British Airways Wants Out Of COVID-19 Refund Row

By Mike LaSusa
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Law360 (July 27, 2020, 8:06 PM EDT) -- British Airways PLC has asked a New York federal court to let it out of a proposed class action brought by a handful of passengers over ticket refunds for flights affected by COVID-19, saying one of the passengers must arbitrate his claims and the others have nothing to sue over.

The London-based air carrier said in a Friday filing that the court should throw out the case brought by Stephen Ide, Karen Steele-Clarke, Philip Tenn and Donald Dominique Jr., who claim they weren't properly refunded for flights that were canceled amid the pandemic.

BA said Ide and Steele-Clarke had accepted vouchers for future travel instead of cash refunds, while Tenn got a voucher even though his tickets were supposed to be non-refundable.

"BA has made clear that it will refund the purchase price for flights that it cancelled, and it has done so," the airline said.

Additionally, BA said Dominique couldn't sue because he had bought his tickets through the online booking platform Expedia. In doing so, Dominique agreed to Expedia's terms, including a provision requiring him to individually arbitrate any claims stemming from his purchase.

Moreover, BA argued the customers couldn't seek punitive damages if their case did manage to survive, because New York law generally doesn't allow such damages in contract breach cases.

BA also argued the customers couldn't ask for injunctive relief because they hadn't shown how they might be injured going forward.

"The plaintiffs have not alleged that they will purchase a BA flight in the future, nor that such flight will be cancelled by BA because of Covid-19, or that they will be denied a refund if properly requested," the airline said.

Ide initially filed the suit in May, seeking to represent anyone who had a flight canceled this year by BA and didn't get a proper refund. Steele-Clarke, Tenn and Dominique joined the suit as named plaintiffs in an amended complaint filed last month, which seeks to represent the same class.

The customers are asking the court to award them damages, costs and attorney fees, in addition to ordering BA to stop its allegedly unlawful practice of failing to properly refund tickets for canceled flights.

Neither side responded on Monday to requests for comment.

A slew of airlines have been hit with suits over refunds, including American Airlines, Allegiant Air, Hawaiian Airlines, JetBlue Airways, Southwest Airlines and Spirit Airlines.

Most of the suits were filed shortly after the U.S. Department of Transportation issued an enforcement notice on April 3 warning airlines that they are still required to refund passengers for flights that are canceled or significantly delayed, even as government travel advisories and stay-at-home mandates aimed at combating the COVID-19 outbreak obliterate airlines' passenger volumes and revenues.

BA argued in its Friday filing that the DOT notice is "merely guidance" that doesn't create grounds for a lawsuit, especially since it was issued after the named plaintiffs bought their tickets.

The customers are represented by Adam E. Polk, Scott Grzenczyk and Tom Watts of Girard Sharp LLP, and John G. Albanese, Shanon J. Carson and E. Michelle Drake of Berger Montague PC.

British Airways is represented by Keara M. Gordon, Colleen Carey Gulliver and William J. Diggs of DLA Piper.

The case is Stephen Ide v. British Airways PLC, case number 1:20-cv-03542, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Linda Chiem. Editing by Kelly Duncan.

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