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DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

DOCKET DOT-OST-2013-0101 

REPLY OF COMPLAINANT, 

F. BENNETI CUSHMAN II, TO PURPORTED 

ANSWER OF BRITISH AIRWAYS 

(DATED MAY 28, 2013) 

TO COMPLAINT 

(DATED MAY 13, 2013) 

FOR VIOLATIONS BY BA OF 

49 U.S.C. 41712 AND 14 CFR 259.5 (B}(4 )AND 

OTHER U.S. DOT REGULATIONS 

GENERAL 

REPLY--- DATED JUNE 10, 2013 

PAGE 01/10 

THIS REPLY-VERIFIED IN ACCORDANCE WITH 14CFR302.4(B)--IS A REPLY TO THE PURPORTED BUT 

UNVERIFIED ANSWER OF BRITISH AIRWAYS {BA), DATED MAY 28, 2013, TO THE VERIFIED COMPLAINT OF 

F. BENNETI CUSHMAN II FILED WITH THE U.S. DOT ON MAY 13, 2013. THE COMPLAINT ALLEGES (AND 

THE PURPORTED ANSWER OF BA CLEARLY SUPPORTS THE EXISTENCE OF) WIDESPREAD VIOLATIONS BY 

BA OF U.S. DOT REGULATION 14 CFR 259.5{8}(4) GOVERNING THE RIGHTS OF POSSIBLE PASSENGERS TO 

CANCEL RESERVATIONS WITHOUT PENALTY WITHIN THE FIRST 24 HOURS AND ALLEGES (AND THE 

PURPORTED BA ANSWER DOES NOT DENY) THAT BA HAS COMMONLY AND FALSELY MISSTATED TO 

POSSIBLE AIRLINE PASSENGERS THAT BA IS A "FOREIGN" CARRIER AND THEREFORE NOT SUBJECT TO 

THE RULES (AND PROTECTIONS) OF THE U.S. DOT. THE POSSIBLY WIDESPREAD AND CURRENT NATURE 

OF THESE VIOLATIONS BY BA IS CLEARLY ACTIONABLE BY THE U.S. DOT. 

BA, IN ITS PURPORTED ANSWER, TREATS MR. CUSHMAN'S PROBLEMS AS AN "ISOLATED INCIDENT" AND 

MERELY THE COMPLAINT OF ONE POSSIBLE PASSENGER. THE ALLEGATIONS AGAINST BA CONTAINED IN 

THE COMPLAINT ARE BELIEVED TO BE MUCH MORE WIDESPREAD THAN THAT AND TO CONSTITUTE 

WIDESPREAD VIOLATIONS BY A MAJOR U.S. AIRLINE OF DOT RULES. SEE BELOW AND AS DESCRIBED IN 

THE COMPLAINT. 

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THE UNDERSIGNED HEREBY REQUESTS THE U.S. DOT TO EXERCISE ITS AUTHORITY UNDER 49 U.S.C. 

41712 TO INVESTIGATE BA FOR THE ALLEGEDLY WIDESPREAD ILLEGAL AND DECEPTIVE PRACTICES AND 

MISSTATEMENTS AS DESCRIBED IN THE COMPLAINT AND TO IMPOSE SANCTIONS AND REQUIRE 

CORRECTIONS FOR SUCH PRACTICES AND MISSTATEMENTS. (OF COURSE, THE ISSUE OF HOW 

WIDESPREAD SA'S BEHAVIOR IS CAN ONLY ULTIMATELY BE DETERMINED THROUGH THE TYPE OF 

INVESTIGATION THE FEDERAL U.S. DOT (AND NOT ANY ONE POSSIBLE PASSENGER, SUCH AS MR. 

CUSHMAN) CAN CONDUCT.) THE PURPORTED BA ANSWER DOES ABSOLUTELY NOTHING TO COUNTER 

THE ALLEGED WIDESPREAD NATURE OF THESE BA VIOLATIONS, PRACTICES AND MISSTATEMENTS. 

PROCESS 

ACCORDING TO 14CFR302.408(B}, "ALL ANSWERS ... SHALL ADMIT OR DENY SPECIFICALLY AND IN DETAIL 

[EMPHASIS ADDED] EACH ALLEGATION OF THE COMPLAINT UNLESS THE RESPONDENT IS WITHOUT 

KNOWLEDGE, IN WHICH CASE, HIS OR HER ANSWER SHALL SO STATE AND THE STATEMENT SHALL 

OPERATE AS A DENIAL. ALLEGATIONS OF FACT NOT DENIED OR CONTROVERTED SHALL BE DEEMED 

ADMITIED." THIS REQUIREMENT IS 100% CLEAR. (BA MAY CLAIM THAT IT DID DENY ALL FACTS IN THE 

COMPLAINT THROUGH ITS IMPROPER "BLANKET DENIALS" CONTAINED BRIEFLY ON PAGE 1 AND IN 

FOOTNOTE 1 OF THE PURPORTED BA ANSWER. THE IMPROPER BLANKET DENIAL IN FOOTNOTE 115 

SAID, IN A BOILER PLATE STATEMENT BY BA, TO BE BECAUSE "THE STRUCTURE OF THE COMPLAINT AND 

THE ASSERTION OF LEGAL AND OTHER CONCLUSIONS DO NOT LEND THEMSELVES TO RESPONSIVE 

PLEADING.") THE COMPLAINT AND THE PURPORTED BA ANSWER SHOW THAT THE FACTS AND LAW 

INVOLVED IN THIS MATIER ARE HIGHLY SPECIFIC. BLANKET DENIALS, WHICH ARE CLEARLY NOT 

"SPECIFIC", ARE NOT PROPER IN THIS MATIER, PARTICULARLY WHERE BA APPEARS TO CONFIRM 

CERTAIN OF THE STATEMENTS OF FACT IN THE COMPLAINT. 

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ANY PLEADING OF BA, INCLUDING ITS PURPORTED ANSWER, IS REQUIRED TO BE IN COMPLIANCE WITH 

THE CURRENT 14CFR 302.4(8}, WHICH REQUIRES THAT IT BE SIGNED BY A PRINCIPAL OWNER, SENIOR 

OFFICER OR INTERNAL COUNSEL (IF THE PLEADER IS A CORPORATION, AS BA IS) AND BE CERTIFIED AS 

TO THE TRUTHFULNESS OF THE FACTS STATED THEREIN. ALL PLEADINGS BY MR. CUSHMAN HAVE BEEN 

IN COMPLIANCE WITH 14CFR 302.4(8} AND THE PURPORTED ANSWER OF BA IS NOT -WHICH MAKES 

THE PURPORTED BA ANSWER NOTA CORRECT AND TIMELY FILED ANSWER AND MAKES BA IN DEFAULT 

(AT THE DISCRETION OF THE DOT} UNDER 14CFR302.409. 

SINCE(l) THE PURPORTED BA ANSWER CONTAINS NUMEROUS INACCURATE OR MISLEADING 

STATEMENTS, AS DESCRIBED BELOW ;(2) SINCE MR. CUSHMAN WAS TOLD SEVERAL TIMES BY THE DOT 

IN WRITING THAT THE BA ANSWER WOULD BE REQUIRED TO BE VERIFIED (WHICH IT IS NOT) ;(3) SINCE 

14CFR302.{4)(B) CLEARLY APPEARS TO REQUIRE PROPER VERIFICATION (CERTIFICATION) OF ALL 

PLEADINGS (AS ALL OF MR. CUSHMAN'S PLEADINGS HAVE BEEN AND THE PURPORTED BA ANSWER IS 

NOT); AND {4) SINCE BA IS IN POSSIBLE DEFAULT UNDER 14CFR302.409 BECAUSE OF THE FAILURE OF 

BA TO MAKE A TIMELY AND CORRECT ANSWER IN THIS MATIER, MR. CUSHMAN IS MAKING THIS 

"REPLY''. WHILE A REPLY IS APPARENTLY DISCRETIONARY WITH THE DOT, THIS WOULD APPEAR TO BE A 

VERY CLEAR CASE FOR THE DOT TO EXERCISE SUCH DISCRETION IN A POSITIVE FASHION. (OF COURSE, 

BA CAN MAKE ANY APPROPRIATELY VERIFIED REPLY TO THIS REPLY, IF IT SO CHOOSES AND THE DOT 

ALLOWS). 

It is hereby requested that the U.S. DOT exercise its authority under 49U.S.C.41712 to investigate and 

impose sanctions against British Airways, including fines, damages and the repayment to possible 

passengers of any amounts paid in violation of U.S. DOT rules, and to require British Airways to correct 

in a timely fashion its illegal and unfair and deceptive practices as described in the Complaint and to 

abide by all U.S. DOT rules. And it is further requested from the DOT that BA be found to be in Default 

under 14c:fr302.409 for its failure to tile a correct and timely answer and that all allegations of fact in 

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the Complaint not properly denied or controverted by BA in its purported Answer (as is the case with 

most of the allegations in the Complaint} be deemed admitted under 14CFR302.408(b}. 

SPECIFIC REPLIES TO SPECIFIC PARTS OF THE PURPORTED BA ANSWER 

--On Pages 1-2 in the page runover paragraph of the purported BA Answer, BA disputes the allegation in 

the Complaint that BA violated 14CFR259.S(b)(4). BA appears to say that there is no violation if it 

illegally assesses a cancellation penalty within the 24-hour period as long as BA eventually refunds the 

wrongfully assessed penalty after almost three weeks of stressful arguing by the possible passenger at 

all executive levels of BA and of threatened legal actions and the like, with BA insisting all of this time 

that no refund is due. And let's not forget that in addition to the illegal $500 cancellation penalty fee for 

which a refund was claimed, there was a refund claimed for the never explained extra charge to Mr. 

Cushman by BA of $3512.34, for a grand total of $4012.34 which was errantly or illegally charged against 

Mr. Cushman's credit card (and which amount was therefore not available as credit to Mr. Cushman 

until eventually refunded by BA). Chearly, dearly, the Rule does not merely mean, as BA claims, that as 

long as the airline tardily and after much haggling and denials of any need to refund and the retaining of 

an attorney by the possible passenger eventually gives a refund after almost three weeksal charge for 

an illegal charge, all is welL 

--On Page 2, in Paragraphs 1 and 2 of the purported BA Answer, BA commences a discussion of its 

"change fees" within the 24-hour period as not being restricted by 14CFR259.5{B)(4), as is the case with 

cancellation penalty fees. This is apparently the official position of BA regarding "change fees" versus 

cancellation fees. Let us be clear once again, as Mr. Cushman was in the Complaint-- the illegal penalty 

fee Mr. Cushman is complaining about is the $500 cancellation penalty fee BA charged Mr. Cushman for 

cancellation of his reservation within 24-hours-- not any "change fee". As the Complaint clearly states, 

Mr. Cushman was charged the $500 fee within the 24-hour period after he declined (when threatened 

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by BA with a nonrefundable "change fee") to make a second change to his reservation and simply 

cancelled it-that would be a cancellation penalty fee and not a "change fee." 

PAGE 05/10 

BA's official position is that within the 24-hour period "change fees" are permitted under 14 

CFR259.5(b )(4) even when cancellation penalty fees are not. In other words, once the possible 

passenger cancels within 24 hours, they have a right to a refund for the cancelled reservation ticket 

charge but still have to pay any "change fees" incurred in trying to change the reservation prior to 

cancellation within the 24-hour period. This is simply unbelievable and cannot be the Jaw! 

(Can the BA position really be that 14CFR259.5(B}(4) and its own "internal rule" [see Footnote 3 to the 

BA Answer], which restricts cancellation penalties and "any additional collection and fare penalties" 

within the first 24 hours, allow BA to charge "change fees" anyway? This is the very unbelievable and 

distorted reading ofthe rules by BA in its purported Answer, and only lends support to the view that a 

major U.S. airline is not in compliance with the law and its own written rules.). 

--On Page 2-3 in the page runover paragraph of the purported BA Answer, BA states that Mr. Cushman 

"agreed" to pay a change fee for a second change. That statement is completely false-- Mr. Cushman 

specifically refused to pay any change fee, and he specifically so stated in the Complaint. Why would 

anyone in their right mind agree to pay a nonrefundable fee to an airline of $500 to make a change as 

part of cancelling a reservation and getting a refund of the ticket charge( less an illegal"change fee")? 

(See BA's statement of policy on the BA website where it says that a customer upon cancellation of his 

or her reservation within the 24-hour period will receive "a full refund without penalty.") This false 

statement by BA in its purported Answer of Mr. Cushman's "agreement'' can only be taken as a 

statement of desperation by BA in this proceeding because there is nothing better BA can say. 

And again, BA argues that all is well as long as the possible passenger "ultimately" receives his refundin this case after almost three weeks of complaining to all sorts of people at BA, including the CEO, and 

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threatening legal action and being told by BA that no refund was due. This illegal course of action by BA 

against possible passengers (the flying public) is not what the DOT rules allow or contemplate. 

--On Page 3 in the one new and complete paragraph on that page of the purported BA Answer, there are 

set forth by BA purported facts which are simply incorrect or misleading at best. The BA purported 

Answer refers to an amount of $4470.34 as being in dispute. That is not correct, and the Complaint 

makes clear that it is not correct. $458 of that amount was related to seat charges (and in fact there 

were also additional ticket fees of $7116.68 for two cancelled tickets), all which were timely refunded 

after the reservations cancellations and never complained about in these proceedings. That would leave 

$4,012.34, which was the total amount complained of in the Complaint and which, as described above, 

was not credited by BA to Mr. Cushman for almost three weeks. As clearly stated in the Complaint, the 

charges complained of were the illegal $500 cancellation penalty charge and a mysterious and neverever- explained by BA bogus charge of $3512.34 (which BA told Mr. Cushman it could not locate and 

therefore would be charged to him anyway) for a total of $4012.34, which is the total amount 

complained of in the Complaint. So, BA appears to be trying to demonstrate the timeliness of its refund 

policies by referring to its refund of amounts not in dispute! 

--Also on Page 3 in the one new and complete paragraph on that page of the purported BA Answer, it is 

not known what the "Cooling Off Period" procedures are which BA refers to; they were certainly never 

mentioned to Mr. Cushman during the almost three weeks he sought his refund of the disputed 

amounts. 

--And what in the world is the possible relevance of Footnote 4 on Page 3 of the purported BA Answer, 

which states that "Mr. Cushman and Mr. Tuttle immediately rebooked their San Francisco-London-Paris 

itineraries on British Airways"? Obviously, Messrs. Tuttle and Cushman believed-wrongly- at the time 

of rebooking that the refund issues with BA on the prior cancelled reservations would be quickly 

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resolved. Wouldn't any passengers rebook their flights immediately after such a cancellation, 

particularly when their past in-flight experiences with BA had always been very positive and when all 

that Mr. Cushman had ever been trying to do on March 30, 2013 was simply to book without episode 

two reservations with SA? Was the point of the BA footnote to insinuate some personal relationship 

between Mr. Tuttle and Mr. Cushman, which they have never denied, as if the fact of that relationship 

had any relevance to anything? And is that relationship such that Mr. Tuttle cannot act as Mr. 

Cushman's attorney in this matter? Obviously not. And such wrongful insinuations appear in other 

places in the purported BA Answer. 

--And on Page 4, Paragraphs 2 and 3, and in a number of other places in the purported BA Answer, it is 

hard to see the relevance to the issues in the Complaint of the facts of what Mr. Tuttle said or asked for 

in the negotiations with BA seeking recompense for Mr. Cushman for Mr. Cushman's mistreatment by 

BA over almost 3 weeks and in seeking to get BA to abide by the DOT rules. Or for Mr. Tuttle's refusal to 

accept on behalf of Mr. Cushman the measly offer that BA made of a $500 credit for some future flight 

purchased from BA by Mr. Cushman-and it was a $500 credit that was offered not the $1000 credit 

stated in the BA answer. And what is the relevance of the fact that a reservation for Mr. Tuttle was 

properly cancelled and refunded, which is not at all complained of in any Complaint to the DOT? See 

pages 2-3 of the purported BA Answer. None of this has anything to do with Mr. Cushman's 

mistreatment by BA or BA'S violations of the law. Isn't Mr. Cushman entitled to legal representation for 

his troubles with BA and to whatever negotiating tactics that legal representative elects to use in 

representing Mr. Cushman in his legal troubles with BA. We are not here to complain about BA'S choice 

of lawyers; why are they here to complain about Mr. Cushman's? 

--On Page 5 in the first full paragraph of the purported BA Answer, the contention by BA that Mr. 

Cushman and his attorney are seeking "a financial windfall" is rejected and is completely utterly and 

false for the reasons set forth herein. Messrs. Tuttle and Cushman have never denied that in the course 

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of attempting to negotiate with BA and attempting to obtain financial recompense from BA for Mr. 

Cushman for the injury from BA he suffered ,there were financial amounts requested in fruitless 

attempts to get BA'S attention. This allegation of BA appears to be more of the "shoot the messenger" 

(or "shoot the lawyer") approach of BAas discussed above. 

Earlier, Mr. Cushman was seeking financial recompense from BA for the injuries he sustained from BAas 

well as seeking to get BA to reform its illegal practices. Now, as dearly stated in the Complaint, he is 

seeking solely the latter. The purported BA Answer shows clearly that BA does not comply with U.S. DOT 

rules. 

--At pages 5-6 at the page runover paragraph of the purported BA Answer, BA would have us believe 

that what happened to Mr. Cushman was an "isolated incident". Mr. Cushman does not believe it was 

isolated, and the test telephone calls with BA in late April2013 as set forth in the Complaint show it was 

not. And the fact of those telephone calls is not disputed by BA and must therefore be taken as the 

truth, according to 14CFR302.408{b). See Complaint at Page 4, Paragraph 2 regarding Mr. Cushman's 

calls to BA. 

At Pages 5-6 in the runover paragraph of the purported BA Answer, BA tells us very vaguely and without 

any specificity that it reminded it's "Contract Centre" employees of the 24-hour requirement : Was it the 

incorrect version of the 24-hour rule that BA sets forth in this purported Answer that BA reminded it's 

Contract Centre employees about? Who and where are the "Contract Centre" employees within the vast 

worldwide BA organization? When were the employees so reminded-- before, during or after Mr. 

Cushman's episode? None of these things is clarified in the purported BA answer. Truly, this vague 

statement by BA is what the term "misleading" is all about. 

###### 

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VERIFICATION 

Pursuant to Title 18 United States Code Section 1001, I certify that I have not in any manner knowingly 

and willfully falsified, concealed or failed to disclose any material fact or made any false, fictitious, or 

fraudulent statement or knowingly used any documents which contain such statements in connection 

with the preparation, filing or prosecution ofthis Complaint. I understand that an individual who is 

found to have violated the provisions of 18 U.S.C. Section 1001 shall be fined or imprisoned not more 

than five years or both. 

This Reply respectfully submitted, this 10th day of June, 2013 

/sf F. Bennett Cushman II 

707-292-5830 

Cushman@thefarmsonoma.com 

(All communications should be sent to my attorney, George D. Tuttle, 707-8292662 or 

Tuttle@thefarmsonoma.com) 

Cush ma n@thefa rmsono ma .c 

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CERTIFICATE OF SERVICE 

I, George D. Tuttle, hereby certify that on this lOth day of June, 2013, a copy of the foregoing Answer 

was served via electronic mail on the parties named below: 

Samuel Podberesky-- sam.podberesky@dot.gov and 

Richard Mendles, General Counsel, Americas, British Airways-~ richard.irlendles@ba.com. 

/sf George D.Tuttle, attorney for Mr. Cushman 

707~829~2662 

tuttle @thefarmsonoma .com 

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