Supreme Court seems unlikely to uphold frequent-flier’s suit

WASHINGTON — Rabbi S. Binyomin Ginsberg of Minneapolis admits being both a frequent flier and a frequent complainer. He flew on Northwest Airlines about 75 times a year, domestically and internationally, earning enough miles to qualify for “Platinum Elite” status.

But he also complained a lot — about two dozen times in seven months, the airline says — demanding compensation for delays, lost bags and losing seats on overbooked flights that Northwest said the rabbi had reserved “with the purpose of being bumped.”

After Northwest terminated Ginsberg’s platinum status for “abusing” its frequent-flier program, the rabbi sued. “I had hundreds of thousands of miles, and I wanted them back,” he said, standing on the steps of the Supreme Court on Tuesday, where his case was heard.

But based on justices’ questions and comments, the court appeared reluctant to grant U.S. travelers any expanded rights to sue airlines, pointing to a 1978 deregulation law that airlines use to shield themselves against lawsuits from customers over routes, rates and services.

The “whole point” of the deregulation act was to protect airlines from state lawsuits, said Chief Justice John G. Roberts Jr. “We’re dealing with airlines that go to a lot of different states,” he said.


Ginsberg’s attorney contended that Northwest, which merged with Delta Airlines in 2010, broke its contractual promise with the rabbi. But justices noted that the fine print of the frequent-flier program said a decision to cancel a member’s account was left to the airline’s “sole judgment.”

At the heart of Northwest Inc. vs. Ginsberg is how to balance consumer protections for travelers with the Airline Deregulation Act, which Congress passed to insulate airlines from burdensome state lawsuits in an effort to increase competition and lower fares. That law has often frustrated airline customers, who find few legal options to challenge carriers in court over lost luggage or canceled flights.

The Supreme Court relied on that law to throw out a 1995 claim against American Airlines for making it harder for frequent fliers to earn free tickets. Frequent-flier awards are “related to” tickets prices, the justices ruled. But their opinion left the door slightly open for future claims from fliers if they could show that the airline had broken a promise in its contracts.

Ginsberg had sued in California, and a San Diego federal judge dismissed his claim prior to a trial, citing the deregulation act. But last year, the U.S. 9th Circuit Court of Appeals revived it and said the rabbi could sue the airline for violating the general duty to act in “good faith” and engage in “fair dealing.”

An attorney for the consumer watchdog group Public Citizen, which agreed to represent the rabbi, argued that Ginsberg was a loyal flier and that the airline should be required to honor the deal it made with him. Courts should be able to “give effect to the bargain that the parties entered into based on their reasonable expectations,” said Adina Rosenbaum, a Washington lawyer.

Tuesday’s argument offered only a few glimmers of hope for Ginsberg.

Justice Elena Kagan said she understood the frequent-flier program as offering a deal. “I always thought the way these agreements worked … was that if I flew a certain number of miles on your plan, I was going to get a free ticket,” she said. “It wasn’t a gift.... It was because I did something. I flew a certain number of miles. So there was an exchange with value on both sides.”

“Well, I suppose you could conceive of it that way,” said former U.S. Solicitor Gen. Paul D. Clement, representing Northwest. But he argued that the frequent-flier program was “basically a premium that’s offered by the company to reward your loyalty.”

Clement argued that the court should close the door to lawsuits like Ginsberg’s because they would allow judges and juries to decide whether the airlines acted fairly. “You can’t run a national — let alone international — airline if every one of your judgments about taking an unruly passenger off or taking out an abusive customer is going to be second-guessed by a jury applying reasonable standards of ordinary decency and morality.”

What about travelers who feel cheated? Clement said they could file a complaint with the U.S. Department of Transportation. He also said the free market would work to keep the airlines in check. “Airlines do not have an interest in getting rid of their most lucrative and loyal customers,” he said.

A decision is not expected for several months.