A federal trial judge cited earlier Supreme Court cases involving claims against frequent flyer programs in dismissing Ginsberg’s lawsuit, including his claim that Northwest did not live up to the terms of the contract. The judge said the contract gives the airlines the right to kick someone out of the mileage program at its “sole judgment.”
But the 9th U.S. Circuit Court of Appeals in San Francisco said part of the suit could go forward involving whether Ginsberg and others can sue under state laws that require parties to a contract to act in good faith.
Justice Elena Kagan showed some sympathy for Ginsberg’s claim when she questioned Paul Clement, the Washington lawyer representing Northwest at the Supreme Court.
If the airline could easily avoid living up to its end of the bargain in the mileage program, Kagan said, “I don’t think that I’d be spending all this time in the air on your planes. You know, I’d find another company that actually gave me the free ticket.”
Clement replied that Kagan’s example shows that the free market, not a court, is the right place to address her problem.
“So if some airline really were crazy enough to systematically turn on its most lucrative and loyal customers, surely, the market would solve that. And, of course, if a bunch of airlines did it, the Department of Transportation stands ready to police that,” he said.
Several justices questioned whether it is important to the case that many people earn and spend miles on items other than airline tickets. “Do we have to worry about that in this case?” Justice Samuel Alito asked.
Adina Rosenbaum, Ginsberg’s lawyer, told the court that the growth of mileage programs to encompass more than airline tickets is another reason to rule that Ginsberg’s lawsuit is not blocked by the deregulation law.
Breyer said the court perhaps could leave questions involving miles earned elsewhere “for another day.”
A decision is expected by late June.
The case is Northwest vs. Ginsberg, 12-462.