“Legaltech” and mass air complaints. The need for a legal rethink of defense strategy for airlines

The so-called “Legaltech” is a concept that refers to technologies that allow the automation of a legal service, whether at the level of support (the document), the process (the procedure) or the relationship with legal professionals. This term has been making a major breakthrough in the area of complaints in the tourism sector for some years now, thanks to companies that claim passenger rights to airlines that suffer a delay or cancellation on one of their flights. First, it is necessary to know where we come from to know, at least, where we are now and thus even get a glimpse of where we are going. Therefore, we must first go back to the Judgment of the Court of Justice (Fourth Chamber) of the European Union, of November 19, 2009, in the case of Sturgeon et al. v. Air France SA (C-432/07), which stated that within the scope of application of European Regulation (EC) 261/2004, passengers on flights that are delayed by three or more hours can invoke the right to compensation provided for in Article 7 of the Regulation. This was the starting gun or beginning of an escalation of judicial passenger complaints predetermined to success, which was reinforced by many other judgments of that Court, such as that of April 4, 2019, Judgment in case C-501/17 (Germanwings/Wolfgang Pauels), which established that in order to be exempt from its obligation of compensation established in said Regulations, the air carrier must also prove that it has used all the personnel or material and the economic means at its disposal to avoid the incident. Spain, a country that traditionally protects consumers in court, thanks to the “Pro Consumer” principle, the sure success of the lawsuit against the airline was perpetuated thanks to the previous Supreme Court Judgment (of May 2000) on the presumption of moral harm to passengers in the face of significant airport waits (with nuances) and, for the most part, to a systematic - and automatic - compliance by Spanish judges with the basic essences of European Judgments, without going into a real assessment of the concurrent circumstances in every delay or air cancellation, which was the ideal breeding ground for large foreign investment funds to view the niche market of millions of Spanish users who travel by plane every year as a secure business. The judicial complaints of mass users, who already had their Spanish background in the cases of floor clauses against banking, thus began their journey in the airline sector of our country around 2012, the turning point being the reform of the Civil Procedure Act — which allows plaintiff to sue in whatever jurisdiction he chooses -and the Act on the Abolition of Judicial Fees for individuals, both of the year 2015.From that moment on, and by means of the formula “No Win No Fee” (collection of fees as a result), a multitude of law firms are turning their main area of work to legal claims against the airline at no cost to the user, going from the 3,200 air lawsuits filed, in Madrid alone and in 2015, to a filing of more than 22,098 lawsuits by 2019, an increase of several hundred percentage points. In Barcelona, the exponential increase is even greater and more accelerated, going from 3,146 lawsuits filed in 2017 to 24,755 filed in 2019. Companies that, in addition, applied the systematic formulation of demands based on new technologies, have increased their profits exponentially. The result is the following: the collapse of commercial courts in large cities and the risk of mechanization and technological application of complaint processes coming into play to the point of finding ourselves faced with a boarding pass that, once scanned, gives us the court ruling with the amount to be paid to the passenger. Big data in its purest state. The inexcusable conclusion of all of the above is the following: the airlines' “attrition policies”, consisting of rejecting extrajudicial complaints and leaving the excess that goes to court until sentencing, will have to be reviewed. In fact, convictions for costs with a declaration of recklessness and the exponential multiplication of lawsuits will necessarily require airlines to review their pockets of funds allocated to claims and their internal quality processes, forcibly and forcibly rescuing the lawyers they had abandoned because they were not profitable in terms of the cost-result of the defense-judgment. That, or they must invest in the application of “Legaltech” processes to respond to lawsuits also en masse. To top it all off, and as we pointed out at the beginning, there is the conviction, both of the airlines themselves and of the lawyers who defend them, that air lawsuits cannot be won and that the cost of defense always exceeds the final result if they have not even gone to court to defend themselves. Crude mistake. Because the truth is that the solution is as simple as hiring firms that have the appropriate software and legal-technical protocols to provide automated coverage of air judicial claims, with answers based on thousands of possible answers that result in a single answer that is perfectly appropriate to the given case, including access to official and/or non-airline documentation that supports the accreditation of the factual description of the correlative facts of the demand and their legal bases, thus optimizing response times, the legal quality of the response, the documentary support and the final economic result of the matter, including the judgment. Currently, there is only one law firm in Spain with these characteristics, and it is called Tourism & Law.

Fernando de LLano (T&L Attorney)