IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

GEORGE LAGEN, on Behalf of

Himself and All Others

Similarly Situated,

Plaintiff,

v.

UNITED CONTINENTAL HOLDINGS,

INC., and UNITED AIRLINES,

INC.,

Defendants.

Case No. 12 C 4056

Hon. Harry D. Leinenweber

MEMORANDUM OPINION AND ORDER

The Plaintiff, George Lagen (the “Plaintiff”), on behalf of

himself and others similarly situated filed a Complaint against

United Continental Holdings, Inc., and United Airlines

(hereinafter, “United”), alleging breach of contract, breach of

the covenant of good faith and fair dealing, and unjust

enrichment. The Defendants filed a Motion to Dismiss which the

Court denied as to the breach of contact count, but granted as to

the covenant of good faith and fair dealing and unjust enrichment

counts.

I. BACKGROUND

“The Lord Giveth and the Lord Taketh Away” (Book of Job)

The claim here is that when United merged with Continental

Airlines, United unlawfully beached its contractual obligations
to its Million Miler flyer customers by revising downward the

“lifetime benefits” the customers were to receive. Plaintiff

seeks to represent himself and United customers who had achieved

“MillionMiler status.” The Court will presume knowledge of the

specifics of the so-called “Lifetime Benefits” which were

extensively described in the Court’s earlier ruling. Suffice to

say that they were materially reduced. 

The basis of United’s Motion to Dismiss was that there was

not a separate contract for those achieving the MillionMiler

status, and that the actual contract between United and its

customers was its “MileagePlus” program which clearly gave United

the right unilaterally to reduce or eliminate benefits. The

Court denied the Motion to Dismiss on the grounds that the

Complaint alleged a contact between United and its customers that

was separate from its MileagePlus program. The Court held that

at that early stage of the litigation it was plausible that

there, was in fact, an additional contract between United and its

Million Mile customers that did not give United the right

unilaterally to reduce benefits and that Plaintiff had adequately

alleged a contract, breach and damages. The Court, however, did

point out that “as the case proceeds, it will be Plaintiff’s

burden to prove (not plead) that a contract exists between

Plaintiff’s proposed Million Miler class and United that differs

from the Mileage Plus contract.

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The case proceeded through discovery and the parties have

now filed Cross-Motions for Summary Judgment. The Plaintiff

contends that it has been able to prove the existence of a

separate contract between the Million Miler class and United, and

United contends that it has not. The Court agrees with United

that Plaintiff has not proved the existence of a separate

contract between it and the Million Milers. Accordingly, the

Court denies Plaintiff’s Motion for Summary judgment and grants

United’s Cross-Motion for Summary Judgment.

II. DISCUSSION

The relevant facts as to the summary judgment motions are

taken from the respective Local Rule 56 Statements of Facts and

are as follows. 

United has operated a frequent-flyer program, called

MileagePlus, since 1981. Enrollment is free and members receive

various benefits for accumulating mileage credit by traveling on

United flights as well as engaging in other activities such as

purchasing items using a United Credit card. The Plaintiff

enrolled in MileagePlus in 1993 by completing an enrollment form

he received from a gate agent. The enrollment form in 1993

stated that the prospective member (1) acknowledged that he had

read and understood the MileagePlus rules summarized on the form,

and (2) agreed to be bound by the Rules. These “rules” have

remained virtually unchanged throughout the relevant time period. 

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Paragraph 1 of the rules in effect at the time Plaintiff enrolled

stated as follows:

1. Mileage Plus membership and its benefits are

offered at the discretion of United . . . ,

and United has the right to . . . change the

Program Rules, regulations, benefits,

conditions of participation or mileage

levels, in whole or in part, at any time,

with or without notice, even though changes

may affect the value of the mileage or

certificates already accumulated.

1a. United may, among other things,

withdraw, limit, modify or cancel any award;

[or] increase the mileage or number of

certificates required for any award. . . .

Members, in accumulating mileage or

certificates, may not rely upon the

continued availability of any award or award

level, and members may not be able to obtain

all offered awards.

This provision, or an almost identical provision, has been in

each published MileagePlus Program rules since that time.

Members of MileagePlus have the opportunity to qualify each

year for one of several annual status levels within the

MileagePlus program that offer additional benefits beyond those

available to general MileagePlus members and are referred to as

the “Premier Program” or the “Elite Program.” These two programs

are part of the MileagePlus Program. Prior to 2012, United had

three published Premier levels: Premier, Premier Executive, and

IK. These status programs are each subject to the MileagePlus

rules which include the right to reduce or modify benefits.

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In 1997, United introduced the so-called Million Mile Flyer

status level. United contends that this status level is part of

its Mileage Plus Program and therefore subject to the MileagePlus

rules including the right to reduce or modify benefits. 

Plaintiff contends that it was a free standing program

independent of the MileagePlus Program. Plaintiff qualified for

the Million Miler status in September 2006. He received a

MileagePlus membership card which acknowledged his attainment of

Million Miler status. Over the years, United has changed the

benefits to which the Million Milers are entitled usually by

providing enhanced benefits. On June 29, 2011, United announced

that MileagePlus would be the single loyalty program for the

merged airlines starting in 2012. The program also included many

changes in the structure of the program which affected the

Million Miler flyers by reducing some of the benefits which had

previously been afforded to them.

Since United retained the right to “withdraw, limit, modify

or cancel any award,” it was incumbent upon Plaintiff to prove

his contention that his status as a Million Miler flyer was

“separate and distinct” from the MileagePlus program and its

rules. His claim for breach of contract requires him to prove

(1) the existence of a valid and enforceable contract; (2)

performance by plaintiff; (3) breach by the defendant; and (4)

resultant injury to the Plaintiff. Zirp-Burnham, LLC v. E.

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Terrell Associates, Inc., 826 N.E.2d 430, 439 (Ill. App. Ct.

2005). Here the existence of a valid and enforceable contract is

the issue. A plaintiff seeking to enforce a contract must

demonstrate that he received a valid offer, i.e., that the

defendant took some action that constituted an offer which would

give a plaintiff the power to accept thus creating the

“obligation called contract.” Eakins v. New England Mutual Life

Ins. Co., 473 N.E.2d 439, 443 (Ill. App, Ct. 1984). An offer

cannot bind the offeror until it is communicated to the offeree

and he accepts. Carroll v. Preferred Risk Ins. Co., 215 N.E.2d

801, 803 (Ill. I966). 

The record shows that Plaintiff has not produced any

evidence that United made him (and other putative class members)

an offer to participate in a separate MillionMile Flyer program

that was separate and apart from the MileagePlus program. The

sum total of his evidence is vague references to “electronic and

written correspondence” from United which, in both instances,

postdates his qualification as a Million Mile Flyer and was not

specifically directed to him; and a 1997 Newsletter from United

announcing the creation of the program he could not remember

receiving. However the card he did receive from United,

admitting him to the MillionMile Flyer program, shows that his

new status is clearly a status within the MileagePlus Frequent

Flyer Program, as does the form letters United sent to applicants

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advising them of their admission to the MillionMile Flyer

program. In fact, Plaintiff in his Complaint alleges that the

MillionMile Flyer program was part of the Mileage Plus program. 

He has not produced any document that comes close to

substantiating that the programs were separate and distinct.

III. CONCLUSION

For the reasons stated herein, Plaintiff’s Motion for

Summary Judgment is denied. United’s Cross-Motion for Summary

Judgment is granted.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge

United States District Court

Date:1/23/2014

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