Consumer Fraud, Justice and JetBlue Airlines

I recently had the fortune to get away from the office for a few days and take my wife and kids to Florida. We missed a huge storm up here and had beautiful weather down there.

But our story starts some time before our trip... We first attempted to book our airline tickets on JetBlue. Everyone knows they have the bigger seats, video monitors and the like. And when traveling with three kids, we need all the help we can get. They also were advertising a very low fare.

My wife and I logged on to their website and booked tickets for the five of us. We went through the entire process: picking the outbound flight, seats, food choice, etc; picking the inbound flight, seats, food choice, etc. We then got to the point where you agree to all their terms and click "book it". So we agreed and clicked. We were then provided with a message that bascially said, "the fare we had chosen was no longer available. Perhaps someone else booked the fare before we did. Our credit card would not be charged."

Frustrated, we ran a new search on the JetBlue site and found that the available fares had in fact increased. I never really understood the pricing with airlines - the price should be "the" price. You don't call Amtrak for a fare quote and find that if you don't book it quick enough the price increases! Can you imagine if an electronics store raised the price on a particular TV as it sold out? People wouldn't go there anymore. Anyway, I am digressing...

We found a similar fare on Continental (actually $3 whole dollars less, but later discovered that they have a bag checking fee of $25 per bag) and given our budget constraints, price won over comfort and gadgets.

Two weeks after booking, my wife was balancing our checkbooks. She discovered that JetBlue had, contrary to what we were told from their website, in fact charged us for the five tickets. We had not received any confirmation or receipt and had no confirmation number.

We called JetBlue. After holding for 30-45 minutes, the answering representative informed us that she could not find any reservation in our name in their systems. I told her that we had been charged and would like a refund (which we needed for spending money for our trip). She did some more searches in their system and finally found a reservation in our name. Apparently, and according to her, JetBlue had been changing over their computer systems and the changeover may have caused an error in their system giving us a "not available" message, but charging us anyway because (perhaps) the person who "grabbed" our fare might have changed his or her mind. I told her I understood, but their "not available" message caused me to book other tickets on another airline. Kindly arrange for a refund, I told her.

I was soon to discover that there is nothing "kind" about seeking a refund from an airline. Getting a credit is fairly easy - but then they have my money and I have to plan another trip to benefit from the credit. And I am not interested in depositing money with JetBlue (albeit at "no interest") in anticipation of my next trip which may or may not happen within the next 12 months.

The customer service representative (ironic name) told me she was not authorized to issue a refund (I guess she needs a promotion to have this authority). I would have to speak with a supervisor. She asked me to hold and transferred me where I proceeded to wait another 45 minutes to an hour. When I finally reached the next "level", this higher up (who apparently was some kind of supervisor - not so sure what she supervisors, but anyway...) who at first couldn't find our mysterious reservation either. She finally found it, but then also informed me that she was only authorized to issue a credit (seems I was transferred to a colleague, not a supervisor). The day was moving on and I also needed to bill some clients for some work in order to make up for the time I was losing trying to reconcile their "system glitch".

The next day I got back on the phone and basically got the same run around as the day before. Finally, and very frustrated, I contacted my bank to contest the charge from my account (I had used our debit Mastercard for payment). The bank had me fill out a formal inquiry form, credited the withdrawal back to our account and began their investigation. About a week later, the bank contacted me and informed me that JetBlue wouldn't refund my money without proof of what we said was posted on their website - the fare was nonrefundable and only a credit would be provided. The bank took the money back out of our account.

I got back on the phone. Waited and got through. Explained the story and was transferred. Waited, waited, and waited. Finally, I got a supervisor on the phone but this guy could only credit me back the fare less $100 per ticket (apparently there are different "types" of supervisors at JetBlue and they all have different "powers" to do certain things). Well $100 per ticket was more than half the total fare so I said "no." He said he understood, but he was not authorized (what a shock) to refund all of our money. I could wait for a higher level supervisor (not sure where this beanstalk ends), but the wait time was at least 45 minutes. I had already gone through more than 2 hours of my time and had to pick my son up from religious school. So I said I couldn't hold any longer, but could I have a direct number to call back on so I wouldn't have to be on hold so long. He informed me that they did not have any direct numbers (another shock) and that my only option was to call back on their toll-free number and start the hold process all over again. Which I did the next day.

I held for about 20 minutes and reached a CSR. I explained the story and asked for a supervisor (the right supervisor). The message on hold said I had 60 minutes to wait. About 55 minutes in, the message suddenly changed and my wait time jumped back up to 60 minutes.

I was frustrated and spent. I had wasted more than $1,500 of my own billing time and was at the end of my rope. I shared my frustration with my partner, the litigator in our firm and we decided to file suit. We'd sue for consumer fraud, unjust enrichment, and breach of contract. The consumer fraud claim carried treble damages, attorney's fees and court costs.

My partner drafted the complaint and we faxed to JetBlue's corporate headquarters in Brooklyn. Now the wheels of justice were in motion. A few days later, a paralegal from JetBlue (apparently this was not a large enough matter to concern their attorneys) called me and my partner and said they would refund my money. She admitted that it had been a computer glitch and she apologized. She said it was only a mistake and begged me to take the refund. Now let's take a moment to think about what I had gone through to get to this point. Hours of waiting, a declined inquiry through my bank and an offer to refund about half of the fare. It had taken the preparation and filing of a civil complaint (actually, we hadn't filed the complaint at this point so we hadn't gone out of pocket for the $22 filing fee). But my partner did prepare the complaint which would have cost any client of ours $1,800 to $2,000.

So, I said "no". They had to do better than that. Pay me some extra money (on top of the refund) and pay my partner $1500 for legal fees. The paralegal (after more begging) told us she was only a paralegal who settles small claims matters and she was not authorized (another shock) to settle for more than a refund. I told her you'd better get an attorney on the phone.

Too make a long story shorter, we never connected with the attorney and had to file the complaint. It was served on JetBlue and we got a court date - today. I am sure you are not surprised to hear that.

Now consumer fraud carries with it (normally) treble damages, attorneys fees and court costs. But going to court "is like a box of chocolates. You never know what you're gonna get." We basically got a grumpy older judge who pretty much admonished me and my partner for spending so much time on this matter and told us basically if we wouldn't accept a refund and settle this he'd make us wait all day in court and wouldn't hear our case until 4:30. (And I thought attorneys get more understanding, not less, from the courts). It was about 9:30 at that time. The attorneys for JetBlue were from a large firm in NYC and were apparently sent there on their very first case - how exciting. The judge also said to my partner, "c'mon - they're just children" (referring to our esteemed adversaries). Like I said, you never know what you're gonna get. So, reluctantly, we agreed to take a refund. The good thing is they handed us a check right then and there. My partner and I have wondered if they had a whole series of checks in their briefcase, depending on how things went. But we'll never know.

We also learned something from this newbie attorney (who my partner complimented on doing a great job and wished him well). The newbie submitted a brief claiming that federal aviation legislation pre-empts state consumer fraud statutes. And he found a supreme court case where, in a 5-3-1 vote, the Supremes found in favor of American Airlines that the federal legislation does, in fact, supercede the state statutes (actually my partner read the case law, but I got the basic gist). The court was divided on the issue, but for now, it appears that you cannot win on a consumer fraud claim against a common carrier airline. This was, therefore, just a breach of contract case and a refund is pretty much what we are entitled to (We could have gotten reimbursed for the additional Continental baggage fees, but I forgot about that at the time - oh, well.) In a funny twist, however, the law firm emailed over the stipulation of dismissal as well as a release between the parties. The release included a non-disclosure agreement which we are unwilling to agree to (plus he had already given us the check). Maybe we'll end up getting something for our troubles afterall (free tickets?) if they want a non-disclosure that bad. But I hope that doesn't make it too hard for the young attorney - he seemed like a nice guy and my partner said he graduated from my law school. Looks like a learning experience for all of us.

The thing that upsets me the most is that the average joe would not take things to the level that I did. I know the system and have a partner who was willing to help. Most people would have to spend more than they were trying to get in a refund and would just have to settle for a credit. So the airlines gets the use of the money and you have to incur the expense of a trip to "use" the credit.

Hopefully we all learned something from this. 1) Consumer fraud, although a great statute for consumers, does not apply to the airlines; 2) next time, we'll just fax over the complaint and settle for the refund (no filing necessary); 3) if your a lay person, go down to small claims court, get the forms, fill them out and fax them to the airlines (no filing necessary either) and you'll get a refund; 4) hopefully JetBlue will learn that they should give their CSRs some way to "elevate" problem situations that need a supervisors attention (but I doubt it).