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Abstract

The airline contract of carriage. These unassuming bits of language govern the relationship between passengers and their airlines. Over the past three years, a new term has sprouted in these agreements: the class action waiver. Before March 2020, only two of the ten largest United States-based airlines’ contracts of carriage had class action waivers. But as of April 2023, eight now have class action waivers. Why have airlines quickly adopted these copycat terms? What are the implications of this new contractual trend for flyers, airlines, and regulators? This note aims to contribute to the scholarship around these questions in three ways.

First, this note tracks the development of class action waivers and force majeure clauses in airline contracts of carriage between 2020 and 2023. Second, it evaluates the enforceability of existing class action waivers in airline contracts of carriage and outlines possible defenses and challenges, including Airline Deregulation Act pre-emption and unconscionability. Third, it compares the United States’ current system for adjudicating airline-passenger disputes with a Passenger Bill of Rights system, as well as regulatory regimes in Canada, Germany, and the United Kingdom. To conclude, it proposes a system of private alternative dispute resolution modeled after the United Kingdom’s as a possible alternative to the United States’s current litigation-focused system. This solution could help airline defendants avoid classwide liability and its associated costs while ensuring that passengers receive a viable opportunity to obtain redress.

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