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Rabbi S. Binyomin Ginsberg

Bruce Bisping, Star Tribune

Court cool to Minnesota rabbi booted from WorldPerks for complaining

  • Article by: KEVIN DIAZ and PAUL WALSH
  • Star Tribune staff writers
  • December 4, 2013 - 7:34 AM

WASHINGTON - The U.S. Supreme Court heard the case Tuesday of a Twin Cities man who was stripped of his top-level Platinum Elite status in Northwest’s WorldPerks program because, the airline said, he complained too much and schemed to get bumped from flights in return for compensation.

Rabbi S. Binyomin Ginsberg, 52, of St. Louis Park, said that Northwest, which has since been absorbed by Delta Air Lines, failed to act in good faith when it barred him in 2008 from its frequent flier program and took his miles away. The airline countered that federal deregulation of the airline industry in 1978 rules out claims like Ginsberg’s.

Most justices during arguments signaled that an opinion favorable to Ginsberg could give rise to state-by-state rules that the deregulation law was intended to prevent.

“The whole thing really doesn’t make sense, if you think about it logically,” Ginsberg, who attended the court proceeding, said Tuesday afternoon. “At a certain point, [airline executives] dug in their heels and they had to go with it.”

Ginsberg said his case did not have to take up the time of the nation’s highest court.

“I just wanted my miles back,” he said, adding that “hundreds of thousands” of mile-credits were confiscated. “What would you do if someone stuck their hand in your pocket and took your wallet? You’d ask for it back.”

Ginsberg flies the airline about 75 times a year to give educational lectures and seminars. He signed up for the airline’s frequent-flier program in 1999, achieving Platinum Elite status in 2005.

Northwest officials say that in the last seven months before it imposed the ban, Ginsberg called the WorldPerks program at least a couple of dozen times with various gripes — lost or late luggage, tarmac delays, etc. — and sought compensation.

In 2007 the airline compensated Ginsberg with nearly $2,000 in travel vouchers, 78,500 bonus miles for future flights and $491 for a lost bag.

That’s about the time that Northwest said enough, according to court records. The airline told Ginsberg in a telephone call that he was being kicked out of WorldPerks for abusing the program. They said he complained to the customer service line too many times, allegedly booked reservations on full flights with the purpose of being bumped, and was bumped from flights too often.

Ginsberg maintains he rarely complained and had no control over who would be bumped from an overbooked flight.

“It’s not like they ever called me and said, ‘You know, you’ve got to stop complaining,’ ” he said Tuesday. “I never complained on the plane or in the airport. I would call the next day. It was never like about too much salt on the peanuts or something like that.”

When Ginsberg contacted the airline’s legal department, carrier officials told him they also were revoking the Platinum Elite status of his wife, who sometimes traveled with him.

Ginsberg said the way he and his wife have been treated is nothing short of “un-American.”

The class-action claim, filed in 2009, alleged that Ginsberg’s revocation was “a pretext for cost-cutting in advance of the Delta merger.”

A district court ruled against Ginsberg, saying he had failed to show a specific violation of the WorldPerks agreement. The court also found that his good-faith claim was pre-empted by the 1978 Airline Deregulation Act intended to prevent state-by-state rules on air travel.

However, Ginsberg got some help from an appeals court ruling that the 1978 law did not pre-empt the good-faith claims because they are not specific to air travel. That is the issue that was brought before the Supreme Court.

Ginsberg is seeking $5 million in damages, alleging “breach of written contract, breach of the duty of good faith and fair dealing, negligent misrepresentation, and intentional misrepresentation.”

Attorneys for the airlines, supported by the U.S. Justice Department, argued in court Tuesday that airline prices, routes and services fall under the purview of federal regulators, while Ginsberg has based his claims on Minnesota standards of good faith in contracts. The airline also disputed Ginsberg’s claim that he was booted from the loyalty program simply to save the airline money.

“Airlines do not have an interest in getting rid of their most lucrative and loyal customers,” Washington, D.C., attorney Paul Clement argued before the court.

Scalia: ‘a raw deal’

Justice Antonin Scalia expressed some sympathy for Ginsberg, remarking, “Wow, somebody’s really been given a raw deal.”

But Scalia, like several other justices, said it would be impractical to decide the case based on a single state’s standards. “I don’t want to have to sort these out state by state,” he said.

Several other justices questioned Northwest’s claim that the WorldPerks agreement gave the company “sole discretion” in tossing Ginsberg from the program. “If one party can get out willy-nilly,” said Justice Ruth Bader Ginsburg, “what kind of bargain is it?”

Ginsberg’s attorney, Adina Rosenbaum, told the court that if the airline prevails in the case, “people won’t be able to rely on the security of their contracts.”

A decision from the court is expected by late June.

Ginsberg said he is still allowed to fly Delta, but intends to avoid the Twin Cities’ dominant carrier from here on out. On the trip to Washington for the Supreme Court hearing, Ginsberg chose a locally based airline.

“Sun Country,” he said. “I love Sun Country.”

 

The Associated Press and staff writer Paul Walsh contributed to this report. kdiaz@startribune.com • 1-202-383-6120

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