United Passenger “Removal”: A Reporting and Management Failure
nakedcapitalism.com
nakedcapitalism.com
I found the argument interesting that United should have lied and just invented a plane swap with a smaller body. Would have left the affected passengers is a weak position.
There is so much wrong on all levels including the reaction of the CEO. This will be a case study for long time.
From what I've read, they weren't in a grey area, they were doing something that was specifically illegal. A grey area is when it may or may not be illegal. This wasn't grey.
(I'm not implying it would, I'm curious to read an analysis that covers it)
United still screwed up in a lot of ways. So did Republic. So most of all did the aviation "police" - an organization that seems to consist largely of people thrown out of CPD for exactly the kind of misconduct visible on the video. But somewhere in there I think there's a fourth group that screwed up - the people whose sudden appearance triggered the whole mess.
The problem is that people now believe that. In fact, lawsuits against big companies often are settled on very favorable terms for the customer. As the article points out, United violated their own contract of carriage and FAA regulations. This is going to cost them.
It'd be a cake walk alright ... for the airline.
Pilots have similar powers to the captain of a civilian naval vessel, and can legally refuse to carry passengers or order them off the aircraft: https://www.quora.com/What-are-the-extra-ordinary-powers-tha...
Moreover, refusing to leave the premises when requested or to comply with the police when they arrived, is unquestionably against the law.
Even a jury has to operates within the constraints of the law or be overturned on appeal. Remember, the airline would be the defendant and has the right to appeal.
Sure, being bumped is lousy behavior by the airline but the doctor doesn't have a legal leg to stand on for his tantrum. If anything, the airline could probably sue him for delaying the flight and win.
One might think that, but TFA points out that there are regulations covering when a passenger can be bumped. The demand that the passenger leave may have violated these rules. The police order in that case was mistaken, a point also raised in TFA.
Those regulations do not trump the pilot's authority to directly order a passenger removed for disrupting a flight, even for trivial reasons. See this article that discusses various airlines' history of expelling passengers (warning: autoplaying video with sound), http://fortune.com/2016/05/11/airlines-kicked-off-passengers..., or the FAA regulation directly, https://www.gpo.gov/fdsys/pkg/CFR-2011-title14-vol2/pdf/CFR-...
Moreover, the police order may have been mistaken but that in no way absolves the individual from complying with said order. He should have resolved the issue with litigation afterwards.
(Again, to make my position clear, the airline behaved quite badly but so did the passenger.)
Passenger was not disrupting the flight in any way. Passenger was behaving properly and then was forced to leave for the convenience of the airlines at great inconvenience to himself, despite the fact that he was as entitled to remain on the flight as any other passenger -- as in this was unfair to him and him alone. It was also made clear to him that he was not responsible for being forced to leave as well as the fact that all the other passengers felt the exact same way as the passenger who was being forced to leave.
By making him an agent of his company's customer service to remove a passenger who is in compliance with the law, regulations, and the company's own contract of carriage, and then use FAR 91.3(a) as an excuse to say the pilot must be obeyed is poor logic. And I am a pilot (and a former CFII). I think it makes flights less safe to inject the company's demands into the cockpit. They do not matter, what matters is safety. That's what his FAR is about, not to enable the pilot to be an ass to passengers on behalf of his moronic company.
And claiming otherwise damages the necessary trust that we're supposed to have, and should have, with pilots and crew. Their primary purpose is to save your life. It is not to pour sodas, or appease the company CEOs profit needs by being jerks to passengers, and throwing them off for business reasons.
As for the police, I think that was an illegal assault on the part of the officer, and given the available information the passenger wasn't breaking any laws, so the police being there was inappropriate in the first place, they shouldn't have intervened and should know that.
Edited a few times to remove foul language :-D
Too many places I frequent have had crews, and especially airline pilots, basically pulling the "my word is law, there is no appeal and no review and nobody above me but God and even He only has an advisory role" crap.
More recently, examples of pilots refusing to fly with Muslims on board. It's more of this "what I say goes" logic, and the gate agents were not able to tell the pilot to take the corn cob out, and take these passengers to their destination.
Except that's not who dragged him off. Representatives of a customer safety federal aviation department physically dragged him. I don't think everyone fully understands the sequence or "players" involved (I had to look it up too). - http://www.chicagotribune.com/news/opinion/zorn/ct-united-pa...
Otherwise, you're absolutely correct about voluntary vs compulsory.
A police officer would still be liable for not properly restraining and ensuring the safety of the "victim".
Some additional information from the Wikipedia article on airport police that seems to be relevant: "The City of Chicago Department of Aviation Police perform safety, security and law enforcement functions at O'Hare International Airport & Midway Airport. The department was formerly called the Department of Aviation Special Police. The Chicago Police Department Airport Unit also performs many of the law enforcement duties in and around Chicago area airports." (https://en.wikipedia.org/wiki/Airport_police) However, that information may or may not be current.
You have no idea what you're talking about. Please throw away your throwaway account.
Civilly I can give you, but substantively?
> The test for substance is a lot like it is for links. Does your comment teach us anything?
I don't understand how you can claim I'm not commenting "substantively" when I'm correcting blatantly wrong info with citations.
Technically the blacks in the South had the right to vote after the Civil War. It took another hundred years of struggle to also secure the practical right. Theoretical rights don't matter much for those who can't exert them.
Well, no -- they just don't have much bargaining power. Which is different.
I don't want to make it partisan but with all due respect TOS is not the law (oh btw, please keep pushing to repeal the CFAA in the US). We don't live in a libertarian "paradise".
I've heard of anecdotes where a judge throws a pre-nuptial agreement because it was too one-sided? I think the same should apply to terms of service and arbitration clauses. They cannot supersede the law or become the law.
Something people are not talking about is why isn't there a lawsuit against the police department? They're the ones who did the actual assaulting?
See, for just one example, AT&T v Concepcion.
Your rights are replaced with a contract you didn't quite realize you agreed to. As such, you have no rights against a corporation. The arbitration kangaroo court is not required to observe the law. A meeting of the minds is not required where a contract with a corporation is concerned, as a human doesn't have to realize their rights were stripped by the contract.
When everything is privatized, you will have no rights remaining.
This goes double for Y Combinator-enabled companies because they operate under the guise of being better for their people, their customers, and their industry than others.
I don't think it's fair of you to criticize either the length or the obscurity of terms of service. After all, you could replace nearly all of them with:
" 1. We have every right of every kind and can do anything, without being liable for anything.
2. you have no rights of any kind and may do nothing, except those afforded by law, which you hereby waive as far as legally possible. "
More forward-thinking startups might add something to the effect of "Of course this does not mean we are Satan! We will naturally make an effort to provide roughly the service you have paid for. However, nothing in this section should be construed as a statement that we shall not act like Satan in any particular instance. We reserve the right to be Satan at any time and our sole discretion without providing any prior written warning. You've been warned."
Did I miss anything?
(1) When the meaning of a term (e.g. "boarding") is ambiguous or undefined, courts are required to interpret it in the way less favorable to the drafter of the contract.
(2) If the conditions under which one party may do something are enumerated, they may not do it for reasons other than those on the list.
Both principles of legal interpretation go against United in this case. Remember, this is civil law - not criminal. The burden of proof is very different. While many such contracts are too one-sided, rules such as these exist to ensure that they can't be entirely so. A completely one-sided contract might even violate the requirement that it involve mutual consideration, making it a legal non-entity.
"Lawyer here. This myth that passengers don't have rights needs to go away, ASAP. Here is how United illegally kicked him off the plane:
1. First of all, it's airline spin to call this an overbooking. The statutory provision granting them the ability to deny boarding is about "OVERSALES", specifically defines as booking more reserved confirmed seats than there are available. This is not what happened. They did not overbook the flight; they had a fully booked flight, and not only did everyone already have a reserved confirmed seat, they were all sitting in them. The law allowing them to denying boarding in the event of an oversale does not apply.
2. Even if it did apply, the law is unambiguously clear that airlines have to give preference to everyone with reserved confirmed seats when choosing to involuntarily deny boarding. They have to always choose the solution that will affect the least amount of reserved confirmed seats. This rule is straightforward, and United makes very clear in their own contract of carriage that employees of their own or of other carriers may be denied boarding without compensation because they do not have reserved confirmed seats. On its face, it's clear that what they did was illegal-- they gave preference to their employees over people who had reserved confirmed seats, in violation of 14 CFR 250.2a.
3. Furthermore, even if you try and twist this into a legal application of 250.2a and say that United had the right to deny him boarding in the event of an overbooking; they did NOT have the right to kick him off the plane. Their contract of carriage highlights there is a complete difference in rights after you've boarded and sat on the plane, and Rule 21 goes over the specific scenarios where you could get kicked off. NONE of them apply here. He did absolutely nothing wrong and shouldn't have been targeted. He's going to leave with a hefty settlement after this fiasco."
If their occupancy ratio was lower, then there wouldn't have been a problem, they could have fit the crew in. If they reserved 4 seats for crew on every flight, again there wouldn't have been a problem.
If they had even reserved 2 seats and run sufficient flights such that the crew got to the target airport in time there wouldn't have been a problem.
If they had brought crew in from two different starting points - it would have been fine.
It's still overbooking, just not oversold tickets.
The airline played the game, ran too lean and paid the price.
Much like an ISP having all their IP traffic going down one pipe, and not having enough room to send out the customer invoices because everyone is watching Netflix.
And at any rate, the flight was not oversold anyway. It was merely the 4 extra United employees who put the plane over capacity.
> And at any rate, the flight was not oversold anyway. It was merely the 4 extra United employees who put the plane over capacity.
Well yes, that's the whole point of this discussion, that calling it "overbooking" or "oversales" is wrong.
The plane was fully booked and boarded at capacity, and then 4 more seats were cleared by physically removing passengers. Collapsing these events by saying it's an overbooking issue overlooks the very important timeline in between the plane being booked/boarded and then initiating a removal of said passengers, instead of denying them in the first place.
The request for 4 seats should've arrived before the boarding process (or at least before it ended), that's the problem.
Oversales: The airline sold too many tickets
It's a thin distinction to be sure, but it reads with rhetorical significance to me.
My understanding is that there was a lengthy conversation that took place before the outrage-inducing video starts. They did attempt to resolve the situation peacefully. At some point there is an impasse. Police are making a request and he's ignoring it. There are two ways that can go: 1) Police shrug their shoulders, leave, and let the man have his way; 2) He's going to be forcefully removed.
That is, as far as I can tell, the actual reality of the situation. And anybody advocating for outcome #1 probably has some thinking to do about what it actually means to have a police force at all.
Yet why does the forceful removal of that passenger justify knocking him down and dragging him off the plane? There's plenty of ways to forcefully remove someone from something without doing what they did.
Police is allowed to apply force, but that doesn't immediately give them the right to go loco.
Maybe there are better ways to resolve this situation wrt to the police and the airline. But I think basic common sense says that there are much better ways this passenger could have handled it, too. At some point it must have been obvious to any reasonable person that 1) the cops weren't going to change their minds; and that 2) force would eventually and inevitably be applied to resolve the situation in their favor.
That's not to downplay how horrendously the situation was handled. The airline deserves to pay damages, and he deserves the money. But, to suggest that he didn't help by not cooperating is one of the silliest ideas swirling around.
Again, I have come to expect very little of American police. The crew should have known better than calling the police. I blame more the crew and probably their textbook for unleashing the dogs, rather than the dogs biting.
I found this law which, from a layman's perspective and based on my understanding of the sequence of events, the passenger violated: https://www.law.cornell.edu/uscode/text/49/46504
"An individual on an aircraft in the special aircraft jurisdiction of the United States who, by assaulting or intimidating a flight crew member or flight attendant of the aircraft, interferes with the performance of the duties of the member or attendant or lessens the ability of the member or attendant to perform those duties, or attempts or conspires to do such an act, shall be fined under title 18, imprisoned for not more than 20 years, or both. However, if a dangerous weapon is used in assaulting or intimidating the member or attendant, the individual shall be imprisoned for any term of years or for life."
If a flight attendant asked him to get off the plane and he belligerently refused, that would seem to be a violation of this law.
Note that I'm not arguing that the original request was justified OR that the police response was justified.
49 U.S. Code § 46501 - Definitions (1) “aircraft in flight” means an aircraft from the moment all external doors are closed following boarding— (2) “special aircraft jurisdiction of the United States” includes any of the following aircraft in flight:
And to preempt more of this nonsense, FAR 91.3 and 91.11 don't apply either, those are for operational safety purposes. This is a contract of carriage issue, and what the airline tried to do is not in that contract.
The passenger was within his right to peacefully refuse to cooperate, in this instance, as reported.
There's room for them to have different authority than other Chicago police, I haven't found anything in a couple minutes of looking, but they aren't private security or anything like that.
Instead they chose a side to favor by force.
The police won't arbitrate a civil matter.
> they could asked the airline to cancel the flight and seek damages in a court. Then, and only then, they could remove anyone from the plane as it wasn't part of a contract anymore but just the airline's property.
If they asked the airplane to cancel the flight they could then remove the man from the plane? You're arguing that if United cancelled the flight for everyone that would render the contract of carriage moot for all and then the person would no longer have a claim to a seat?
If the flight was canceled, the contract wouldn't be moot but the case would need to be resolved outside the plane anyway. As the plane wouldn't be anymore part of the problem, the airline could ask for the passenger to be removed on the ground that he was trespassing. The passenger could also ask the police make sure that the plane stays grounded.
Your position strikes me as compatible with an authoritarian police state. And that is not the system of government we have in the U.S.
It is part of the job description for police to, at all times evaluate the legality of what they're doing. Otherwise, they are just hired thugs, might makes right, let a judge sort it out. And if they are merely hired thugs, that makes them untrustworthy by default as civil servants, and will even be viewed as capricious. What's the standard of the moment?
And in fact, that's why Black Lives Matter is even a thing. The police aren't trusted in some communities, because they have so often simply reacted with force. That's what the politics requires, and is a betrayal in those communities. Use force now, sort out the injustices later (maybe). That's a recipe for loss of trust, other than, do what they say or they will beat your ass. That's not justice in any possible sense of a civil society.
I'm seeing the suggestion that United broke the law which doesn't quite seem to be what this article is saying. The article is saying they breached their own contract of carriage. This would allow for damages afterwards in civil procedures but i can't imagine how it gives the man the right to ignore the order of crew and airport police to get off the plane.
The contract wouldn't even enter into it. If there's a grievance, then it should be handled later. The police aren't there to litigate that issue. They're there to resolve the immediate conflict.
Crucially, it doesn't matter that the contract is 100% in your favor. That's not what the police are there to discern.
Everybody is trying to play amateur aviation attorney, but this is really about understanding the role of police in resolving disputes like this one.
Including you.
You're right that it's not the responsibility of police to determine all details of who's right and who's wrong, especially considering contracts that can take days for a trained contract lawyer to understand. They do have a responsibility to ensure that the person requesting removal is the owner of the property, and the person being removed is not a co-owner, but that's about as far as it goes.
However, that's not the only issue being discussed here. Just as we should get too hung up on the "FAA regulated aircraft" portion, we shouldn't get hung up on the "police role" portion either. The more important question is United/Republic's role. Were they in a position to require this passenger's removal, or was that breach of contract? What about the issues of crew logistics and voluntary-deboarding incentives? If you want to broaden the focus, let's broaden it all the way.
Neither 49USC§46501 nor 14CFR§91 applied at the time in question, according to applicable definitions (e.g. "crewmember" and "flight time") which anyone who presumes to interpret law can and should look up near the rules themselves. Absent either of those, the passenger had all the rights he would have in any other time and place. He had a contract establishing his right to be where he was. United/Republic had already recognized that right by allowing him to board in the first place. He had done nothing since to waive or nullify his rights under that contract. Thus, at that moment and under those circumstances, he was under no obligation to comply with the order that was given.
If they'd closed the doors, 49USC§46501 would apply. If they had left the gate, 14CFR§91 would. Those would have been different cases, but we're not here to discuss different cases. Anybody who wants to treat rules as sacrosanct should do so based on a full and accurate understanding of those rules.
https://chicago.taleo.net/careersection/100/jobdetail.ftl?jo...
And I imagine they must have some sort of law enforcement authority.
Doesn't mean it wasn't illegal to do what they did though.
This is correct and I believe it's by design.
Law enforcement officers are selected for high aggression and high intelligence is often/usually penalized in the screening process. In a lawsuit against New London CT, the courts found it legal to disqualify a candidate for being too smart.
I would argue that the unconscious paying customer with a bloody head paid the price.
The cop got suspended. That's paying a price, too. And it may not be the end of the price he pays.
With trust that low it was probably only a matter of time before a dispute escalated into unnecessary use of force.
Many (some? most? warning, weasel words) airports operate at capacity so just adding more flights might not have been possible even if they wanted to
See, for example, the fights going on at Love Field over gate space
They could have started the process before the flight booked, asking for volunteers before they got seated and attached to the idea of being on that flight. If they had no volunteers, they could probably have randomly selected passengers to deny boarding, and rejected them at the gate. While I am offended by them violently dragging the man out of his seat and off the plane, if the ticket scanner doesn't blink green the passenger likely won't force his way onto the plane, and if he was injured by security while doing so, public opinion would not be so united against the airline.
There's absolutely nothing wrong with this, they just didn't follow through with the correct way to free up seats, which is increasing the bid.
Some family cleared something like $13,000 in amex gift cards during the delta debacle last week by volunteering their seats multiple times. If you keep increasing the bid, you will find a price at which someone will give up their seat.
They broke federal law by breaking their contract of carriage. I don't know what is so difficult to understand about that.
Pure and simple.
The huge, 350-million US domestic market is served by 4-5 major airlines, while the EU with 500 million people is served by tens of airlines. I recently flew from Barcelona to Nice for 30 euros, round-trip (with seat assignment).
Where are the (potentially Mexican or Canadian-based) low cost airlines? That's right, none to be seen.
Let's hope this bust-up brings some legislative measures to introduce more competitive practices in the airline industry.
Otherwise we will soon be paying for the right to pee in-flight really soon.
If you mean by distance, sure, but you can drive anywhere in the US, and there are a lot of people that do choose to drive semi-long distances (10-12 hours) over flying when fuel is cheap because they enjoy driving. It's less of an option when the distance is something like 30-40 hours, i.e. from LA to NYC.
> the lousy economics of airlines combined with their oligopoly status in the US says they will be extremely reluctant to make anything beyond bare minimum changes
It sounds like you agree with the author.
Which is understanding the cause, not looking at the symptoms.
I'm in the upper midwest and we have two or three low cost airlines. Sun Country is the biggest (and based in MN). Spirit Airlines also has a decent presence. Sun Country flies to lots of places. First class ticket to Anchorage cost me ~$700 last time I flew with them, less than an economy seat on Delta.
In the EU, many (most?) airports are privately owned. In the US, they're almost always state owned. Furthermore, the Port Authority generally owns all the airports in the area.
In many EU areas, that's not the case. There's 6 airports in the London area and they all compete to offer the lowest landing fees to win airlines.
Ryanair capitalised on this and really injected all the competition in the market by only flying from 'secondary' airports.
I'm not sure the same thing could happen in the US. There isn't the same level of competition for airports, and without that I think it's hard for any airline to really make any difference.
"When you use the web, you don’t read every word on every page - you skim read and make assumptions. If a company wants to trick you into doing something, they can take advantage of this by making a page look like it is saying one thing when it is in fact saying another."
United behaved despicably, but not illegally.
As in, among other reasons, is United in the wrong here because the maximum they offered for volunteers was $800, not the regulated $1350?
So bumping the person that paid the least for their ticket would mean they have to pay them the least.
`min(2 * your ticket price, $675)`; or
`min(4 * your ticket price, $1350)`
Judging by personal anecdotes I've read around the web, airlines may be willing to pay more if they are in a bind. But note that this whole voluntary/involuntary bumping procedure happens before you scan your ticket and board the airplane.
I'm extremely pro-journalism (donate to various organizations, listen to podcasts hosted by journalists) but I'm completely baffled by how very few if any journalists dived into the details on what happened here in the very video, specifically the legalities and technicalities, compared to Redditors (who happen to be laywers) and bloggers. Going forward, readers who happen to be consumers and passengers could easily be adopting misinformation spread by trusted media sources and have the wrong frame of reference to view what happened.
At the very least, a journalist should ask the airline and the police: -has a crime been committed? -has a civil contract been committed? -what breach of law or contract has been committed and can you cite this exactly? -do you often threaten passengers with removal? -how often are you asked to do non-criminal passenger extractions on behalf of the airline? which airlines?
Either the passenger committed a crime to cause forced removal, and it seems clear he didn't commit a crime (nor was in breach of the contract of carriage); or the police committed the crime of assault, an unlawful use of force. There's a crime here either way, and that outcome I think is interesting.
But no less interesting is that United appears to have a track record of using threats of violence to get passengers to do things that are not at all required by law, regulations, or their own contract of carriage. http://www.latimes.com/business/lazarus/la-fi-lazarus-united...
That passenger decided to acquiesce to the threats, and ended up having no real meaningful recourse, i.e. even for this reasonably affluent person, it wasn't worth it to sue.
Basically the contract is next to meaningless. This is might makes right. And if you won't stand your ground, aren't willing to get wrongfully arrested, and then sue at your own expense, the airline's threats will work and they'll get what they want.
American and United are two of the most poorly run mega-corps in the US. Customers hate them, but need to fly. Warren Buffet thinks they're notoriously bad investments. Why?
http://www.marketwatch.com/story/warren-buffetts-big-bet-on-...
This still doesn't refute my primary argument.
As far as the companies being bad investments, it's most likely due to their extremely low margins and ROI.
The FAA regulates an immense amount of things that are trivial and those regulations are very hard to update. The FAA issues the vast majority of regulations[0].
[0]: https://www.federalregister.gov/documents/search?conditions%...
https://www.gpo.gov/fdsys/pkg/CHRG-113hhrg86618/html/CHRG-11...
Get rid of the FAA and it's only a matter of time before what was illegal ends up taking down a full airliner, killing hundreds or even thousands of people and ruins flying for everyone.
I don't know how you can back that up. Who has done an analysis on the percent of them that have made a material impact on safety.
> Get rid of the FAA
I didn't say that. I just said they're in the way of innovation and customer satisfaction. Maybe we don't have to be extreme. Maybe we could just modernize them?
If Fact Check really becomes a thing, I hope that Google will be able to use current events like this as a bar for how fast Fact Check needs to respond to an event to make it useful. If they could find and source well researched information and immediately flag misreported news articles while a topic is at the forefront of the news, then it would immensely help educate people. For example:
My parents have not stopped talking about this since it happened and are still looking at and reading news about it. There was some misreported information that I had to clear up for them. If Fact Check worked, then it definitely would have prevented misinformation spreading to them and probably many others.
The more pressing matter is what do you do as a passenger when YOU are involuntarily denied boarding due to overbooking? Are you gonna sit in place, say, "I don't believe you." and wait for the stasi to take you away for a beating?
If they wanted volunteers to fly the next flight instead of this, they should have offered more than $400. Kind of like an auction: $500, $600, etc. and eventually enough people would have been incentivized to take the deal.
The company failed at that and now their competitors will get their business and increase their market shares at United's expense.
IANAL, but they might even be facing a very expensive lawsuit and will have to settle.
The market will ultimately work things out, I don't think the FAA should intervene much.
https://www.nytimes.com/2017/04/11/business/dealbook/wells-f...
I believe other airlines implement this in some capacity.
Exactly.
Immediately before that point, there are a multitude of things that could have been done or done differently. The choice was made by that one individual to physically take hold of the passenger who was ultimately, peacefully, declining to deplane.
For example ... the officers could have:
1. Explained to the passenger and everyone around him about how he is single-handedly delaying everyone else's arrival home right now.
2. Gave several warnings, spaced out appropriately over time, that increased levels of escalation will be involved, up to and including the point of physical removal. In other words, telling him he will be forcefully removed against his will for not obeying the law.
... and so on with certainly more creative approaches that I wouldn't necessarily expect a typical police officer to think of and/or employ.