Travel Blogger Malpractice and a Contracts Law School Exam Hypo

One travel blogger has recently engaged in conduct that I find morally problematic, but also raises some basic legal issues that are often misunderstood, relating to a glitch that made redeeming miles for Swiss First Class (explicitly not allowed under program rules) possible. Most of the legal issues are covered in first-year contract classes, so I figured it would be a fun exercise to write it up in the form of a hypothetical that would be typical of a law school final exam. This would actually be a far easier hypo than most I had in law school, but the tone should give those of you who didn’t go to law school a good sense of what a law school exam looks like. Also, some of the facts have been streamlined from what the actual blogger has done to pose purer legal issues, but I think the ultimate legal issues are the same. (Questions 2 and 3 are pure hypotheticals and don’t reflect anything that I know has happened yet, but could…)

Put your attempts at answers in the comments and I’ll grade them.

Gustav Klimt is a self-described “miles and points” expert. He runs a blog, “Tomorrow Never Flies,” talking about traveling on points, frequent flier programs, and trends in the industry.  One day, he was reading his friend Plucky’s blog- “Four Hyatts at a Time”- which alerted him to a glitch in the booking system for Swiss Navy Airways.  As Gustav knew, the rules for Aeromap, a frequent flyer program, said that miles could not be used to redeem for First class tickets on Swiss Navy. But the glitch was allowing people to use Aeromap miles to book first class Swiss Navy travel, as was reported on Plucky’s site and several other blogs Gustav reads and regularly comments on and cites. “Wow, I should take advantage of this mistake before they fix it,” Gustav thought. So he did, booking a trip he hadn’t otherwise planned on taking. He posted a blog post about it, “Look what I got! I dare them to cancel this ticket.”

Three days later, Swiss Navy canceled the ticket. Aeromap refunded the miles Gustav used, as well as the money he paid in taxes. Gustav had been watching to see if this would happen. He quickly sent Swiss Navy and Aeromap an email, demanding they reinstate his ticket, and threatening to sue them if they did not. They explained that the ability to book the ticket was clearly in error, given the explicit rule against such redemptions in the program’s award chart.

Gustav responded that he would sue them if they did not reinstate his ticket immediately. Aeromap responded that they would happily rebook him in business class for travel the same dates on the same routing. Gustav declined and instead then bought a cash first class ticket on Swiss Navy airways, though he had never bought a cash first class ticket before, and even though a first class ticket on Swiss Navy’s competitor Id Air was 30% the price on the same route at the same time. “I’ll show them, ” he cackled, sipping champagne.  “Now they will have to reimburse me $22,000 – the price of a last-minute one way ticket on Swiss Navy  in first class.  And I had bought the miles I had used fof only $1100! Don’t mess with the Klimt! Stewardess— why is my glass empty?!?!?””

1. Gustav has now filed a lawsuit alleging breach of contract. Will he succeed? What defenses and/or counterclaims can Aeromap or Swiss Navy bring? (Assume for the sake of these questions that federal statutes/regulations and the majority rule of American common law apply. Also assume that Gustav has sued in a state court where venue and personal jurisdiction are proper.)

2. As a result of the emails threatening a lawsuit, Aeromap has suspended Gustav from its frequent flyer program. They point to a provision in their member agreement that provides membership can be terminated at Aeromap’s sole discretion “including, but not exclusively, for abuse, manipulation, deception, or harassment.” The agreement also says all miles remain property of Aeromap.  Does Gustav have any recourse?

3. Gustav is a member of the state bar of Modelia.  What, if any, disciplinary rules has he violated?