By Matthew Santoni

Law360 (April 14, 2020, 2:13 PM EDT) -- Southwest Airlines Co. should have offered full refunds, not just new bookings and travel credit, for passengers whose flights were canceled as demand plummeted because of the coronavirus pandemic, a proposed class action filed Monday in Pennsylvania federal court said.

Proposed lead plaintiff Adrian Bombin said that under the contract Southwest passengers get when they buy tickets, passengers whose flights are canceled or delayed can request either the next available flight to their destination or a refund.

But when COVID-19 and travel restrictions aimed at reducing its spread caused demand for air travel to crater, Southwest canceled 20% to 40% of its flights, including Bombin's trip from Baltimore Washington International Airport to Havana, Cuba, by way of Ft. Lauderdale, Florida, and offered credits for future travel rather than refunds, the suit said.

"Here, plaintiff was not given the choice of being transported on the next available flight at no additional charge. His flight was canceled and there were no alternative Southwest flights to accommodate him from the trip's origin (BWI) to his destination," the complaint said. "He had not used any portion of the ticket for his trip. Thus, pursuant to the terms of the contract of carriage, plaintiff is entitled to a refund of the fare for the entire trip."

Bombin made one claim against Southwest for breach of contract, and seeks to represent a class of all U.S. travelers who had their Southwest flights canceled since March 1 without an option for a refund. The suit asked for refunds or compensatory damages equal to what passengers paid, plus interest and attorney fees.

Bombin said he had used Southwest's mobile app and booked two tickets to Cuba on Feb. 27. On March 23, he got a notification that his "travel itinerary had been interrupted" and that the Florida-to-Havana leg of his trip had been canceled as Southwest cut off international flights in response to the pandemic.

After a Southwest customer service representative confirmed the final leg's cancellation, the airline canceled the rest of the flight, but the customer service rep refused Bombin's request for a refund, the suit said.

"Despite the fact that plaintiff could not take the flight he booked, and defendant could not offer any comparable accommodations on another flight, plaintiff was not given a refund, but was only offered a credit for use on a future flight," the complaint said.

The suit said Southwest extended the expiration date of the flight credit until the end of June 2021 "in an attempt to appear benevolent," but its contract still required it either to put passengers on the next flight to their destination with no additional charge or offer them a refund for any unused portion of the ticket price.

In response to complaints about Southwest and other airlines' cancellations in the face of the coronavirus, the U.S. Department of Transportation issued an "enforcement notice" reminding airlines that cancellations or significant delays should entitle ticket holders to refunds, the complaint said.

"Airlines have long provided such refunds, including during periods when air travel has been disrupted on a large scale, such as the aftermath of the September 11, 2001, attacks, Hurricane Katrina and presidentially declared natural disasters," said the DOT notice, as quoted in the complaint. "Although the COVID-19 public health emergency has had an unprecedented impact on air travel, the airlines' obligation to refund passengers for canceled or significantly delayed flights remains unchanged."

The fact that the delays and cancellations were "outside of the carriers' control" did not relieve them of their obligation to provide refunds, as the government's restrictions affecting flights were still outside the passengers' control, the notice said.

The suit estimated tens of thousands, if not hundreds of thousands, of travelers were affected by Southwest's cancellations, and said they all had the common question of whether the lack of refunds violated their contracts with the airline.

"Due to defendant's cancellation of their flights, plaintiff and all putative class members cannot use their airline tickets through no fault of their own and they are not getting the benefit of their bargain with defendant," the complaint said. "Under the terms of the contract of carriage drafted by defendant, plaintiff and putative class members are entitled to refunds because Southwest canceled their flights and did not rebook the customers on another flight."

Two similar proposed class action suits were filed in the Northern District of Illinois against United Airlines and Mexican low-cost carrier Volaris earlier in April.

"Now is not the time for airlines to violate their own contracts to the detriment of their consumers," said Hassan Zavareei of Tycko & Zavareei LLP, one of the attorneys representing the passengers. "Southwest wrote the contract that required it to refund fares when it cancels flights. We intend to make it abide by that contract."

A representative for Southwest said the airline recently updated its options for customers whose flights are canceled by Southwest, but they do include refunds.

"Southwest will review this complaint and will defend our policies accordingly as our focus is always on taking care of our customers, especially during these unprecedented times," spokesperson Briah Parrish said. 

Bombin and the proposed class are 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.

Counsel information for Southwest was not immediately available Tuesday.

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.

--Editing by Stephen Berg.

Update: This article has been updated with a statement from Southwest Airlines.

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