By Rachel O'Brien

Law360 (June 23, 2020, 3:13 PM EDT ) Southwest Airlines has asked a Pennsylvania federal judge to dismiss a proposed class action that claims it broke its contract with travelers when it didn't refund nonrefundable tickets from flights cancelled because of the COVID-19 pandemic, saying its terms make no promise of a refund.

For flyers with nonrefundable tickets, Southwest's contract allows it to choose whether to give a refund, put the customer on a new flight or give them a credit for a future flight, according to Monday's motion to dismiss. Southwest asked that if the judge doesn't grant the motion, he relocate the case to Texas.

Southwest customer Adrian Bombin filed the suit in April after the carrier gave him a flight credit instead of refunding his tickets, arguing Southwest was in breach of contract by not honoring its stated agreement that customers whose flights were canceled could request either the next available flight, a refund or a credit.

Bombin bought two round-trip tickets on Feb. 27 from Baltimore-Washington International Airport to Havana, Cuba, by way of Ft. Lauderdale, Florida.

On March 20, as the world was seeing the impact of the coronavirus, the government of Cuba said it was closing its borders to non-Cuban citizens. Southwest cancelled 20% to 40% of its flights, including Bombin's, and offered him a future travel credit instead of a refund, according to the suit.

Southwest argued Monday that travelers in the suit "ignore the plain language" that states the airline will provide refunds for refundable tickets, not nonrefundable ones.

Southwest argued that when it cancels a flight, its contract with the traveler gives the airline three choices: put the customer on another flight, refund the ticket or give a credit for future use.

The airline argued that for it to be in breach of contract, it would need to insert "at the sole option of the passenger" into its contract to give the passenger the decision-making power.

"However, this language does not appear in the contract of carriage, and plaintiff cannot require the court to revise the language of the contract of carriage to achieve his objective," the airline said.

Southwest also argued that because Bombin's flights were between the U.S. and Cuba, the suit is subject to the terms set forth by the Montreal Convention, which governs international flights.

The treaty states, "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."

Southwest also argued the suit should be dismissed because in the terms and conditions Bombin accepted when he purchased the tickets on Southwest's mobile app, ticket holders are specifically prohibited from filing class actions.

If the judge doesn't dismiss the suit on any of those arguments, Southwest asked that the case be relocated to the U.S. District Court for the Northern District of Texas because in the same terms and conditions, the user consents "to the exclusive jurisdiction and venue of the state and federal courts in Dallas, Texas in all disputes."

Southwest's Dallas headquarters is where the claim arose, because it's where the airline made the call to cancel flights and where refund policies are implemented, the airline said.

Responding to complaints of carriers not issuing refunds for flights cancelled due to COVID-19, the U.S. Department of Transportation issued an April 3 enforcement notice reminding airlines that such cancellations or significant delays should entitle ticket holders to refunds.

It said that historically, airlines have issued refunds when flight has been "disrupted on a large scale," including after the Sept. 11, 2001, terrorist attacks, as well as after Hurricane Katrina and other natural disasters.

"Although the COVID-19 public health emergency has had an unprecedented impact on air travel, the airlines' obligation to refund passengers for cancelled or significantly delayed flights remains unchanged," the DOT said.

Bombin noted the enforcement notice in his April 13 complaint and said not issuing refunds "violates federal law."

But the airline argued that relying on the DOT notice doesn't help Bombin because it doesn't create a private right of action for Bombin or anyone else, arguing only the DOT can bring a consumer protection suit, not a private party.

While the airline initially gave Bombin a credit on March 27 toward a future flight, on May 5 it refunded the $345.35 he paid for tickets, according to the motion.

In a footnote, the motion states, "The fact that Southwest ultimately refunded plaintiff's fare subsequent to the DOT notice does not change the fact that Southwest did not breach the contract of carriage when it exercised its right to use a fare credit in lieu of cash for the refund."

Neither counsel for Southwest nor Bombin immediately responded to requests for comment Tuesday.

Southwest is represented by Todd A. Noteboom and M. Roy Goldberg of Stinson LLP and James T. Moughan of Bennett Bricklin & Saltzburg LLC.

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

The case is Bombin v. Southwest Airlines Co., case number 5:20-cv-01883, in the U.S. District Court for the Eastern District of Pennsylvania.

--Additional reporting by Matthew Santoni. Editing by Marygrace Murphy.

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