Disclaimer #1: The following is not legal advice. Contact Bachuwa Law if you have an issue with BA.
Disclaimer #2: The following is not a discussion. I don’t care to hear from pundits who think that class action is the way to go for consumers looking to actually obtain real settlements, not a can of Red Bull (see No Class-Actions Against Banks? So What).
Now that we have that out of the way, let me also attack Lucky. In his misinformed piece, British Airways Updates Executive Club Terms, Adds Class Action Waiver & Arbitration Agreement, he wrote “You’ve gotta love British Airways adding an arbitration agreement and class action waiver during a pandemic.” Lucky was being sarcastic, but if he understood how well consumer arbitration can work, he should consider himself lucky that this is the way disputes are resolved.
Reason #1: Leverage
What leverage does a tiny consumer have against a big company when a dispute arises? Next to none. Corporations have a team of lawyers and unlimited resources to crush any consumer dissent. In consumer arbitration, the speckle of leverage that consumers have is that the corporation pays for the majority of the arbitration (consumers pay up to $200 and the corporation pays tens of thousands). Most companies, especially if a consumer is not represented by a lawyer, will find it more beneficial to settle an individual case than spend $10,000 on arbitration costs and legal fees fighting a $10 dispute.
Enter BA. Prior to this gift to consumers for resolving claims, the way to resolve a dispute against BA was using the tried and true legal method of HUCA. For non-lawyers, that means Hang Up Call Again. For most of us, that meant listening to that childhood lullaby hold music before finally being transferred to a disinterested customer service representative who would apologize and say that there was nothing that could be done. The litigious among us would not be dissuaded by predictable bad customer service. We would continue to fight.
Reason #2: Do It From Your Couch
Prior to consumer arbitration, the next step to resolving the dispute was to file a small claims case. I have extensive experience in that arena as well. Although I filed a small claims case against BA and it successfully settled before I stepped foot into court (see Should You Record Your Calls for Quality Assurance?), I’ve filed other claims against other companies and found the process to be a disaster (see No Justice In Small Claims Court). (If you do have to go to small claims because there is not an arbitration agreement, first read Small Claims Court, A First-Hand Tutorial.)
Instead of going to a crowded courthouse over and over and having to wait for your name to be called, simply email a demand for arbitration. Then you can just lie back and wait for the company to come to you. Clearly, this beats dealing with a socially un-distanced courthouse.
Reason #3: Real Results
So what are the results? As a lawyer, I have to say that results are not guaranteed (that’s disclaimer #3). As a lawyer who refused to sign a confidentiality agreement (see The Successful Fight Against A Citi Shutdown), I can openly and truthfully say that I have settled cases for thousands of dollars for many clients by filing consumer arbitration claims.
Fighting companies is a never-ending battle. Corporations will never change their shady practices. That doesn’t mean it’s time to give up. It also doesn’t mean that you should run to the first lawyer you know and parrot out, “Class action!” when something doesn’t go your way. First, these arbitration clauses eliminate class actions so your fanciful class action will not get off the ground. Second, a point worth repeating is that class actions overwhelmingly benefit lawyers’ pockets. Meanwhile you the consumer may receive a nominal statement credit for your inconvenience. Once again, the minuscule consumer gets next to nothing and the big law firm, which lest there be any doubt is also a company, takes mostly everything.
Though small claims may be an option and it may work, it is an unnecessary hassle with random results. While far from perfect, consumer arbitration is presently the best option.
Don’t believe me? Try it yourself without a lawyer and share your results. Until then, please don’t share your two cents because I charge by the hour to read and respond to them.