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Travel law: Metropolitan Museum of Art “Pay What You Wish” class action – proposed settlement

Travel law: Metropolitan Museum of Art “Pay What You Wish” class action – proposed settlement

In this week’s article, we discuss the proposed settlement of a consumer class action against the Metropolitan Museum of Art in New York City [Saska v. The Metropolitan Museum of Art, 53 Misc. 3d 1212 (N.Y. Sup. 2016)]. We discussed Saska case earlier in Dickerson, “When ‘free of charge’ becomes ‘pay what you wish, but you must pay something’”, eturbonews.com (2/2/2016) which discussed Saska v. Metropolitan Museum of Art, 42 Misc. 3d 548 (N.Y. Sup. 2013), aff’d 125 A.D. 3d 438 (1st Dept. 2015) wherein two of three causes of action [violation of an 1893 statute which provided funding for the Museum based upon an admission free policy and breach of a Lease between the Museum and New York City also providing for an admission free policy] were dismissed.

Remaining was a cause of action alleging violation of the New York State General Business Law 349 [prohibition of deceptive and unfair business practices] [GBL 349]. For a discussion of GBL 349 see Dickerson, Chapter 111, Consumer Protection, Commercial Litigation in New York State Courts, 4th Edition, R. Haig, Ed., Thomson Reuters West (2016)].

Terror Targets Update

Malta

In Afriqiyah Air ways hijackers release all passengers, surrender in Malta, etn.travel/article (12/23/2016) it was noted that “All passengers and crew have been released from the Afriqiyah Airways Airbus A320 in Malta, after hijackers from the pro-gaddafi group Al Fatah Al Gadida surrendered and existed the Libyan plane…It’s understood the plane was making an internal flight in Libya from Sebha to Tripoli before it was diverted to Malta”.

Australia

In Innis, Australia Says It Foiled a Terrorist Plot, nytimes.com (12/22/2016) it was noted that “A terrorist plot to attack the Australian city of Melbourne with explosives, knives and guns-possible on Christmas Day-is believed to have been headed off with the arrest of five people, Prime Minister Turnbull said on Friday. Mr. Turnbull told reporters in Sydney the group was ‘self0radicalized’ and inspire by the Islamic State”.

Jordan

In Jordan Vows Security Crackdown, etn.travel/article
(12/21/2016) it was noted that “This weeks’ attack on Karak, a Jordanian tourist destination, has left Jordanians reeling and calls for better security. Islamic State claimed responsibility for a shooting attack that left none Jordanian and a 62-year old female Canadian tourist dead. Other tourists hid in the castle during the shootout which left all four attackers dead”.

Kayseri, Turkey

In 13 killed, 55 wounded in Turkey bus bombing, etn.travel/article (12/17/2016) it was noted that “13 people were killed and 55 wounded when a bus was hit by an explosion outside a university in the Turkish city of Kayseri… Seven people have been detained in connection with the explosion…the attack had been ‘carried out by a suicide bomber’. There has yet been no claim of responsibility for the bombing”.

Turkey & Germany

In Arango, In Turkey, a Capstone to a Violent Year. In Germany, a Realization of Fears., nytimes.com (12/20/2016) it was noted that “A trim and well-dressed man, dapper in a black suit, flashes a badge to enter the most genteel of events-an exhibition of photographs-pulls out a pistol and guns down an ambassador, right in the middle of the diplomatic quarter of the Turkish capital, Ankara. Around the same time, in the shadow of a great church in Berlin that still bears the scars of bombs from World War II, a man plows a truck through a Christmas market, killing a dozen people. The two terrorist attacks-one in Europe, the other on the periphery of Europe-came within hours of each other Monday night, bookends to a terrible year that saw the wars of the Middle East metastasize across Europe and beyond, spawning terrorism, upending the lives of ordinary people and energizing right-wing political movements”.

New York City Airports: The Good & The Bad

JFK Airport

In Dunlap, Hotel Project Would Revive Embodiment of Jet Age at Kennedy Airport, nytimes.com (12/6/2016) it was noted that “In 1962, the architect Eero Sarrinen’s Trans World Flight Center at Kennedy International Airport seemed poised to ascend, its 310-foot-wide concrete wings flexed in hopeful upstroke as a memorable symbol of the globe-girdling Trans World Airlines… That is the moment Mr. Morse seeks to recapture in his plans to revive the building as the public entrance-with reception desk, restaurants, a nightclub, event space and a food court-leading to a new two-building, six story, 505-room hotel in the crescent-shaped area between the Saarinen landmark and JetBlue’s Terminal 5″.

LaGuardia Airport

In Intel, Unbelievable News, Conde Nast Traveler 01.17 it was noted that “LaGuardia is still-still-the worst airport in the country for delays, according to the latest DOT stats. Only 73 percent of arrivals and departures were on time in the first eight months of 2016; Newark and JFK were nearly as bad, with one in four flights delayed. The FAA has added new tools for air-traffic control in N.Y.C., but we’re still waiting for those so-called NextGen efforts to boost on-time performance”.

Free Meals In Coach?

In Free meals returning to coach? Delta says ‘maybe’, usatoday.com (12/11/2016) it was noted that “Could free meals by ready for a comeback in coach class?… Delta Air Lines has started complimentary meal service on its transcontinental service between its hub in New York JFK and the California cities of Los Angeles and San Francisco. It began Nov. 1 as part of a trial that will run through Dec. 15 and could become permanent its well-received by fliers”

Planning A Honeymoon?

In Vora, How to Plan a Honeymoon Trip, nytimes.com (12/9/2016) it was noted that “Your honeymoon is very likely one of the most memorable trips you’ll ever take, said Jim Augerinos, the president of Perfect Honeymoons (and he) offered advice on having a blissful honeymoon. Splurge, If You Can. Spending money on your honeymoon is worth it…Use a Travel Consultant. Someone who is knowledgeable about the destination you’re interested in visiting…Don’t skip your dream destination…Consider a honeymoon registry. Would you rather have a blender or a couple’s massage beachside in Fiji?… Skip the house rental… A honeymoon is not the time to go the way of renting a house where you likely have to cook and clean up after yourself”.

FAA Proposes Penalty Against Resorts World

In FAA proposes penalty against Resorts World Companies for alleged unauthorized air carrier operations, eturbonews.com (12/6/2016) it was noted that “The (FAA) proposes a $218,700 civil penalty against Resorts World Aviation and Resorts World Bimini for allegedly flying passengers without an FAA air carrier certificate or with pilots who had not been trained and checked for commercial operations. The FAA alleges that Resorts World Aviation provided Resorts World Bimini casino players and other guests with nine for-hire flights between July 10 and July 19, 2015″.

Do Airlines Ban Unruly Passengers For Life?

In Quirk, Do Airlines Really Ban Unruly Passengers For Life?, consumerist.com (11/29/2016) it was noted that “On Monday, Delta’s CEO Ed Bastien confirmed in a company memo that a passenger who was filmed shouting politically-charged insults while boarding a flight from Atlanta to Allentown, PA, will no longer be allowed to fly on the airline. ‘This individual displayed behavior that was loud, rude and disrespectful to his fellow customers. After questioning the customer, our team members made the best decision they could give the information they had and allowed him to remain on the flight’, Bastien wrote. ‘However, if our colleagues had witnessed firsthand what was shown on the video, there is no question they would have removed him from the aircraft. He will never again be allowed on a Delta plane’”.

Founder Of Unclaimed Baggage Center

In Sandomir, Doyle Owens, Founder of the Unclaimed Baggage Center, Dies at 85, nytimes.com (12/7/2016) it was noted that “Doyle Owens, who turned the orphaned contents of passengers’ lost luggage into the Unclaimed Baggage Center, a major retail and tourist attraction in Scottsboro, Ala., died on Dec. 3…Mr. Owens built his business on a traveler’s nightmare: not finding your suitcase, duffel bag or trunk on the airport carousel while others walk off with their own. ‘We never know what’s in those suitcases until we open them’, Mr. Owens said in 1978. ‘It’s like buying a pig in a poke’. An estimated one million people trek to Unclaimed Baggage each year and roam through its cavernous 40,000 square feet to sift through stuff that was never returned to its original owners”.

No Airplane Calls, Please

In McCann, Calls Aren’t Allowed on Planes, but Regulators Consider a Warning Anyway, nytimes.com (12/9/2016) it was noted that “the federal Transportation Department appears to be drawing a line in the aisle at one creature comfort: the ability to travel free from listening to other people’s phone calls. On Thursday, the Department proposed a rule that would require airlines to tell passengers before they buy tickets that they may be ‘unwillingly exposed’ to mobile voice calls while in the air. Actual cellular calls are prohibited in the air-for now, at least-by the Federal Communications Commission, which originally adopted the ban over concerns that such phones use could affect a plane’s operation. And, regardless of the regulations, most airlines already forbid internet-based calls over in-flight WI-FI and say they have no plans to change that”.

Exploding Train In Bulgaria

In 7 killed, 29 wounded, village evacuated after train explosion, eturbonews.com (12/10/2016) it was noted that “Seven people were killed, 29 were wounded and all the residents of a northeastern Bulgarian village have been evacuated after a cargo train carrying liquefied petroleum gas derailed and exploded”.

Drones On The Rise In New Zealand

In Unmanned flights on the rise: 25,000 recorded in New Zealand, eturbonews.com (12/13/2016) it was noted that “Anyone wanting to fly a UAV in New Zealand must follow strict civil aviation regulations and in some cases, may need approval from air traffic control. Airshare is an online hub giving users access to the flight information, tools and training they need to operate safely. Run by new Zealand’s air navigation services provider Airways, Airshare is also the only platform allowing users to log flights directly with traffic control”.

Posting Negative Reviews

In Wiesbaum, Yes, You Can Post That Negative Online Review, Says Congress, nbcnews.com (12/7/2016) it was noted that “Congress has reaffirmed your right to post truthful negative reviews about a product or service provider-even if you signed an agreement that bans you from doing so. The Consumer Review Freedom Act, passed last week and new headed to the White House, prohibits companies from having non-disparagement clauses in their contracts in terms of service. These so called ‘gag clauses’ are designed to discourage customers from posting honest reviews that criticize the company-and punish them with a fee if they do so”.

The Proposed Saska Settlement

In Saska v. Metropolitan Museum of Art, 53 Misc. 3d 1212 (N.Y. Sup. 2016) the Court preliminarily approved a proposed settlement on behalf of a settlement class of “All persons who, at any time from March 5, 2007 to the date of final approval of the [Original] Settlement Agreement, purchased either (I) admission to the exhibition halls [the Museum] (in person, online or through a third-party vendor, in any location, using any form of payment) or (ii) a [Museum] membership”.

The Settlement

The proposed settlement recommends incentive awards to the Saska plaintiffs of $1,000 each, an award of legal fees of $350,000 subject to Court approval, “broad mutual releases, but with respect to the class, only claims for injunctive relief, and not claims for monetary damages, are released” and notice through a website and a form of notice to be published thereon and in several newspapers.

The Proposed Consent Decree

The essence of the proposed settlement, however, focuses in on the manner in which the Museum advertises a ‘pay what you wish’ but encourages visitors when they arrive to pay substantial suggested prices. The settlement seeks to increase the visibility of the option to pay as little as $.01, i.e., “pay what you wish” as opposed to the suggested prices. The operational details are found in Section 15 which contains “an 8-part proposed consent decree that would be binding on the Museum for 78 months (i.e., 6.5 years)… The consent decree set forth in sections 15(a)-(h) provides as follows:”

Disclosures Of Policy

“A. Disclosures of ‘pay what you wish’ admissions policy-during the term of the Consent Decree, the Museum shall provide disclosures (‘Pay What You Wish Disclosures’) of its ‘pay what you wish’ admissions policy in the following manner:

“I. The Museum will maintain a sign or signs plainly visible approaching the ticket cashiers informing visitors of the Museum’s ‘pay what you wish’ admissions policy and the suggested admission amounts by each category of visitor. Such sign(s) will disclose the Museum’s ‘[ay what you wish’ admissions policy in a manner substantially similar to Exhibit G…it being agreed that signage with identical content in the same order and spacing…shall be ‘substantially similar’…”

“ii. The Museum’s website will disclose the Museum’s ‘pay what you wish’ admissions policy in a manner substantially similar to Exhibit H…”

“iii. The Museum’s on=site ticket kiosks and the first screens of the transaction pages will disclose the Museum’s ‘pay what you wish’ admissions policy in a manner substantially similar to Exhibit I…”.

Third Party Websites

“The Museum will include a provision in its contracts with CityPass, New York Pass, Explorers Pass and NYCitAll Pass (‘Third Party Vendors’) that each Third-Party Vendor shall disclose the Museum’s ‘pay what you wish’ admissions policy, such that purchasers can reasonably have been notified of such policy prior to purchasing a product which includes admissions to the Museum”.

Future Changes To Admission Amounts

“c. The Museum may change the amounts of the suggested admission amounts under the existing ‘pay what you wish’ admissions policy. If it does so, it may change the amounts of the suggested prices shown on its Pay What You Wish Disclosures. Any such change, if limited to changing the amounts of the suggested prices, will not require the consent of the Class Plaintiffs or the approval of the Court”.

Staff Training And Evaluation

“d. The Museum will continue its existing policies of (1) not evaluating Visitor Services staff according to individual sales amounts and (ii) providing Visitor Services staff with introductory training and quarterly refresher training programs on the ‘pay what you wish’ policy and procedures for explaining that policy to visitors. Such procedures shall require that each cashier either ask how much visitors would like to pay or state that visitors may pay any amount they choose, and that, in accordance with training procedures in place, Visitor Services staff working as ‘line-busters’ explain to visitors that they may less than the full suggested admission amount at the cashier’s desk if they continue waiting in line”.

Future Changes In Admission Policy

“e. The Museum may, without seeking consent of the Class Plaintiffs or approval of the Court, change in admissions policy to charge some or all visitors mandatory admission fees (i.e., fees charged on a basis other than the ‘pay what you wish’ system) subject to any required governmental approvals…”

Court Approval Of Changes

“g. Within 30 days after the effective date of any Admissions Policy Change, the Museum will apply to the Court, with notice to Class Counsel for an order concerning application of the Consent Decree to the Revised Disclosures describing such Admission Policy Change…If the Admissions Policy Change does not provide for a ‘pay what you wish’ policy for any class of visitors, the Court will enter an order stating that the Consent Decree is inapplicable to such Revised Disclosure”.

Availability

“h. During the term of the Consent Decree, so long as the Museum’s admissions policy permits some or all visitors to enter the Museum’s exhibition halls on a ‘pay what you wish’ basis, the Museum will ensure that eligible visitors are provided with a reasonable opportunity to purchase admission at the public entrance to the Museum for less that the full suggested admission fee if they choose”

Conclusion

“The standard for granting final approval of a class action settlement, which is well established, is not the same as the standard for granting preliminary approval. Rather, ‘[p]reliminary approval is the first step in the settlement process (and) requires only an ‘initial evaluation’ of the fairness of the proposed settlement on the basis of written submission and an informal presentation by the settling parties’…Thus ‘[a trial] court should preliminarily approve a proposed settlement which ‘appears to the product of serious, informed non collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class and falls within the reasonable range of approval’”. The proposed settlement was preliminarily approved subject to notice and a hearing on final approval. Stay tuned.

Justice Dickerson has been writing about travel law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2016) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2016), and over 400 legal articles many of which are available at nycourts.gov/courts/9jd/taxcertatd.shtml. Justice Dickerson is also the author of Class Actions: The Law of 50 States, Law Journal Press (2016). For additional travel law news and developments, especially in the member states of the EU, see IFTTA.org.

This article may not be reproduced without the permission of Thomas A. Dickerson.

Read many of Justice Dickerson’s articles here.

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