Top Class Actions , Abraham Jewett  |  September 13, 2023

Category: Covid-19
Southwest planes at an airport terminal, representing the Southwest COVID-19 cancellations class action lawsuit.
(Photo Credit: Around the World Photos/Shutterstock)

Update:

  • A federal judge in Pennsylvania denied a motion to certify a class action lawsuit accusing Southwest Airlines of breaking its contractual promise to consumers by not granting them refunds for flight cancellations during the COVID-19 pandemic. 
  • U.S. District Judge John M. Gallagher determined Southwest has a contract of carriage that includes both a valid and enforceable class waiver.
  • The plaintiffs had accused Southwest of breaching its contract of carriage by offering travel credits rather than refunds to customers who experienced flight cancellations or reschedulings due to the pandemic. 
  • The airline argued terms and conditions published on its website contain a waiver that shields it from class action claims. 
  • The complaint was originally filed in April 2020, during the early months of the COVID-19 pandemic.

(July 6, 2020)

Southwest Airlines has asked a federal judge to dismiss a proposed class action lawsuit that claims the airline didn’t refund tickets due to COVID-19.

Plaintiff Adrian Bombin argues Southwest broke its contract with customers and violated federal regulations by not offering refunds when flights were canceled due to the pandemic.

However, Southwest argues that it met its obligations by offering Bombin a credit toward future travel for his nonrefundable ticket.

Bombin says he used Southwest’s mobile app in February to purchase two tickets for travel from Baltimore/Washington International Thurgood Marshall Airport to Havana, with a connecting flight in Fort Lauderdale, Forida.

On March 23, 2020, shortly after lockdowns began amidst concerns over the growing coronavirus pandemic, Bombin received a notification from Southwest alerting him that his “travel itinerary had been interrupted.”

A couple of days later, he discovered the final leg of his trip had been canceled, according to the Southwest class action lawsuit. He confirmed the cancellation with customer service, but subsequently the first leg of the tip was cancelled, as well.

Bombin claims the customer service representative he spoke with did not offer to rebook him on a different flight. 

He also says his request for a refund was denied. Instead, he alleges he was offered a voucher for future flights.

According to the memo, Southwest’s Contract of Carriage permits the airline to offer a credit towards future travel for nonrefundable tickets when the airline cancels a flight. Southwest says the case should be dismissed because Bombin has failed “to state a claim for which relief may be granted.”

The airline also claims Bombin’s arguments regarding the U.S. Department of Transportation’s (DOT) “Enforcement Notice Regarding Refunds by Carriers Given the Unprecedented Impact of the COVID-19 Public Health Emergency on Air Travel” fail to support a breach-of-contract claim.

Southwest says neither the notice nor the statute it’s based on “creates a private right of action on Plaintiff’s behalf. Only DOT, and not private parties, can enforce consumer protection rules against the airlines.”

The notice was a reminder to the public and to airlines that passengers “should be refunded promptly when their scheduled flights are cancelled or significantly delayed.”

However, the notice also said the Department of Transportation would “provide carriers an opportunity to become compliant before taking further action.”

“Specifically, the Aviation Enforcement Office will refrain from pursuing an enforcement action against a carrier that provided passengers vouchers for future travel in lieu of refunds for cancelled or significantly delayed flights during the COVID-19 public health emergency,” the notice said.

Carriers were expected to contact passengers with vouchers in a timely manner to notify them of their refund option, to update policies and provisions to make it clear refunds would be provided if the carrier cancels a flight or makes a “significant schedule change,” and to review with its personnel the circumstances in which refunds should be given.

Southwest goes on to argue that because Bombin’s flight was international, his claim is subject to the Montreal Convention.

The Montreal Convention is a treaty that governs international air carrier liability. It was signed by the U.S. in 1999 and took effect in September 2003, after being ratified by the U.S. Senate.

Southwest says its Contract of Carriage expressly references the Montreal Convention, which states the “carrier is liable for damage occasioned by delay in the carriage by air of passengers … Nevertheless, the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.” 

The airline says it should not be held liable for a delay in international air transportation if it can prove it took reasonable measures to avoid the damage or if it was impossible to take such measures.

Southwest further argues dismissal of the class action lawsuit is appropriate because Bombin accepted Southwest.com’s terms and conditions when he purchased his tickets.

And in that same clause, Bombin agreed not to pursue his claim as a class action, and therefore, “lacks standing to seek to represent a consumer class.” 

In the event the Southwest Airlines class action lawsuit is not dismissed, the airline says it should be moved to the U.S. District Court for the Northern District of Texas.

The airline’s memo states Southwest “decision-makers” in Dallas canceled the international flights and issued policies regarding those cancellations. This was also where Southwest initially denied Bombin’s request for a refund. 

Read more about consumers’ coronavirus-related rights and legal news in our complete guide to coronavirus legal issues and lawsuits.

Do you think you should get a refund on a flight that was canceled because of the pandemic? Let us know in the comments section below.

Bombin is represented by James C. Shah of Shepherd Finkelman Miller & Shah LLP; Joshua R. Levine of Kopelowitz Ostrow Ferguson Weiselberg Gilbert; Hassan A. Zavareei of Tycko & Zavareei LLP; and Melissa S. Weiner, Joseph C. Bourne of Pearson and Daniel L. Warshaw of Simon & Warshaw LLP.

The Southwest Airlines COVID-19 refund class action lawsuit is Adrian Bombin, et al. v. Southwest Airlines Co., Case No. 5:20-CV-01883, in the U.S. District Court for the Eastern District of Pennsylvania.


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