United Breaks Passengers’ Sanity
The background of the United incident, from an aviation law and policy perspective.
As someone who grew up around airline employees (a grandfather and two uncles, none of whom were ever with United or its predecessors, for what it’s worth) I figured it would be helpful to add some background information to Steven Taylor’s post earlier today regarding the incident that took place over the weekend on a United Express flight from Chicago-O’Hare (ORD) to Louisville (SDF).
- Overbooking happens. It’s why you can buy a cheap advance fare, because airlines know a lot of people miss their flights for a variety of reasons and they want to fill the seats. They also have absurdly sophisticated computer systems that figure out exactly how much to overbook each flight.
- 99.9% of the time, when a flight is space negative (i.e. literally there are fewer seats than butts to put in them), the airline is able to get people to volunteer to take a flight either later the same day or on a subsequent day, in exchange for compensation. That’s called “VDB” (voluntary denied boarding) compensation. Usually this compensation is a travel voucher of several hundred dollars; if there’s no other flight that day, they will also give you meal vouchers and a comped hotel room. You will also get booked on a flight to your ultimate destination. If you really sweet talk them they might even put you in first class.
- If the flight is still space negative, then they keep raising the offer until they reach whatever corporate limit has been set for the particular circumstance in question. $800 for a one-hour flight is about the maximum a gate agent is going to be allowed to offer (and probably above the IDB amount!). At that point the gate agent should probably seek authorization to go higher if there are no takers.
- Then we get to involuntary denied boarding (IDB). Generally this is done in reverse order by status, then fare class, then check-in time. So if you’re on the Spirit-competitive fare with no pre-assigned seats, you aren’t an elite member, and you checked in 15 minutes before the flight, you’re screwee #1. This continues to the point where seats = butts. IDB is based on arcane formulas set by the DOT based on the walk-up fare with a cap and adjustments based on how long the person is delayed. Unlike VDB, IDB entitles you to Cash Money (technically a check) instead of a voucher; you also get a flight to your destination or a refund. Airlines and gate agents hate doing IDB because it’s paperwork, it costs the airline more than VDB on its balance sheet (even if the value involved is less), and it has to be reported to the Department of Transportation.
- Ok, so why would you bump paying people from a flight to transport airline employees? Well, most of the time they’re flying on standby, which means if there are more butts than seats, they’re the first people kicked off. However, for operational reasons, airlines need people in places to fly planes and serve as flight crew (they’re called “space positive.”). Normally people cycle through to where they need to be as part of their regular flight rotations, but if someone gets sick, there’s a long delay, or (as happened in Chicago this week) weather intervenes, people end up in the wrong places to work their flights and they need to be moved or replaced.
- Why not dump them in a rental car or a Greyhound instead of displacing paying passengers? Normally, the airline actually would. But then we get to “hours of service” regulations from our friends at the Department of Transportation. The time the crew is in transit counts as service time until they get to their hotel. Once there, they need a specified amount of crew rest before they can legally work again, and sleeping in the car or in transit under uncontrolled conditions doesn’t count. This is for your safety. More than likely, the crew that United was sending to Louisville would not have been “legal” (that’s the term they use) to fly the flight the next day if they had arrived 4 hours later than planned. That would have impacted all of the passengers on the flight Monday morning from Louisville to the hub they were scheduled to fly, not just four people on ORD-SDF on Sunday evening.
- Why not fly another plane to Louisville? Ok, now you have to drag out another crew to fly four people to Louisville, and find a plane for them. And do it before they and the crew you’re transporting time out. Good luck with that, armchair airline operations planner.
- Why not have another crew in Louisville and every other city that United flies to on standby for this? Sure, they could. And if they were running United off oil money from the Emir of Qatar instead of trying to be (and sometimes even succeeding at being) a profitable business, maybe they could afford that. But we’re not talking about folks making $7.25 hour as standby cashiers at Target who can stock shelves when they’re not needed to work the registers. You’d be paying a lot of high-priced pilots and copilots and (somewhat less high-priced) flight attendants to literally do nothing. And while airlines do have people on standby at their hubs and crew bases, they don’t have them at every outstation in the system for the very simple reason that they can’t afford them. They couldn’t even afford them back in the pre-1979 CAA regulation days when everyone was (well, rich people and businessmen were) flying around in half-empty 727s with 20-inch wide seats and paying for the privilege.
All that said, United should have waved more cash in people’s faces when nobody bit at $800, but in the end if it came down to involuntary denied boarding… it sucks to be the designated screwee, but legally he’s got very little to nothing to complain about with regards to United’s behavior, which is fully within the FAA regulations and the contract of carriage for his ticket, even if it is a public relations issue for the airline. Regardless they are likely to offer him a substantial cash settlement to avoid further negative publicity and paying more lawyers.
His treatment at the hands of law enforcement (it is not exactly clear which agency or agencies were involved, from the accounts I read), however, is a separate question and one that could lead to a civil or criminal complaint (or both). So while it’s widely speculated that he might “own United” in the end, more likely than not he’s going to have to settle for stuff from Mayor Daley’s office instead.
They said they selected him “at random,” not as a result of the formula you specify above. I imagine that formula would have been much more palatable than an “at random” policy that seems, oddly enough, to be targeting a person of colour. When he said no, he had to be at the hospital the next day, then set your “randomizer” and choose the next random person. It’s not rocket science.
Moreover, why couldn’t United have bought its flight crew tickets on another airline? Beating up a passenger who had a good reason to not leave his flight (he also had to be in L’ville the next morning) doesn’t seem to be a good business model, unless the intent is to convince all United passengers to comply or be knocked out.
I’ve seen Delta do “auctions” and get volunteers pronto (for an overbooked flight from Cincinnati to Detroit, and Delta ponied up more than $800 by the end). United’s response was over the top and tone-deaf in light of the leggings controversy (which was made much worse than it had to be by United’s PR team).
Yeah, I don’t see why, when they pick people either by formula or at random, that can’t be, “We’ll approach this person and ask them to volunteer first” People who won’t volunteer on a general call-out may agree to take a later flight if you ask them one-to-one. At least two people agreed to get off after random selection. But if someone is going to a wedding or something, you don’t want to delay them.
When $800 doesn’t do the trick, it’s so much easier to call in the goons to rough up the passengers than to keep raising the offer.
As I noted on the other thread, airlines seem to regard unhappy passengers on the aircraft as potential hijackers, not as customers who are in need of service. If you don’t behave like a lamb, then you are treated as a threat.
Or said another way, we can kick you off our plane for any fucking reason we want and we don’t give a flying fuck that you paid money for that seat, and it doesn’t matter one bit that we boarded you – you’re not actually “on the plane” until the thing takes off and even then we can turn that shit around and boot your ass off.
Meanwhile, here’s a thimble of soft drink or you can pay $9 for a warm can and don’t forget your complimentary 2oz bag of pretzels. Now stow your tray table and put your seat in an upright position like a good sheeple, or our goons will smash your face in and drag your bloody ass out.
Thanks for flying United, now go fuck yourself.
You missed an option somewhere between 8 and 9, Doug — charter a freakin’ flight for the deadheads.
Yeah, it’s expensive. On the other hand, you (corporately) screwed up, and forcibly evicting a paying customer to make up for your bad planning, just because the law says you can, is stoo-pid.
Bottom line: if the federal government is going to give carriers law enforcement privileges to break contracts for simple logistics, you are no longer a for-profit corporation. You’re a public utility, and we get to treat you like one.
The flight wasn’t even overbooked. United wanted to toss some of their crew in on the flight after passengers had been seated….
this country is so freaking dumbed down
Or said another way, we can kick you off our plane for any effing reason we want and we don’t give a flying “F” that you paid money for that seat, and it doesn’t matter one bit that we boarded you – you’re not actually “on the plane” until the thing takes off and even then we can turn that sh#t around and boot your a$$ off.
Meanwhile, here’s a thimble of soft drink or you can pay $9 for a warm can and don’t forget your complimentary 2oz bag of pretzels. Now stow your tray table and put your seat in an upright position like a good sheeple, or our goons will smash your face in and drag your bloody face out.
Thanks for flying United, now go f&ck yourself.
Pilots? Somewhat. First officers on regional carriers like this one? Less than 40k per year is a safe guess though wages have gone up a little in the past few years, there was a time recently when they’d earn less than 30k.
United never waved cash in anyones face. They offered travel vouchers. Once it came down to involuntary denied boarding they’d be forced to pay cash, 400% of the ticket price capped at $1350 given a nearly 20 hour delay as described.
United has the power to IDB a passenger but not the right to frighten, embarrass or cause the assault of him. If you don’t think there are 100,000 lawyers right now ready to file suit for him on this your nuts. United will settle, partly because of the horrific PR, but mostly because their own counsel knows they’d be nuts to let this go to a jury.
Also, VDB and IDB do not apply because the guy was not denied boarding. Details…..
So what’s the alternative, folks? Increased regulation? Government takeover? Maybe you’d better look very closely at the history of the passenger railroad industry in America.
@Eric Florack: Well, maybe not being so brain-dead as to get everyone on board and seated and THEN decide to try to kick people off.
I’m sure that United’s lawyers will argue that until the plane actually departs from the ground that they’re still “boarding”. Let’s see how the judge likes that definition.
Also, who was brain-dead enough to not keep raising the sweetener? You can’t get people to take your offer at $600, offer $700. Offer $800. Keep going. At some point there will be a clearing price where the demand curve will intersect with the supply curve.
For a bunch of arrogant capitalists, these people are certainly acting like the worst of communists. They remind me of employers who whine whine whine because they can’t find employees at the salaries they’re willing to pay. (Like that company who wanted to hire me as a bilingual patent lawyer but couldn’t be bothered to pay more than $70K.)
Basically, United crapped out, tried to fix their own stupidity on the cheap, and have managed to do probably at least five million dollars worth of damage to their reputation.
And United’s CEO is still saying “It’s not our fault!”
Yeah, that’s really going to convince people to use your airline in the future, schmucko. How many people have already told you they’re never going to fly United again?
Oh, and even better. Because the guy was of Asian background, this whole episode has been playing out very very badly in China. Which United is trying to crack open the market to.
(Also, since the airline companies have been profiting to the tune of several billion dollars a year for the last set of years, you think they could slack back on the we-have-to-nickel-and-dime-you-to-death attitude.)
In the comments above what I see are some untrue assumptions. Neither booking nor boarding are contracts. If booking were an enforceable contract, you wouldn’t have the frequently seen practice of booking on multiple flights as a form of insurance.
And under the laws governing air transport, the airline behaved quite legally. It’s allowed to overbook. It’s allowed to make decisions about who will fly and who won’t. It’s not required to hold an unlimited auction for seats.
I wish Chris had dwelled a little more on the actual law.
This incident has several interesting ramifications.
Despite all claims to the contrary, it is unusual and United will be hard pressed to claim this is normal procedure.
Even it is “normal procedure”, it was handled in the most bureaucratically officious and stupid manner.
Even if United was within its rights to eject a paying customer, how this was handled has damaged the United brand and business. I know that I will avoid United in the future until they come up with better management and more open practices.
Frankly, if it was so all fired urgent to get this crew to Louisville, United could have chartered a flight for less than the cost of ejecting paying passengers.
United knew that he was a doctor before they called the police to drag him off the plane. I’m waiting for the herds of lawyers to descend upon United claiming that their clients, patients of the doctor, were harmed by depriving them of care.
They didn’t overbook. They booked, got everyone on board and then some idiot decided that four United employees (pilots or whatever, doesn’t matter) had to go too. And expected paying customers to fall in with their corporate needs just because. I’ll cut United staff on the scene some slack – some – because they were probably not in a position to exercise their own judgement on whether the four extras flew (orders from above, not to be questioned) and they probably – probably – didn’t tell the cops to beat the guy up.
But United as a whole completely screwed this up. And they don’t exactly have a margin of consumer happiness they can count on to get through the PR nightmare.
Selling something you aren’t actually in possession of is fraud. If there’s 150 seats on a plane, selling the 151st seat is fraud. The fact selling this 151st seat is convenient to your business model doesn’t make it not fraud.
And that’s the problem. The imbalance in bargaining power – i.e., passengers have zero ability to negotiate the contract of carriage – means that the airline can set whatever massively one-sided terms it likes, and passengers can’t do a thing about it. The only limit is what the regulations and the courts will actually enforce as a matter of public policy. The solution, therefore, is clear. The regs should specify that any clause in a contract of carriage giving the airline the right to unilaterally bump someone is unenforceable. Period. Then, the airlines would have no choice but to negotiate the price when they want to bump people. Eventually, they’d get to a dollar figure that entices enough people; it would just cost them more money than it does now. And since, as the OP notes, 99.9% of flights do not run into this problem in the first place, there likely wouldn’t be much of an effect on overall ticket prices.
If they can get it to the SC, Gorsuch will like it just fine. Now that corporate America has more allies in all 3 branches then ever before, lets see how far they want to push this. It will be an interesting bell-weather for corporate malfeasance cases in the future.
Since the “contract” isn’t actually fully spelled out at time of purchase and is presented in a purely “take it or leave it” fashion, it can’t be said to truly be a contract. Without an actual opportunity to negotiate, there can’t be said to be the “meeting of the minds” necessary to form a proper contract. Even our corporate dominated legal system recognizes this:
Contracts of Adhesion
@Dave Schuler: This sounds like “well, the policeman was perfectly within his rights to shoot that unarmed guy, because he thought he might have a gun. After all, Safety First!”
Just because the airline might have had the “right” to do what they did (courtesy of lobbyists and our for-sale government, cough) doesn’t negate the fact that it was a bloody stupid thing to do.
Everyone is on that plane for a reason. Most of them are time-sensitive and of subjective importance. Do you tell the person going to a destination wedding to get off the flight or someone who’s keynote at a conference? One is of emotional import with no direct participation, the other business with direct participation that could affect dozens or hundreds. Which one goes? Are you going to tell the little girl on her way to Disney she’s going to have one less day there so Bob the pilot can get to work when he’s got other methods?
What’s driving people insane is this can *easily* happen to them. Even with allowances built into your schedule, being kicked off a flight can have a major, irreparable impact on your journey. You need to rearrange logistics on the fly. You lose reservations, paid tickets, time spent wasted in an airport and the fury that will follow you through the rest of your journey.
I reluctantly accept the necessity of involuntary bumping but airlines need to understand if you’re going to screw your customer like that, $800 can be chump change in the wake of altered travel needs. Either get your company together so this is a rare practice or get ready to shell out in the thousands regularly. Stupidity should hurt and this was deeply, deeply stupid.
@KM: They should have just continued hiking the payout until someone was willing to accept it.
And none of this crappy “voucher” stuff, either. Green cash in unmarked bills, or a cashier’s check.
BTW, I want to apologize for my foul-mouthed rant above. I’m on vacation and I was pretty lit last night when I wrote that.
Maybe this will make up for it:
Breaking: Pentagon awards contract to United Airlines to forcibly remove Assad
This sort of thing is why I cracked about Gorsuch yesterday that he’d help move us from “corporations are people” to “only corporations are fully people”.
Maybe airline deregulation wasn’t an unalloyed good? United didn’t offer enough money. I have to once again ask why conservatives hate free markets.
Remember when marketing had to do with giving people what they wanted, not setting a hook into them so you can shake all the money out of their pockets?
It should also be noted that even if United’s contract of carriage should be considered enforcable, United still isn’t covered, as it only permits them to deny boarding:
DENIED BOARDING COMPENSATION
Once they’re already on the plane, as this passenger was, the relevant section is now:
REFUSAL OF TRANSPORT
No of which applies to what United did here.
In a libertarian universe, companies are saintly figures that can do anything that they wish.
If you wanted to commit murder in Libertarianland, then you would simply turn yourself into a C-corporation or LLC and permit it in one of your organizational documents. The homicide would then be classed as some sort of civil tort for which you could not be sued, thanks to “tort reform.” Freedom!
It should also be noted that United did not in fact offer $800. They offered a voucher which United claims is worth $800, but comes with numerous conditions that make it actually worth only a tiny fraction of that, which is why nobody actually volunteered:
1. It only covers purchasing tickets directly from the airline
2. It only covers tickets at the “standard fare” which is usually several times higher than what people actually pay for tickets.
3. If the ticket in question ends up being less than $800, you lose the overage.
I was a Gold or Platinum Frequent Flyer with Northwest Airlines from 1997 to 2002. I flew over 400,000 flight miles during that time.
One time in 1997 or 98 on the way back home to Florida from Los Angeles and via Memphis, NW needed to bump some people, so they made an offer starting at $250 vouchers. By the time the door was almost ready to close they still needed to get one more person to take up their offer. NW raised it to a $1,000 dollar voucher. Within seconds they had a volunteer.
I should have taken it. At the time I was planning to play in one of these tournaments beginning the following day. I wasn’t a very good player (though in 2001 I finished 4th in the National points standings) and a $1,000 voucher at the time would have paid almost the entire cost of a round-trip ticket to the Philippines for one. My wife is a Filipina.
Over the years I did take up a couple of NW’s offers to be bumped but none as good as the one offered that day in 97 or 98.
As for UA’s conduct here- it was horrendous and the conduct of airport security most likely criminal. I would have called the police.
Exactly. If these clowns had hired an army of consultants with just one mission – destroy our business as quickly and efficiently as possible – they wouldn’t be able to do a better job than United is already doing.
Whether or not the airline was within its rights legally is immaterial. The company has been tried, convicted and sentenced to death in the court of public opinion.
This is the age of instant video and instant opprobrium. I hope for their sakes that hundreds of millions of dollars worth of bad PR and who knows how much lost future revenue was an acceptable price for forcibly removing a paying passenger from his seat so that it could be occupied by one of their employees. You just can’t make this sh*t up …
One of the early slogans of the environmental movement was something along the lines of “just because you can do it doesn’t mean that you should.”
This bit of common sense seems to be lost on libertarians.
Except that most airline passengers prioritize some combination of price, routing options, price, price, and price, so the airlines know that they can get away with it.
Combine that with the siege mentality that comes from fears of being hijacked, and you end with a zealous commitment to withholding customer service once the passenger is on the aircraft.
Bingo. The Asian guy who got beaten (and that is the only acceptable term for what happened to him) is a doctor who needed to be back at his hospital to see patients.
Apparently, that doesn’t matter to United as much as getting a flight attendant back to Louisville does.
And they’ve managed to piss off the largest growing air travel market in the world in the process.
And their CEO is on the media as we speak defending what happened ..
These people are 100% tone deaf.
This incident reminded me that there was a website over a decade ago dedicated to the bad service provided by United Airlines. I hadn’t been to that site since the early 2000s or even earlier. So I was surprised today to find out Untied.com still exists.
UA has had a bad customer service reputation for a long time.
Some commenters are stressing that United acted legally and did nothing illegal during this episode. I won’t argue that point – IANAL, nor do I pretend to be one on the internet.
But that’s not really the issue, is it? The issue is United’s sh*tty attitude to customer service and inability to problem-solve an unexpected situation (four employees on the plane). Companies used to take pride in service, used to make it a key selling point in their advertising. And Americans used to be a lot more demanding of that service, and have higher standards all around. Not too many decades ago, many passengers would have stood up and at least tried to help that man, and onlookers would have cheered. They would have been citizen heroes. Now we’re pussy nation, meekly submitting to being shoved around because 9/11 or terrorists or something.
Any word yet on protests aimed at the security forces involved here? Apparently they didn’t work for United but for the airport? Did I understand that right? If so, then an airport needs to be on the receiving end of a lot of flack right now.
We need to get this article about David Dao, the physician in here:
Because in any case of police brutality it’s always important to soil the victim’s reputation regardless of circumstances.
@Pch101: It was actually libertarian policy advisors that pushed for the requirement that airlines compensate bumped passengers via voluntary auctions in the first place. The old regulations, which the airlines fought tooth and nail to preserve, with the support of their semi-captured regulators, allowed the airlines to bump at will with no compensation. And the libertarian commentators I’ve seen now seem to be generally arguing in favor of expanding that practice so the auction process is uncapped and the airlines have to pay as much as it takes to get a willing acceptance.
@Janis Gore: The officers did not work for CPD but the Aviation Department:
The passenger-beating thug was from the Chicago Aviation Police, so someone did call the police.
These days, the response to a crisis should not be to call the police, because adding police to the mix usually just makes the crisis worse.
Drawing on the points that Chris made in his post, it’s important to understand the legal issues at play here, especially since a lot of people are talking about this passenger suing United for what happened here.
First of all, for the reasons that Chris explained and others, it’s unlikely that the passenger has much of a legal claim against United for being involuntarily bumped in and of itself. As he notes, things like this are expressly permitted under the relevant law and FAA regulations. As long as United was following proper procedures and those laws and regulations, the mere fact that they sought to bump him and other passengers from the flight is most likely not something on which a cause of action can be sustained. This appears to be true even though (1) the bumping occurred after the passenger had boarded the flight and (2) the bumping was due not so much to overbooking as to the airline’s need to deadhead a crew to Louisville to be ready for flights the next day.
That doesn’t mean that he doesn’t have a cause of action, though.
The manner in which he was removed from the flight does seem to me to involve the excessive use of force on the part of the uniformed personnel involved. The reports I’ve seen indicate that these were members of the Chicago PD but it doesn’t matter if they were police, TSA officers, air marshals or part of some private security force employed by United (although that will be relevant when determining what entitles he may have a claim against). Based on the video, the use of force clearly seems to be unreasonable to me and in that case, he would seem to have a rather clear-cut claim of assault and battery. If these were government agents, then he may potentially also have claims under Federal law for violation of his civil rights under 42 USC Sec 1983. This could potentially include claims against United itself, against the airport authority, against the relevant law enforcement agency, and against the individual officer(s) involved in the incident.
My friends at Google tell me that compensation for being bumped began in 1967 in tandem with the federal decision to permit the practice of overbooking. The compensation rules and limits have been evolving ever since. So your comment sounds like BS.
@Eric Florack: There’s already a bunch of regulations on airlines that govern this behavior. To curb it, all that needs to be done is to change the current penalty (which is already set by the government, I don’t know if this is regulatory or legislative) which would change the economic incentives for overbooking and involuntarily bumping people.
CDA is an administrative division of the City of Chicago, not an independent authority, so the distinction – while valid – is a minor one. The officers in question are employees / agents of the City of Chicago.
Whatever lawsuit is eventually filed in this matter – and I’ll bet a year’s equity payout that there will be a pretty ugly one filed – will end up being settled / paid by the city / its insurers.
No…smart regulation. The regulations described above are clearly written to benefit the airlines, and were undoubtedly written by the airlines themselves.
And situations like this are only bound to get more numerous and worse is scope with Republican Justices, like Gorsuch, who believe a man should freeze to death rather than risk a corporations precious equipment.
PS…everyone should visit Floracks blog and search the “N” word. He is a pathetic ignorant bigoted old fool.
Why does that not surprise me in the slightest? Good thing we have a Republican administration with good ol’ Jeff Sessions leading the Justice Department to make sure PD’s like Chicago’s can behave in any way they like…
@HarvardLaw92: How separate are they? Chicago PD issued a statement last night:
I’m going on this article, which I admittedly haven’t fact-checked, as it seems legit:
Different departments of the same city government. Whether you get beaten by the police or by the plumbing code enforcement guy, you’re still going to sue the city.
@Pch101: Yeah, that’s not how libertarianism works. Libertarians are about freedom, and murdering someone, by definition, is a negation of that person’s freedom.
Try harder, Princess Peach. Maybe actually read something written by a libertarian.
@Bill: Unfortunately, they were the police. Specifically, airport police.
@Pch101: Yet I see that line come up during conversations among libertarians all the time. Many talking about United, for instance.
Rut roh – cue up 450 post argument thread in defense of libertarianism. Yay! lol
Tasty adult beverage? Check!
You may begin
I hope this guy sues the sh!t out of both United and the Chicago Aviation Department. Okay, so maybe United was in the legal right to bump him off the plane — but this was just the dumbest possible way to do it. Offer only $800? Then bring on goons to physically assault him and drag him off the plane? But then let him back on and fly off 2 hours later, with him bleeding from the nose and mouth? A doctor who needed to see patients? Couldn’t they have just been like, “Oh, you’re a doctor? Okay, we’ll ask someone else.” (I’m sure there’s some kind of credential he could show to prove that yes, he really is a doctor and not BS’ing them.)
Oh, and he’s also Chinese(-American, I assume.) Does United realize that A) it’s 2017 and much of the country is “woke” and B) China is one of their biggest markets they’re trying to break into?
I know United is bad but this is way beyond even their usual BS. They made a criminally bad business decision to try and fit 4 flight crew members on an already full flight and made a doctor pay the price. I really hope his patients also sue United too.
He has little, if any, case against United. He’ll almost certainly sue the City of Chicago.
He’s actually Vietnamese-American, but the Chinese are still quite up in arms about this (and rightly so). He’s also a 69 year old grandfather. Armed police officers dragging a senior citizen off of a plane, at United’s behest. They couldn’t have f’ked up the optics on this one any harder if they’d set out to do so.
@HarvardLaw92: You almost gotta wonder if the Russians have agents inside United working to deliberately wreck the company so Aeroflot can move in.
One reason that I mock right-wingers is because I can’t respect their inclination to take everything literally.
I think it’s just the latest example of a very old problem – United has had a shitty corporate culture for as long as I’ve known them (way back into the late 80s/early 90s), where customer service has long been at the bottom of the list of things that they care about.
Their basic attitude towards the paying customer is combative – and it shows.
The passenger-beating thug will be covered by qualified immunity, unless there is a written “no-beating passengers and dragging them out of planes” policy, on which he has received sufficient training so as to understand he’s not allowed to beat passengers and drag them out of planes.
@HarvardLaw92: Chicago aviation officers aren’t armed, but would like to be:
@Doug Mataconis: All true. As with, say, defense contracting, the problem isn’t what they do that’s illegal, it’s that what they do is legal.
You say that, yet I’m willing to bet that you also support “tort reform”, which is a right-wing euphemism for capping damages and restricting attorneys fees so that contingency lawyers are unwilling to represent a plaintiff who can’t afford to pay a lawyer by the hour (read: most people.)
@Pch101: Well, libertarians aren’t right-wingers (if you’re thinking of Julie Borowski…well, if I were to type out how I really feel about her, the commenting system would never allow it), so that’s your first mistake.
Your second mistake is clearly not bothering to read up on what libertarianism actually entails. It’s not hard.
@Pch101: Nope. On the contrary, I believe in eliminating all limited liability caps and letting people sue companies for as much as the courts will let them.
Again, you don’t know what libertarianism is.
I think he’s got a solid argument that the right to deny boarding doesn’t extend to a right to remove passengers once they’ve already boarded, and he can also argue that United acted unreasonably and in bad faith under contract law and with reckless disregard for the foreseeable result of calling the cops over what amounted to a customer service dispute. He’d lose on the latter point, I’m sure, but I’m guessing it’s good enough to survive an initial motion to dismiss. At that point, it’s time to settle.
For what it’s worth, it’s now being reported that the “officers” involved in dragging this guy off the plane were not Chicago PD, nor were they from TSA or any other law enforcement agency. Instead, it appears they were private security guards. Who they were employed by, and whose direction they were acting under is unclear at this point.
You need to read the carriage contract again. It contains a limitation of liability clause.
When this guy got onto the next plane to Louisville, he limited his actual damages collectible to a maximum of $1,350, and specifically waived any claims against United for punitive, consequential or special damages, etc. United isn’t responsible for the actions of personnel who are acting as its agents / not under its operational control. I agree that it sucks, but the carriage contract is essentially a blanket waiver of rights.
I’m not sure who’s saying it’s unclear. Chicago Department of Aviation officers are sworn LEOs. They’re unarmed, granted, but they are clearly employees of the city who are acting as its agents in exercising a police function.
The department has already issued a press release stating that one of its officers involved in this incident has been suspended pending review of the events in question. They seem pretty clear that one of their guys was involved.
Reading up on libertarianism is easy. Finding two libertarians who agree on “what libertarianism actually entails” is impossible.
…which is not surprising, since the basic axioms of libertarianism lead inexorably either to anarchy or to hand-waving exceptions that can only be justified by appeal to extra-libertarian principles. Different libertarians have different (true) core beliefs, so they arrive at different conclusions.
@RangerDave: libertarianism, while often utilizing free market principles, is not equivalent to or primarily about that. Put another way, libertarians don’t get credit or blame for everything that Capitalismm or Free Market mechanisms create.
As for lifting the damage limits, that’s meaningless. Libertarianism, at least as I understand it, would allow United to add a clause that says “if you buy this ticket you can’t sue United” which renders the limit caps moot.
@DrDaveT: Heh. Reminds me of the old adage “If you ever meet two libertarians who agree on something, you know at least one of them has sold out.”
I agree the problem with anarchists is a sticky one — I’m a minarchist who has been railing against the anarchists’ stupidity for years — but isn’t this an issue with all political philosophies? There are ideals and axioms, and then there’s the real world. I submit that the reason that libertarianism seems like it’s more prone to this is because it hasn’t been mainstream in decades, but I suspect that is beginning to change (especially since I see more and more libertarians adopting the universal basic income and common ownership of nature arguments from the left-libertarian camp. Although maybe the latter isn’t a mainstream idea; it does show that libertarianism is doing some evolution right now.)
@MarkedMan: Isn’t that kind of clause way too broad, though? Especially in this case where there is physical violence and more or less fraud (selling a customer a ticket, then pulling him off a flight he already boarded by beating him up) even an anarcho-capitalist court would toss that clause out, since his rights have clearly been violated. I can’t see libertarians defending that sort of clause at all.
I’m not a litigator, but assuming it’s NY law, liability for gross negligence, fraud or willful misconduct can’t be waived or capped, so he can try to argue that one of those applies. He can also argue that the waiver and cap should be unenforceable as a matter of public policy with respect to the particular circumstances involved – i.e., using the airline’s quasi-police powers to forcibly remove a passenger who poses no danger to safety because of a dispute over a contractual matter. I’m sure an actual litigator can and will come up with many other ways around the waiver and cap provisions. Remember – he doesn’t have to win on any of these claims; he just has to get passed a motion to dismiss.
Not really. Libertarianism starts with principles about what means are permitted, and is stuck with the consequences because there are no overriding principles about ends that can be invoked. A Utilitarian (to pick an extreme counterexample), on the other hand, starts with principles about the desired end, and then has to live with uncomfortable implications about what kinds of means might be needed to get there.
For a classical Liberal who is primarily interested in promoting a society in which people are healthy, happy, and productive, the question of means is empirical — what will work best, without violating any core principles of equity? Libertarians aren’t able to choose means on that basis, because their core beliefs are about freedom, not about the collective goals of a society. If prioritizing freedom leads to universal misery, they have to either accept that or stop thinking that freedom is the most important thing.
The real issue was the corporate policy that limited the gate agent’s options. United could have booked either the passenger or the crew on other flights that evening – but they would have had to pay CASH for it. And the gate agent isn’t authorized to spend cash, only vouchers.
So United saved $4000 cash and lost $800,000,000 in shareholder value.
1) I’m not sure if it was a typo, but why would you think NY law would apply to a contractual agreement between a corporation headquartered in Illinois & chartered in Delaware and a consumer who purchased his ticket in Kentucky?
2) We need to clarify that the personnel in question were neither agents of nor employees of United. They are/were employees of the City of Chicago. While their presence was requested by the airline, the airline exerts no operational control over what actions they may or may not employ. Following your reasoning, if you attend a party at my home, I ask you to leave, you refuse, I call the police to remove you and the police subsequently beat you, I’m somehow liable for their actions? No.
3) There is also the matter of 49 U.S.C. §41713(b)(1). Generally speaking, outside of breach of contract actions (which didn’t actually occur here), state and local laws are generally preempted by federal law within the scope of airlines. He would have to demonstrate actual damages directly attributable to the actions of United and/or its employees. They didn’t breach the contract, they didn’t technically remove him from the plane and they didn’t injure him. Beyond that, they didn’t constructively contribute to his injuries via negligence or dereliction.
As I said above, the guy has one doozie of a lawsuit against Chicago, but not much of a basis for suing United itself.
Might he bring suit against them anyway, in the belief that the horrible PR will motivate them to settle just to make him and the problem go away / constitute some sort of odd act of goodwill? Sure, it happens all the time, but that’s not the same thing as saying he has a legitimate cause of action against United. He honestly doesn’t IMO.
Actually they apply up until the plane leaves the gate. DOT would have to explain why.
Look out Chicago. Tomahawks are on their way!
Er, I’m quite aware of what the libertarian position should be: They should oppose caps on liability and attorneys fees.
But in practice, self-described libertarians such as John Stossel demand “tort reform” in the name of protecting poor innocent freedom-loving companies from evil leftist lawsuits filed by lying trial lawyers. In other words, standard GOP bilge.
I find that most self-proclaimed libertarians are merely conventional right-wingers who think that the libertarian label carries some sort of cachet. So I’ll give you some credit for being consistent.
They insert a lot of protection into the contract of carriage. However, since it is a contract of adhesion, and since there is no negotiation, United better have dotted every i and crossed every t in carrying out the procedure. They’d better hope there is no ambiguity which would be read contra preferentum. And they’d better hope that a jury doesn’t just ignore all of it anyway.
One could argue the passenger in this case did “do a thing about it.” He raised bloody hell. And someone caught it on video.
And the balance in power has now shifted. United will now bend over backwards to put this behind them which will likely include some sort of generous compensation to the abused. (This won’t change how indignacious the experience was for him, but it will help.) And United won’t ever live this down.
As others have noted, this episode isn’t about legality. It’s about Public Relations. And United screwed the pooch in that regard.
@DrDaveT: But that doesn’t automatically lead you to certain policies. You should check out BleedingHeartLibertarians.com, where they argue for things like a basic income based on libertarian grounds (since I am assuming — perhaps unfairly — that that’s one of the things that without would lead to universal misery.) They also discuss this topic quite a lot, and also do a lot of investigation into how free markets are compatible with and actually bring about “social justice” (personally, I have issues with that phrase because I think it is poorly defined, but whatever) and lead to better outcomes for the worst off in society. There’s also a good book called Free Market Fairness which talks about this in considerable depth.
I’m not quite sure if that’s a response to what you’re saying, but at the very least, I feel it needs to be said.
@Pch101: Yes, there are many conservative twatwaffles who have adopted the term “libertarian” as a sort of rebranding in order to escape the negatives of conservatism (like the aforementioned Borowski), but they’re not libertarian. Sort of a self-inflicted gunshot wound, though, after years of fusionism and being close to conservatism, something I have long detested and argued against.
I’m not sure about Stossel specifically, though I will say I do think he’s a genuine (if maybe right-leaning) libertarian, and if he has said those things then we disagree. Which is not unusual among libertarians.
Notably, I checked some libertarian discussions on Facebook earlier today, and a vast majority have already sided with the doctor. Case in point, if you see a “libertarian” siding with the police on an issue, chances are…they’re not.
Highly doubtful. The overbooking policy – and the remedies favorable to the passengers who may be displaced as a result of it – are quite clearly delineated. Beyond that, the remedies provided for the displaced passenger in the CoC are quite equitable: a menu of 1) we’ll get you there within an hour of the same time frame that you would have arrived, even if we have to book you on another competing airline, 2) We’ll get you there more than one, but less than two hours of the time frame that you would have arrived, and we’ll pay you up to $675 in damages or 3) we’ll get you there later than two hours from the time that you would have arrived, and we’ll pay you up to $1,375.
Legally, United acted within its rights. It did so stupidly, and frankly arrogantly, and frankly to its own detriment in more ways than one. There were far better options for resolving the problem than the one that it chose, but we have to assume that it would have met its contractual obligations to this passenger – and compensated him for his inconvenience – had he simply decided to disembark. On net, the CoC works to the net benefit of a displaced passenger, so it’s difficult for them to demonstrate inequity, assuming they are even able to demonstrate the existence of a breach in the first place.
@Bill: It certainly has a bad reputation in my book. Of the last half-dozen times I’ve flown United, only two went off without one major hitch or another.
United posts job listing for new public relations manager:
LOL, I imagine that the previous one is either curled up in a corner, crying, or ran screaming from the building after this most recent self-inflicted wound …
Actually, that for the Houston hub, dealing with relations in South America. But funny for the moment. I’ve tried to delete the thing.
@HarvardLaw92: It’s a bit of a leap to say they acted within the four corners of the contract. I’ve never seen an on-plane deboarding, nor one for the purposes of staff transport, so who knows if they followed the letter of the contract. They certainly didn’t offer the remedies you listed – they offered only a voucher, which I’d estimate is valued at 10-25% of the face value in real money. Vouchers are all but useless to infrequent flyers.
Also, has anyone ever challenged the contract of carriage in court in terms of contra preferentum, unconscionability, etc?
Sure – Spadoni v. United Airlines, Inc. 48 N.E.3d 1097 (2016) 400 Ill. Dec. 657
I appreciate the pleasant dialog. I will check out the website you named.
The problem, in the end, is that absolute principles have to be absolute. You can’t say “I believe property rights are absolute” and then be anti-slavery; you’ve just admitted that property rights aren’t absolute — they can be overridden by a more important principle.
The problem with libertarianism is that its pure form is founded on absolute principles that not even libertarians like the consequences of. That implies that there are principles that are more important — even to libertarians — than the tenets of libertarianism. At that point, the solution is not to water down your libertarianism until it’s palatable; the solution is to figure out what your core beliefs really are, and see if you can design a system based on those principles.
Libertarianism is like Middle-Earth in the Tolkien books. When you first hear about it, it sounds totally awesome. If you had to live there, you would be pining for Chicago or San Diego or Atlanta or Peoria pretty quickly. And if you tried to cope by making Elfland more like Poughkeepsie (to steal a notion from Ursula Le Guin), you would be admitting that you don’t value Middle-Earth for itself after all.
@grumpy realist: um how many airlines are left? they’re all merged up and they know it. i didn’t pay much attention to this but why would that guy just go limp and have to be dragged off the plane?! how many of us would be so stubborn about such a thing?
and no, the airline is not the employer of the security guys involved, who will probably be sent to some “training facility” soon!
the age video made such a huge impact on such a nothing story.
@DrDaveT: Most of the Libertardians I’ve encountered aren’t field workers, or machinists, they have jobs which depend directly or indirectly on Intellectual Property. So my go-to talking point with them (when I bother) is what kind of job would they get once IP is no more? Because, of course, patents and copyrights are thefts under a strict libertarian regime.
Would you believe a billion dollar drop in United’s market cap?
(I suspect it will rebound a bit, but this is one of those stories that will end up being a “don’t do this!” chapter in some MBA Marketing handbook.)
And here’s an article that goes into further depth about United’s attempts to crack open the Chinese market, which they might as well now totally write off…..
(United’s CEO is the same guy who got an aviation industry award last year for his “great communication skills.” I kid you not.)
I get the joke, but part of my point is that there are no “strict libertarians” because they all recognize that it would be awful. What they have a hard time understanding is that it makes no more sense to be “somewhat libertarian”.
OK, I took a look there. One of the foundational posts establishing definitions says the following:
I find that fascinating, because it illustrates my point. If you appreciate free markets because you think they tend to contribute to important human goods, then you are in no sense a libertarian. Libertarians value free markets because they are free, not because they are effective at accomplishing some other goal.
To put this another way: a Socialist can value the efficiency of free markets in certain contexts. A Liberal can value them in many contexts. What they agree on is that the test of whether or not a free market is appropriate has nothing to do with how free it is, and everything to do with the consequences for society. If your commitment to libertarian principles is contingent on a belief that those principles promote social welfare, then you are not a libertarian.
Analogy: a Christian is someone who believes certain things about Jesus of Nazareth. Someone who approves of Christianity because of its social side effects, but does not believe that Jesus of Nazareth was even a real person, is not a Christian, and actual Christians (or non-Christians) are entitled to object if this person tries to claim to be a Christian.
I think an instinct towards erring on the side of freedom is a useful one. And hey, I get libertarianism–I too was once a young, healthy, capable, privileged middle-class white guy who had too much ego and was totally oblivious to how interdependent we all are and how functioning societies require redistribution. But I wasn’t making a joke, Patents and Copyrights are theft in a strict Libertarian logic. One more reason it sounds great in the abstract and is totally unworkable in reality.
@DrDaveT: I’ve actually had libertarians respond to my IP is Theft claim with Greater Good arguments, which as you point out, are disallowed in that philosophy.
Poor choice of words on my part; I typed ‘irony’ originally then changed it.
Yeah, Ayn Rand seemed really compelling for about 18 months when I was a teenager.
Your link to the von Mises Institute was a blast from the past. I have a particular animus against the whole von Mises family. Ludwig’s theories have ruined generations of economists, and Richard’s theories have ruined generations of statisticians.
@HarvardLaw92: I don’t think he has much of a case here against the police either. I don’t think the police used much excessive force or were abusive. And there no reports of injuries. Obviously the airline had the right under FAA laws to make the person leave the plane. There were only two options: unbolt the seat and carry the man and the seat out. Or transfer the entire flight to a different jet and leave this guy sitting by his lonesome in an empty, dark aircraft.
The very idea of a lawsuit in this deal is ludicrous and spurious to start with. There is no constitutional right to a seat on an airplane.
Thank you, Doug. That’s exactly the sort of information I was missing.
I think you should volunteer your legal services to those officers. Absolutely …
Because I have to tell you: with that video, with a jury in Cook County for chrissakes, it won’t be a question of liability. It’ll be a question of “how much can we award?”
That having been said (and precisely for that reason), the city would (wisely) choose to settle this fiasco long before it ever got anywhere near a jury.
@Tyrell: We have pictures of the guy they dragged off with blood running down his face and you say “no injuries”?
@HarvardLaw92: Here’s another case of United threatening someone.
Remember all the jokes we used to make about customer service at Ma Bell? (“we’re the phone company. We don’t have to do anything.”) Looks like another company that thinks they can do whatever they want with no backlash. I think they–and the analysts who think that this will quickly blow over–will be unpleasantly surprised.
Actually, one of the tech companies I worked for managed to come in and swipe the market out from under the feet of the 800-lb gorilla which dominated in that sector precisely because of antics like this. Oh, our technology was better, but what turned out to be the deciding point for tons and tons of our customers was the absolutely lousy customer service The Gorilla offered. Lousy to the point that when it came time for people to upgrade their very expensive equipment, they would deliberately go looking for alternatives (which happened to be my company.)
I saw a reference to “smart regulation” in the thread and burst out laughing. Thanks for the levity.
But seriously, I think we can all agree with Lawrence O’Donnell that this United Air event was orchestrated by Trump and the Russians to deflect public attention from Boris Badinov monkeying with voting machines.
@Tyrell: “The very idea of a lawsuit in this deal is ludicrous and spurious to start with. There is no constitutional right to a seat on an airplane.”
So in Tyrell world, people can only sue over violations to constitutional rights? That’s going to empty out a lot of courtrooms.
@Guarneri: Shorter Guarneri: “Yes, I really am even dumber than you thought.”
This doesn’t remotely surprise me. After a decidedly less than pleasant experience with United back in the early 90s, I, to this day, refuse to fly with them. I’ll actually pay more to take the same flight on a different airline. The firm also won’t utilize them under any circumstances.
I’m afraid that this combative / shitty attitude towards customer service / lockstep adherence to policy consequences be damned thing has been going on at United for so long – is so baked into their corporate culture – that the only way to truly fix the problem is to tear that culture down from the ground up and rebuild it. You could use them as a textbook example of how not to run a consumer driven entity.
I’ve had to fly all over the world for years now, and I’ve gotten to experience quite a few different airlines, so I know that United doesn’t have to be this way. Lufthansa? Cathay Pacific? Singapore Airlines (swoon)? British Airways? Air France? United needs to talk to those folks about the proper way to run an airline.
The only differences between “troll” and “Tyrell” are an extra letter and a different vowel.
They are almost homophones. That’s a hint, not a coincidence.
Vouchers are what you get if you voluntarily agree to give up your seat. The contractual remedies for refusal of transport / denied boarding are different.
In other words, if you deny yourself boarding (by agreeing to give up your seat), you get a mostly worthless travel voucher. Possibly some frequent flier miles to boot.
If the airlines denies you boarding against your wishes, the remedies are different (and contractually mandated). In that instance, they have to book you on a different flight (even if its on another airline), and – depending on how much later they get you there – pay you cold hard cash as well.
This is one of the primary reasons that I will never – under any circumstances – voluntarily give up my seat. I don’t want the voucher. I want the cash and the miles.
I’ve been a UAL frequent flyer and have generally been fine with it. Some negative incidents, but on the whole, reasonably good.
UAL isn’t superior, but is there an American carrier that is? Deregulation has been good for the cost of airfares, but service has been compromised as a result — it’s more like a bus with wings than a limo in the skies. (Then again, most people can’t afford to ride in limos, so that isn’t entirely a bad thing.)
That being said, the best service that I’ve experienced has been with foreign carriers. Then again, many of those are subsidized by their governments, so that may explain it — there are taxpayers who are helping to pay for that extra service.
I imagine they didn’t advise Dr. Dao (or anyone else) that they would receive cash compensation, as opposed to a voucher, if they were involuntarily deboarded. This mess is, then, of United’s own making. If they were more up front, and offered cash compensation approaching the limits of their contractual liability, they’d have likely found a volunteer.
I still think a decent tort lawyer could make a case here. Assuming, without admitting, that they followed contractual requirements to the letter, their own remedy is breach of contract and an action in damages for trespass (which damages are usually nominal, especially where they simply would have to remove the next flyer in line and pay the required compensation).
I agree that the cops/security are at more risk, though. I do find it amusing that some commenters here assume you can’t sue over anything but constitutional rights.
@HarvardLaw92: I cheerfully pay more to fly to Japan on JAL or ANA. The one US carrier I used to use all the time was Northwest.
Time for the Heavy Lift Zeppelins…
I don’t think very positively of the whole libertarian ideology, but I appreciate you weighing in and making your case. It can be a tough crowd here, but we need intelligent people who can make a good point and are willing to engage.
Once, I took the voucher. It wasn’t useless at all; I got a free flight out of it.
In my particular case, the outcome was also ironic. As it turns out, the flight from which I was bumped was delayed. I was moved to a plane that departed before my original flight, so I ended up with a free ticket and arriving at my destination sooner than I would have otherwise.
@teve tory: and was totally oblivious to how interdependent we all are and how functioning societies require redistribution.
They dragged a paying customer off a plane he was already on because of their own mistake. It may not have met the threshold for “excessive force” but how in the hell was it not abusive?
A lot of people declared themselves “Libertarian” when W made being Republican uncool. I expect Trump is having the same effect.
For what, and be specific? What damages has the ostensible plaintiff suffered as a result of United’s contractually permitted actions for which he can seek relief beyond what is already specified in the contract?
IMO incorrect. United’s response would be to file an MTD with prejudice predicated on:
1) plaintiff’s failure to identify a provision in the contract prohibiting United’s conduct (which doesn’t exist)
2) that United’s conduct was expressly permitted by the contract (which it is)
3) that dismissal is proper due to the plaintiff only seeking remedies excluded by the contract (which he would be, else why file in the first place?)
4) that associated claims by the plaintiff based on breach of the implied covenant of good faith / fair dealing are preempted by the ADA. Specifically, that under Illinois law, the implied covenant of GF/FD impermissibly enlarges the contractual conventions agreed to by the parties in contravention of the act (which is now operative precedent in Illinois).
United wouldn’t want to collect any sort of damages from this guy. Their remedy would be to neuter his argument and prevent him from refilling at a later date. I gave you Spadoni for a reason …
IANAL but I’ll take a stab for the sake of clarifying a talking point. He wasn’t offered the proper compensation ie he and the others were offered vouchers and not the cash they were owed in the proper amounts. After the first round of refusals for volunteers, the system picked him for removal and thus kicked it up to involuntary denied boarding (IDB). There is no record of them offering anything else after that, just the attempt at removal. They didn’t fulfill their contract and regulations by deliberately using the wrong compensation model and instead chose to escalate to ejection from the plane via police. In other words, they violated their own contract and the damages he suffered were to his body, his time, his business (the patients) and reputation with the viral video and smear campaign that followed.
I await my evisceration. 🙂
To my understanding (which may be incorrect), they typically don’t hand out free flight vouchers any longer. They hand out face value vouchers which can be applied to the full fare price of a later flight at your convenience. I don’t see much of a value in that, personally.
While I think United will be able to defend their over-booking policies, I think United is going to have a hard time arguing they were contractually permitted to drag this guy off a plane…
@MarkedMan: Historically, at some point, you end up with a revolution. Which means getting your head chopped off or you getting slammed up against a wall or shot.
People whine about distributive systems. I say “think of this as what you pay to buttress the continued existence of a large middle class and insurance against a revolution.”
The contract permits them to do what they did, specifically:
So, we have a situation where the parties have agreed that, in the event of an oversold flight, UA will ask for volunteers to give up their seats, and in exchange United will offer compensation which it deems to be appropriate
They have also agreed that, in the event that this voluntary exchange does not resolve the problem, that United is permitted to involuntarily deny boarding (which is interpreted to mean remove them from their seat at any point before the doors are closed & the plane has left the gate) in accordance with boarding priorities determined by United.
In other words, if necessary to resolve the problem, United is permitted to involuntarily deny boarding to passengers, and to select those passengers according to its own internal policies.
In exchange for this inconvenience, the contract mandates that:
So United is contractually bound to either put the passenger on the next plane to his/her destination which has space available, or to (at its discretion) book the passenger onto a competing airline if they can get him/her there sooner. In addition:
So, if they get you there at least one hour, but less than two hours, later than you were originally scheduled to arrive, they also have to pay you twice the fare to your original destination (up to $675). If it’s more than two hours later, you get four times the fare (up to $1,375).
This is the crux of the problem. Implied covenants tend to be debarred in this scenario because they are viewed as having been preempted by federal statute (the Airline Deregulation Act), and the remedies spelled out in the contract itself are pretty equitable. In order to collect actual damages, the plaintiff would have to demonstrate 1) that said damages exist, and quantify them to the satisfaction of the court, and; 2) establish that United breached the contract of carriage.
I will absolutely agree that United acted stupidly here, but hewing to the letter of the contract, they didn’t breach. Were this guy to file suit against them, it would have to be in Illinois, where precedent is against him. Under normal circumstances, United would almost certainly quash the suit via an MTD with prejudice, which would be granted, and that would be the ballgame. In this particular instance, I feel pretty confident that they would agree to settle (solely in order to help mitigate the horrible PR).
We’ll probably find out shortly what transpires – to my understanding he has already retained two attorneys in Chicago to represent him, one who specializes in personal injury and the other who specializes in corporate governance. The filings will be something to read, I agree.
And therein lies the problem – United didn’t drag him off of the plane. It called the police, and they dragged him off of the plane.
United would argue – correctly IMO – that the officers were neither employees of United nor acting under its operational control, and that the actions taken by those officers were not directed in any way by United personnel, but were instead the independent product of their own discretionary authority as agents of the City of Chicago.
I agree that it stinks, but it is what it is. The guy has a whopper of a settlement with the city in his future. United will probably settle as well, again to help with its PR problem, but technically speaking IMO he has no real case against United.
Do we know what he was offered after being selected for removal? Nobody seems to be reporting on that, with the implication nothing was offered just GTFO. I would agree that they sound equitable IF they were applied but there is no evidence they were. None of the other passengers, including the three were kicked off, have stated any details on what was on the table. It might be they would have discussed this AFTER they exited the plane but that is, quite frankly, a sucker’s bet. Get off the plane and we’ll tell you what we’ll give you – yeah, no.
Would you say its reasonable then that the doctor, likely not having be informed of the equitable remedy by the relevant parties, would be under the impression United was in violation of contract and acted as such? How would that affect his case?
Had this incident not transpired, they would have had to rebook him on another flight, and – based on that flight’s time of arrival – hand him a check for the appropriate contractually mandated compensation (the either 2x or 4x, subject to ceilings).
Now that it did transpire, he would eschew accepting that remedy in order to pursue his lawsuit against United (as accepting the contractual remedy would also involve waiving further claims, again as mandated by the contract). He can’t accept a contractual remedy without also accepting the waivers agreed to in the same contract.
Sure, that would be a reasonable assumption on his part. The guy is a doctor, not an attorney, and nobody actually reads the contract of carriage (except me … ) 🙂
Unfortunately, not at all. Caveat emptor … It sounds heartless, and I assure you that it isn’t intended to be (I will smile with glee when he guts them in the eventual settlement), but you asked for a legal opinion. The guy agreed to a set of contractual provisions. Ignorance of those provisions isn’t mitigating, and the provisions of the contract itself work essentially to the passenger’s benefit when he/she is involuntarily bumped (so pressing a claim that the contract terms are unconscionable is an uphill battle).
Note: to clarify it a bit further,
we have a thing in contract law called the mistake.
Unilateral mistake – where one party to the contract, having read the terms, makes a mistake about interpretation on which his willingness to enter into the contract is predicated. The mistake is not so obvious that the other party would have realized it, therefore the mistake is not excusable and the contract remains valid
Mutual mistake – two varieties:
a) both parties make the same mistake, & neither acted out of intent to defraud. The contract is usually rescinded (rescission) and restitution comes into play
b) One party makes a mistake that is so blindingly obvious that the other party should have noticed it, but failed to. Generally no rescission and the contract remains in force.
Mistranscription – a clerical error. Obvious, but a court will determine how best to rectify.
Misunderstanding – ambiguity in terms, where two or more plausible interpretations are possible of the same set of contractual terms. Courts can consider which interpretation is more reasonable.
The one that is coming into play above is what’s called equitable exception, i.e. a unilateral mistake where a) it would be unconscionable to force the mistaken party to fulfill the contract and b) the other party loses nothing by virtue of the lack of performance. I, and I think most attorneys would agree on this, would have a difficult time establishing to the satisfaction of a court that simply introducing a delay, but still performing the contracted service, while compensating the delayed party for his / her inconvenience, is unconscionable.
Had the contract mandated that United could pull him off of the plane, keep his money and leave him stranded in Chicago – that would be unconscionable. As written though, it’s just really not.
Personal injury lawyer Thomas Demetrio has taken the case:
Oscar Munoz has given an interview to ABC:
I wouldn’t give much credence to Elura Nanos. Just saying. She’s approaching this like a typical personal injury case – and it’s anything but that.
I do agree with her that United will almost certainly agree to settle, but if it went to trial, they’d also almost certainly prevail. (I never say never, but the likelihood of him successfully pressing a claim against United is pretty much zero).
In this case, the motivation to mitigate their PR problem makes paying the money well worth the expense, and the expense would be an allowable deduction under Gilmore et al, so they essentially benefit twice. Paying this guy off is a no brainer.
I think they’d settle, too, but mostly because I have doubts that United would dare to make the case you’ve outlined in court.
ABCNews had an interview with United’s CEO Oscar Munoz and he was asked about whether the passenger was at fault. Munoz’s response:
He said his employees lacked “common sense.”
I suppose this wouldn’t stop them from arguing the fine print of the contract in court, but it probably will.
Speaking honestly, if he absolutely refuses to settle, and insists on going to trial, that’ll be IMO exactly the case that they’ll make. Essentially “not our circus, not our monkeys. Talk to the City of Chicago”.
They would also file a waiver of trial by jury (putting the matter in the hands of a single judge), and almost certainly attack his stability, judgment and mental health as well. At that point there would be no incentive not to go full-bore nuclear on the guy.
We haven’t seen any very complete description of events. The doctor may well have aggravated the situation and I expect the gate staff and the security bozos handled it badly. I also expect they’ll be scapegoated by United for being ill trained and trying to implement bad policies.
The airlines and the regulators have not adequately communicated their policies. I guess the silver lining is that now United has publicized the policies. And at great cost, one may hope, to themselves. I appreciate the advice of whoever above pointed out the best response is to not volunteer for the voucher, board, and if asked to deboard, cooperate and collect the alternate flight and the cash.
Kevin Drum has a piece up this morning noting that United isn’t unusually bad about “involuntary deplaning”. Southwest, who are now making hay off United’s woes, is the worst of the majors. Note that even for them, the rate is .01%, i.e. one boarding per ten thousand. However, mental back of the envelope, 10 departures per gate per day, 100 passengers boarded per departure, round number 1,000 boarded per day. The average gate would see a “voluntary deplaning” every ten days. You’d think they’d train better. But training costs money.
Note: the above assumes that their initial filing – an MTD with prejudice – was denied, which is not likely. If they prevail on that matter, which under IL precedent IS likely, the doctor goes home with exactly zero. It’s in everybody’s interest – including that of his contingency fee lawyer – to settle this amicably.
And note that we haven’t yet explored the question of which airline personnel called the police in the first place.
Was it gate personnel, or cabin personnel? Are those employees of United, a contracted service company or – in the case of cabin personnel – employees of ExpressAir (the independent company which actually operates the route under contract for United)? To what extent, if any, did those personnel participate in the actions that actually caused the doctor’s injuries? To what extent is he equally responsible for having contributed to causing them?
By the time that it got in front of a judge, liability will have been sliced and diced among a number of parties – and again, that assumes that United didn’t manage to get his claim dismissed in the first place.
Seeing how taking this to trial would be a nightmare for the doctor?
Uhhh….you can’t have property in human beings, bro. Compossibility and all that. So that doesn’t even work.
Sure, but if United is getting sued for violating this guy’s civil rights, say, or for inflicting mental and physical distress, they’re not going to be able to point to a contract and say, “But he agreed!”
Their best case would be to argue the passenger ignored a lawful order and his treatment was a direct result of that, but I suppose they’d have to establish that it was, indeed, a lawful order (probably was…but who knows??) and then they’ll have to admit they will call the police on YOU -subjecting you to possible police abuse– for THEIR mistake.
It would be folly to go that route. Better to settle with the doctor (for whatever will shut him up) and change the policy so it never happens again.
Here is a profile of Dao’s lawyer, Thomas Demetrio:
It’s not what will shut Dao up. It’s what will shut Demetrio up, and it won’t be peanuts.
To me, that’s bizarre. Yes, we value free markets because they are free…and because they are effective at making society pleasant, tolerable, and, wait for it…free. Because anything other than a free society, where individuals aren’t allowed to make their own choices, really isn’t a society, period. Lots of stuff (almost everything, but I won’t say everything because that’s too much) springs from freedom; doesn’t mean I have to be an anarcho-capitalist with private police forces.
Furthermore, there is more than one way to justify libertarian social institutions. Natural rights are one way. Utilitarianism is another. And then there’s moral intuitionism, Objectivism, Contractarianism, Rawlsianism, virtue ethics, etc.
Again, I don’t want to be a dick, but…you just sound like you read one Slate piece on libertarianism and are trying to apply it to everything. You seem to have a weird fixation that we have to be absolutists on every point — perhaps in a deontological sense — in order to qualify as libertarian, and that…that just not how things work, whether in libertarianism or anywhere else in the world. Heck, you have tons of Christians who think that Jesus probably didn’t actually exist, and you even have Christians who don’t believe in god. This is not as clear cut as you think it is, and I would continue to encourage you to seek out libertarian websites, writings, and actual libertarians and try to understand them. (Yes, you’re going to find a lot of things/people who are crazy, but that’s every philosophy.)
@teve tory: First off, I’m one of those libertarians who is not against IP, and I find the whole anti-IP thing to be dumb (but I also think current copyright law is dumb too.) Second, I’m trying to think who in my circle of friends gets the most benefits from libertarian philosophy…and it always comes back to my immigrant friends who are trying to get a job here to feed their families and are worried about immigration kicking them out for no good reason, my friends of color who at risk of being shot by some jerk cop who gets off because he’s a government official and they have immunity, or this Vietnamese-American doctor who was brutalized and dragged off a plane by cops and a corporation that exists in an extremely over-regulated industry with low margins and thus can get away with it thanks to government support…you get the idea. [ http://www.nationalreview.com/article/446661/united-flight-3411-why-people-hate-capitalism-theyre-wrong ] If anything, whites gain the most benefit from having a large government to keep down everybody else. Third, the Mises Institute….yeech. Their library is good because it’s good to have access to these books, destroying information is just a bad practice overall. Aside from that, LvMI is not that great and really isn’t considered in the mainstream of libertarian thought. It is heavily criticized by many others in the movement and I would barely consider it libertarian at all (since they really, really seem to dislike immigrants.) Also, DrDaveT, they’re one of the crazy ones I warned you about.
Also, fourth, Ayn Rand hated libertarians. So there.
At the risk of sounding like I’m endorsing slavery (which I am most certainly not), why can’t you?
Slavery has been a historical fact for thousands of years. It exists today. The only reason that it doesn’t exist in the US is because the law debars it. What say you, for example, of a person who (for reasons passing understanding) voluntarily agrees to become the property of another?
Perhaps you meant to say that you shouldn’t have property in human beings. With that I’ll agree, but it isn’t a libertarian position.
How, specifically, would United have violated his civil rights?
Actually, they are. It turns out that United gate agents in Chicago who were servicing the flight announced that the it was overbooked and started offering vouchers before the passengers boarded. Is there anyone who doesn’t understand what “overbooked” means?
And I agree, which (along with the PR benefit and the favorable tax consequences) is why they’ll settle. But if they did get forced into court, they’d almost certainly win. They did what the contract permits them to do.
The City of Chicago? That’s a whole different ballgame.
@James Pearce: How else were they to get him off the plane ? If they told him to leave and he refused ?
Tl:dr. I’m technically an ignostic because I see no point to wasting time worrying about god unless someone can actually define “god” more precisely than warm fuzzy in the sky. I also find it nearly pointless to talk about political conservatism (as opposed to psychologically conservative) until someone can define the term “conservative” in a consistent way. You can imagine how I feel about “libertarian”.
I remember a few years ago reading a blog commenter, quite possibly here, say he was a Libertarian, but he believed that if there were clearly beneficial things that the government was uniquely qualified to do, the government should do them.He asked what that made him. I have regretted not making the obvious reply that it made him a classical liberal.
Title II or III, probably. Not saying it would work, or is even valid, but if I were an Asian man….
If I were sitting in my seat, waiting for the plane to start taxing, “overbooked” would mean ‘sucks for everyone not on this plane.'”
I would be very surprised if it meant that three armed men are going to physically remove me from my seat because I won the Loser’s Lottery.
Would “Don’t sell him a ticket” be too obvious a solution?
Harvard, you may be correct. But these fellows disagree:
Harvard, your provisions apply where a flight is Oversold (a defined term). But this flight was not oversold.
Three posts in a row – bad. But I just got around to reading Spadoni. That was an implied covenant argument, not an unconscionablness argument. They are a little different.
That said, she may have made that argument in the course of the proceedings and it got subsumed in the reasons.
Truthfully – once I learned that the passengers were advised prior to boarding that somebody among them wouldn’t be flying – meaning this knew before he got onboard that he might be displaced- I stopped caring. He has an excellent case against Chicago. A threadbare one against United. Both will be settled before they get anywhere near the merits.
Of course the officers shouldn’t have assaulted him, but the more I learn about the entire sequence of events, the less sympathetic I become and the more that the rending of garments begins to annoy me.
The guy will collect millions, ergo he’s adequately compensated for his damages.
@HarvardLaw92: What’s your source for the info that passengers were told before boarding? Not being argumentative, just haven’t seen it.
NY Times reported a direct statement from one of the passengers.
About halfway to two thirds down the page.
All right, I’ll try to unpack it.
One of the ways that political philosophies can be distinguished is by how they answer the question “When you compare two societies, how do you decide which one is preferable?”. Indeed, how this question gets answered is how you define many political philosophies. A Utilitarian, for example, is someone who judges by asking “Which of them provides more happiness for more people?”.
Libertarianism is (traditionally) defined by asking “Which one is more free?”. You can get quibbles about what exactly ‘free’ means, and whether you care about average freedom or minimum freedom or something else, but libertarianism arises from a prioritization of freedom over other goods.
You, like many libertarians, perhaps believe that a more free society will necessarily be a happier society. This is a contingent claim, subject to empirical verification or falsification. My personal belief is that the claim has been empirically falsified long ago. We can go into the details of that if you like, but it’s not important at the moment.
My question for you is how you would personally react if you came to believe that the freest possible societies are not necessarily the happiest or most productive or most fair or most stable. One possible reaction would be to say “I don’t care; freedom is what matters.” That’s the libertarian position. Another is to say “Well, then maybe I’m willing to trade some freedom away in order to get more of ___.” If that’s your reaction, then you weren’t really a libertarian; you just happened to think that their programme would also happen to achieve your programme.
No, you don’t. You can’t be a Christian and believe those things, no matter what you call yourself or want other people to call you. If you could, the label would be merely the name of a social group, not of a belief system.
…which is exactly where I think most libertarians are today. They aren’t really libertarians, but they do admire freedom, and they wish that freer societies were actually always more successful than less free societies, because that would be really satisfying both philosophically and aesthetically. But when push comes to shove, there are things that they value more than libertarian principles, and they are willing to limit freedom in many cases in order to gain other social benefits. Which is pretty much the equivalent of being willing to say that Jesus never lived, but really liking the social programs and music at the church down the road.
The problem is that actual Christianity is not a set of mix-and-match social views; it’s an entire self-coherent worldview and teleology. You can’t reject the parts that tell you why you should worship Jesus without completely undermining the justification for the rest of it. Similarly, libertarianism is a self-coherent set of principles regarding what is valuable in human societies. Either those principles are the ones you use to tell right from wrong, better from worse, proper from improper, or they aren’t. If they aren’t, then it can only confuse matters to continue to claim to be a libertarian, just as it only confuses matters for non-believers to claim to be Christians.
Well, except when they aren’t. Free markets lead fairly inexorably to extremely disparate income distributions, if you don’t impose outside restrictions on them. Very poor people don’t have many real choices, no matter how much theoretical ability they have to participate in the markets around them.
This is actually a very interesting criterion by which to judge societies — namely, which one leads to more genuine choice for individuals in the future. I agree that it has a strong intuitive appeal.
If you were to discover that (for example) some flavor of Socialism is the form of government that really does maximize the long-term potential for genuine choice by the most individuals in the future, would you conclude that this is the best possible government? Would you call it libertarian?
@HarvardLaw92: Physically, yes, one can have slaves. But slavery is itself anti-libertarian, period. Whether basing your libertarianism on Kantianism, natural rights, or nearly any other moral grounding, slavery is completely disallowed under libertarianism.
I’ll let you figure out why by yourself. It shouldn’t be difficult.
@DrDaveT: Anyone remember the bruhaha several years ago when a self-professed Libertarian prof from the U. of Chicago kept insisting that the “greatest era of freedom” in the US was in the 1800s? The fact that a) women b) minorities c) poor people had very little liberty (except the liberty to die) under that system just totally flew over his head.
That, unfortunately, is the attitude of too many libertarians. White, male, young, and clueless.
Another PR disaster for United.
Lol no it isn’t. I described a free market transaction between two willing parties. The holy grail of supposed libertarian principles.
“Because it’s wrong” is not a libertarian response.
Actually, it can be. There are libertarians who attempt to derive their principles from a Natural Law or inalienable rights model, a la Locke or Thomas Jefferson, and criticize systems that deny those rights as ‘wrong’. Of course, venerating Life, Liberty, and
Propertythe Pursuit of Happiness is easy enough in the abstract, but doesn’t translate well into a prescription for how government is supposed to work, and when the inherent rights of those guys over there should take precedence over my inherent rights.
My take on that “they say they believe in freedom, and genuflect to the concept of free markets, but somehow also believe that someone can’t be free to voluntary surrender that freedom in exchange for something he/she values more.”
Seems hypocritical to me, but then we are talking about libertarianism.
@HarvardLaw92: I agree that going to trial would be a disaster for the doctor, but it would be at least as bad for United, because every day this stays in the news it’s a hit against them. And while you’re right that the trial would require them to go nuclear on the doctor, there’s a good chance that could blow back against them in terms of public opinion — first they beat up their passenger, now they’re destroying his character.
So yes, the doctor really wants to settle — but if he doesn’t, United stands to lose a lot more than he does, if only because they have so much more to lose…
I wouldn’t say ‘hypocritical’, so much as self-deluded (or at least not very self-aware). I think people who claim to be libertarians really think they are; they just haven’t worked through the implications of the fact that they invariably fall back on principles or values outside the framework of libertarian thought.
@HarvardLaw92: Because one cannot ever actually give up their freedom of choice. They may choose to keep working at a place, but ultimately, that choice still resides with them. It is an undivestable inalienable right, and I would figure that someone who went to Harvard Law would understand the meaning of that term. But, yet again, I am disappointed that it went right over your head.
Much has been written on this subject, and the general opinion is that no, one cannot sell themselves into slavery. Here’s some literature on the subject. I am sure you can find more if you care to look.
@DrDaveT: You continue to think that all political philosophies must be absolute. This is nonsense. Also, stop Demsplaining libertarianism to me, a guy who has been in libertarian thought and the professional movement for over a decade now. You don’t know what libertarianism is, or how libertarians come to their conclusions. Stop trying to tell me what I think and why I think so, because it’s just embarrassingly wrong.
Not at all. Only some of them are based on single overriding principles. The link you provided above (in response to a different question) characterizes libertarianism as being based on the single overriding principle of maximum individual freedom.
I do, however, think that if libertarianism is going to be a thing distinct from other -isms, it has to have some distinguishing axioms or principles. So far, nothing you have described distinguishes your flavor of libertarianism from a dozen other flavors of classical Liberalism, except perhaps on aesthetic grounds.
Short version: if I read what self-described libertarians say that is clearly distinct from classical Liberalism, and take it to be primary, I get the unpalatable theory that you are claiming is a caricature. If I don’t take those clearly distinct things to be primary, I get classical LIberalism plus some aesthetic preferences.
Oddly enough, I agree with you there. I can’t get a libertarian to give me a consistent answer about either of those things, no matter how hard I try.
So, none of these are examples of freely giving up freedom of choice?
1. I commit suicide, and can therefore no longer exercise choice.
2. I freely choose to take a drug that destroys my dopamine pathways, becoming a radical Parkinson’s victim a la “Awakenings”. (Substitute some other drug with some other choice-disabling effect as necessary.)
3. I freely choose to submit to a frontal lobotomy, changing both my personality and my ability to make choices.
4. I pay an unscrupulous physician to have me declared mentally incompetent, in a society where such declarations are essentially impossible to reverse.
Now reports that this did not happen on a United flight, but was on a Republic flight. United flight crews were not involved.
Why was this not stated in the beginning ?
@Tyrell: Because if I pay a contracted employee to murder someone else then I’m still responsible….