Friday, November 18, 2011
Offer, acceptance and consideration? Black label letter contract law? The plaintiffs think so. The story from ABA Journal:
Although the airline revised its policy in August of last year, notifying customers that such coupons would be honored only on the day of the flight after August 2011, a Chicago lawyer is challenging that change.
The complaint, which seeks class action status, contends that the carrier breached a contract with passengers by changing its policy and refusing to honor the coupons, which have no expiration date. Alcoholic beverages purchased on board otherwise would cost about $5 each.
Levitt, who practices at Wolf Haldenstein Adler Freeman & Herz, is the plaintiff in the case. He is represented by Joseph J. Siprut of the Siprut law firm, who tells the ABA Journal that the situation is akin to a retailer refusing to honor a customer's gift card.
Describing Levitt as a "customer who got burned," Siprut said his client and many others aren't getting the benefit of their bargain. When they purchased their Business Select tickets, they expected to get a free drink, too. But now Southwest has changed the terms of their deal, after the fact.
"This is where a class action lawsuit really is the appropriate mechanism to deal with this issue," Siprut said. Given the $5 value of the free drink, "it only makes sense to do this as a class action on an aggregate basis."
Attorney Tommy Wells of Alabama, a former president of the ABA, says he himself has quite a collection of worthless Southwest drink tickets, too. He plans to use some of them as exhibits when he defends the airline in the case.
The Levitt suit, he tells the ABA Journal, is the second of two would-be federal class actions filed by lawyers against Southwest over the airline's cancellation of its free-drink coupons. The plaintiff has since been substituted in the Birmingham, Ala., federal suit, however, eliminating Wells' plan to ask the original attorney plaintiff, with whom he is friendly, in a deposition why he needs a drink on a one-hour Southwest flight to New Orleans.
The earlier suit, Wells explained, focused more on another type of free-drink ticket earlier offered by Southwest, which essentially was a bonus gift sent out in a coupon book when a customer used Rapid Reward frequent-flyer miles to purchase a ticket.
It is black-letter contract law, Wells said, that such offers can be rescinded prior to acceptance, which would be manifested, in the case of the bonus drink coupons, by actually presenting them for a drink on a Southwest flight.
Similarly, although the free-drink coupons associated with the Business Select tickets purchased by Levitt and others contained no expiration date, they were intended to be used on the ticketed flight, Wells said. However, the ability of customers to print out or duplicate multiple free-drink tickets while booking a flight thwarted that expectation.
Given a choice between keeping flights affordable for all customers on the highly competitive routes that it flies and continuing to offer free drinks to some customers, Southwest opted to eliminate the booze benefit, Wells explained.
In a statement emaiiled to the ABA Journal, the carrier said that "Southwest Airlines works to reward our loyal customers by offering perks for their business. The perks that accompany our Business Select product include a complimentary drink for day of travel, in addition to premiere boarding and extra Rapid Reward points.
"When the Business Select program initially launched, drink coupons associated with the purchase of a Business Select fare did not specify an expiration date," the statement continues. "But we found that some customers were photocopying drink coupons to obtain multiple drinks from a single coupon. We made the decision to post an expiration date on the coupon to prevent the unauthorized copying of the coupons. We cannot directly comment on pending litigation, but we value our customers and we will continue to look for ways to offer rewards for their business."
Wells said the airline is still mulling its options concerning whether to try to consolidate the two would-be class actions in Birmingham and Chicago or attempt to get one of the two cases dismissed.
Not a happy hour for plaintiffs or Southwest. Cheers!
[Meredith R. Miller]