Dover v. British Airways, PLC (UK)

321 F.R.D. 49, 2017 WL 1251083
CourtDistrict Court, E.D. New York
DecidedMarch 31, 2017
Docket12 CV 5567 (RJD) (CLP)
StatusPublished
Cited by7 cases

This text of 321 F.R.D. 49 (Dover v. British Airways, PLC (UK)) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dover v. British Airways, PLC (UK), 321 F.R.D. 49, 2017 WL 1251083 (E.D.N.Y. 2017).

Opinion

MEMORANDUM & ORDER

DEARIE, District Judge

In this putative class action, Plaintiffs, four members of the Executive Club, British Airways’ frequent flyer program, allege that the airline breached its frequent flyer contract (“the Contract”) by imposing impermissible fuel surcharges on frequent flyer reward flights. Plaintiffs now move for class certification. See ECF No. 207 (“Mot.”); ECF No. 208 (“Opp’n”). As explained below, with a minor modification of Plaintiffs’ proposed class definition, the motion is granted.

BACKGROUND

Under the Contract, Executive Club members accumulate points called “Avios” in exchange for flying with British Airways, staying in certain hotels, or renting cars. These frequent flyer points may be redeemed for reward flights on British Airways.

The Contract provides that when a frequent flyer redeems his or her points for a reward flight, British Airways may impose certain additional charges, fees, and taxes. Among these are the fuel surcharges at issue in this lawsuit. The Contract states in relevant part:

Members will be liable for all taxes and other charges associated with Reward travel on British Airways or a Service Partner airline, including without limitation, airport departure tax, custom fines, immigration fees, airport charges, customer user fees, fuel surcharges, agricultural inspection fees, security and insurance surcharge or other incidental fees or taxes charged by any person or relevant authority or body ....

See ECF No. 209-8 (“Contract”), at § 13.14 (emphasis added).

The parties agree that the Contract permits British Airways to impose a fuel surcharge. The Contract does not, however, define the term “fuel surcharges.” Although not necessarily binding on future rulings, the Court held in ruling on British Airways’ motion to dismiss that “the plain meaning of the term ‘fuel surcharge’ is a supplemental charge that is reasonably related to or based upon the cost or price of fuel” and that “the typical consumer would consider a fuel surcharge to be an added charge imposed by an airline in order to defray rising fuel costs.” ECF No. 52 (“MTD Order”), at 9.

Plaintiffs’ theory is that the Contract required that the fuel surcharges British Airways imposed, referred to internally as “YQ charges,” genuinely compensate for fluctuations in the fuel market. Plaintiffs argue, however, that in setting the YQ charge throughout the class period, British Airways relied on a factor not substantively or temporally relevant to the actual cost or price of fuel: British Always’ cost of fuel in 2003-2004. According to Plaintiffs, British Airways [53]*53used the YQ charge as a way to recover the difference between its present fuel costs and its fuel costs in 2003-2004. In Plaintiffs’ view, setting the amount of the YQ charge based on the cost of fuel in an arbitrary year is irrelevant and contractually impermissible, and as a result of this inappropriate baseline, British Airways’ breached the Contract.

Since 2004, when the YQ charge was introduced, it has taken several different forms. Prior to the class period, British Airways imposed uniform YQ charges on all flights. Subsequently, however, British Airways began imposing different rates for short and long distance flights. After the class period began, in 2007, British Airways began setting different YQ charges for long distance flights of fewer than 9 hours and long distance flights of greater than 9 hours. In 2008, British Airways began charging different rates depending on the class of service and the point of sale (e.g. the YQ charge could be substantially higher for a customer in New York buying a round trip ticket from New York to London than for a customer who purchased the same ticket in London).

Plaintiffs now move to certify the following class:

All members of the British Airways Executive Club who redeemed frequent flier miles for an award ticket from November 9, 2006 through April 17, 2013 and who paid a BA-imposed “fuel surcharge,” so long as that member provided British Airways with a valid United States address at the time of booking. This class excludes: (1) members who redeemed frequent flier miles exclusively using what British Airways termed its “Cash + Avios” option; (2) any judge to whom this case is assigned, along with his or her staff; (3) British Airways officers, directors, employees, as well as outside counsel in this litigation, and; (4) immediate family of any individual excluded by 2 or 3.

Based on records kept in a British Airways database, Plaintiffs estimate that the class includes 168,269 people. The class is represented by four named plaintiffs: Russell Dover, Suzette Perry, Cody Rank, and Henry Horsey. Each of the named plaintiffs is a member of British Airways’ frequent flyer program who paid YQ charges when he or she redeemed points for reward flights during the class period.

LEGAL STANDARD

“A district court may only certify a class if it is satisfied, after a rigorous analysis, that the requirements of Rule 23 are met.” In re Am. Int’l Grp., Inc. Secs. Litig., 689 F.3d 229, 238 (2d Cir. 2012) (quotation marks and citation omitted). In order to certify a class, plaintiffs must demonstrate that the proposed class meets the requirements of Federal Rule of Civil Procedure 23(a): (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. In addition, plaintiffs must show that the proposed class satisfies the requirements of at least one of the subsections of Fed. R. Civ. P. 23(b). Plaintiffs seek certification under Rule 23(b)(3), which provides that a class action may be brought where the Court finds that “questions of law or fact common to class members predominate over any questions affecting only individual members” and (2) “that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. R. Civ. P. 23(b)(3). In addition to these requirements, the Second Circuit “recognize[s] an implied requirement of ascertainability in Rule 23.” Brecher v. Republic of Argentina, 806 F.3d 22, 24 (2d Cir. 2015) (internal quotation marks and citations omitted). That is, it must be “feasible for the court to determine whether a particular individual is a member [of the class].” Id.

The Court “must resolve material factual disputes relevant to each Rule 23 requirement,” and must find that each requirement is “established by at least a preponderance of the evidence.” In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108, 117 (2d Cir. 2013).

DISCUSSION

A. Rule 23(a)

1. Numerosity

Rule 23(a)(1) requires that the proposed class be “so numerous that joinder of [54]*54all members is impracticable.” Fed. R. Civ. P. 23(a)(1).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Nelipa v. TD Bank, N.A.
E.D. New York, 2024
Mirkin v. XOOM Energy, LLC
E.D. New York, 2023
Dover v. British Airways, PLC
323 F. Supp. 3d 338 (E.D. New York, 2018)
In re Rail Freight Fuel Surcharge Antitrust Litig.
292 F. Supp. 3d 14 (D.C. Circuit, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
321 F.R.D. 49, 2017 WL 1251083, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dover-v-british-airways-plc-uk-nyed-2017.