BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

Mike Borsetti et al., 

Third-party Complainant 

Docket DOT -OST -2014-0166 

v. 

British Airways Plc 

BRITISH AIRWAYS PLC ANSWER TO COMPLAINT 

Communications with respect to this document should be sent to: 

Richard Mendles 

General Counsel, Americas 

James B. Blaney 

Senior Counsel, Americas 

British Airways Plc 

2 Park Avenue, Suite 1100 

New York, NY 10016 

richard.mendles@ba.com 

jim. blaney@ba.com 

October 21,2014 

Don H. Hainbach 

Jason E. Maddux 

Garofalo Goerlich Hainbach PC 

1200 New Hampshire A venue NW 

Washington, DC 20036 

Phone:202-776-3970 

dhainbach@ggh-airlaw.com 

jmaddux@ggh-airlaw .com 
Mike Borsetti et al., 

BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

Third-party Complainant 

Docket DOT -OST -2014-0166 

v. 

British Airways Pic 

BRITISH AIRWAYS PLC ANSWER TO COMPLAINT 

British Airways Pic ("British Airways") hereby answers the complaint (the "Complaint") 

filed by Mike Borsetti ("Mr. Borsetti") relating to transportation provided to Mr. Borsetti and his 

family between Los Angeles and London on February 14, 2014. Except as otherwise stated 

below, British Airways denies the allegations of the Complaint and respectfully requests that the 

Department of Transportation (the "Department") dismiss the Complaint without further 

investigation or order pursuant to 14 CFR § 302.406(a)(2). The structure of the Complaint and 

the assertion of legal and other conclusions do not lend themselves to a precise responsive 

pleading. To the extent that there is any factual statement or allegation that is not specifically 

admitted or denied herein, it should be deemed to have been denied. 

Introduction 

British Airways respectfully urges the Department to decline to commence an 

investigation or formal enforcement proceeding. There is no basis to do so. Mr. Borsetti's 

Complaint is apparently based on his misapprehension that the Department is the appropriate 
governmental entity to enforce requirements imposed by European Community Regulation 

261/2004 (''EC 261/2004"). Mr. Borsetti cites no authority for that assumption and none exists. 

Mr. Borsetti asserts numerous violations of the denied boarding provisions of Part 250. 

However, those assertions do not account for the factual circun1stances in effect on February 14 

and are not compelling given that Mr. Borsetti and his travelling companions were able to travel 

on BA 268 on February 14. 

Mr. Borsetti also makes a number of assertions regarding various sections of Part 259 and 

Part 374. For the most part, those assertions are not accurate. 

Finally, Mr. Borsetti asserts that British Airways violated section 90(D) of its 

International Passenger Rules Tariff. Section 90(D) need not be considered in this proceeding. 

Factual Background 

Mr. Borsetti acknowledges he and his family were traveling on a ticket issued by 

American Airlines ("American") and were scheduled to travel initially on an American flight 

from Los Angeles to London on February 14, 2014 (Cmnplaint at 3). Specifically, Mr. Borsetti's 

Complaint indicates that he and his family were ticketed to travel on American Flight #136 

(AA 136) scheduled to depart Los Angeles at 6:35 pin local time (Appendix pages 21-32). He 

further acknowledges there were numerous flight cancellations on that date due to winter storms 

in other parts of the country (Complaint at 4); and he asserts that at approximately 2:50 pm on 

the date of that flight, American stafT advised him and his family to travel on a British Airways 

operated flight (Complaint at 3). 

British Airways disputes Mr. Borsetti's assertion that the details regarding his initial 

booking by American for transportation on an aircraft operated by American are "[not] relevant 

to the instant dispute" (Complaint at 3). Moreover, Mr. Borsetti's Complaint does not provide a 

2 
complete picture of the circumstances occurring on February 14. Severe winter weather along 

the east coast resulted in thousands of flights being delayed or canceled on February 13 and 14, 

and customers were being rerouted and rebooked on whatever space was available. 1 To further 

add to the already difficult logistical situation arising from the widespread cancellations resulting 

from the winter storm conditions, American Flight # 13 7 from London to Los Angeles had a 

medical emergency onboard and was diverted to Winnipeg, Canada. As a result of that 

diversion, the return flight to London (AA 136), on which Mr. Borsetti and his family had been 

ticketed, was canceled. 

Following cancelation of AA136, American staff at Los Angeles contacted British 

Airways in an effort to accommodate passengers, who had been booked on AA136, on British 

Airways Flight #268 (BA268). At that time, British Airways advised American that only 

economy class seats were available and requested that no additional bookings be made in the 

Club World/business class cabin. American personnel at LAX complied with that request, but 

travel agents and American reservation agents, who may not have been aware of the British 

Airways request, apparently continued to book passengers in the premium cabins. Although Mr. 

Borsetti and his family were not able to travel in the Club World/business class cabin on BA268 

to London, they were able to travel to London in the World Traveller/economy class cabin. 

Indeed, British Airways' Los Angeles stati recalls that upon being advised that only economy 

As reported by USA Today on Friday, February 14, 2014, ''[W]ith nearly 13,500 flights canceled 

across the nation since Monday, U.S. carriers had a large backlog of displaced passengers to clear in the 

coming days.'' USA Today further reported that more than I ,400 flights had been canceled nationwide as 

of 3:20 pm ET on Friday (February 14 ), and that more than 6,500 flights were canceled on Thursday 

(February 13 ). (Mutzabaugh, Ben. "Flight cancellations top 13,400 as brutal travel week ends." USA 

Today. 14 Feb 2014 http://www.usatoday.com/story/todayinthesky/20 14/02/ I I /another-winter-weather: 

headache-for-air-travelers-tuesday/53 88691 /) 

3 
seats were available on BA268, Mr. Borsetti decided to accept those seats, shook the hand of the 

BA duty manager, and thanked him for his assistance. 

On February 17, Mr. Borsetti requested a refund for his "involuntary downgrade'' 

(Complaint at 5 & Appendix page 3)_2 Three days later, on February 20, British Airways 

Customer Relations staff acknowledged receipt of that request (Complaint at 5 & Appendix page 

5). Mr. Borsetti sent further correspondence to British Airways on February 25 (Appendix pages 

7-8), which British Airways acknowledged that smne day (Appendix pages 9-1 0), and he 

submitted an informal complaint to the Department on that date (Appendix pages 11-12).3 

British Airways sent an additional acknowledgment on March 4 (Complaint at 6 and Appendix 

page 15). British Airways also sent additional correspondence to, or otherwise communicated 

with, Mr. Borsetti on March 4, March 12, March 15, March 17, March 19, March 23, March 25 

(x3), March 27, April 9, April 25, May 13, May 21, June 4, and June 5 (Appendix pages 49-50, 

16-17,18,47-48,34,37,41,45,47-50,51,54,56-58,59-60,64,68-69, and 70-71, respectively). 

In addition, Mr. Borsetti requested a telephone conversation with BA customer service 

personnel, which took place on May 13 (Complaint at 8).4 

Mr. Borsetti's Complaint and correspondence indicate that he believes he is entitled to a payment 

of $8,336.10 reflecting 75o/o of the full value of the complete itinerary for his American tickets, including 

75% of the monetary value Mr. Borsetti attributed to complimentary American upgrade certificates 

utilized by two of his traveling companions. Mr. Borsetti acknowledges that those upgrade certificates 

have no cash value (Appendix page 4). 

On May 14, 2014, British Airways forwarded its responses dated March 4, March 17, April 25, 

and May 13 to the Depat1ment. 

On May 13, 2014, Mr. Borsetti stated to the Department, "I have not received any 

communications from British Airways" (Appendix Page 61 ). As the record demonstrates, British 

Airways personnel had communicated with Mr. Borsetti, both orally and in writing, more than a dozen 

times between receipt of his Complaint forwarded by the Department and May 13. 

4 
On March 4, British Airways offered Mr. Borsetti "'[b ]y way of an apology, and as a 

gesture of goodwill" a payment of either 300 GBP, $500 USD, or a $650 USD credit voucher to 

be applied against a future British Airways flight purchase for each member of his party 

(Appendix page 49-50). That offer was not intended to substitute for, or offset, any subsequent 

compensation for the downgrade. Indeed, in the same correspondence, British Airways 

personnel stated: "[a]dditionally, I have created a clain1, passing your correspondence and travel 

records to our Refunds department requesting they investigate your claim as quickly as possible 

to refund the fare compensation due." (Appendix page 16.) Mr. Borsetti never indicated which 

option he preferred, despite that offer being reat1irmed on March 12, March 17, March 25 and 

April 25 (Appendix pages 16 and 48-50, 47-48, 47, and 57-58, respectively), and his Complaint 

confirms that he chose not to accept that goodwill gesture (Complaint at 6). 

Mr. Borsetti subsequently received three checks for $408 and a credit card refund for 

$949. 5 The $949 credit card refund reflects refunds of $641, $132, and $176, which are 75% of 

the fare values British Airways understands to have been assigned by American (the carrier from 

which Mr. Borsetti purchased his transportation) to the LAX-LHR sectors of Mr. Borsetti's 

ticket and those of two of his family. Since making this refund, British Airways has continued to 

review the compensation provided to Mr. Borsetti and his traveling companions and has 

processed an additional refund of $611, which represents 75% of the fare value British Airways 

understands to have been assigned by American to the LAX-LHR sector of Mr. Borsetti's 

remaining family member. In addition, British Airways is requesting American to make an 

appropriate adjustment to Mr. Borsetti 's AAdvantage account to ret1ect the inability of his two 

As best British Airways can determine, the three $408 checks were sent to Mr. Borsetti in error. 

5 
traveling companions to use the AAdvantage upgrade certificates. 6 Moreover, British Airways 

remains willing to provide, as a gesture of goodwill, a payment of either 300 GBP, $500 USD, or 

a $650 USD credit voucher to be applied against a future British Airways f1ight purchase for 

each member of his party. 

Applicable Legal Requirements 

The Complaint's multiple references to EC 261/2004 (Complaint at 5, 16, 17, 18, 21, 22, 

and 23) indicates that Mr. Borsetti' s claim for 75o/o of the value of his tickets is based on his 

reading of that European regulation. 7 British Airways does not dispute the applicability of 

Making an appropriate adjustment would be consistent with the Department's policy regarding 

denied boarding compensation for zero fare ticket holders. Specifically, in the preamble to the Enhancing 

Airline Passenger Protections final rule, the Department stated, "the carrier must credit the amount of 

frequent flyer miles used for an upgrade back to the passenger's account if any substitute transportation 

provided is not in the class of service that he or she used the frequent-flyer miles to acquire." 76 Fed.Reg. 

23110, 23138 (Apr. 25, 2011 ). 

Mr. Borsetti's Complaint and correspondence indicate that he believes he is entitled to a payment 

of $8,336.1 0, reflecting 75o/o of the full value of the American tickets and complimentary upgrade 

certificates issued to him and his family members including sectors on which he was not downgraded and 

on which he was transported in business class (Complaint at 5). Those tickets provided for travel for Mr. 

Borsetti and one of his family members from Milan- New York- San Francisco- Los Angeles- London 

- Milan (Appendix pages 21-23 and 30-32). The tickets for the other two family members provided for 

travel from San Francisco- Los Angeles- London- Milan- New York- San Francisco (Appendix pages 

24-29). Mr. Borsetti's Complaint does not provide any indication that he and his traveling companions 

were unable to travel in business class on any sectors other than the Los Angeles - London flight on 

February 14. 

British Airways does not dispute Mr. Borsetti's position that EC 261/2004 requires that he be 

compensated for 75% of the value of those portions of his itinerary where he was downgraded, but does 

not agree that he is entitled to compensation for sectors on which he was transported in business class and 

on which he did not experience the inconvenience that EC 261/2004 is intended to redress. In that regard, 

it is interesting to note that one of the proposed clarifications to EC 261/2004 being decided by the 

European Parliament in 2014/2015 would clarify what is meant by "price of ticket" by including a 

definition of "flight price" and only the relevant flight sector would be applicable. The proposed wording 

from the EU Commission is: 

"Flight price'' means the value obtained by multiplying the ticket price by the 

ratio between the distance of the flight and the total distance of the journey(s) 

covered by the ticket. 

This proposed wording could of course change before it is in its final form, but the proposed wording 

6 
EC 261/2004, and it is prepared to comply with all obligations imposed on it pursuant to that 

regulation. 

However, just as the European Commission has no jurisdiction to enforce the 

Department's consumer protection regulations, the Department has no jurisdiction to enforce 

EC 26112004. Mr. Borsetti's Con1plaint does not provide any support for his assertion to the 

contrary, and none exists. The Departmenfs authority is limited to the enforcement of 

applicable sections of the Transportation Code, 49 U.S.C. Subtitle VII, and regulations or orders 

prescribed thereunder. EC 261/2004 is neither in the Transportation Code nor a regulation or 

order prescribed thereunder. As recognized in a recent series of federal cases, deference should 

be accorded to the European Union Member State agencies properly charged with enforcing EC 

261/2004.8 Mr. Borsetti should raise his complaint with the appropriate European authorities 

and not petition the Department for relief that it cannot grant. 

Similar to Part 250 and related Department consumer protection regulations, EC 

26112004 provides for a comprehensive consumer protection regulatory scheme. Having chosen 

to pursue the remedies provided by EC 261/2004, it is not appropriate for Mr. Borsetti to ask the 

Department to enforce that European regulatory requirement, nor is it appropriate for Mr. 

Borsetti to invoke the Department's consumer protection regulations. Mr. Borsetti's claim for 

damages under EC 261/2004 demonstrates his decision to invoke the consumer protections 

provided by the European regulatory scheme. Just as it is not appropriate for him to ask the 

Department to enforce the European regulations governing compensation for a downgrade, it is 

provides an indication of what was meant in the drafting of EC 261/2004 and is now sought to be clarified 

with this amendment. 

8 See, e.g., Lozano v. United Continental Holdings, Inc., 2013 WL 5408652 at 3 & 4 (N.D.I.L. '13); 

Volodarskiy v. Delta Air Lines, Inc., 987 F.Supp.2d 784, 790 (N.D.I.L. '13); and Polinovsky v. Deutsche 

Lufthansa, AG, 2014 WL 958666 at 3 (N.D.I.L. '14). 

7 
not appropriate for him to pick and choose between ditierent portions of the European and U.S. 

consutner protection regulatory schemes. 

Moreover, to the extent the Department believes that its consumer protection regulations 

apply to the incident at issue, notwithstanding Mr. Borsetti's pursuit of the monetary damages 

specified in EC 261/2004, the requirements of those regulations would have to be considered in 

the context of the factual circumstances in effect on February 14. Those circumstances included 

the thousands of flight cancelations resulting from the winter storms on the east coast, the 

cancelation of American's Los Angeles-London flight (AA136), which was scheduled to operate 

two hours prior to BA268, and the numerous passengers from the American flight who 

immediately and understandably attempted to rebook on BA268. 

With respect to the Complaint's allegations regarding specific regulatory violations, and 

subject to British Airways' position that Mr. Borsetti's pursuit of remedies under the European 

consumer protection regulatory scheme should limit his ability to invoke the corresponding U.S. 

regulations, British Airways responds as follows: 

With respect to the allegation that British Airways violated § 250.2a by not ensuring that 

the smallest number of passengers holding confirmed reservation space on BA268 were denied 

boarding involuntarily, it should be sufficient to note that all passengers holding confirmed 

reservations, including Mr. Borsetti and the other members of his party, were carried on BA268. 

With respect to the assertion that British Airways violated § 250.2b by failing to solicit 

volunteers for denied boarding, British Airways notes ( 1) the chaotic airport situation described 

above, and (2) that all passengers holding confirmed reservations, including Mr. Borsetti and the 

other men1bers of his party, were carried on BA268. 

8 
With respect to the § 250.3 requirement that carriers establish priority rules and criteria 

for determining which passengers holding confirmed reserved space shall be denied boarding on 

an oversold flight, British Airways hereby confirms that it had established such priority rules. 

With respect to Mr. Borsetti's allegations regarding§ 250.6(c), British Airways notes that 

§ 250.6 is titled Exceptions to Eligibility for Denied Boarding Compensation (emphasis added). 

Moreover, and as noted above, Mr. Borsetti's Complaint demonstrates that he has chosen to 

pursue his compensation rights under EC 261/2004. Under those circumstances, British Airways 

submits that no additional refund is owed under the Department's rules. 

With respect to the § 250.89 requirement that denied boarding compensation be made the 

same day or at the most within 24 hours, this section is inapplicable to Mr. Borsetti and his 

family because they were accommodated on BA268. As noted above, the language of § 250.6 

makes it clear that any refund to which Mr. Borsetti may have been entitled was not denied 

boarding compensation. Specifically, "[a] passenger denied boarding involuntarily from an 

oversold f1ight shall not be eligible for denied boarding compensation if: ... (c) The passenger is 

ofTered accommodations or is seated in a section of the aircraft other than that specified on the 

ticket at no extra charge, except that a passenger seated in a section for which a lower fare is 

charged shall be entitled to an appropriate refund." (Emphasis added.) Mr. Borsetti and his 

family were accommodated on BA268. Accordingly, no denied boarding compensation was 

due, so the requirement for the timely payment of denied boarding compensation in § 250.8 does 

not apply. 

British Airways believes Mr. Borsetti intended to cite § 250.8 instead of § 250.9 on page 17 of the 

Complaint. 

9 
With respect to the § 250.9 requirement to provide a written statement to passengers 

denied boarding involuntarily, British Airways submits that any such requirements should be 

considered in the context of ( 1) the chaotic airport situation described above, and (2) that all 

passengers holding confirmed reservations, including Mr. Borsetti and the other members of his 

party, were carried on BA268. 

Mr. Borsetti's assertion that British Airways' failure to list check-in deadlines in its 

customer service plan or conditions of carriage violates 14 CFR § 259.5 and 49 U.S.C. § 41712 

is baseless. There is no Department requirement to include check-in times in a carrier's 

customer service plan or conditions of carriage. 

With respect to § 259.5(b)(5) and Part 374 of the Department's regulations, British 

Airways acknowledges that Part 3 74 incorporates the requirements of the Federal Reserve 

Board's Regulation Z, 12 CFR Part 226, which requires creditors to transmit a credit statement 

for a refund to the credit card issuer within seven business days of receipt of full documentation 

for the refund requested. In the present matter, British Airways did not receive full 

documentation for the refund requested until Mr. Borsetti provided the credit card number for his 

original form of payment. Because Mr. Borsetti purchased his tickets on American, British 

Airways did not have access to the information for his original fonn of payment and was 

required to obtain this information directly from Mr. Borsetti. Indeed, Mr. Borsetti delayed the 

receipt of his refund by failing to provide his credit card information despite repeated requests 

from British Airways. (Appendix pages 34, 41, and 45.) Moreover, in the final analysis, the 

Department's rules regarding the tin1ing of refunds should not apply to Mr. Borsetti' s request for 

compensation under EC 261/2004. 

10 
With respect to the§ 259.7(c) 30-day deadline for acknowledging written complaints and 

the 60-day deadline for providing a substantive written response, British Airways complied with 

these requirements. Mr. Borsetti made his initial refund request on February 17, which BA 

acknowledged three days later, on February 20 (Appendix page 5-6). Mr. Borsetti sent an 

additional complaint to British Airways on February 25, which British Airways acknowledged 

receipt of that same day (Appendix page 9-1 0). Also, on February 25, Mr. Borsetti submitted an 

informal complaint to the Department, which British Airways acknowledged receipt of on March 

4 (Appendix page 15), within one day of receiving the complaint from the Department. 10 

Accordingly, British Airways acknowledged all written complaints within 30 days of receipt. 

British Airways also provided substantive responses at least twice within 60 days of receiving 

Mr. Borsetti' s complaints, on March 17 and 25 addressing the substantive issues of the 

complaints by confirming that compensation was due under EC 261/2004 (Appendix pages 47-

48). As the record demonstrates, the present case involved complex issues that British Airways 

continued to investigate up to its sending of final replies on May 21 and June 5, confirming the 

payment of compensation due under EC 261/2004, and is continuing to investigate. 11 

With respect to British Airways' alleged violation of section 90(0) of its International 

Passenger Rules Tariff, as noted above, Mr. Borsetti's Complaint demonstrates that he has 

10 The Complaint's allegation that British Airways failed to provide its response to Mr. Borsetti's informal 

complaint to the Department, as per the Department's request, is equally baseless. British Airways provided the 

Department with a response on May 14,2014. Accordingly, British Airways denies this allegation. 

II The Depat1ment has acknowledged that ''for difficult cases involving complex issues a carrier 

can provide a substantive response to the passenger within 60 days based on what the carrier knows at 

that time, continue its investigation, if necessary, and send a final reply once the investigation is 

complete.'' (Answers to Frequently Asked Questions Concerning the Enforcement of the Second Final 

Rule on Enhancing Airline Passenger Protections at 18.) 

11 
chosen to pursue the statutory remedy amount established by EC 261/2004. Under these 

circumstances, Rule 90(D) need not be considered in this proceeding. 12 

Affirmative Defenses 

1. The Complaint fails to state a claim upon which relief may be granted. 

2. Complainant lacks a private right of action under 49 U.S.C. § 41712. 

3. Complainant lacks standing. 

4. The Complaint is, in whole or in part, moot. 

WHEREFORE, for the reasons stated above, British Airways Pic respectfully requests 

that the Department dismiss the Complaint pursuant to 14 CFR § 302.406(a)(2). 

~7~ 

~i~c~ 1 ason E. Maddux 

Garofalo Goerlich Hainbach PC 

1200 New Hampshire A venue NW 

Washington, DC 20036 

Attorneys for British Airways Plc 

12 To the extent Rule 90(0) was applicable, it would provide only for compensation based on the 

transportation "between the points where the lower class of service is used." 

12 
CERTIFICATE OF SERVICE 

I hereby certify that on this 21th day of October, 2014, a copy of the foregoing Answer of 

British Airways Plc was served via electronic mail on the parties named below: 

Mike Borsetti 

Blane W orkie 

Clereece Kroha 

mike~i\borsetti.con1 

blane. workie(a),dot.gov 

clereece.kroha(a)dot. gov