By Allison Grande

Law360 (November 12, 2020, 10:41 PM EST ) Southwest Airlines is arguing that travelers accusing the airline in Pennsylvania federal court of breaking its contractual promises by declining to refund nonrefundable tickets that were canceled due to the COVID-19 pandemic cannot rely on a Texas federal court's refusal to ax similar claims against American Airlines.

Plaintiffs Adrian Bombin and Samantha Rood on Tuesday asked the Pennsylvania federal judge overseeing their case against Southwest Airlines to take note of a Nov. 2 ruling in which a Northern District of Texas judge allowed a proposed class action over American Airlines' handling of refunds for flights impacted by the pandemic to move forward. 

The Texas federal court found that the Airline Deregulation Act — a sweeping federal law that preempts state-law claims having a connection with or reference to airline prices, routes or services — didn't preempt the breach-of-contract claim brought against American Airlines, and ruled that it was too early for the court to consider documents submitted by the airline that went outside the scope of the pleadings.

The Southwest passengers argued that these holdings provided strong support for their opposition to the airline's bid to dismiss the suit on the grounds that their breach-of-contract claim was preempted by the Airline Deregulation Act, as well as its bid to submit an "unsubstantiated" outside declaration related to the terms and conditions to which the ticket buyers allegedly agreed. 

But in a reply brief on Wednesday, Southwest slammed the plaintiffs' effort to have the court consider the Texas ruling as supplemental authority, arguing that the decision in Ward v. American Airlines had no bearing on the case currently before the Pennsylvania court. 

"Although the Ward Decision addressed claims related to American Airlines' handling of refunds for flights that were cancelled or delayed, the similarities to this case end there," Southwest contended.

For one, the Texas court in reaching its decision relied on American Airlines' conditions of carriage, which Southwest called "materially distinct from" its own contractual provisions that are at issue in the current dispute. 

American Airlines in its conditions of carriage states without qualification that it would "refund a non-refundable ticket ... if ... [w]e cancel your flight,' or '[w]e make a schedule change that results in a change of 61 minutes or more,'" language that the Texas court on its face found to support the plaintiff's "well-pleaded complaint that American made an express promise that it 'will refund a non-refundable ticket,'" according to Southwest.

On the other hand, the Southwest Contract of Carriage explicitly differentiates between refundable and nonrefundable flights and doesn't provide for a right of refund for a nonrefundable ticket, Southwest asserted. 

"The only reasonable construction of the Southwest Contract of Carriage is that a nonrefundable flight is in fact a nonrefundable flight, unless Southwest chooses to make a refund for a flight it canceled," the airline argued, adding that this distinction makes it clear that the Texas decision can't be viewed as relevant authority or support for the plaintiffs moving forward with their claims. 

Southwest also pushed back at the assertion that the outside declaration shouldn't be considered at this stage of the litigation, arguing that the Texas decision actually lent support for considering the airline's terms and conditions in connection with its pending dismissal motion.

While the Texas court refused to toss the complaint with respect to one customer, it did find that the two other plaintiffs who booked their flights through online travel agencies Expedia and Hotwire had to arbitrate their claims. Southwest argued that the Texas court's willingness to consider the third-party website's terms and conditions, even though they were external to the complaint, means it should also be allowed to introduce such evidence in the current dispute. 

"Given that Plaintiffs here do not deny that they agreed to the Southwest.com terms and conditions when they purchased their airfare, those terms and conditions should be considered, just as the Ward Decision considered the Expedia and Hotwire terms and conditions in dismissing the claims of two of three plaintiffs," Southwest said. 

The Southwest dispute dates back to April, when Bombin sued the airline after his trip from Baltimore Washington International Airport to Havana, Cuba, by way of Fort Lauderdale, Florida, was canceled after demand for air travel plummeted due to the rise of COVID-19 and travel restrictions aimed at reducing its spread.

Bombin argued that Southwest's offer of credits for future travel rather than a refund ran afoul of the contract that Southwest passengers get when they buy their tickets, which allow those booked on cancelled or delayed flights to request either the next available flight to their destination or a refund. 

Southwest moved in June to dismiss the suit, arguing that its terms make no promise of a refund but rather puts the airline in charge of making the choice of whether to give a refund, book the customer on a new flight or give them a credit for a future flight. The airline doubled down on these arguments in August, when it filed a new motion arguing that adding Rood as a named plaintiff did nothing to save the suit from dismissal. 

The plaintiffs are represented by James C. Shah and Michael P. Ols of Shepherd Finkelman Miller & Shah LLP, Hassan A. Zavareei of Tycko & Zavareei LLP and Melissa S. Weiner of Pearson Simon & Warshaw LLP.

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

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 Linda Chiem, Rachel O'Brien and Matthew Santoni. Editing by Nicole Bleier.

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