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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 14CFR 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 14CFR 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 NOTSUBJECTTO THE RULES (AND PROTECTIONS) OF THE U.S. DOT. THE POSSIBLYWIDESPREAD AND CURRENT NATURE OF THESE VIOLATIONS BY BA IS CLEARLY ACTIONABLE BYTHE U.S. DOT. BA, IN ITS PURPORTED ANSWER, TREATS MR. CUSHMAN'S PROBLEMS AS AN "ISOLATED INCIDENT" AND MERELYTHE COMPLAINT OF ONE POSSIBLE PASSENGER. THE ALLEGATIONS AGAINST BA CONTAINED IN THE COMPLAINTARE BELIEVED TO BE MUCH MORE WIDESPREAD THAN THAT AND TO CONSTITUTE WIDESPREAD VIOLATIONS BY A MAJOR U.S. AIRLINE OF DOT RULES. SEE BELOWAND AS DESCRIBED IN THE COMPLAINT.

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THE UNDERSIGNED HEREBY REQUESTS THE U.S. DOTTO EXERCISE ITS AUTHORITY UNDER 49 U.S.C. 41712 TO INVESTIGATE BA FOR THE ALLEGEDLY WIDESPREAD ILLEGALAND 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 SPECIFICALLYAND 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 COMPLAINTTHROUGH 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 THATTHE 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 NOTACORRECT 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 BYTHE 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 BATO MAKE ATIMELY 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 DOTTO EXERCISE SUCH DISCRETION IN A POSITIVE FASHION. (OF COURSE, BA CAN MAKE ANY APPROPRIATELY VERIFIED REPLY TO THIS REPLY, IF ITSO CHOOSES AND THE DOT ALLOWS). 

### Itis herebyrequested thatthe U.S. DOTexercise its authorityunder49U.S.C.41712 to investigate and imposesanctions againstBritishAirways, including fines, damages andthe repayment topossible passengers ofanyamountspaidin violation of

### U.S. DOTrules, and to require British Airways to correct in a timelyfashion its illegalandunfairanddeceptivepractices as describedin the Complaintandto abide byall

### U.S. DOTrules. Anditis furtherrequestedfrom the DOTthatBA be found

### to be in Default under 14c:fr302.409 forits failure to tile a correctandtimelyanswerandthatallallegations offactin Page 3 of 10 

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### the ComplaintnotproperlydeniedorcontrovertedbyBA in itspurportedAnswer(as is the case with mostoftheallegations in the Complaint} be deemedadmittedunder14CFR302.408(b}. SPECIFICREPLIES TO SPECIFICPARTS OF THEPURPORTED BA ANSWER --On Pages 1-2in the page runover paragraph ofthe purported BA Answer, BA disputes the allegation in the Complaintthat BA violated 14CFR259.S(b)(4). BA appears to say thatthere 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 almostthree weeks ofstressful arguing bythe possible passenger at all executive levels of BA and ofthreatened legal actions and the like, with BA insisting all ofthistime that no refund is due. And let's notforgetthat in addition to the illegal $500 cancellation penaltyfee for which a refund was claimed, there was a refund claimed forthe never explained extra charge to Mr. Cushman by BA of$3512.34, for a grand total of$4012.34 which was errantlyor illegally charged against Mr. Cushman's credit card (and which amount was therefore not available as creditto Mr. Cushman until eventually refunded by BA). Chearly, dearly,the Rule does not merely mean, as BA claims, thatas long as the airline tardilyand after much haggling and denials ofany 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 ofthe 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 penaltyfees. This is apparentlythe 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 asecond change to his reservation and simply cancelled it-thatwould 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 penaltyfees are not. In otherwords, once the possible passenger cancels within 24 hours, they have a right to a refund forthe cancelled reservation ticket charge but still have to pay any "change fees" incurred in tryingto change the reservation priorto 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 BAAnswer], which restricts cancellation penalties and "anyadditional collection and fare penalties" within the first 24 hours, allow BA to charge "changefees" anyway? This is the very unbelievable and distorted reading ofthe rules by BA in its purported Answer, and only lends supporttotheviewthata 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 ofthe purported BA Answer, BA states that Mr. Cushman "agreed" to pay achange fee for asecond change. That statement is completelyfalse-- Mr. Cushman specifically refused to pay any change fee, and he specifically so stated in the Complaint. 

### Whywould anyone in their right mind agree to pay a nonrefundable fee to an airline of$500 to make a change as part ofcancelling a reservation and getting a refund ofthe ticket charge( less an illegal"change fee")? (See BA's statementof policy on the BA website where itsays 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 statementofdesperation 

### by BA in this proceeding because there is nothing better BA can say. And again, BA argues thatall is well as long as the possible passenger "ultimately" receives his refundin this case after almost three weeks ofcomplainingto all sorts of people at BA, includingtheCEO, and Page 5 of 10 

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threatening legal action and being told by BAthat no refund was due. This illegal course ofaction by BA against possible passengers (the flying public) is not whatthe DOT rules allow or contemplate. --On Page 3 in the one new and complete paragraph on that page ofthe 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 clearthat it is not correct. $458 ofthat amountwas related to seat charges (and in fact there were also additional ticketfees of

### $7116.68 for two cancelled tickets), all which were timely refunded afterthe reservations cancellations and never complained about in these proceedings. That would leave $4,012.34, which was thetotal amountcomplained ofin the Complaint and which, as described above, was not credited by BA to Mr. Cushman for almostthree weeks. As clearly stated in the Complaint, the charges complained ofwere the illegal $500 cancellation penalty charge and a mysterious and neverever- explained by BA bogus charge of$3512.34 (which BAtold Mr. Cushman it could not locate and therefore would be charged to him anyway) for atotal of$4012.34, which is the total amount complained of in the Complaint. So, BA appears to be tryingto demonstrate the timeliness of its refund policies by referringto its refund ofamounts not in dispute! --Also on Page 3 in the one new and complete paragraph on that page ofthe purported BA Answer, it is not known whatthe "Cooling Off Period" procedures are which BA refers to; theywere certainly never mentioned to Mr. Cushman duringthe almostthree weeks he sought his refund ofthe disputed amounts. --And what in the world is the possible relevance of Footnote4 on Page 3 ofthe 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- atthe time of rebookingthatthe refund issues with BA on the prior cancelled reservations would be quickly
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resolved. Wouldn't any passengers rebooktheirflights immediatelyaftersuch 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 tryingto do on March 30, 2013 was simply to book withoutepisode two reservations with SA? Was the point ofthe BA footnoteto insinuate some personal relationship between Mr.Tuttle and Mr. Cushman, which they have never denied, as ifthefact ofthat 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 2and 3, and in a number ofother places in the purported BA Answer, it is hard to see the relevance tothe issues in the Complaint ofthe facts ofwhat Mr.Tuttle said or asked for in the negotiations with BA seeking recompense for Mr. Cushman for Mr. Cushman's mistreatment by BA over almost3 weeks and in seeking to get BA to abide bythe DOT rules. Or for Mr. Tuttle's refusal to accept on behalfof Mr. Cushman the measly offerthat BA made ofa$500 credit for some future flight purchased from BA by Mr. Cushman-and itwas a $500 creditthat was offered notthe $1000 credit stated inthe BA answer. And what is the relevance ofthefactthat a reservation for Mr. Tuttle was properly cancelled and refunded, which is notatall complained ofin anyComplaint tothe DOT? See pages 2-3 ofthe purported BA Answer. None ofthis has anythingto do with Mr. Cushman's mistreatment by BA or BA'S violations ofthe 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; whyare they here to complain about Mr. Cushman's? --On Page 5 in the first full paragraph ofthe purported BA Answer, the contention by BA that Mr. Cushman and his attorneyare seeking "a financial windfall" is rejected and is completely utterly and false forthe reasons set forth herein. Messrs. Tuttle and Cushman have never denied that in the course Page 7 of 10 May 13, 201305/10/2013 09:33 17078513810 

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ofattemptingto negotiate with BA and attemptingto obtain financial recompense from BA for Mr. Cushman forthe injuryfrom BA he suffered ,therewere financial amounts requested in fruitless attemptsto get BA'S attention. This allegation ofBA appears to be more ofthe "shootthe messenger" (or "shootthe lawyer") approach of BAas discussed above. Earlier, Mr. Cushman was seeking financial recompense from BA forthe injuries he sustained from BAas well as seeking to get BA to reform its illegal practices. Now, as dearlystated 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 atthe page runover paragraph ofthe purported BA Answer, BA would have us believe that what happened to Mr. Cushman was an "isolated incident". Mr. Cushman does not believe itwas isolated, and thetesttelephone calls with BA in late April2013 as set forth in the Complaint show itwas not. And the fact ofthose telephone calls is notdisputed by BA and musttherefore be taken as the truth, accordingto 14CFR302.408{b). See Complaint at Page 4, Paragraph 2 regarding Mr. Cushman's calls to BA. At Pages 5-6 inthe runover paragraph ofthe purported BA Answer, BA tells us veryvaguely and without any specificitythat it reminded it's "Contract Centre" employees ofthe 24-hour requirement : Was itthe incorrect version ofthe 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 thevast worldwide BA organization? When were the employees so reminded-- before, during orafter Mr. Cushman's episode? None ofthese things is clarified in the purported BA answer. Truly, this vague statement by BA is whatthe term "misleading" is all about.

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VERIFICATION Pursuant to Title 18 United States Code Section 1001, I certifythat I have not in any manner knowingly and willfully falsified, concealed orfailed to disclose any material fact or made anyfalse, fictitious, or fraudulent statement or knowingly used any documentswhich 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 1001shall be fined or imprisoned not more than five years or both. This Reply respectfully submitted, this 10th day ofJune, 2013 

## /sfF. Bennett Cushman II 707-292-5830 Cushman@thefarmsonoma.com (All communications should be sentto my attorney, George D. Tuttle, 707-8292662 or Tuttle@thefarmsonoma.com) Cushman@thefarmsonoma.c

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### CERTIFICATE OF SERVICE 

### I, George 

### D. Tuttle, hereby certifythat on this 

### lOth day ofJune, 

### 2013, a copy ofthe 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. 

## /sfGeorge D.Tuttle, attorneyfor Mr. Cushman**707~829~2662** tuttle@thefarmsonoma.com

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