By: Aissatou Toure; Junior Staffer

On April 9, 2017, on a warm Sunday afternoon in the Chicago O’Hare airport, a United Airlines flight was bound for Louisville, Kentucky. The airline overbooked the flight when it added four deadheading crew members to the flight.  The deadheading crew is a flight crew that is transported by an airline from one location to work in another once they land. Without these crew members, Airlines run a risk of having to cancel the flight due to lack of crew which ultimately costs the airline hundreds of thousands of dollars.  The deadheading crew members, in this instance, were required to work for another flight once they got into Louisville. The gate agents for the flight utilized a system that many other airlines used at the time and began involuntarily denying boarding to specific passengers based on who checked in for the flight last. Dr. David Dao was one of the passengers denied boarding and asked to leave the aircraft. He refused to leave and security forcibly dragged him off the aircraft, causing him multiple injuries. This incident led other airlines to reevaluate their denied boarding standards. Dr. Dao’s experience was documented on social media and many began to discuss Dr. Dao’s possible recourse. All eyes focused on United Airlines and whether Dr. Dao could sue.

Each airline has a contract of carriage agreement that a passenger agrees to once they purchase a ticket. For example, American Airlines’ contract of carriage details that it is up to the discretion of American Airlines to deny boarding to any individual for any reason. Many of the agreements between passengers and airlines are contracts of adhesion, meaning a passenger can either agree to an airline’s terms and conditions or they can choose another way to travel. According to a New York Times article, more airline carriers require that passengers settle their disputes through private arbitration and hinder them from joining class action lawsuits via clauses in the terms and conditions.

Private arbitrations tend to be confidential and lack any publicly accessible information that would allow for outside observation.  Without the presence of social media, videos, and news articles, the public may never hear about incidents like the one involving Dr. Dao. This, in large part, perpetuates the lack of information most individuals have about their rights and privileges when purchasing a ticket from an airline and delays reform of the airline industry at the expense of consumers. Many courts, however, have begun limiting airlines from forcing specific jurisdictions on individuals through methods like private arbitration clauses. A U.S. district court enforced this limitation in Rudolph v. United Airlines Holding. In Rudolph, the court points to 14 C.F.R. § 253.10, which states:

No carrier may impose any contract of carriage provision containing a choice-of-forum clause that attempts to preclude a passenger, or a person who purchases a ticket for air transportation on behalf of a passenger, from bringing a claim against a carrier in any court of competent jurisdiction, including a court within the jurisdiction of that passenger’s residence in the United States (provided that the carrier does business within that jurisdiction).

This, in large part, perpetuates the lack of information most individuals have about their rights and privileges when purchasing a ticket from an airline and delays reform of the airline industry at the expense of consumers.

Aissatou Toure

The restriction has led to airlines employing tactics that circumvent this limitation. Instead of placing an arbitration clause in the contract of carriage or the terms and conditions between the airline and the customer, some airlines have instead resorted to enforcing the preexisting arbitration requirements of third parties when a dispute arises between a passenger and the airline. This distances the airline from certain responsibilities because it is instead the third party that enters into agreements with the passenger rather than the airline itself, and those third parties are not prevented by statute from enforcing a private arbitration agreement. The airlines’ agreement is only with the third party.

United Airlines uses this argument in Rudolph. United Airlines claims that while it may be bound in its agreement with individual passengers in its contract of carriage which is regulated by federal statute, this same restriction does not apply to third-party sites like Expedia, which the plaintiff in the proceeding utilized. The court held that United Airlines cannot use third-party agreements to circumvent the restriction imposed on it by 14 C.F.R. § 253.10. This is opposed to a prior decision in Ward v. American Airlines, Inc. which had nearly identical facts, but the court enforced the arbitration. The court in Ward never cited 14 C.F.R. § 253.10 in making its decision.

How do the events on a United Airlines flight on April 9, 2017, which sparked national outrage, connect to a district court’s holding against United Airlines’ attempt to force a private arbitration with an individual? It all lies in the growth of public awareness. Incidents like the treatment of Dr. Dao can spread rapidly via social media, in contrast to the confidential nature of private arbitration. Further, through the proliferation of social media sites like Instagram and TikTok, more individuals are becoming aware of their rights. A prominent example is a TikTok creator named Erika Kullberg, whose catchphrase is: “I read the fine print, so you don’t have to.” Kullberg is a lawyer who provides travel tips to her TikTok followers, often regarding the “fine print” of customer rights.

With information traveling at a much faster rate than ever before and social media personalities such as Kullberg minimizing large and dense terms and conditions to miniature bite-sized pieces that are easily digested, more and more individuals can raise claims and utilize a better understanding of statutes such as 14 C.F.R. § 253.10 to bring cases against large corporations like United Airlines and win. Based on this trajectory, many more aspects of aviation regulation will come under scrutiny which can lead to lasting changes in passenger and airline industry agreements, even if airlines continue to insist on private arbitration to resolve disputes with their customers.