Bad news for frequent fliers: the Supreme Court has ruled 9-0 that airlines have the right to kick you out of their frequent flier program if you complain “too much.” And how much is too much? Apparently, whatever the airline says it is.
Last September, we reported that the Supreme Court had agreed to hear the case of Rabbi S. Binyomin Ginsberg vs. Northwest.
The Minnesota rabbi was a frequent flyer on Northwest airlines until 2008, when Northwest (which later merged with Delta) stripped him of his Platinum flyer status, allegedly for complaining too much.
Ginsberg admitted he did complain about things like lost luggage, but told the Minneapolis City Pagesthat “This happened at the time that Northwest and Delta were merging …. The suspicion was that they had too many frequent fliers at the higher status in their roll, and they were showing too much of a liability on a balance sheet for the accumulated miles by those passengers. So they had to creatively find ways of getting rid of people."
(In other news, last February Delta announced changes in how it would award frequent flyer miles in its SkyMiles; the majority of Delta customers complained that the new changes left them considerably worse off thn before).
Good faith, fair dealing
Lawyers for Public Citizen argued Ginsberg's case. The basic question before the court was whether the Airline Deregulation Act, which prohibits regulating airline prices or services, pre-empted Ginsberg’s contract claim based on the covenant of good faith and fair dealing.
Ginsberg and Public Citizen argued no, but on Wednesday the Supreme Court unanimously decided otherwise.
Justice Samuel Alito wrote that travelers still have protection from being mistreated by airlines, because "They can avoid an airline with a poor reputation and possibly enroll in a more favorable rival program …. Moreover, the Department of Transportation has the authority to investigate complaints about frequent flyer programs." Basically, you-the-consumer can still sue an airline for breach of contract, but not for breaking or violating a covenant.
Adina Rosenbaum, the Public Citizen attorney who represented Ginsberg, insisted that despite the retained ability to sue for breach of contract, the Supreme Court ruling “gives airlines greater freedom to act in bad faith in performing their contracts with consumers, to the detriment of the millions of consumers.”