British Airways Updates Executive Club Terms, Adds Class Action Waiver & Arbitration Agreement

Filed Under: British Airways

British Airways has today updated the terms of the Executive Club frequent flyer program, and I think some people might find this change to be interesting.

British Airways’ new class action lawsuit clause

British Airways has updated sections 33 and 34 of the Executive Club terms & conditions, and this impacts members who are residents in the United States and Canada.

Let’s take a brief look at what’s changing, and then below I’ll share why it’s noteworthy.

British Airways is adding some new Executive Club terms

Section 33: class action lawsuits

With the addition of section 33:

  • Residents of the USA and Canada agree that the resolution of any dispute shall be conducted on an individual basis, and not a class-wide basis
  • No such proceeding may be consolidated with any other legal proceedings involving British Airways or any other person
  • You agree that you will not be a class representative, class member, or otherwise participate in a class, representative, consolidated, or private attorney general proceeding against British Airways

Section 34: dispute resolution & arbitration agreement 

With the addition of section 34:

  • All disputes arising from or relating to terms and conditions shall be resolved in binding arbitration, rather than in a court by a judge or jury
  • The party seeking relief shall serve a demand for arbitration within a reasonable time after the dispute has arisen, in no event more than two years from when the aggrieved party knew or should have known the dispute

Why the sudden change in terms?

In mid-2018, British Airways faced a huge class action lawsuit related to fuel surcharges. The lawsuit alleged that there was no correlation between British Airways fuel surcharges on award tickets and the cost of fuel, and that this breached the Executive Club terms.

This settlement included all US Executive Club members who redeemed Avios for award tickets between November 9, 2006, and April 17, 2013, and who paid British Airways imposed fuel surcharges.

This class action lawsuit involved a total of $42 million in settlement compensation, plus over 2.2 billion Avios (those involved could choose whether they wanted cash or Avios compensation).

I’m not sure if there have been other cases since then, but clearly this is intended to address these kinds of class action lawsuits (both in terms of the ability for class action lawsuits, and also in terms of limiting how far back people can go with these claims).

British Airways faced a big class action lawsuit over fuel surcharges

Bottom line

You’ve gotta love British Airways adding an arbitration agreement and class action waiver during a pandemic. The airline informing members of this starts with “we hope you and your family are keeping well during these tough times.” And then they inform us of this.

Nice.

(Tip of the hat to @istrakhov)

Comments
  1. I have to wonder if the timing is due to some potential forthcoming devaluation or formalized “no-refund” policy in the time of COVID. It’s a moot point for me as my primary rewards program is AAdvantage. Hope that’s not the case though. BA has a special place in my heart, but it seems like their corporate direction is a dumpster fire these days.

  2. Just to let you all know..

    If you are on a cancelled British Airways flight, they direct you to a page where you can apply for a voucher. Once you press send, there is now a ZERO chance that any refund will be processed as there is a new “policy” whereby anyone who applied for a voucher cannot get a refund.

    So be very careful with your voucher applications, as I am sure they want you and your family to keep very well during these tough times without you getting any refund for any flights they cancel.

  3. @Ismail: if you want a refund you need to call them. They have disabled the refund option on their website.

    This doesn’t surprise me one bit. The problem is that the US is addicted to lawsuits. While companies do indeed behave badly sometimes, the awards by courts are nowhere near sensible levels. Awarding claimants (is that the word?) millions for issues that possibly caused a few hundreds or thousands of dollars is counterproductive. This isn’t helped by the no cure, no pay the ambulance chasers operate under. Wonder why it’s expensive going to the doctor? They need expensive insurance to cover these claims. This also explains why T&Cs are umpteen pages long.

  4. @Steven – No it’s an anti consumer thing. The Supreme Court made binding arbitration much easier for companies to impose and now you’re seeing an explosion of binding arbitration requirements.

    @Ismail – The US DOT has said consumers must be informed of their right to a refund for cancelled flights and be given the option to reject it and accept a voucher. If you’re stuck with a voucher, file a DOT complaint (if your flight touched US soil).

  5. Maybe it’s more to do with the overly litigious attitude of North American countries?

  6. I haven’t received any communication about a status extension, but get a message like this? :rolleyes:

  7. It is due to the class action for the data leak losing customers card and personal data. Basically if you signed up for that class action and want to stay in you can’t now book a flight or use any historic miles you have. It is A way for BA to fire you as a customer if you are in the class action.

  8. I wonder if this is also a reaction to the IT fiasco/data breach and ongoing class action against BA too. Also, this may be an email going out to US/Canadian resident BAEC members, but I’m checking with my fellow Brits whether they got this email too as I can’t find BAEC T&C updates for non-North American members online.

  9. Never mind – those are the overall T&Cs. 33 and 34 are specific to US/Canadian residents. So probably nothing to do with the data breach.

  10. It certainly creates another annoying and time-consuming process hurdle, but ultimately courts will be able to decide whether binding arbitration clauses and clauses limiting class actions are enforceable in specific cases.

  11. @Anais – If that’s true, that they can apply these new T&C’s retroactively to ongoing legal proceedings, then I would dump all my Avios into an aspirational trip for later this year and then quit them as a customer. Legal proceedings take a long time, and I have to guess there’d be a good chance they won’t have gone through the full list of claimants and terminated their accounts within 6 months. They’d also have to do some identity verification to insure they won’t incorrectly terminate anyone with a matching name or whatever.

  12. @ Wilhelm it’s actually a market based way to regulate businesses without requiring specific regulations on each decision companies make. Because each individual claim is too small to take to trial, class actions are the only viable way to take hold companies accountable when they wrong consumers.

  13. And yet, no option to opt-out unlike most programs when arbitration terms are added to an agreement

  14. Good luck… if it were possible to enforce a clause barring customers from class actions and forcing them into arbitration the pharmaceutical industry and HMOs would have been on it.

  15. NOT ENFORCEABLE! That waiver is not enforceable and is against local consumer protection laws in Quebec and Ontario. I will be challenging it and making complaints with the Quebec consumer protection office and probably with the US DOT as well.

    Don’t let corporations jam arbitrary one-sided terms down your throat. Don’t be a sheep

  16. BA is horrible. I still have gotten nowhere regarding my cancelled flight I made in March. They refuse to refund my Avios and at the time a voucher was the only option. I have tried Twitter team with no success and their complaint link online goes unanswered. Can one file a complaint with the DOT if Avios were used to make the purchase?

  17. I am puzzled by BA’s new (purported) requirement to arbitrate. DOT has a regulation specifically allowing customers to litigate and not be required to arbitrate. See 14 CFR 253.10, https://www.law.cornell.edu/cfr/text/14/253.10 :

    No carrier may impose any contract of carriage provision containing a choice-of-forum clause that attempts to preclude a passenger, or a person who purchases a ticket for air transportation on behalf of a passenger, from bringing a claim against a carrier in any court of competent jurisdiction, including a court within the jurisdiction of that passenger’s residence in the United States (provided that the carrier does business within that jurisdiction).

    Not clear how BA could reconcile its arb clause with the plain language of 253.10.

  18. @askmrlee – the opt out is not to sign the arbitration agreement the next time you book, which means you won’t be flying BA. Per BA – “You’ll be asked to accept these changes the next time you book with us on ba.com.”
    BA trampling on our Constitutional 7th Amendment rights. Don’t Tread On Me!

  19. More terrible PR for British Airways! They really seem to be doing their best to piss off some of their best and loyal customers. Given how outdated most of their business class seats are and the nightmare of flying in and out of Heathrow, you’d think they’d be going overboard to please their executive club members. I am Exec Platinum on AA/One World and it’s gotten to the point where I look more and more often for options where I can avoid BA and Heathrow whenever possible. Come on BA. Please get it together.

  20. A person who truly dislikes this clause could book only via OTAs or even by phone with BA representatives. BA’s announcement by its terms is limited to new bookings via ba’s web site.

    Of course those other channels are more costly for BA — pay OTA and GDS fees, or pay human staff to answer phones. But typically same price to passenger.

  21. Oh where are the the bygone days when BA claimed in their advertisements ” the world’s favorite airline”. They wouldn’t DARE now of course. What a pathetic sad story BA has become.

  22. Their customer management and communication are awful. They are the only major one world carrier which has not extended status thru 2021 and now they come out with this. Incompetent and clearly in serious financial difficulty. in addition this phrase in the new class action requirement “to the extent permissible by local law or regulation,” is doing a lot of work

  23. @Ben nice catch. Assuming the DOT regulation is still in force I don’t see how they can make this stick.

    In addition arbitration is always voluntary. It cannot be imposed unilaterally, which is why the language about agreeing. So anyone with a problem could sue now before making any bookings.

  24. Gotta love BA. They’re going to find themselves in a class action lawsuit about trying to restrict consumers rights to partake in – a class action lawsuit!

    God help us all. They truly are gunning for the “worst airline in the world” award aren’t they.

  25. I phoned BA and got through quite quickly. I asked for a refund d for my upcoming flights in June. They refunded my costs and returned my a avios points. Money was paid into bank within 2 days. Unfortunately a previous flight was vouchered

  26. IF Ba had looked after customers data and not ripped off / overcharged for ‘taxes and extras” on redemption flights, this would be a non issue. Attempting to introduce policies and unilateral agreements to enable them to continue to overcharge and nickel and dime at every opportunity (though that should probably be dollar and dime given the scale of the charges) the answer is simple. Vote with your bookings.
    Why would anyone choose BA given their attitude to customers and staff; Cabin cleaning and maintenance; Customer service and extra charges?
    No longer ‘BA – to fly to serve’ but: SpanglishQatari Airways, the shareholders airline. Profiteering from your misery, by design.

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