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OST-2014-0166 - Mike Borsetti v. British Airways - Business Class Ticket Complaint


Mike Borsetti et al. v British Airways Plc

OST-2014-0166 - Business Class Ticket Complaint

September 22, 2014

Complaint of Mike Borsetti

This complaint arises out of my family’s confirmed ticketed travel paid transatlantic business class travel. Inexplicably British Airways check-in counter staff refused us for check-in and then, relenting only after our continued persistence, downgraded our group of four by not one class of service but two, and failed to provide the compensation required by its own tariff and EU law. After I complained, BA even failed to provide the written reply required by applicable DOT regulation. Having exhausted informal remedies, I file this complaint to seek DOT assistance in obtaining the relief provided by law and regulation and to prevent BA from engaging in similar behavior towards other passengers.

British Airways airport staff refused to check us in, stating that it “had confirmed too many reservations” and that it would not accept us “because our reservation was made, and our ticket was issued by, American Airlines.” Notably, BA staff did not at any point claim that our reservation was not confirmed, nor did BA staff dispute that our tickets were valid for the flight. Rather, BA staff simply indicated that the flight was oversold and that we could not check in.

By: Mike Borsetti


October 6, 2014

Motion of British Airways for Extension of Time to File its Answer to Complaint

Pursuant to § 302.405, the British Airways answer to the complaint filed in this docket is due fifteen days following the date the complaint was filed. British Airways respectfully requests an extension of that deadline until October 21, 2014.

The requested extension is required to enable British Airways to fully investigate the factual circumstances applicable to the allegations made in the complaint and to enable British Airways to coordinate its response with counsel and staff in the United States and the United Kingdom. Because the initial transportation involved in the complaint was booked on and ticketed by American Airlines, it also is necessary to coordinate with American Airlines personnel. Finally, personal issues required undersigned counsel to be out of the office for several days following service of the complaint.

British Airways requested Mr. Borsetti to provide his consent to this request for an extension but he has not yet responded.

Counsel: Garofalo Goerlich, Don Hainbach, 202-776-3970


October 21, 2014

Answer of British Airways to Complaint

British Airways Plc hereby answers the complaint filed by Mike Borsetti relating to transportation provided to Mr. Borsetti and his family between Los Angeles and London on February 14, 2014. Except as otherwise stated below, British Airways denies the allegations of the Complaint and respectfully requests that the Department of Transportation dismiss the Complaint without further investigation or order pursuant to 14 CFR § 302.406(a)(2). The structure of the Complaint and the assertion of legal and other conclusions do not lend themselves to a precise responsive pleading. To the extent that there is any factual statement or allegation that is not specifically admitted or denied herein, it should be deemed to have been denied.

British Airways respectfully urges the Department to decline to commence an investigation or formal enforcement proceeding. There is no basis to do so. Mr. Borsetti's Complaint is apparently based on his misapprehension that the Department is the appropriate governmental entity to enforce requirements imposed by European Community Regulation 261/2004. Mr. Borsetti cites no authority for that assumption and none exists.

Mr. Borsetti asserts numerous violations of the denied boarding provisions of Part 250. However, those assertions do not account for the factual circumstances in effect on February 14 and are not compelling given that Mr. Borsetti and his travelling companions were able to travel on BA 268 on February 14.

Mr. Borsetti also makes a number of assertions regarding various sections of Part 259 and Part 374. For the most part, those assertions are not accurate.

Finally, Mr. Borsetti asserts that British Airways violated section 90(D) of its International Passenger Rules Tariff. Section 90(D) need not be considered in this proceeding.

Counsel: Garofalo Goerlich, Don Hainbach, 202-776-3970


November 12, 2014

Motion of Mike Borsetti for Leave to File a Reply to British Airways' Answer

BA’s Answer introduces new facts to the proceeding not present in my Complaint, which would benefit if addressed by me. For example it cites the cancellation of flight AA 136 and BA’s subsequent request to a single AA employee “that no additional bookings be made in [business class]” as being events relevant to this case (page 3, under the heading of “Factual Background”). I believe the Department would benefit by my submittal in my reply of evidence showing that the cancellation of AA 136 took place well after BA had confirmed our reservations, and therefore, should these facts ever even matter, they are totally irrelevant to the Complaint.

BA’s Answer further makes assertions as to my behavior (page 4), inten-tions (page 5), and decisions (page 7); these assertions are not accurate. I believe the Department would benefit from learning about my true behavior, intentions, and decisions.

For these reasons, which benefit the Department, I urge you to grant this motion for leave to file a reply to BA’s Answer, with the understanding that I shall keep it to a length of five pages or less.

By: Mike Borsetti

November 13, 2014

DOT Granting Motion for Leave to File

By this email, the Office of Aviation Enforcement and Proceedings is notifying the parties that Mr. Borsetti's November 12, 2014, Motion for Leave to File a Reply to British Airways' Answer in the above-referenced docket is granted. Granting the motion will provide the complainant the opportunity to address information that he states he was unaware of until it was presented in British Airways' Answer. Mr. Borsetti's reply is due by November 24, 2014, and British Airways response is due by December 15, 2014.

By: Clereece Kroha, 202-366-9041

November 21, 2014

Reply of Mike Borsetti

BA mocks the record as lengthy (Answer, p. 4). But it was BA’s blunder, at best negligent and at worst intentional, in accepting bookings BA knew it could not ac-commodate. Then BA again failed to follow through in correspondence, including failing to reply (in a timely matter or sometimes at all), failing to support its calculations with methodology, and by its own admission sending refunds for mistaken amounts and of insufficient number. These BA errors, and no fault of mine, give rise to this unfortunate docket. If the record is lengthy, that reflects only my repeated efforts to obtain satisfaction from BA before troubling the Department.

BA admits to having accepted business class bookings “from travel agents and American reservations agents” with the knowledge that it had no space to accommo-date them in such class (“only economy classes were available”, p. 3). BA says that pas-sengers were “continued to be booked” “in the premium classes”, indicating that BA allowed its reservation system to accept and confirm reservations for seats it knew it did not have. This willful overbooking is a clear violation of 49 USC § 41712, and calls for careful examination by the Department.

BA mistakenly claims that tariff “Rule 90(D) need not be considered” (p. 12) and that the Department should limit my “ability to invoke” “US regulations” (p. 8). But BA is always bound by the tariff and, for travel between the US and UK, by all laws and regulations of both jurisdictions. The applicable rules are in no way inconsistent; quite the contrary, both provide for refunds in this circumstance (though EU rules are more specific as to the amount of refund to be provided). If BA wants to avoid US legal duties, it should discontinue service to the US.

By: Mike Borsetti


December 15, 2015

Surreply of British Airways

British Airways Plc respectfully reiterates its position that there is no need for the Department to commence an investigation or formal enforcement proceeding in response to Mr. Borsetti's Complaint. As demonstrated in the British Airways October 21 Answer, and as further demonstrated below, Mr. Borsetti's Complaint results from his booking transportation from Los Angeles to London on an American Airlines flight that was canceled, and his subsequent and ultimately successful efforts to obtain substitute transportation on a codeshare flight, operated by British Airways, scheduled to depart Los Angeles later that same day. Although British Airways regrets the inconvenience experienced by Mr. Borsetti and his family as a result of its inability to accommodate the party in Business Class, neither his treatment at Los Angeles, nor British Airways' response to his subsequent communications, merits an investigation or formal enforcement proceeding.

Counsel: Garofalo Goerlich, Don Hainbach, 202-776-3970


December 15, 2017

Motion Requesting Action on Complaint

Even after using BA’s proposed methodology, the amount BA has refunded us falls short by an astounding $1001.98, almost half of the total. Moreover, the DOT has yet to approve BA’s proposed methodology or direct BA to complete the refund.

I do not know what, if any, action DOT has taken in response to my complaint. No one from DOT has notified me of the status of my complaint or the DOT’s view of it. To my knowledge, the DOT has not made BA accountable for the violations of US law that I reported. The docket shows no activity for the last 3 years, since 15 December 2014. Against the backdrop of other widely publicized overbooking misconduct by airlines, including the sad events that ended with the severe injury of Dr. Dao in Chicago earlier this year, the DOT should move with renewed vigor in investigating, and solving, meritorious passenger complaints.

I ask the Department to act on the Complaint in this Docket and for the General Counsel to exercise its authority to “assist and protect consumers in their dealings with the air transportation industry” of 49 CFR § 1.27 (n).

By: Mike Borsetti


December 27, 2017

Contingent Answer of British Airways

Mr. Borsetti did not seek leave, pursuant to Rule 6(c) of the Department's Rules of Practice, to file his Motion dated December 15, 2017, requesting the Department to issue a decision in this docket. If the Department nonetheless accepts Mr. Borsetti's Motion, British Airways Plc hereby submits this answer pursuant to Rule 11(c) of the Department's Rules of Practice.

As demonstrated by British Airways' Answer dated October 21, 2014, and its Surreply, dated December 15, 2014, there is no basis for the Department to take any action other than to dismiss Mr. Borsetti's Complaint. Mr. Borsetti's Motion does not raise any substantive issues not previously addressed, and British Airways respectfully renews its request that the Department dismiss the Complaint pursuant to 14 CFR § 302.406(a)(2).

Although the three checks previously issued to Mr. Borsetti and his family were issued in error, British Airways never asked Mr. Borsetti to return or destroy those checks. However, in the interest of resolving this matter, British Airways intends to send replacement checks to Mr. Borsetti.

To the extent Mr. Borsetti's Motion includes any factual statement or allegation that is not specifically admitted or denied herein, it should be deemed to have been denied. British Airways categorically denies committing, or admitting to, any violations of United States law.

Counsel: Garofalo Goerlich, Don Hainbach, 202-776-3970


Order 2018-5-17
- Business Class Ticket Complaint

Issued and Served May 18, 2018

Order of Dismissal

On September 22, 2014, Mike Borsetti filed a third-party complaint under 14 CFR § 302.404 against British Airways. The Complainant alleges that BA violated the Department’s rules concerning oversales, refunds, and substantive responses to consumer complaints, 14 CFR §§ 250.2b, 250.3, 250.6, 250.9, 259.5, 259.7 and 374.3, when it downgraded his traveling party to a lower class of service. The Complainant also contends that BA’s actions constitute unfair and deceptive practices in violation of 49 USC § 41712. This order finds that BA did not violate these regulatory and statutory provisions, for the reasons stated in this order. We dismiss the complaint.

By: Blane Workie


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