Customer Sues Delta For Bogus Weather Cancellation, Wins

Meet Mitchell Berns. Delta slapped him with a bogus weather cancellation and, rather than sit down and take it, he booked himself and his family on another flight — then sued Delta in small claims court and won a default judgment. Berns is a lawyer, but he didn’t do anything that you couldn’t do.

From Fortune:

Back at home, Berns did what any consumer with $15 (in New York City) and a working knowledge of English (or Spanish, in most states) can do: He filed a small-claims suit against Delta for $938. Delta did not show up to defend itself, so on June 12 he won a default judgment. When a legal analyst from the airline called him two weeks later to negotiate a payment, he declined an offer of frequent-flier miles (“Confederate currency,” in his words) and made a counteroffer: If you pay me within two weeks, I’ll knock $100 off. Delta agreed but asked for a confidentiality agreement. Berns said they couldn’t have both, and Delta took the discount. (A Delta spokesperson did not respond to repeated requests for comment.)

“The lesson is, Don’t let them bully you with bogus cancellations,” says Berns. The whole thing took him about four hours, he recalls, resulting in earnings of less than half his hourly billing rate. “But I’d do it again,” he says. “That’s how good it felt.”

A flier strikes back [Fortune]
(Photo: Zonaphoto )

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  1. MickeyMoo says:

    My new hero!

  2. Diet-Orange-Soda says:

    Victory for Bernsy sure, but a default judgment doesn’t really mean anything in terms of precedence. Just hope you get lucky and the airline doesn’t show up again.

    • AgentTuttle says:

      @Diet-Orange-Soda: Nobody would send a lawyer into court to argue a storm where it can be proven there was none. Of course they are not going to ever show up for these cases. You want to argue a case against God? That’s kind of what it is like.

      • rpm773 says:

        @AgentTuttle: Yeah, but what proof does Burns have that the flight *wasn’t* canceled due to weather, short of the anecdotal evidence that other flights were departing? Doesn’t he have to make that case, as he’s the one suing the airline?

        • newfenoix says:

          @rpm773:Simple. FFA and National Weather Service reports for that day for departure and destination city. If the weather was good and no other airlines were canceling this would be enough to prove his case.

          • rpm773 says:

            @newfenoix: I don’t like the airlines, but I’ll keep playing devil’s advocate :)

            The airline canceled the flight because while it would have arrived at JFK before the storm hit, perhaps it would have been stuck there for one, maybe two days while the airport was closed, causing the airline even bigger headaches, more cancellations, loss of revenue, etc. Is that a legitimate weather cancellation?

            I’m not saying that happened, but maybe that’s how the airline defends its action.

            • newfenoix says:

              @rpm773: No it is not. Planes can be and often are rerouted. Delta is well known for canceling flights for “weather.” Last May, my wife and flew back to DFW from Cancun via Mexico City. The AA flight was late BUT still took off and returned to DFW and to an hour and a half in a holding pattern because of a lightening storm. Something that is very bad for avionics. BUT no flights were canceled. Our pilot had to change his cruising altitude several times to avoid storms clouds.

        • Amelie says:

          @rpm773: Why ask moronic questions when you can read the article, which details “the proof about the weather” that the man had?
          Contrary to your assertion that you’re “playing the devil’s advocate,” the reality is you’re simply trying to start stuff based on your convenient assumptions instead of actual information.

  3. akacrash says:

    I like the back and forth negotiation. Good for him.

    Lawyers vs Airlines, it’s like rooting for the lesser of two evils.

  4. rpm773 says:

    When a legal analyst from the airline called him two weeks later to negotiate a payment, he declined an offer of frequent-flier miles

    The miles! The miles! I’ll take the miles!

    Confederate currency indeed. Good for him.

  5. 12-Inch Idongivafuck Sandwich says:

    No reason to take miles when it costs money to book using those miles.

  6. wiggatron says:

    So this guy makes/bills at 400+ dollars an hour? I want his job!

    • midwestkel says:

      @wiggatron: Yea thats what I’m talking about. Thats more than Hulk Hogan makes!

    • huadpe says:

      @wiggatron: $400 an hour is high for a lawyer, but not too uncommon.

      Lawyers can make a good living in private practice, but they do incur costs. You have to pay rent on offices, salary for a receptionist/paralegal, and various other costs associated with running an office. $400 an hour is plenty enough to cover that, but it’s also not the take home rate.

    • mrafternoon says:

      @wiggatron: go borrow $60,000-$80,000 dollars, quit your job, and spend 3 years in law school to get that job with a $400/hr billing rate. its just that easy!

      • wiggatron says:

        @mrafternoon: I just spent 5 years in Design school and it only set me back 75K+. I’m currently taking a permanent break from college whilst enjoying my entry level job. I’ll never bill 400 an hour, but I’ll survive.

    • wattznext says:

      @wiggatron: You can have it, after undertaking his Law School time/effort/bills!

    • mythago says:

      @wiggatron: Go to law school for three years and pursue courses that will get you into securities litigation. Then you, too, can bill $400/hr. You won’t make $400/hr, because as an associate you’ll be salaried, and as a partner you get a share of law firm profits. It’s still pretty good money, though.

      @jennj99738: I doubt a small-claims judge is going to want to hear from expert witnesses, and you don’t need an expert witness to tell you what the weather was that day.

      All it boils down to is that the airlines has to pay for a lawyer to show up in Small Claims Court for them; even if it’s an in-house attorney, they have to pay to send her there and she isn’t getting her normal work done.

    • rekoil says:

      @wiggatron: Billing rate != take-home pay. If he has is own practice or is a partner, he’s gotta pay for his firm’s office space, staff, etc. out of that billing rate. If he’s a staff lawyer, he’s most likely salaried like any other employee.

  7. Carencey says:

    What sort of data would one need to prove that the cancellation was not weather-related? We have abundant evidence on one side that flights can be affected by weather conditions that are neither at your origin or destination, and also evidence that the airlines are willing to call things weather-related so that they don’t have to pay up…how would you convince someone in court that it was the second, if the airline actually did show up? Would you have to have a statement from an airline employee?

    • ILoveVermont says:

      @Carencey: Methinks that he didn’t have to prove anything – he won a default judgement because Delta never showed up at court. I don’t believe he even had to produce any ‘evidence’ to the judge. He wins just by the fact that Delta didn’t show up.

      • czetie says:

        @ILoveVermont: IANAL and jurisdictions vary. I won a default judgment against a contractor (failed to do work he’d taken a deposit for) but the judge didn’t just take my word for it — she asked to see evidence that I’d had a contract, paid him, and had the same work done by somebody else. This is just my one experience of one default judgment, but it makes sense that there should be some standard of proof, otherwise you’d have the usual leeches filing lots of cases in inconvenient venues in the hope of winning a few by no-show.

        In this case, of course, the facts of the guy taking a flight on another airline plus the weather reports would probably have been enough to make his case.

    • Coelacanth says:

      @Carencey: Several months ago, Consumerist wrote an article about hiring a forensic meterologist.

    • Ben Popken says:

      @Carencey: You can hire a forensic meteorologist.

      • MissTicklebritches says:

        @Ben Popken: you can also print past weather reports from online sources, can’t you? I’d have no problem believing this guy went to The Weather Channel’s website the day of the flight cancellation and printed something right away.

  8. TheSpatulaOfLove says:

    Confederate Currency – My new favorite term!

  9. Xanaxian says:

    I just don’t understand why he let them off the hook for the hundred bucks.

    • weakdome says:

      @Xanaxian: Because he booked himself on another flight, so apparently made it to his destination, and therefore wasn’t out for more than the cost of his original tickets? That’s my guess. Also most likely because he had a better chance of getting his money back than sueing for more than what they were actually worth, to be taken seriously.

    • esd2020 says:

      @Xanaxian: Because it’s better to have $838 now with a small fight, then $938 later after a long, drawn-out fight. If they want to be jerks about not paying then (at minimum) it means you have to spend another day at small claims court.

    • MissTicklebritches says:

      @Xanaxian: he didn’t. He knocked $100 off of the $938 judgment in exchange for prompt payment. Otherwise, they’d have dragged their feet for months.

  10. SkokieGuy says:

    How do you prove, well from the article linked in this post:

    “Berns checked the National Weather Service report. It said snow that day was expected at five the next morning – hours after his flight was scheduled to land. He and several other passengers from his Delta flight easily booked a JetBlue flight departing at the same time.”

    While the plane departing might have been coming from a different location that is impacted by weather delays, that is due to the airline’s choice of where and how to schedule aircraft. The only weather that can justify the no refund policy is the weather at the point of departure, arival and the airspace in between.

    • nicemarmot617 says:

      @SkokieGuy: I totally agree. I am so sick of them lying about the weather for cancellations. Sorry, your bad scheduling is not equal to a bad weather cancellation. As far as I can tell their reasoning is something like:

      Airline: Sorry, this flight is cancelled due to bad weather.
      Customer: What do you mean? It’s sunny here, there and in between.
      Airline: Well, there’s bad weather someplace else, so the plane that was supposed to take you on this flight won’t be showing up.
      Customer: And that is my problem how?

  11. Coelacanth says:

    I think for the vast majority of people, the default judgements on a typical round-trip ticket certainly exceed their hourly payrate.

    It’s sad when lawsuits and hefty fines are the most effective way to coerce a large company to truly take things seriously.

  12. bluejasn says:

    @ wiggatron

    I think if a lawyer bills at 400/hr the Firm he works for earns 400/hr he prob gets like $50-$100/hr

    • camille_javal says:

      @bluejasn: A first-year associate at a large firm in a major city makes about the equivalent of $80/billed hour ($160,000, with a minimum of 2000 billing hours a year). They’re billed out at around $200/hour, I think?

  13. prag says:

    The question is what would he have to prove if the airline produced a defense. That might be a little tricky but the reality is it would cost the airline more to defend than the claim itself so they’re stuck trying to settle once a judgment has been made.

  14. Fly Girl says:

    Delta = pwned.

    That being said, I’m pretty sure that Delta didn’t bother sending anyone because it wasn’t worth their time/money, not because they were admitting to guilt. Even if they believed that they were innocent, it wouldn’t be worth it to pay for someone to spend a day in court over a $900 small claims case. Also, I think it’s actually pretty hard to prove that an airline falsified that FLIFO. The FAA keeps pretty tight watch on the airline reporting… And just because the weather was a balmy 85 degrees and sunny in both the destination AND the departure cities (if that was the case), that doesn’t mean that the flight wasn’t cancelled for weather-related reasons. Weather patterns in flight paths can cause delays and cancellations, and trickle-down delays (caused by early morning weather patterns) are still legally weather-related delays, even if the weather has since cleared up.

    Regardless, it’s nice to know just how easy it is to file a small claims and win a judgement against an airline.

    • uomdeacon says:

      @Fly Girl: I’m pretty convinced that airlines are willing to lie about weather delays based on personal experience. Last year, during pilot contract negotiations, I remember having a flight canceled, with the reason given as “weather”. Unfortunately for the airline, I read the newspaper, which states in clear terms that they had canceled all of their flights that day since the pilots were over their allotted hours, and could not fly. It hurt my feelings.

  15. doctor_cos wants you to remain calm says:

    The only weather that can justify the no refund policy is the weather at the point of departure, arival and the airspace in between.
    Excellent, excellent. Next time, USAir. Heh heh heh.

  16. bluejasn says:

    Actually though hes prob making a monthly salary that has nothing to do with what hes billing for his firm

  17. jennj99738 says:

    Math is not Consumerist readers’ strong points, heh? Mr. Berns spent 4 hours (not 1) to recover $838 which is a little over $200 per hour, not $400.

    If Delta had sent an attorney, it may have been a lot more difficult for Mr. Berns to win without some kind of expert testinmony.

    • zeroraveson says:

      @jennj99738: From the article: “The whole thing took him about four hours, he recalls, resulting in earnings of less than half his hourly billing rate.”

      So, if $209.50/hour is less than half of his hourly rate, then his hourly rate is $419 or more.

    • BrianDaBrain says:

      @jennj99738: That would have nothing to do with Consumerist math. They’re quoting another article.

      Bravo to the OP, though. One small victory for consumers everywhere. I love the little blurb about asking for confidentiality… and how they’d rather pay $100 less than have the story kept secret. That’s rich.

  18. picardia says:

    Virtually any airline wouldn’t respond to a small claims case, simply b/c they don’t have enormous in-house staffs (and most of those are busy handling more critical matters), and sending in an outside counsel would be more than the judgment was worth. This means you could win virtually any small claims case against an airline.

    Hmmmmmmmm.

  19. kepler11 says:

    good for him.

    But I doubt any of you will be reproducing his result. Do you have the knowledge, money, and wherewithal to buy full fare tickets to get yourself somewhere in the face of a weather delay, genuine or not, gambling that you’ll be able to win judgment later to recover the amount?

  20. Marshfield says:

    Some small claims courts in the King county (seattle) area make you state your case even if the defendant doesn’t show. Others are more lenient and just issue the default judgement. So you might have to prove (or at least present) your case, or you may not. Obviously, if you’re the plaintiff, “not” is preferred!

  21. Jimbo says:

    He didn’t win anything, he only got reimbursed for his other trip.

    As for winning a default case if the other party does not show up, you still need to prove that your claim is valid with evidence, etc.., However the best part is that there is nobody to oppose your claims!

  22. ludwigk says:

    So did he have to take delta to small claims just to get his original ticket refund back? Or was the award on top of that? When my recent airtran return flight was delayed due to “weather”, which would have resulted in being stranded on the wrong coast for 3 days, airtran gave all the money back immediately. Actually, they refunded more than half the amount, which my 10 semesters of advanced mathematics education is powerless to explain. I still ended up $480 in the hole, since booking alternate last-minute travel plans was more costly, but airtran didn’t try to sneak away with my money after stranding me in Boston.

    • Fly Girl says:

      @ludwigk: The reason you got more than half of your money back is pretty simple: your return ticket was more expensive than your outbound. Every ticket, regardless of whether it’s *technically* two one-ways or one round-trip, has individual pricing for each leg. Most consumers don’t realize that, however, and assume that X is the price for the round-trip ticket. It’s nice to hear that AirTran both offered up the cash without any games AND that they were honest– they could have easily given you only half of the ticket cost and gotten away with some of your money!

      • .
        @Fly Girl: Weather patterns in flight paths can cause delays and cancellations, and trickle-down delays (caused by early morning weather patterns) are still legally weather-related delays, even if the weather has since cleared up.

        I believe that an airline would say that, but I’ve never seen it in writing. Do you know where we could find the actual rule?
        .

  23. snoop-blog says:

    I so cannot wait to get my law degree. But damn that still seems forever away.

  24. One can order official weather reports from NOAA/NWS online for not a lot of money that are admissible in court. Farmers use them for crop insurance claims and they’re sometimes used for building damage claims. The unofficial data is usually available almost immediately as it’s a straight dump from the automated weather stations, but the official audited reports take some time to become available.

  25. dialing_wand says:

    Who cares how much he earns folks. And it shouldn’t have been in the post. Worthwhile != I didn’t make as much as I could have earned working when the issue is one of principle.

    The airlines like to tell us whatever it takes to save their rears (with the exception of Southwest it seems).

    The point isn’t even to win these battles, but to challenge instead of follow along, grumbling as you go.

  26. razremytuxbuddy says:

    Great story, Berns; congratulations on the outcome.

  27. howtragic says:

    This guy is a hero. These airlines think that they have all the power in the negotiations and they could care the hell less if their screw-ups cost you a $1000. I don’t even get the policy of not refunding your money for bad weather. It makes NO sense! They didn’t even fly the stupid plane! They didn’t pay FAs, pilots, airport fees…why the hell do they get to keep our money?

    And I agree that just because there’s bad weather somewhere else in the world, doesn’t mean that our flight should be cancelled for that. Screw that policy. All it does it let airlines off the hook every single time they have to cancel.

    $15? I’m well on my way. It’s my last year of law school anyway. I could use a little practice filling out stupid forms.

  28. dasunst3r says:

    But how do you present evidence to convince the judge or jury that the weather cancellation is indeed bogus?

    • mac-phisto says:

      @nicemarmot617: spot on, but you forgot to complete that scenario…let me help:

      Airline: Sorry, this flight is cancelled due to bad weather.
      Customer: What do you mean? It’s sunny here, there and in between.
      Airline: Well, there’s bad weather someplace else, so the plane that was supposed to take you on this flight won’t be showing up.
      Customer: And that is my problem how?

      Airline: NEXT!
      Customer: but…
      Airline: sir, if you don’t step aside, i will have you forcibly removed & jailed for interfering with flight official. NEXT!
      ==========
      @dasunst3r: perhaps an RTFA or even an RTFC(omments) is in order.

    • angryhippo says:

      @dasunst3r:

      Weather reports of your depature, destination and between (if that’s really all that’s needed) should convince a judge who wants to get through their day’s docket.

    • muckpond says:

      @dasunst3r: the fact that he took the EXACT SAME FLIGHT at the EXACT SAME TIME from a different airline should be proof enough that the “weather cancellation” claim is BS.

  29. coren says:

    resulting in earnings of less than half his hourly billing rate

    The way this is worded, to me, makes it sound like his hourly rate is 1600 or 1800. Sign me up!

  30. freelunch says:

    why is everyone obsessing over the man’s billing rate, when the point of the story is that he successfuly took the airline to small claims court?

  31. ARPRINCE says:

    OMG, @ $400/hr, that’s almost the same as my IT consulting rate! ;)

  32. brokeincollege says:

    Okay, so the plane is supposed to come from a place where there is indeed weather. Well, that’s not my problem. The airlines are free to schedule one route per plane, or go through and schedule some complicated route plan that has it bouncing all over the world in the span of a week. That’s not my problem.

    The only reason a weather delay should be accepted is if there is weather at the origin and destination. Pilots can and do fly around or above weather in between. And if it’s leaving from one of Delta’s bases, they HAVE TO have had a spare plane sitting around, either waiting to go back into service after maintenance, or just sitting around as a spare doing nothing. Either way, “the plane’s a no-show because there’s bad weather at Kablookablookistan” isn’t a valid excuse.

    European airlines like Lufthansa can fly in planes on an hour’s notice to fly people out on time, why can’t Delta do it, given that they have a much smaller operation?

  33. weedpindle says:

    In most jurisdictions, Small Claims Courts don’t want ‘expert witnesses’, they are for people to pursue small claims without the need for attorneys. They are for the little guy, and it’s really painless.

  34. howtragic says:

    Hmmmm.. actually the more I think about it, the more I just loving this idea. At least in California, a lawyer can’t represent someone at small claims court. That means that an airline would have to represent themselves if they showed up all. So in reality, you’d be pretty evenly matched, even more so if the plaintiff is a lawyer himself.

    So…if we all started doing this every time an airline screwed us over, it would be the airline on their own without their lawyers. I love it!

    PS – if you do this and you get a letter from a lawyer, complain to the state bar.

    • mythago says:

      @howtragic: A corporation has to send its attorney. A corporation is not a human being; it has to be represented by a person. And attorneys, even in-house counsel, are not cheap.

  35. oldheathen says:

    I’d like to sue US Airways for canceling flights today due to slow-moving tropical storm Hanna, which is currently making landfall about 800 miles *south* of us. No flights in today, though we’ve had exactly 1/4 inch of rain and no discernible wind.

    Great way to save money and not be responsible for passenger meals or hotel rooms because, after all, this non-event is “an act of God”.

  36. johnnya2 says:

    how do you figure an airline saves money canceling a flight? You obviously have no clue. The airline is STILL responsible to get you from point a to point b. It may not be that day, BUT they will still get you there. Weather delays effect all airlines differently throughout the country. If the company only flies regionally it will have problems with local weather, but if all planes route through Chicago, or Atlanta or Detroit it is likely weather could cause a problem.Many times hurricanes and major storms are reason to cancel so idiots who sue wont be stuck on the runway for 8 hours because of air traffic control, which is NOT run by the airlines.

  37. howtragic says:

    MYTHAGO – I get what a corporation is. I truly do. What you did not seem to understand is that a lawyer is not allowed to represent a client at a small claims hearing (at least in CA). A lawyer could potentially be disbarred for that.

    So if you sue anyone in small claims, they have to represent themselves. They legally can’t have an attorney for a small claims case.

    Does that make sense?

    • brokeincollege says:

      @howtragic: Not true. You can RETAIN a lawyer (for all they care, you can retain an army of lawyers), he/she just can’t be with you in the courtroom.

  38. winstonasmith says:

    So…..
    he was able to get $868 back. But what about the first tickets he purchased? Was he reimbursed for those?

  39. winstonasmith says:

    er…$838 back, not $868.

  40. liquiddamage says:

    Johnya2 we have to draw the line somewhere.

    I mean can they blame the yesterday’s weather? Last week’s? Three flights ago? Seven flights ago? It’s hard to prove bad faith, I admit, but these airlines are right up on the fraud line with this weather BS.

    And as for the 8 hours on the tarmac sue the pants of em. And if you don’t win appeal. Want some horror stories: [www.flyersrights.com.]

    Sue sue sue the airlines whenever you have a case!
    The market, for possibly a whole host of reasons, is not working to let these terrible corporations go out of business. Suing may be the only way left to hold these corporations to account – that is until they lobby that away.