Dallas litigation team guides Southwest Airlines to back-to-back victories in separate nationwide federal class actions

Global law firm Norton Rose Fulbright prevailed for longstanding firm client Southwest Airlines in a proposed nationwide class action alleging that the airline breached its contract with passengers by providing travel credits for nonrefundable fares affected by schedule changes and cancellations during the early months of the COVID-19 pandemic. In a ruling signed just one day later by a different federal court, the firm also prevailed for Southwest in a separate proposed nationwide class action by obtaining dismissal with prejudice of a proposed breach-of-contract class action related to fee refunds.

In Adrian Bombin et al. v. Southwest Airlines Co., Judge John M. Gallaher of the US District Court for the Eastern District of Pennsylvania denied class certification on September 7, 2023, on the basis of a class-action waiver. Each of the named plaintiffs had purchased their travel online via either the Southwest Mobile App or Southwest website, which required them to agree to certain terms and conditions (including a class-action waiver) as part of their purchases. Historical website and mobile app data established the precise information presented to each named plaintiff at the time of their purchases in early 2022, thus allowing the Court to see how each of the plaintiffs agreed to the class-action waiver.

In concluding that the plaintiffs' agreement to the class-action waiver rendered them inadequate to serve as class representatives, the Court rejected all of the plaintiffs' various challenges to the Southwest class-action waiver, including alleged lack of notice, lack of incorporation of the waiver into the Southwest Contract of Carriage, and unenforceability of the waiver under various federal regulations. The Court specifically noted that the plaintiffs were given "direct and immediate access to the full terms they were agreeing to via hyperlink." The Court ultimately held that "Southwest has sufficiently demonstrated its online purchasing platforms reasonably provided Plaintiffs … notice of their legal rights incorporated by reference in Southwest's contract of carriage, including the class action waiver in Southwest's T&Cs."

In Aidan Bevacqua, et al. v. Southwest Airlines Co., filed in the US District Court for the Northern District of Texas, multiple named plaintiffs alleged that Southwest breached its Contract of Carriage by providing travel credits, rather than refunds, for TSA security fees when the plaintiffs cancelled their non-refundable tickets. Plaintiffs claimed that federal regulations regarding TSA fees were incorporated into Southwest's Contract of Carriage and required refunds of those fees upon cancellation.

In a September 8, 2023, Opinion and Order, Judge Sam A. Lindsay rejected these claims, holding that they were preempted by the federal Airline Deregulation Act ("ADA"). The Court ruled that under cases interpreting the ADA, a claim that would otherwise be preempted under the ADA could remain viable if "1) [it] only concerns a self-imposed obligation; and 2) no enlargement or enhancement of the contract occurs based on state laws or policies external to the agreement."  As the Court recognized, Southwest did not undertake a self-imposed obligation to comply with the plaintiffs' view of federal regulations by including language in the Contract of Carriage stating that nonrefundable tickets were "not eligible for a refund except as required by applicable regulations." The Court ultimately held that a "ruling that Defendant breached the [Contract of Carriage] by [allegedly] failing to comply with § 1510.9 would enlarge the parties' agreement by providing a remedy or right to Plaintiffs that was not contemplated by the terms of the parties' contract."

Norton Rose Fulbright's litigation team in Adrian Bombin et al. was led by Michael A. Swartzendruber, who argued the class certification issues at a hearing in July, and James V. Leito IV.  Co-counsel for Southwest Airlines were Todd Noteboom and Roy Goldberg of Stinson LLP. The firm's team in Aidan Bevacqua, et al. was Swartzendruber, Leito and Greer Goss.