By Joyce Hanson

Law360 (October 21, 2020, 4:30 PM EDT ) A California federal judge has refused to certify a proposed class action against Princess Cruise Lines that claims it let passengers board a ship although it knew people on a previous voyage had COVID-19 symptoms, ruling that a class action waiver in the passengers' contract is well communicated.

U.S. District Judge R. Gary Klausner's order Tuesday said the passage contract's class action waiver is enforceable because Princess' email confirming passengers' bookings and a confirmation PDF both advise guests to click on a required "cruise personalizer" information link that contains an easily accessible website page containing the contract.

"The court finds that the class-action waiver in the passage contract is sufficiently conspicuous to satisfy the first prong of the reasonable communicativeness test," Judge Klausner wrote. "The passage contract was available to passengers in several ways. First, the booking confirmation PDF linked to the passenger contract. Second, if a passenger opened the cruise personalizer, the passage contract would show up in a dialog box. Finally, the passage contract was also available on Princess Cruises' website."

Robert Archer and other named plaintiffs asked Judge Klausner on Aug. 31 to grant certification in their proposed class action accusing Princess and its parent company, Carnival Corp., of negligently exposing more than 2,400 passengers to the novel coronavirus on the Grand Princess vessel as it traveled from San Francisco to Hawaii.

Archer and the others asked the judge to certify them as a class because they suffered the common experience of being trapped onboard the same cruise ship served by the same crew members, and over the same series of days uniformly experienced the same misconduct by defendants, according to their motion.

In their Sept. 4 joint opposition to the certification bid, Princess and Carnival argued that the injuries of the 62 plaintiffs vary widely and that they don't have enough injuries in common to be a class, with "the vast majority" not alleging they contracted COVID-19.

"Defendants' use of fine print 'waivers' to limit the legal rights of the passengers who trusted them to ensure their safety illustrates the need for courts to reject such bans as unconscionable and unenforceable," plaintiffs' counsel Elizabeth Cabraser wrote. "When corporations prospectively seek to limit the fundamental right to go to court and seek redress for harms, wrongdoers get a free pass to endanger all of us. The constitution guarantees the right to a civil jury trial, and class actions are often the best or the only way for large groups, such as the Princess passengers, to get to a just, speedy, and inexpensive trial."

The passengers' suit originally filed in April claims that Princess and Carnival allowed more than 2,400 people to board the Grand Princess in February, but did not tell them that at least two passengers from the previous trip had coronavirus symptoms. The cruise ship didn't impose medical screenings for disembarking or embarking passengers, and made no effort to sanitize or disinfect the ship before new passengers arrived, the suit said.

Among the passengers sailing on the Grand Princess, which left San Francisco for Hawaii on Feb. 21, were several dozen people who had traveled on the Grand Princess' previous trip to Mexico and remained on board for the Hawaii trip — some of whom had been potentially exposed to COVID-19, according to the complaint.

On March 4, Princess told the passengers they were potentially exposed to COVID-19 and that the ship would return to San Francisco instead of continuing to other scheduled destinations. The following day, passengers were advised to remain isolated in their cabins, according to the complaint, which also said 11 passengers and 10 crew members who were experiencing symptoms were among those on the ship.

When the ship's passengers disembarked in California on March 9, state and federal agencies transported them to military bases in three states for quarantine before being allowed to return to their homes, according to the lawsuit.

In a previous order, Judge Klausner on Sept. 22 slashed claims brought against Princess over its handling of COVID-19 cases aboard ship, but he let stand a claim for intentionally inflicting emotional distress.

The judge dismissed without prejudice the passengers' negligence claims on causation grounds, saying they did not establish when they started experiencing symptoms or when they tested positive for COVID-19 or antibodies of the virus. He also ruled that the passengers failed to plausibly claim that Carnival is the alter ego of Princess Cruise, dismissing their negligence claims against Carnival without prejudice.

In addition, Judge Klausner tossed the passengers' request for injunctive relief, saying they did not adequately claim an imminent threat of future injury. But he left alone their claim of intentional infliction of emotional distress, saying he could not conclude that those allegations are legally insufficient to establish that the cruise line engaged in "extreme and outrageous conduct."

Carnival had argued ahead of the Sept. 22 order that the passengers' class action allegations should be dismissed because they entered into a contract that includes a class action waiver. But the judge said a ruling on the enforceability of the waiver would be premature, adding that the motion for class certification was a more appropriate context in which to address that argument.

Representatives for Princess and Carnival did not immediately respond Wednesday to requests for comment.

The passengers are represented by Elizabeth J. Cabraser, Jonathan D. Selbin and Mark P. Chalos of Lieff Cabraser Heimann & Bernstein LLP; Mary E. Alexander and Brendan D.S. Way of Mary Alexander & Associates PC; Gretchen M. Nelson and Carlos F. Llinás Negret of Nelson & Fraenkel LLP; and Joseph G. Sauder of Sauder Schelkopf LLC.

Princess is represented by Jeffrey B. Maltzman, Rafaela P. Castells, Edgar R. Nield and Gabrielle De Santis Nield of Maltzman & Partners PA.

Carnival is represented by Jonathan W. Hughes and David J. Weiner of Arnold & Porter.

The case is Archer et al. v. Carnival Corp. and PLC et al., case number 2:20-cv-04203, in U.S. District Court for the Central District of California.

--Additional reporting by Sarah Jarvis. Editing by Abbie Sarfo.

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