British Airways has just sent out an email to their U.S. and Canada based customers informing them that effective today they are subject to an arbitration agreement and class action waiver.
According to BA’s email to customers will be asked to accept these changes the next time they book with the carrier on their main website (ba.com).
It’s not really clear what suddenly prompted British Airways to impose this policy on their customers and all there is as reference is currently their email.
Pushing customers into arbitration is not uncommon for all sorts of companies in North America including financial institutions but now British Airways of all?
The point of this is clear, BA has recently been hit with several class action law suits in Europe related to their various data and credit card breaches. They are apparently gearing up to avoid something similar in the future although this would never fly in Europe where you can’t just write something in your T&C that is contradictory to fair practice and other relevant laws.
Here is the entire section from the new British Airways Terms&Conditions:
34. Dispute Resolution and Arbitration Agreement for Residents of the United States and Canada
34.1 United States Residents
34.1.1 The resolution of any Dispute by a resident of the United States is agreed by you and British Airways to be subject to the following conditions:
34.1.2 All Disputes arising from or relating to these Terms and Conditions shall be resolved in binding arbitration (“U.S. Arbitration Agreement”) in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq., which shall govern the interpretation and enforcement of this U.S. Arbitration Agreement.
You and British Airways agree that any and all disputes, whether presently in existence or based on acts or omissions in the past or in the future, will be resolved exclusively and finally by binding arbitration rather than in court by a judge or jury.34.1.3 Limitations Period: The party seeking relief shall serve a demand for arbitration on the other party within a reasonable time after the Dispute has arisen, and in no event shall demand be made after two years from when the aggrieved party knew or should have known of the Dispute.
34.1.4 British Airways and you agree that the arbitrator of any Dispute may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, representative action, consolidated action or private attorney general action).
34.1.5 If the Class Action Waiver or any portion thereof is found to be illegal or unenforceable, then the U.S. Arbitration Agreement set forth herein will be unenforceable, and the Dispute will be decided by a court.
34.1.6 The arbitration proceedings shall be before a neutral arbitrator in a location within the continental United States that is convenient to you. If you and British Airways are not able to agree upon the selection of an arbitrator within thirty days after the commencement of an arbitration proceeding by service of a demand for arbitration, the arbitrator shall be selected by the American Arbitration Association (“AAA”). The arbitration shall be administered pursuant to the AAA’s Commercial Arbitration Rules and Mediation Procedures and Supplementary Procedures for Consumer-Related Disputes. If required for the enforceability of this U.S. Arbitration Agreement under the Federal Arbitration Act, British Airways will pay all arbitrator’s costs and expenses. If not, those costs will be paid as specified in the above-referenced rules.
34.2 Canadian Residents
34.2.1 Canadian residents consent to have any Dispute arising from these Terms and Conditions resolved pursuant to the following procedure:
34.2.2 Notice and Negotiation. You will give British Airways notice of any Dispute arising from these Terms and Conditions. Following such notification the parties shall meet at a mutually acceptable time and place within 30 days after delivery of such notice and thereafter as often as they reasonably deem necessary to exchange relevant information and to attempt to resolve the Dispute. If the parties have not resolved the Dispute within 90 days of the disputing party’s notice, the parties may initiate mediation as set out below.
34.2.3 Mediation. If the Dispute has not been resolved by negotiation as provided above within 90 days of notice being given, any such Dispute will be referred to and determined by private confidential mediation before a single mediator chosen by the parties and at their joint cost. For avoidance of doubt, you expressly understand and agree that you may only mediate matters in your individual capacity and cannot mediate the claims of any other person or on behalf of a class of persons.
34.2.4 Arbitration. Should the parties after mediation in good faith fail to reach a settlement of any dispute the issue(s) between them shall be determined by private, confidential and binding arbitration by the same person originally chosen as the mediator. For avoidance of doubt, you expressly understand and agree that you may only arbitrate matters in your individual capacity and cannot arbitrate the claims of any other person or on behalf of a class of persons.
34.2.5 Legal Proceedings. In the event that the applicable jurisdiction prohibits binding arbitration in respect of the claimant or the circumstances related to the claim, and the parties after mediation in good faith fail to reach a settlement of any Dispute, either party may refer any remaining Dispute to adjudication through a court of competent jurisdiction.
I guess the last paragraphs show that BA isn’t all that confident that this new adjustment will really have any effect at all if push comes to shove.
This is about British Airways Executive Club and not ticket purchases of the use of their website so I don’t see why “accepting these changes the next time booking on ba.com” would be applicable for these changes to kick in as specified in their email as shown above.
Is British Airways expecting something serious to happen to their Executive Club that could prompt members to sue them for?
Conclusion
Big companies get sued in class action lawsuits for data leaks, hackings and other negligent behavior all the time including in the U.S. and Canada. I’m not 100% convinced that this little line will ultimately protect BA to land themselves in a courtroom after another snafu on their end.
Companies such as CapitalOne and American Express had to face class action lawsuits not too long ago and it’s not the first time. Both have various arbitration mechanisms and waivers in their cardholder agreements as well but that still didn’t prevent lawsuits from going forward.
