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Law360 (June 23, 2020, 7:46 PM EDT ) Mexican airline Volaris on Monday asked an Illinois federal court to dismiss a proposed class action over its cancellation of several of its U.S. flights to Mexico amid the coronavirus pandemic, saying the claims are "undeniably moot" because the airline has been offering passengers refunds.
In response to a notice from the U.S. Department of Transportation in April warning airlines that they could face an enforcement action if they fail to offer refunds to ticket buyers whose flights were canceled or significantly changed in the wake of the pandemic, Volaris instituted a program to offer passengers whose flights had been canceled the option of refunds or electronic travel credits, leaving no basis for the lawsuit, the airline said in its dismissal bid.
"A comparable remedy has already been offered to passengers and there is no other value this court could add by means of this class action," the airline said.
Additionally, all of the state law claims asserted by named plaintiff and Chicago resident Samantha Levey — accusing the airline of breach of contract, unjust enrichment and unconscionability and a statutory claim under the Illinois Consumer Fraud and Deceptive Business Practices Act — are preempted by the Airline Deregulation Act, a federal law that preempts state common law and statutory consumer protection claims relating to an air carrier's "prices" and "services," Volaris said.
"Plaintiff's claims here — arising from airline ticket refund and cancellation policies — clearly relate to an airline's prices and services," the airline said. "Plaintiff's breach of contract action likewise faces preemption because it relies on alleged obligations outside the contract."
Levey also lacks standing, because no breach of contract occurred, the airline argued, saying it performed its contractual obligations when it offered Levey alternate transportation to Mexico from a different airport on the same date after her flight was canceled. Levey failed to show for that flight and Volaris offered travel vouchers valued at $636.56, the airline said.
"The claim also should be dismissed for lack of subject matter jurisdiction due to lack of standing given that plaintiff was sent notice of the airport change and did not check in for the flight," Volaris said. "Here, the standing requirements are not met because any alleged injury is not traceable to Volaris, but rather to plaintiff. Additionally, because plaintiff had been given travel vouchers, her injury claim likewise is in doubt."
The proposed class action, filed in April, alleges thay Volaris quietly canceled several of its U.S. flights to Mexico during the coronavirus pandemic and has unlawfully refused to refund its travelers or let them rebook their flights without penalty.
The suit claims the airline violated U.S. Department of Transportation rules and its own carriage contracts when it refused to reimburse travelers' fares after canceling their U.S. flights to Mexico without warning over the COVID-19 pandemic.
The United States and Mexico have agreed to restrict ground travel across their shared border to limit spreading the novel coronavirus, but those restrictions never applied to air travel, Levey said. Even so, the airline canceled numerous flights through April 20 and either won't return travelers' airfare or makes them pay a penalty to rebook, her suit said.
Levey seeks to represent a nationwide class of travelers who have either been been refused refunds or made to pay rebooking penalties in light of their unannounced Volaris flight cancelations. There may be thousands of class members for the suit, and the exact number can be ascertained through the airline's records, the suit says.
Representatives for the parties did not immediately respond to requests for comment Tuesday.
Levey is represented by William Sweetnam of Keogh Law Ltd.
Volaris is represented by Robert E. Tonn of Holland & Knight LLC.
The case is Levey v. Concesionaria Vuela Compania de Aviacion SAPI de CV et al., case number 1:20-cv-02215, in the U.S. District Court for the Northern District of Illinois.
--Additional reporting by Lauraann Wood. Editing by Stephen Berg.
For a reprint of this article, please contact reprints@law360.com.
