Airways PLC and a group of flyers offered separate briefs of their support for the $42 million class action settlement.

The British Airways class action settlement would allow plaintiffs to choose between receiving cash or  frequent flyer points valued at more than $63 million, if they are members of the Executive Club, the airline’s frequent flyer rewards program.

An estimated 77 percent of the Class continues to be members of the Executive Club.

The passengers say this is an “exceptional outcome” after more than five years of litigation. After private efforts to reach a deal failed, U.S. Magistrate Judge Cheryl Pollak led two mediation sessions to reach an agreement. Had they not reached a deal, the court indicated during oral arguments that the jury could award them far less than the $161 million they sought in damages and British Airways repeatedly affirmed their intention to appeal a Class certification and any adverse verdict.

“[P]laintiffs’ options thus were not between settlement today and final resolution before a jury tomorrow, but between settlement today and final resolution in two to five years after spending ‘another six to ten million dollars,’ which would have reduced the amount of any recovery,” the plaintiffs said.

The long-running British Airways class action lawsuit was first filed in 2012 and alleged that British Airways breached its frequent flyer program by using fuel charges to charge their members hundreds of dollars for each ticket they purchased with points. The fees sometimes exceeded $500. The plaintiffs argued that the fee was not an actual surcharge based on cost of fuel or a reflection of “the fluctuating price of worldwide oil,” as British Airways stated on its website.

British Airways sought to dismiss the case, arguing that the breach of contract claim was preempted by the Airline Deregulation Act, which forbids states from enacting any law related to a price, route, or service of an air carrier. The dismissal bid was rejected in 2013, with the court citing American Airlines Inc. v. Wolens, a ruling that made it clear that the Airline Deregulation Act didn’t preempt contract claims.

In 2015, the plaintiffs sought a Class certification for a Class of U.S. members of British Airways’ Executive Club who redeemed frequent flyer miles for an airline ticket between Nov. 9, 2006 and April 17, 2013, and paid a “fuel surcharge” fee on their ticket imposed by the airline. The judge certified the Class in March 2017.

In April 2017 following the Class certification, British Airlines sought to appeal the Class certification and asked that the judge not set a trial date.

After years of litigation and disagreement, the settlement would provide closure and resolution to the case, should it be approved.

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

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