Should a European law protect American air travelers?

United plane landing. / Pylon757 – Flickr Creative Commons
Paul Kivett’s plane broke down twice before it could take off from Chicago this summer. He arrived in Paris almost five hours late.

If his had been a domestic flight, then Kivett, an architectural photographer based in Kansas City, Mo., would have been entitled to nothing more than the $15 meal vouchers that American Airlines offered.

But he believed that under a little-known European consumer law adopted in 2004, called EU 261, the airline owed him more: specifically, 600 euros (about $775) cash, the set compensation for a delayed flight.

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EU 261 established consumer protections not afforded American air travelers, including compensation for delays, denied boarding and flight cancellations. Airlines have pushed back, interpreting the law as narrowly as possible. In Kivett’s case, for example, American maintained that EU 261 simply does not apply to him.

Kivett was incredulous. “Aren’t they responsible?” he asked me.

We may soon find out. A lawsuit filed this month in a federal district court in Illinois accuses United Airlines of violating EU 261 by failing to compensate passengers whose flights were delayed by more than three hours. It’s the highest-profile effort to date to compel U.S. airlines serving Europe to adopt a more consumer-friendly interpretation of the law.

“United has repeatedly failed to compensate passengers as required,” says Hank Bates, an attorney in Little Rock representing two United passengers whose flights didn’t depart on time this summer. He’s seeking class-action status for the case.

United wouldn’t comment on the pending litigation. But a spokeswoman for A4A, a trade group for the domestic airlines that counts United as a member, said that its carriers follow the law. “As with all consumer protection rules, our members carefully adhere to the requirements of Regulation 261,” she said.

The case in question centers on United Airlines flight 949, which was scheduled to depart from Londonat 12:20 p.m. on July 14, according to the complaint. The flight was canceled at 5:42 p.m., and as a result, the two passengers suing United — James Bergman and Kathleen Lynch — didn’t land in Jackson Hole, Wyo., their final destination, until 24 hours after their scheduled arrival time.

Under EU 261, Bergman and Lynch should have received 600 euros each, the lawsuit says. They did not.

“The entire trip was a nightmare for us,” says Bergman, a Web site editor who lives in London. “The most frustrating thing about the experience was the feeling of being powerless. We’d paid thousands of dollars for our flights, and we had no recourse to collect compensation that we were entitled to under European law.”

The complaint highlights a common problem with Europe’s air travel consumer protections: EU 261 isn’t exactly straightforward. I’ve argued with colleagues about who’s covered under the law and who’s exempt. Inevitably, each debate comes down to the definition of two words: “extraordinary circumstances.” Under the law, an airline can simply say that a flight was delayed or canceled because of extraordinary circumstances to get itself off the hook.

According to EU 261, extraordinary circumstances could include political instability, dangerous weather conditions, security risks, unexpected flight safety problems and labor strikes affecting the carrier. But the law leaves open the possibility that other situations could also qualify. Since 2004, most airlines have maintained that mechanical problems are an extraordinary circumstance, meaning that if a plane breaks down, EU 261 goes out the window.

The European Court of Justice, Europe’s highest court, spoke to that interpretation in 2008, ruling that a mechanical failure can be deemed extraordinary only if it involves an act of sabotage or a recently discovered design defect. Yet American air carriers operating in Europe continue to invoke simple mechanical delays as reasons to evade compensation, especially when U.S.-based passengers are involved.

The EU law is not without other loopholes, which is what prompted attorney Bates to launch a business modeled on several European companies that mediate EU 261-related disputes between customers and airlines. His Web site,, went live just before Bates sued United. “Passengers on flights covered by the regulation have the right to compensation,” he said.

Interestingly, the usual response from an airline when it’s confronted with a possible violation of European consumer law is to make a compensation offer in hopes of reaching a quick settlement. That’s what happened when Kivett asked American about his Paris-bound flight. “This regulation does not apply when travel is from the USA and the aircraft is operated by an American airline,” a representative wrote. “Nevertheless, as a gesture of goodwill, I’ve sent you and your wife a transportation voucher for $400.”

American air carriers could face a huge bill if they’re found to be in violation of the law, particularly if a court grants class-action status to Bates’s complaint. A simple calculation reveals why. Take the typical number of passengers on an international flight, multiply it by the number of mechanical delays on flights operating in Europe, and you have the makings of a potential blockbuster settlement. Airlines know that their creative definitions of extraordinary circumstances could create a disaster of extraordinary proportions.

Aviation analyst Michael Miller predicted that if Bates wins in court, airlines will pass the expense along to consumers in the form of higher airfares.

Maybe that’s why airlines are reluctant to even talk about EU 261. At least that’s the impression I was given a few years ago, when I visited the headquarters of a major air carrier and happened to walk past a section of the office where claims relating to EU 261 were handled. I asked whether I could speak briefly with the person who manages the department and was told no, the person didn’t want to talk about the law, and no, I couldn’t talk to anyone in that department, and then I was asked to keep walking, please. Indeed, most of the complaints regarding this European law that I ask airlines to review seem to go into a virtual black hole, with the companies saying nothing beyond their pre-written form letters.

No doubt, many airlines know that there will be a day of reckoning when it comes to EU 261. It might come sooner than they think.

57 thoughts on “Should a European law protect American air travelers?

  1. Okay. I’m a bit confused here. Why would a US court have jurisdiction when invoking a European Law? Shouldn’t the suit be filed in Europe?

    As for the question, what I remember about 261 is that the law applies to any flight originating or terminating in Europe. So in the two cases cited here, yes the law should apply but would have to be enforced from Europe, not the US.

      1. If the law does not apply to flight arriving in the EU, then the answer to the poll would/should be no. It would apply in the first case cited, from EU to US, but not the second case, US to EU.

      2. As usual, Chris tends to put a lot of different cases together making it quite confusing.

        (1) Kivett Complaint. Delayed by more than 5 hours, ORD-CDG on AA operated flight. My opinion – not covered by EC261. AA is a non EU-community carrier and the flight did not depart FROM the EU. Sorry.

        (2) Bergman and Lynch Complaint: UA949 LHR-ORD cancelled, arrived at destination ~ 24 hours later than scheduled. Since Bergman lives in London, I assume ticket was purchase in the UK.
        My opinion – EU261 applies to all passengers departing from an airport located in the territory [London] of a Member State [UK] to which the Treaty applies.

        Furthermore, since Bergman lives in the UK and the infraction happened in the UK, he should complain there and follow up with the necessary Enforcement Office:
        Passenger Complaints Unit
        Civil Aviation Authority
        CAA House
        45-59 Kingsway
        WC2B 6TE
        [email protected]

        (3) Class Action Lawsuits in Illinois (filed by Plaintiffs represented by Joseph Henry (Hank) Bates, III of Little Rock, Arkansas)

        Most if not all of these are based on trying to collect EC261 compensation for (what seems to be) infractions that occurred in the EU (and therefore subject to EC261), but the complainant is in the USA and had bought their tickets in the USA.

        IMO, the USA based complainant can simply use a European based representative. EC261 compensation collection agency is now an industry in Europe.

        I fail to understand why Americans want to use their own justice system by having to prove that the airlines agreed to the terms of EC261 in their USA contracts of carriage and so one can go to court here in the USA to collect money. IMO they just as easily (or easier) collect EC261 compensation by filing the case with the respective EU country’s enforcement office. I think the real reason has more to do with the class action lawsuits. Since this is largely an American phenomenon, then winning a class action lawsuit here takes one on the top of the Hunger Games heap 🙂

    1. google “Wolens Exception”. It might provide you with a different answer.

      In a 6-2 opinion delivered by Justice Ruth Bader Ginsburg, the Court held that the ADA bars state-imposed regulation of air carriers, thus claims brought under a state’s consumer fraud act are preempted; but that the ADA allows room for court enforcement of contract terms set by the parties themselves, which permits breach of contract claims to proceed. “A remedy confined to a contract’s terms simply holds parties to their agreements — in this instance, to business judgments an airline made public about its rates and services,” wrote Justice Ginsburg. Justice John Paul Stevens filed an opinion concurring in part and dissenting in part. Justice Sandra Day O’Connor filed an opinion concurring in the judgment in part and dissenting in part, which was joined by Justice Thomas Clarence. Justice Antonin Scalia took no part in the decision of the case.

      1. Okay. But what does the Americans with Disability Act have to do with having jurisdiction of a European law? I’m pretty sure there is nothing in the “contract” for the ticket talking about the EU law. The review also talks about “state-imposed”. This is a law imposed by Europe, not the US.

          1. ADA is commonly referred to the Americans with Disability Act. I have never heard it used the way you used it. But if I remember right, you work in the travel industry so it is probably more commonly used the way you did in your industry.

            Just for fun, I did a google on ADA and it came up with several different results, none of them about the deregulation act though. (American Dental Association, Americans with Disability Act, ADA computer programming language, American Diabetes Association)

          2. Yes, the SUPREME COURT knew since that would have been spelled out in the complaint they were hearing, and I’m sure defined as such before future references were made to ADA. Unfortunately the quote provided did not define it.

          3. So what if ADA has multiple meanings? The issue is really the Wolens Exception. I suggest you read and understand the implications of the Wolens Exception because that is what the current issue is in the cases presented in Illinois.

          4. Regardless of ADA meaning, that ruling was concerning States making laws over riding Federal law and the part quoted about contract clause. I still don’t see where it gives US courts jurisdiction to enforce a NON-US law in the US. Unless the contract of cartage specifically lists EU-261, I don’t see where this ruling applies.

          5. Then that’s exactly where the Wolen’s exception applies.
            If the carrier in their contract of carriage voluntary includes the terms of EC261 and agrees to abide by its terms, then it becomes a “self-imposed undertaking”.

            Hence that is exactly why the Hon. Joan H. Lefkow denied Iberia’s Motion to Dismiss in Giannopoulos et al v. Iberia Lineas Aereas de Espana, S.A. et al.


            So, if an airline commits itself to the terms of EC261 it may be a breach of contract not to pay up when there is delay or cancellation (according to the terms of EC261).

            If one bought a ticket in the USA from an airline under the above terms, then the breach should be able to be cured in the USA, correct?

  2. Chris, I often find it difficult to decide which way to vote in your polls, but this one is impossible. It is almost guaranteed that the airlines will pass on the burden of the court fines/fees onto consumers if they lose…we can’t take much more.

    1. It is almost guaranteed that the airlines will pass on the burden of the court fines/fees onto consumers if they lose

      What makes you think that they haven’t already passed on that burden and are hoping to pocket it?

      US carriers already charge about the same fares for transatlantic flights as their European competition (which is generally considerably more — even before taxes — than a comparable length trip in North America).

    2. You can’t take much more…..of what? People have demanded lower fares. They have them. Fares are lower today in real dollars than they have been since deregulation in the early 1980s, over 30 years ago.

      The real question is….do you want lower fares all the time, withOUT the possibility of large compensation when something goes wrong, as EU261 *might* provide…..or do you want that large compensation, with the always higher fares that will go along with it to pay for the problems?

  3. as soon as you involve lawyers, no one wins except the lawyers.
    Be careful what you wish for.
    If this garbage goes thru then fares will have to rise.
    He wasn’t even 5 hours late. Big deal get over yourself.
    Next thing there will be a EU 261 fee of $100 added to every traveller, but not collected as part of fare, but at departure.
    Ryanair, one the THE most successful airlines in the world (they make a huge profit, unlike ANY US carrier, have compulsory fees now for dodgy EU parliament compensation laws.

  4. seriously you Americans & the I’ll sue you notion.
    The world would be a lot better place without ANY lawyers & who’s moronic idea was contingency fees ?
    They simply add costs to everything esp liability insurance, which everyone ends up paying for.
    I think if this sort of nonscince continues, there will be a lot more people solving problems with guns, not extremely overpriced lawyers.
    In the US, the land of the gun, that’s another big problem, Americans will have to contend with.
    Don’t you have enough already ?

    1. But curiously, the lawsuit is not over American legal issues, but rather a European law that the US has not adopted inter alia because it would increase litigation. Did you think about that before your nonscince (sic) rant?

  5. It should only apply to US passengers when the US agrees to pay the EU carbon/emission charges. Sound fair? It probably doesn’t sound very fair to those in the US, but to those in Europe, it’s quite irritating to have other countries thinking taxes don’t apply to them.

    1. I don’t understand your point. What do passenger rights have to do with EU Carbon Emission Fees (or for that matter cap and trade)?

  6. The thing is that the regulation as written does not envisage compensation for delays, only cancellations. Some judicial law-making has led to an absurd judgment that a delay of over 3 hours should be treated as a cancellation, which surely can’t be what the lawmakers had in mind.

  7. Chris, did it ever cross you mind to ask the mother-of-all polls: Are the airlines above the law?

    There are already six class action lawsuits filed (all in the State of Illinois). Do we need more?
    Polinovsky et al v. Deutsche Lufthansa AG
    Polinovsky at al v. British Airways
    Gurevich et al v. Compagnia Aereas Italiana, SPA d/b/a Alitalia Airlines
    Giannopoulos et al v. Iberia
    Volodarskiy et al v. Delta Airlines Inc
    Lozano et al v. United Continental Holdings, Inc. et al

    If you take the time to read the cases, the airlines seem to all have the same arguments:
    (1) Federal preemption – for a layman I take this to mean, “You can’t sue me in State courts. File a complaint with the DOT. Let’s see how far you go, Ha ha ha.”
    (2) Comity – “Sue me in Europe, sucker. Hasta la vista MF” (with an Arnold accent).
    (3) Montreal Convention – “Didn’t you know you signed off your rights to compensation under the Montreal Convention? Sue me for damages under that instead. Good luck proving your damages.”

    The problem is obvious. Your government is against you and favors the airlines. If your government cares about you, they will create law that compensate YOU, just like what Europe did. In the USA, you must be bumped or your luggage lost to get any kind of compensation (by law). In Europe, you get compensated if your flight is CANCELLED or DELAYED. Also, Europe requires airlines to treat you like a human being by providing lodging, meals, transportation and phone calls if your flight is delayed or cancelled. In the USA, these are optional.

    In the USA, if you are a victim of a “tarmac delay”, the airline does not compensate you. It pays the fine to the government. YOU suffered, but the GOV’T gets the money. Is that consumer protection???

    If we really want change, someone like Chris and his buddy Charlie should lead a nationwide petition signing campaign to ask all our Congress men and women, and Senators to give us an AMERICAN version of EC261.

    Have a nice day.

    1. We must be very careful when we compare Europe to the US and vice versa. They operate under different systems and paradigms. If we take Airline analysis Michael Miller at his word, the cost of EU 261 will be passed along to consumers in the form of higher fares. Yet the American flying public has voted with their wallets.
      Despite protestations to the contrary, we want the lowest price possible. Without getting into a debtate over unbundling, its why airlines have broken out fees that were traditionally included in the base fare. Its why hotels used to have energy surcharges, and many “resorts” still have resort fees.
      I’m not taking a position (yet) on whether EU261 is good for the American public, I’m pointing out that its not nearly black and white.

      1. Lowest Price Possible under what conditions ?
        Insatiable Unbundling of services may lead to “RyanAirification” of our airlines. Do you want that to happen?
        I thought Spirit Air was bad enough.
        Be careful what you ask for. Americans deserve more.

        1. That’s why I specifically disclaimed taking a position on the relative merits of unbundling as that’s a discussion that can easily hijack this thread. My only point is that consumer purchase what they “perceive” to be the lowest fare, often regardless of whether it truly is or not. Thus the travel industry often artificially lowers prices by excluding things thought should be included such as resort fees and energy surcharges, and these are 100 percent unavoidable charges.

        2. I agree TonyA. This unbundling is so out of control it’s frightening. The only amenity I actually prefer paying for is the blanket & pillow because the old ones were re-used, and if you ever saw anyone diaper a baby on one, you’d be thrilled to pay for a factory new one that is yours to keep.
          The stupidity of the geniuses in the airline marketing dept’s is that they sit around thinking of what things are/were included in the air fare that they can now nickel and dime for – food, luggage, etc. Not one of these knuckleheads ever had the thought of “Gee, what can we GIVE people that they never had before that that might like as an added extra” I can think of a number of things that I’d be willing to pay extra for to make my travel experience better, and none of them involve the taking away of anything that was formally included in the basic ticket price. Seems that the airline marketing departments have no interest in hiring people who have some good ideas on how to make money without taking away basics that should be included in the basic fare.

      2. Carver,
        Why should CONSUMERS or TRAVELERS take Michael Miller’s word? Doesn’t he represent an Aviation Group, and not a consumer group?
        Michael Miller is Vice President, Strategy for the American Aviation
        Institute. He has been an aviation consultant for airlines and aircraft
        makers, a journalist and editor having managed nine different aviation
        publications, including as Editor-In-Chief of Aviation Daily. In
        addition, he is a private pilot.

        1. I didn’t say to take his word, hence the “IF” preface. Besides, according to what you just wrote, it doesn’t sound like he’s representing the airlines. Being a consultant and being an advocate are radically different beasts. I would expect most people who can speak knowledgeably about any industry to have worked in that industry.

    2. Good idea. Yes, I think EU 261 needs an American version. I think a lot depends on who wins the next election and who becomes the next Transportation Secretary. There will be a rulemaking. I’m sure this idea will be proposed. It’s something I would support.

      1. I think the only political party that would have a chance of protecting the citizens (travelers) over the rights of the corporations (the airlines) would be the Libertarians… and they’re not going to win. Too much money is involved, and I have doubts that we’ll see anything like this anytime soon.

      2. To be fair, IMO, Sec. LaHood has given consumers something of value:
        (1) 24 hour cancellation rule
        (2) Total Ticket Price Advertising
        (3) Luggage Allowance and Fee Disclosures
        (4) Ancillary Fees Disclosures
        (5) Passenger Service Plan
        (6) More Codeshare Disclosure Enforcement
        (7) Increased Involuntary Denied Boarding Compensation and Lost Luggage Compensation.

        I might have missed some other good stuff.

        That said, I (or we) should be thankful to him for doing something not done before. Got to give credit where it’s due.

        1. My wish would be for a minimun seat pitch to be added to the list. If you’re flying Coach you shouldn’t expect luxury service, however the itty bitty space between seats is almost criminal on some airlines. (Hooray for Jet Blue).

      3. Chris –

        We’re not Europeans. What works over there won’t necessarily work over here. Paying people $750 because their flight is delayed isn’t a realistic over here. Forcing them to accommodate on another airline if possible (so Southwest can’t say, “we don’t interline” doesn’t work), compensation in airline script, some cash compensation, etc. is reasonable. Winning the “I’m delayed lottery” doesn’t make sense in America

    3. Yeah, the ‘government’ is against you. Whooo….. here come the black helicopters. Geez, where do people get that stuff.

      The truth is that in America we treat flying like a bus — basic transportation. It’s nothing special, it’s nothing exotic and we want the best price. Airlines respond to what we want, and we want cheap. Increase the airlines costs and they’ll increase the ticket prices. What EU 261 really does is create Euro-style socialism — everybody pays a little more so a few people can rake in $750.00 ’cause they’re flight is delayed.
      We need to accept that flying is an imperfect system based on incredibly complex machines and subject to things like weather, etc. And creating a system where the airlines push flight crews to take off when they’re not really comfortable doing so is crazy. Look, if the pilot doesn’t want to fly a plane until something is fixed, I don’t want to fly it either. Creating a financial incentive and financial pressure to take off anyway is crazy.

      The airlines need to treat us all better and we need to be more understanding. Passengers and airlines should be trying to work together, not trying to screw each other out of the last dollar (or euro)

      1. Using your logic, go explain why the airlines do not pay YOU (but pay the government instead) when you are a victim to a prolonged tarmac delay.

  8. What was the fate of that bill going through Congress to create a Passenger Bill of Rights in the United States for air passengers? If that didn’t pass (and I’m sure it didn’t-correct me if I’m wrong),and the American-based airlines chose not to take such protections for their passengers on themselves, I definitely don’t see any airlines, European or other, agreeing to EU 261 style protections for American passengers.

  9. True mechanical problems are a very legitimate reason to delay a flight. You would rather have them fixed first, right? It’s unlucky when this happens, but why the sense of entitlement to significant compensation? All I can see here is significant increases in airfares across the board to cover it. Why fight for that?

    1. But if the mechanical problem would/should have been caught by regular maintenance, then that would move it out of the “extreme” clause. “Oh, the plane has been sitting here on the tarmac with a flat tire for awhile and we knew about it. But since we didn’t bother fixing it until time to use the plane, you are delayed.” Extreme example, but the general idea.

    2. If your argument is correct, then please explain why EUROPE to USA fares are usually cheaper than USA to EUROPE? Europe to USA flights are all covered by EC261 whereas the reverse is not always true. Where is the across the board price increase seen?

  10. Are you kidding me? “It was a nightmare for us…..we were powerless…” Were they being held prisoner of war in a country undergoing a civil war? I could go on and on with analogies, but this concept of entitlement is getting out of hand. I have had people come up to me after 30 mins of a flight delay to ask if they were getting a food voucher!

  11. Be careful what you ask for. The europeans also have a law which requires airlines to pay them money for the environmental impact on flights to and from europe. This could potentially cost billions of dollars, all of which will go into the tax coffers of the Europeans.
    That $600 you get now might turn out to be a lot of money in the future if US based airlines are forced to comply with everything the europeans come up with.
    Although I have issues with being forced to sit in the plane on the tarmac, if they let me out so I can be in the airport and keep me informed as to what’s going on, I would prefer they make sure the plane is in good shape for the flight.

  12. It seems like the only non-exceptional circumstance is the airline just decided not to bother flying that day. I recently flew Air Canada to and from Europe (Montreal to Athens and then Copenhagen to Toronto) and experienced major delays on each end- an overnight delay in Montreal on the way there followed by ZERO support with my missed connection (yes, same ticket!) upon arrival in Athens, and then an eight-hour delay in Copenhagen followed by an attempt to put me up overnight in Toronto (but a trip to the customer service counter at Air Canada resulted in an employee looking at his computer silently for ten minutes before scolding me with, “You know, other people are going to miss their flights because of this” and then handing me a new ticket that got me home that night). The meal vouchers provided by Air Canada did not cover the cost of the cheapest meal and non-alcoholic beverage at the hotel where I was placed in Montreal, nor did they cover the cost of a meal and beverage in the Copenhagen airport upon return. The Air Canada agents acknowledged this. When my flight from Montreal was further delayed by six hours, Air Canada announced that they would provide breakfast. Shortly after an agent came with packages of cookies and cans of Coca Cola, which they placed on the ticket counter, requiring anyone needing food or drinks to leave their luggage unattended in the growing line and duck under the ropes to reach the “breakfast”.

    I appreciated that the Copenhagen airport had large posters advising passengers that they had rights, and there were brochures at the information desk advising passengers of what those rights were under EU law, but am disappointed to see carriers (especially North American ones, I’m guessing) doing everything they can to interpret these laws in their favor, at the detriment of the paid passenger.

    1. This clearly illustrates why we need EC261 in America. We need to be treated like human beings. We must have a right to (receive) care.

    2. I can pay for my own food and beverages when I travel, whether I am delayed or not. I would rather just pay for it than have the cost embedded in my ticket. I’ve had flight delays before. I’ve had overnight cancellations. I’m an adult and I don’t expect the airlines to have to take care of me. Their job is to tell me what’s going on, be fair and reasonable, and make safety a priority.

      1. There must be a lot of people who do not have the money you have. Most of the airline hubs (especially overseas) are in very expensive cities. Imagine a family of four having to spend hundreds of Euros they never budgeted.

        1. When I take a trip, I make a budget. I allocate money for every anticipated expense. Then I always add some for contingencies. I also have insurance. I would be scared to have to depend upon an airline if something happened. If I don’t have it, I don’t go. When I was growing up, there was not much money around. So I know what it is like to be on a budget. I did not take a commercial flight until I was 19.
          I do see that a lot of people seem to take more vacations than I do.
          I used to watch that show on A and E – “Airline” I think it was called, where all of these people seemed to be flying and didn’t have $5 in their pocket to take care of any emergency.

  13. I can’t help but think it’s our own fault. Just look what we allow to happen in this country. We just don’t raise a big enough stink. I will continue to boycott….sigh

  14. The question really should be, Shouldn’t there be a similar US law to protect US travelers? I am about to file a claim on my European delayed flight out of ZRH, so I will see first hand if this law really works.

  15. would like to hear opinions on what just happened to me.  i had reservations on Lufthansa for Orlando-Frankfurt-Dresden on Sep 3.  waited 3 hours in Orlando to be told that the flight was canceled due to striking flight attendants in FRA.  2 hours later, we took an $80 cab ride home and were told we would be compensated for the cab as opposed to opting for an overnight at the airport.  we taxied back to the airport the next day for another $80 and caught the same flight, 1 day later.  

    should i be compensated in any manner?  just the cabs?  additional compensation?  any thoughts?

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