Opinion

BOMBIN v. SOUTHWEST AIRLINES CO.

Court: District Court, E.D. Pennsylvania
Filed: Sep 7, 2023
Cited by: 0 cases
Authority: More cited than 29.0%

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The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

ADRIAN BOMBIN, et al., :

Plaintiffs, :

v. : Civil No. 5:20-cv-01883-JMG

SOUTHWEST AIRLINES CO., :

Defendant. :

__________________________________________

MEMORANDUM OPINION

GALLAGHER, J. September 7, 2023

Plaintiffs Adrian Bombin and Samantha Rood, on behalf of themselves and all others

similarly situated, allege Defendant Southwest Airlines Co. breached a contract between the

Parties. See generally Am. Compl., ECF No. 14. More specifically, Plaintiffs allege Southwest’s

failure to provide the option of a monetary refund upon flight schedule modifications amounted to

a breach of contract. Pls.’ Mem. in Supp. of Pls. Mot. for Class Certification, ECF No. 71-2 at 3

(sealed). On July 13, 2023, the Court heard oral argument concerning Plaintiff’s Motion for Class

Certification, Defendant’s Response in Opposition, and any replies and exhibits thereto. The Court

also heard brief argument on Plaintiff’s Motion to Exclude under Rule 702 Portions of the Expert

Reports of Lee. For the following reasons, Plaintiffs’ Motion to Exclude is denied. And Plaintiffs’

Motion to Certify Class is denied.

I. FACTUAL BACKGROUND

a. Underlying Facts

In February of 2020, Bombin booked a flight from Maryland to Cuba through Southwest’s

mobile application. Am. Compl., ECF No. 14 ¶26; see also Behrens Decl., 85-15 at 3. That same

month, Rood used Southwest’s website (www.southwest.com) to purchase two Southwest tickets

for travel from California to Arizona. Am. Compl., ECF No. 14 ¶31; see also Behrens Decl., 85-

15 at 3. By March, however, COVID-19 had been declared a global pandemic, and the United

States started implementing travel restrictions. ECF No. 14 ¶¶ 7–8. Faced with the virus and

declining consumer demand, Southwest changed its flight schedules. Id. ¶¶13–15. In particular,

Southwest canceled Bombin’s flight to Cuba, and rescheduled Rood’s flight to Arizona three

separate times. Id. ¶¶ 28, 33–39.

Upon learning of the cancellation, Bombin called Southwest’s customer service

department to gain more information. Id. ¶28. He requested a refund, which Southwest denied.

Id. ¶29. Instead, Southwest offered Bombin credit toward a future flight (called an “RTF”). Id.

¶¶29–30; see also Pls.’ Resp. in Opp’n to Defs. Mot. to Exclude, ECF No. 133 at 5. Rood was

similarly offered an RTF travel credit in lieu of a refund. ECF No. 14 ¶¶34, 37, 40 (sealed).

b. Contract at Issue: The Contract of Carriage (“COC”), T&Cs, class waiver

provision

Bombin and Rood allege that Southwest breached its Contract of Carriage (“COC”) by

refusing to offer refunds for their flights.1 Section 9 of the COC provides in relevant part:

a. Failure to Operate as Scheduled

(1) Canceled Flights or Irregular Operations. In the event Carrier

cancels or fails to operate any flight according to Carrier’s

published schedule, or changes the schedule of any flight,

Carrier will, at the request of a Passenger with a confirmed

Ticket on such flight, take one of the following actions:

1 Id. ¶19. An airline's “[c]ontract of [c]arriage is a federally regulated contract that governs the

rights of the parties.” Roman v. Spirit Airlines, Inc., 482 F. Supp. 3d 1304, 1309–10 (S.D. Fla.

2020), aff'd, No. 20-13699, 2021 WL 4317318 (11th Cir. Sept. 23, 2021) (quoting Pons v.

Arubaanse Luchtvaart Maatschappij, No. 17-cv-22008, 2018 WL 2188477, at *3 (S.D. Fla. Mar.

29, 2018)). Here, the Parties do not dispute the COC at issue is Southwest’s COC effective January

29, 2020. See ECF No. 14 at 26; see also ECF No. 85-3 at 2.

(i) Transport the Passenger at no additional charge on

Carrier’s next flight(s) on which space is available to

the Passenger’s intended destination, in accordance

with Carrier’s established reaccommodation

practices; or

(ii) Refund the unused portion of the Passenger’s fare in

accordance with Section 4c.

Am. Compl. Ex. A, ECF No. 14 at 66. Plaintiffs further aver, Southwest’s Customer Service

Commitment, a document which is incorporated by reference in the COC, provides that, in the

event Southwest changes a flight schedule more than seven days before departure, customers “will

have the option to select the revised itinerary, choose an alternate flight/date within a 14-day

parameter of [their] original travel, or cancel [their] trip without penalty and receive a refund issued

to the original form of payment.” Id. at 73; see also id. at 11 (“Southwest’s Contract of Carriage

incorporates its Customer Service Commitment.”). Bombin and Rood assert that these provisions,

taken together, afford customers the discretion to select a refund in the event of a scheduling

change. Id. ¶¶ 46–47. In other words, Southwest cannot unilaterally decide to offer RTFs to

customers following a scheduling change.

Southwest’s COC also has a provision in the “Application of Conditions of Contract”

Section of the “Introduction” that provides: “Transportation by Southwest Airlines Co. . . . is

subject to the following terms and conditions, in addition to any terms and conditions printed on

any Ticket, or specified on the Carrier’s website.” Contract of Carriage §1(a)(1), ECF No. 85-3 at

5. Southwest avers this provision incorporates additional terms into Southwest’s COC, including

the Website T&Cs found on Southwest’s website. See ECF No. 153 at 9.

Bombin and Rood both interacted with Southwest’s COC and additional terms when

purchasing tickets through Southwest’s mobile and online purchasing platforms. Bombin

purchased the tickets at issue in the instant matter through Southwest’s mobile application (or

“IOS”) purchase flow. See e.g., ECF No. 143-2 at 24, Hursh Dep. Tr. 104:4-17; Behrens Decl.,

85-15 at 2-3 (providing what information was accessible to customers, including Rood and

Bombin, within Southwest’s desktop and mobile application purchasing platforms during the

proffered class period). And Rood purchased tickets through the southwest.com website on

desktop. See e.g., ECF No. 143-2 at 24, Hursh Dep. Tr. 104:18-22; Behrens Decl., 85-15 at 2-3.

Customers purchasing through either the southwest.com website or the Southwest mobile

application purchase tickets by clicking the “purchase” button alongside hyperlinks of Southwests’

Terms & Conditions (“T&Cs”), privacy policy, and the COC. ECF No. 143-2 at 21, Hursh Dep.

95:2-10. Southwest provided exhibits that reflect the conditions of the purchase agreements when

Bombin and Rood made ticket purchases through Southwest’s desktop website and mobile

applications via IOS and Android. Defs. Br. In Opp’n to Pls. Mot. to Strike, ECF No. 100-18 at 2

(providing information found on the purchase page of Southwest’s iOS application); id. at 5

(providing displayed information found on the purchase page of the Southwest.com desktop);

Defs. Notice. Regarding Certification Opp’n., ECF 143-2 at 81 (displaying a purchase page found

though Southwest’s iOS application); id. at 69 (displaying a purchase page found through

Southwest’s southwest.com). In order to create a ticket through Southwest’s webpage or mobile

applications, consumers must click the purchase button to complete their transaction. ECF No.

143-2 at 26, Hursh Dep. Tr. 108:6-14.

The purchase page on Southwest’s Southwest.com desktop page provides the following

information on top of a “Purchase” button: “By clicking ‘Purchase’, I agree to the Terms and

Conditions below, the privacy police, fare rules, and the contract of carriage.” ECF 143-2 at 69

(applicable purchase page). Immediately below the “Purchase” button, Southwest provides the

Title: “Terms and Conditions” above the subtitle “Flight.” Id. Then the first of several bullets

provided reads “I agree to the fare rules, Terms & Conditions, Privacy Policy, and Contract of

Carriage.” Id. The fare rules, T&Cs, Privacy Policy, and Contract of Carriage are shown in blue

and are displayed as hyperlinks to pages containing the full terms found in each. ECF No. 143-2,

Hursh Dep. Tr., 79:3-15; 95:2-10.

Next, the purchase page on Southwest’s iOS application provides the following

information on top of a “Purchase” button: “By tapping ‘Purchase’, you accept the below

conditions.” ECF No. 143-2 at 81 (applicable purchase page). Immediately below the “Purchase”

button, Southwest provides a few sentences concerning hazardous materials banned from flights

under federal laws. Id. Right below the hazardous materials information—and on the same page—

are blue phrases (i.e., “View more details,” “Terms & Conditions,” “Privacy Policy,” and

“Contract of Carriage”) containing hyperlinks. Id.

Relevant to the instant motion, the “Terms and Conditions” page—that can be accessed via

hyperlinks on Southwest’s Purchase page—contains additional terms and conditions for

passengers and “set forth a legally binding agreement between [customers] and Southwest.” ECF

No. 147-9 at 2; see also ECF No. 85-15 at 1. Southwest contends “[t]he use of Southwest’s

websites and applications are governed by [the] ‘Terms & Conditions.’” ECF No. 85-15 at 1.

Specifically, the Terms & Conditions “govern [customers’] use of and access to

www.southwest.com, www.swabiz.com, and any other websites, mobile, and other applications or

services that post a link to these Terms . . . and the information features, content, and services, that

[Southwest] own[s], control[s], or make[s] available through the Sites (. . . the ‘Service’) . . . .”

ECF No. 85-15 at 1. Under the “Forum Selection” provision on page three (3) of the Terms and

Conditions, the following language is provided:

Forum Selection

These Terms and the relationship between you and Southwest shall be governed by the laws of the State of Texas without

regard to any conflict of law provisions. You agree to the personal and exclusive jurisdiction of the courts located within

Dallas, TX. You hereby consent to the exclusive jurisdiction and venue of the State and Federal courts in Dallas, Texas in

all disputes. You agree and understand that you will not bring against the Southwest Parties any class action lawsuit

related to your access to, dealings with, or use of the Service.

Id. at 4. Southwest contends the final sentence of the forum selection clause is a class action

waiver provision, which bars Bombin and Rood from maintaining the present class action lawsuit

because ‘Plaintiffs’ claim ‘relate[s] to’ their use of the ‘Service[s]’ provided on the website and

mobile application (i.e., ticket purchase).””

c. Motion Practice

i. Plaintiffs Motion for Class Certification, Defendant’s Response in

Opposition, and Subsequent Motion Practice

On April 22, 2022, Plaintiffs moved for class certification. ECF No. 71. Plaintiffs contend

they satisfy the Federal Rule of Civil Procedure 23 requirements for class certification, such as the

Rule 23(a) requirements—numerosity, commonality, typicality, and adequacy—and the Rule

23(b) requirements—namely, “questions of law or fact common to class members predominate

over any questions affecting only individual members, and that a class action is superior to other

available methods for fairly and efficiently adjudicating the controversy.” FED. R. CIV. PRO. 23(b);

see also FED. R. CIv. PRO, 23(a).

First, Plaintiffs contend, under Rule 23(b), “[c]ommon questions of law and fact

predominate as to Plaintiffs’ straightforward breach of contract claim.” ECF No. 71-2 at 6 (citation

ECF No. 85 at 14. The first paragraph of Southwest’s T&Cs provides its “Service[s]” include

“the information, features, content, and services that [Southwest] own[s], control[s], or make[s]

available through the Sites... .” ECF No. 85-16; see also ECF No. 85-18 at 3.

omitted). Plaintiffs further aver, “[t]h[e] common contract language [at issue] presents the same

question for the entire Class: does the Contract require that Southwest give passengers the option

of a monetary refund when Southwest initiates a Cancellation or Schedule Change?”3 So “[a]t

the merits stage, Plaintiffs will present evidence to show that Southwest [breached the contract by]

automatically issu[ing] or offer[ing] monetary refunds when Southwest Network Planning initiated

flight Cancellations and Scheduling Changes.” ECF No. 71-2 at 5.

Plaintiffs identify several elements of their claims to show common questions of law and

fact predominate. For example, Plaintiffs aver: (1) a single contract “uniformly governs

Southwest’s obligations to putative Class Members when it fails to operate a flight on schedule[,]”

id. at 8; (2) common evidence supports Plaintiffs’ claim Southwest breached its contract with

customers by uniformly providing customers RTFs, id. at 10; (3) Southwest underwent “a common

source of conduct [concerning customer service practices]” supporting a finding of predominance,

id. at 12; (4) “common evidence shows that Southwest’s intentional and systematic practice was

to offer an RTF instead of a refund to the original form of payment[,]” id. at 14-15; and (5) and

Southwest’s anticipated defenses involve a “class-wide question.” Id. at 16-17.

To further support its Rule 23(b) predominance claim, Plaintiffs submit “[t]he Class is

ascertainable.” Id. at 15. Plaintiffs contend the Class is ascertainable because it “is defined by

3 Id. at 5. Plaintiffs provide definitions for “Schedule Change[s]” and “Cancellation[s]” in their

Motion for Class Certification. Plaintiffs define a “Schedule Change” as “a change of more than

15 minutes made by Southwest more than 10 days in advance of the originally scheduled flight

(i.e. a Schedule Change made by Southwest’s Network Planning). ECF No. 71 at 1 n.3. And

Plaintiffs define a “Cancellation” as “a cancellation made by Southwest more than 10 days in

advance of the originally scheduled flight date (i.e. Cancellations made by Southwest’s Network

Planning).” Id. at 1 n. 2. Plaintiffs utilize these definitions throughout their Motion for Class

Certification, see generally ECF No. 71-2, and their Motion in Opposition of Defendant’s Motion

to Exclude Testimony of Dr. Bennett Under Daubert, ECF No. 133 at 5 n. 1.

objective criteria” and “Southwest’s own detailed records, including its databases for flights and

ticket information for such flights . . . can be used to identify the passengers.” ECF No. 71-2 at

18. And further, Plaintiffs “measure of compensatory damages—a refund to the original form of

payment and interest— . . . matches their theory of liability that Southwest owed Class Members

refunds instead of the credits they provided . . . .” Id. at 19. Plaintiffs rely on their expert, Dr.

Bennett, to aver “[t]he amount of refunds and interest Southwest owes each Class Member can be

determined on a class-wide basis using Southwest’s records.” Id. at 20 (citing Expert Report of

Christopher J. Bennett, Ph.D., ECF No. 72 at 1-2, 21-23).

Lastly, Plaintiff contends their claims satisfy Rule 23(a)’s requirements because the class

is sufficiently numerous, id. at 20; Plaintiffs “identified questions with common answers that

would ‘resolve an issue that is central to the validity of each one of the claims in one stroke,’” id.

at 21 (quoting Walmart v. Dukes, 564 U.S. 338, 564 (2011)); typicality is satisfied because

Plaintiffs’ claims arise of the same course of conduct, rely on the same legal theories, and are

governed by one contract, id. at 22-23.; the representative parties are adequate, id. at 23-24; and a

class action is a superior method of adjudication due to class members’ “relatively small value

claims[,]” id. at 24.

Southwest opposes Plaintiff’s Motion for Class Certification. See generally ECF Nos. 85,

90 (filed under seal). Southwest argues in its opposition to class certification that contractual

interpretations are necessary at this stage in order to satisfy the rigorous analysis required by Rule

23. Def’s. Mem. in Opp’n to Pls. Mot. for Class Certification, ECF No. 85 at 7–8. Southwest states

that the class action waiver bars Plaintiffs’ class action suit because Plaintiffs fail the typicality

requirement of Rule 23(a)(3), as they allege Plaintiffs are subject to defenses plainly inapplicable

to many members of the class. Id. at 25. Southwest also contends Plaintiffs cannot adequately

represent the class because named Plaintiffs are bound by the class action waiver, therefore failing

to satisfy the adequacy requirement of Federal Rule 23(a)(4) of Civil Procedure. Id. at 12-13. More

specifically, Southwest alleges “[c]ustomers, like [named] Plaintiffs, who purchased fares on

Southwest’s website or mobile application agreed to Southwest’s Terms & Conditions (‘Terms’),

and specifically to ‘not bring against [Southwest] any class action lawsuit related to [their] access

to, dealings with, or use of the Service.” Id. at 14 (citing Behrens Decl., ECF No. 85-15).

Following Southwest’s Memorandum in Opposition, Plaintiffs moved to strike multiple

exhibits presented by Southwest, arguing the materials should be stricken because Southwest failed

to properly disclose the subject matter contained in those filings, and is unable to show that such

failure was harmless or substantially justified. See generally Pls. Mot. To Strike, ECF No. 95. The

Court found that striking Southwest’s use of the Behrens Declaration, Call Transcripts, and

Passenger Data was not warranted given the ability of the Parties to cure any prejudice to Plaintiffs,

the minimal disruption to the matter’s pre-trial and trial proceedings, and the importance of the

evidence to Southwest.4 Accordingly, the Court denied Plaintiff’s motion to strike. See ECF Nos.

125 (Mem. Op.), 126 (Order). The Court then reopened limited discovery on the issue of class

action waiver. See e.g., ECF No. 132 (providing a modified Scheduling Order following

supplemental discovery and briefing relating to Plaintiffs’ motion seeking class certification).

On April 17, 2023, following the Court’s limited re-opening of discovery, Plaintiffs filed

a reply in support of their motion to certify the class. See generally Pls. Reply to Resp. in Opp’n.,

ECF No. 145. Concerning the class waiver issue, Plaintiffs submit the following averments, inter

alia, opposing the Court’s application of the class waiver at this time: (1) the T&Cs are not included

4 See generally Mem. Op., ECF No. 125.

and thus inapplicable to the COC, id. at 18; (2) Plaintiffs did not have sufficient notice of the class

waiver provision in the T&Cs pursuant to 14 C.F.R. § 253.4 and 14 C.F.R. § 253.5, id.; (3) unlike

the COC, which is a contract of adhesion that governs Southwest’s transportation of passengers,

the Website T&Cs is a contract of adhesion that merely governs use of and access to Southwest’s

websites and mobile applications, id. at 17; (4) the forum-selection clause—and thus the class

action waiver provision within the forum-selection clause— in the T&Cs is unenforceable because

it conflicts with federal law, id. at 25; and lastly, (5) even if assuming the T&Cs applied to

Plaintiff’s breach of the COC, Southwest’s provision of the T&Cs to passengers (hyperlinked to

another page) was insufficient to constitute reasonably conspicuous notice the Plaintiffs assented

to the T&Cs, id. at 25-26.

Southwest then filed a sur-reply in opposition to Plaintiff’s motion for class certification.

See generally Defs. Sur-Reply in Opp’n. to Pls. Mot. For Class Certification, ECF No. 153. In

relevant part, Southwest’s Sur-Reply in Opposition contains several arguments in favor of

enforcing the class action waiver. ECF No. 153 at 8. First, Southwest avers the waiver argument

concerns the adequacy of the two named Plaintiffs. Id. Second, it contends the source of the

waiver is the T&Cs, and the fact that Southwest recently added a class-action waiver to a different

contract (i.e., the COC) is a red herring because the only issue here is whether the waiver in the

T&Cs encompass Plaintiffs’ claims. Id. Third, Southwest submits the COC’s integration clause

does not negate enforcement of the T&Cs because the COC incorporates terms and conditions

specified on Southwest’s website. COC § 1a(1) [Dkt. No. 85-3] (“Transportation . . . is subject to

the following terms and conditions, in addition to any terms and conditions . . . specified on the

Carrier’s website.”). Id. In sum, Southwest avers named Plaintiffs do not satisfy requirements

under Federal Rule 23 of Civil Procedure and thus class certification is not warranted.

ii. Plaintiff’s Motion to Exclude under Rule 702 Portions of the Expert

Report of Darin N. Lee, PhD

Plaintiff also moves to exclude portions of Southwest’s expert (collectively, the “Lee

Reports”) in support of its Response in Opposition to Class Certification.5 In sum, Plaintiffs

contend they seek to exclude selected portions of the Lee Reports because the selected portions

are irrelevant to the Court in determining the class certification issue. ECF No. 146-1 at 4.

Plaintiffs aver “[n]one of the portions of the Lee Reports . . . are relevant to the question of whether

Plaintiffs’ theory of class-wide breach will generate common questions that will be answerable on

a class-wide basis.” Id.

Southwest opposes Plaintiffs’ motion to exclude. See generally ECF No. 154. Southwest

submits the Lee Reports provide information concerning the COVID-19 pandemic’s disruption of

the airline industry, and thus Southwest’s response to COVID-19, including Southwest’s

provisions of RTFs. Id. at 7. So, in sum, Southwest avers Dr. Lee’s “. . . opinions thus ultimately

relate not to the element of breach, but to elements of causation, injury, and damages, as well as

[Southwest’s] defenses, such as mitigation.” Id.

II. LEGAL STANDARDS

a. Motions to Exclude under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

U.S. 579 (1993)

Under the Federal Rules of Evidence, district courts must act as the gatekeepers of expert

5 See generally ECF No. 146. Specifically, Plaintiffs move to exclude Paragraphs 7(a)-(c), 7(e)-

(j), 7(l)-(m), 9-17, 19-32, 36-57, 63 of the Expert Report of Darrin N. Lee, Ph.D., with respect to

class certification (ECF No. 86); and Paragraphs 1-4, and 6 of the Supplemental Expert Report of

Darin N. Lee, PhD. with respect to class certification. Id. at 1, 5.

testimony. Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589 (1993); Kumho Tire Co. v.

Carmichael, 526 U.S. 137, 141 (1999); FED. R. EVID. 702. Before testimony can reach the jury

under the cloak of expertise, the Court must evaluate it for three criteria: qualification, reliability

and fit. UGI Sunbury LLC v. A Permanent Easement for 1.7575 Acres, 949 F.3d 825, 832 (3d Cir.

2020).

A witness is qualified to provide expert testimony only if the witness has “specialized

expertise” in the testimony’s subject matter. Schneider ex rel. Est. of Schneider v. Fried, 320 F.3d

396, 404 (3d Cir. 2003). A witness’s testimony is reliable only if it is founded upon “good

grounds.” UGI Sunbury LLC, 949 F.3d at 834; FED. R. EVID. 702 (requiring expert testimony be

“based on sufficient facts or data” and be derived from “reliable principles and methods” that have

been “reliably applied . . . to the facts of the case.”). The U.S. Court of Appeals for “[t]he Third

Circuit has interpreted ‘reliability’ to mean that an expert's testimony is admissible so long as the

process or technique the expert used in formulating the opinion is reliable.” Elgert v. Siemens

Indus., Inc., No. CV 17-1985, 2019 WL 1294819, at *5 (E.D. Pa. Mar. 20, 2019) (quoting Pineda

v. Ford Motor Co., 520 F.3d 237, 244 (3d Cir. 2008) (internal citations omitted)).

And lastly, a witness’ testimony fits a case only if it would help the trier of fact to

understand the evidence or determine a fact in issue. UGI Sunbury, 949 F.3d at 835 (quoting FED.

R. EVID. 702); see also United States v. Ford, 481 F.3d 215, 219 n.6 (3d Cir. 2007) (“[F]it is

[primarily] a relevance concern.”) (internal quotation marks omitted). “The [relevance]

requirement should be evaluated under the standard expressed in [Federal Rule of Evidence] 401.”

Ford, 481 F.3d 215 at 218. (citing United States v. Prince-Oyibo, 320 F.3d 494, 504 (4th Cir.2003)

(“What Rule 702 does require ... is that the district court make initial determinations . . . that the

proffered evidence is relevant in the sense that it will assist the trier of fact to understand the

evidence or to determine a fact in issue.”); Amorgianos v. Nat'l R.R. Passenger Corp., 303 F.3d

256, 265 (2d Cir.2002) (“In fulfilling this gatekeeping role, the trial court should look to the

standards of Rule 401 in analyzing whether proffered expert testimony is relevant....”)).

The Rules of Evidence reflect a liberal policy of admissibility, even for expert testimony.

Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir. 2008). But expert testimony must satisfy

the requirements set out above to be admissible. UGI Sunbury, 949 F.3d at 832–33. The burden

to establish that each requirement is satisfied by a preponderance of the evidence rests with the

party offering the expert testimony. See Padillas v. Stork–Gamco, Inc., 186 F.3d 412, 418 (3d

Cir.1999).

b. Motions for Class Certification

To certify a class, Rule 23 requires a two-pronged analysis. FED. R. CIV. P. 23. First,

Federal Rule of Civil Procedure 23(a) provides Plaintiffs must meet four elements for class

certification: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation.

FED. R. CIV. P. 23(a). “If the requirements of Rule 23(a) are met, Plaintiffs must satisfy additional

requirements of predominance and superiority required by Rule 23(b)(3).” Korea Wk., Inc. v. Got

Cap., LLC, No. CV 15-6351, 2016 WL 3049490, at *6 (E.D. Pa. May 27, 2016) (Kearney, J.)

(internal footnote omitted).

The U.S. Court of Appeals for the Third Circuit has outlined the standard of review for

district courts at the class certification stage. The Court of Appeals has found:

First, the decision to certify a class calls for findings by the court, not merely a

"threshold showing" by a party, that each requirement of Rule 23 is met. Factual

determinations supporting Rule 23 findings must be made by a preponderance of

the evidence. Second, the court must resolve all factual or legal disputes relevant to

class certification, even if they overlap with the merits--including disputes touching

on elements of the cause of action. Third, the court's obligation to consider all

relevant evidence and arguments extends to expert testimony, whether offered by a

party seeking class certification or by a party opposing it.

In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305 (3d Cir. 2008). Thus “trial courts 'must

engage in a rigorous analysis and find each of Rule 23's requirements met by a preponderance of

the evidence before granting certification. They must do so even if it involves judging credibility,

weighing evidence, or deciding issues that overlap with the merits of a plaintiff's claims.” In re

Niaspan Antitrust Litig., 67 F.4th 118 (3d Cir. 2023) (emphasis added) (quoting Harnish v.

Widener Univ. Sch. of Law, 833 F.3d 298, 304 (3d Cir. 2016)). And, in In re Niaspan Antitrust

Litigation, the U.S. Court of Appeals further found that class certification should be denied if a

district court harbors uncertainty about whether the plaintiff has satisfied the requirements of Rule

23. Id. at 130 (quoting Mielo v. Steak 'n Shake Operations, Inc., 897 F.3d 467, 483 (3d Cir. 2018)).

III. DISCUSSION

a. Plaintiff’s Motion to Exclude Portions of Dr. Lee’s Expert Reports

Plaintiffs first move to exclude various portions of Defendant’s expert, Dr. Lee’s expert

reports because, Plaintiffs aver, the Lee Reports are irrelevant to Plaintiff’s class certification

motion. See generally ECF No. 146.

First, Plaintiffs seek to exclude the entirety of Section III.A of Dr. Lee’s Report, entitled

“Southwest Has Always Offered Consumers the Most Flexible Ticketing Options of Any Major

U.S. Carrier.” Id. at 5-6. In relevant part, Plaintiffs contend Dr. Lee’s opinion Southwest has a

reputation of excellent customer service and “consumer-friendly practices” is irrelevant because

its reputation does not bear on the questions of breach or damages calculations. Id. at 6. On the

other hand, Southwest submits these opinions are relevant to its mitigation defense because “(a)

Southwest does, in fact, have consumer-friendly policies where refunds are readily available on

request, (b) many passengers book with Southwest because of those policies and so are familiar

with Southwest’s travel credit and refund policies, and (c) many passengers thus had knowledge

of these policies and would be subject to Southwest’s mitigation defense.” ECF No. 154 at 10-11.

The Court agrees. Dr. Lee’s opinion concerning Southwest’s customer service and refund policies

are broadly related to Southwest’s mitigation and other defenses. Accordingly, preclusion of

Section III.A of Dr. Lee’s Report is not warranted.

Next, Plaintiffs seek to exclude nearly all of Section III.B of the Lee Report, entitled “The

COVID-19 Pandemic Severely Affected Southwest’s Operations and Led to Enhanced RTF

Policies to Provide Even More Flexibility to Its Customers.” ECF No. 146 at 6-7. In sum, this

section concerned COVID’s impact on the airline industry and Southwest’s corresponding

responses concerning flight schedules and customer policies. ECF No. 154 at 11-12. The Court

agrees with Southwest that Dr. Lee’s opinions are relevant background information concerning

Southwest’s refund policies during the relevant time period for Plaintiffs’ proffered class. More

specifically, Dr. Lee’s opinions concern Southwest’s defenses such as mitigation, superiority of a

class action under 23(a), and other defenses raised by Southwest such as force majeure. Id. at 12-

13.

Third, Plaintiffs seek to exclude portions of several sections of Dr. Lee’s reports concerning

the value of RTFs and consumer preference. In short, Dr. Lee opines that (a) RTFs have value

(which value will vary by class members), (b) that “many proposed class members who had flights

canceled or changed (as defined by Plaintiffs) would have selected an RTF,” and (c) at least five

specific factual circumstances exist, including with regard to tickets held by non-purchasing

passengers, “that provide economic incentives to proactively choose an RTF instead of a refund,

or would at least cause a consumer to be indifferent between an RTF and cash refund.” ECF No.

154 at 13-14 (citing Lee Report ¶¶ 26–27). The Court agrees Dr. Lee’s opinions concerning the

value of RTFs to Southwest’s customers are relevant to whether Plaintiffs adequately present

common injuries here, as well as to the issue of damages. Moreover, customers’ varying

preferences concerning RTFs are relevant to Southwest’s defense of individualized inquiries.

Fourth, Plaintiffs’ contention preclusion of Dr. Lee’s Section IV.B entitled “Data

Demonstrates That Consumers Do Not Uniformly Choose Refunds Over RTFs” is warranted is

similarly unpersuasive. Section IV.B provides information broadly concerning consumer

preference of RTFs (in lieu of a refund). Like the previous section, this section of the Lee Report

is relevant to the issues of injury, damages, and individualized inquiries.

And lastly, in their fifth argument, Plaintiffs seek to exclude Section V of Dr. Lee’s Report,

entitled “Dr. Bennett’s Damages Model Rests on an Implicit and Incorrect Predicate Assumption

That Each Proposed Class Member Would Have Flown Had Their Flight Operated as Originally

Scheduled.” 6 As previously stated, the impacts of COVID-19, and responses to the pandemic by

Southwests, as well as considerations by passengers are broadly relevant to issues of injury and

individualized inquiries. Dr. Lee’s opinions in this section address opinions by Plaintiffs’ expert

that all class members “would have flown had their flight not been canceled or changed and have

thus uniformly suffered economic injury as a result of Southwest’s actions.” ECF No. 154 at 19

(citing Lee Report ¶ 36). Dr. Lee opines that a variety of factors—e.g., reluctance to travel,

business closures, government-imposed restrictions, and quarantine requirements—caused many

passengers to voluntarily cancel their flights or simply not show up at all (i.e., “no show”). Id.

(citing Lee Report ¶ 36). Thus Southwest submits passengers have varying, individualized

6 Plaintiffs also seek to exclude paragraph sixty-three (63) of the Lee Report concerning a

customer’s preference for an RTF.

injuries. And Dr. Lee’s opinions regarding the myriad reasons that passengers did not ultimately

travel thus supports Southwest’s position on causation and injury (i.e., that it is inappropriate

simply to assume that a customer holding an RTF has necessarily suffered a breach, or an injury

caused by the breach, or any injury at all), and the predominance defeating individual inquiries

raised by those issues. ECF No. 154 at 21. The Court agrees this section of Dr. Lee’s expert

reports is relevant to Southwest’s defenses and opposition to Plaintiff’s class certification motion.

Therefore, in sum, the Court finds Dr. Lee’s various opinions relevant to issues faced at

the class certification stage. Under liberal standards of admissibility and a relevancy requirement

as expressed in Federal Rule of Evidence 401, preclusion of the various portions of Dr. Lee’s

expert report is not warranted. See e.g., Ford, 481 F.3d 215 at 218 (citing United States v. Prince-

Oyibo, 320 F.3d 494, 504 (4th Cir.2003)); Pineda v. Ford Motor Co., 520 F.3d 237, 243 (3d Cir.

2008) (“The Rules of Evidence reflect a liberal policy of admissibility, even for expert

testimony.”). Accordingly, Plaintiff’s Motion to Exclude under Rule 702 Portions of the Expert

Reports of Lee (ECF No. 146) is denied.

b. Plaintiffs’ Motion for Class Certification

Plaintiffs aver class certification is warranted because Plaintiffs satisfy the Federal Rule

of Civil Procedure 23 requirements for class certification. See generally ECF No. 71. Southwest

opposes certification of the class, averring, inter alia, Plaintiffs’ assent to a class action waiver

prevents them from satisfying the adequacy requirement under Federal Rule of Civil Procedure

23(a). ECF No. 85 at 3; see also ECF No. 153 at 9-10. Here, the Parties point to a class action

waiver located in a forum selection provision of Southwest’s website T&Cs.7 In relevant part, the

7 ECF No. 147-9 at 4. For further discussion of Southwest’s T&Cs and the wording of the class

waiver provision, see supra pgs. 2-6.

class action waiver provides: “You agree and understand that you will not bring against the

Southwest Parties any class action lawsuit related to your access to, dealings with, or use of the

Service.”8 Here, Plaintiffs contend the class action waiver is unenforceable under federal

regulations prohibiting forum selection clauses. ECF No. 145 at 24-26. And, even if the class

action waiver is not barred, Plaintiffs aver Southwest failed to provide sufficient notice to Plaintiffs

under additional federal regulations. The Court considers Plaintiffs’ averments in seriatim.

Federal district courts in the Eastern District of Pennsylvania have found class

representatives who agree to a class action waiver are inadequate under Federal Rule 23. See e.g.,

Korea Wk., 2016 WL 3049490, at *11. In Korea Week, Inc. v. Got Capital LLC, plaintiffs signed

commercial financing contracts containing class action waivers.9 At the class certification hearing,

plaintiffs introduced several contracts at issue—all but one contained a class action waiver. Korea

Wk., 2016 WL 3049490, at *3-4. “Plaintiffs admit[ted] they signed financing contracts with class

action waivers but assert[ed] the waivers were unconscionable.” Id. at *6. At a class certification

hearing, the district court, “evaluated the credibility of the only two proffered named plaintiffs and

admitted exhibits including deposition testimony of some, but not all, named merchant plaintiffs.”

Id. at *1. Plaintiffs “d[id] not argue they could serve as adequate class representatives if [the

district court] f[ou]nd the class action waiver . . . enforceable.” Id. at *11. Instead, plaintiffs

averred “the class action waivers [were] void and unconscionable and ask[ed] [the court] to

8 Id. at 4. The class action waiver is located in Southwest’s provision titled “Forum Selection.”

Id. The class action waiver is the fourth and final sentence following three sentences concerning:

choice of law, personal and exclusive jurisdiction, and forum selection, respectively. Id. For

further discussion of Southwest’s T&Cs and the wording of the class waiver provision, see supra

pgs. 2-6.

9 Id at *6. Plaintiffs did not dispute they signed contract with class action waivers. See id.

Nevertheless, Plaintiffs averred the class action waiver was unconscionable and thus void. See id.

consider them as ‘consumers’ rather than ‘merchants.’” Id. at *4. The court ultimately found the

class action waivers were not unconscionable. Id. at *8-10. Accordingly, the district court then

found the plaintiffs could not adequately represent absent class members. Id. at *11 (“The

Plaintiffs agreed to pursue claims on their own behalf and cannot now change their minds and

transform into fiduciaries for others.”). The district court denied class certification because

plaintiffs did not satisfy the adequacy requirement of Federal Rule 23 of Civil Procedure due to

their assent to enforceable class action waiver provisions.10

Therefore, similar to the district court’s analysis in Korea Week, the Court must consider

whether Plaintiffs assented to an enforceable class waiver provision and thus are inadequate under

Federal Rule 23 of Civil Procedure.11

i. Applicability of the Class Action Waiver to Named Plaintiffs and the

Current Action

Here, the Parties dispute whether the class action waiver at issue is enforceable. First,

Plaintiffs argue that the Southwests’ Website Terms & Conditions (“T&Cs”) are not included in

the COC, and so Southwest improperly attempts to insert a provision of the T&Cs into the COC

at issue. Id. at 18. The Court is not persuaded. As Southwest correctly points out, the COC at

10 See Korea Week, 2016 WL 3049490 at *11. In Korea Week, the federal district court provided

reasoning as to why “named Plaintiffs [who have] contractually waived their right to bring, or

participate in, a class action . . . cannot adequately represent [a] proposed [c]lass. Id. at *10

(finding, inter alia, “Class representatives must vigorously pursue the interests of class member,

and inability or failure to do so renders the class representative inadequate.”) (footnote omitted).

11 See In re Niaspan Antitrust Litig., 67 F.4th 118 (3d Cir. 2023) (finding “trial courts 'must

engage in a rigorous analysis and find each of Rule 23's requirements met by a preponderance

of the evidence before granting certification. They must do so even if it involves judging

credibility, weighing evidence, or deciding issues that overlap with the merits of a plaintiff's

claims.” (emphasis added) (internal quotation omitted)).

issue in this case “incorporates terms and conditions specified on Southwest’s website.” ECF No.

153 at 6 (citing Contract of Carriage Section 1(a)(1), ECF No. 85-3 at 5 (providing, in the

“Application of Conditions of Contract” Section of the “Introduction,” “Transportation by

Southwest Airlines Co. . . . is subject to the following terms and conditions, in addition to any

terms and conditions printed on any Ticket, or specified on the Carrier’s website); see also COC

Section 1(a)(1), ECF No. 1 at 19 (same). Through Southwest’s southwest.com desktop website or

the Southwest mobile application, customers are provided additional terms in the form of

hyperlinks to Southwests’ T&Cs, privacy policy, and the COC. ECF No. 143-2, Hursh Dep. Tr.,

79:3-15; 95:2-10. The T&Cs contain the class action waiver provision at issue. 85-15 at 4

(providing “You agree and understand that you will not bring against the Southwest Parties any

class action lawsuit related to your access to, dealings with, or use of the Service.”).

Plaintiffs’ then contend class action waiver is not enforceable because it is contained in the

T&Cs, not the COC at issue. But, as stated, the COC “incorporates terms and conditions specified

on Southwest’s website[,]” which includes the T&Cs presented to customers going through the

ticket purchasing process either on desktop or mobile application. ECF No. 153 at 6 (citing

Contract of Carriage Section 1(a)(1), ECF No. 85-3). And Plaintiffs’ contention Southwest failed

to invoke the class action waiver by not including waiver language in the COC is unavailing; the

COC explicitly refers to—and acknowledges the enforceability of—additional terms and

conditions found on Southwest’s website and tickets.12

12 See Contract of Carriage Section 1(a)(1), ECF No. 85-3. And, relatedly, Southwest’s

incorporation of the T&Cs is not prevented by any conflict between the terms—the COC is silent

concerning a class-action waiver and explicitly incorporates additional terms. And moreover, as

Southwest submits, the COC’s incorporation of the T&Cs prevents the COC’s integration clause

nullifying the T&Cs. ECF No. 153 at 9 (internal citations omitted); see also See Contract of

Moreover, Bombin and Rood both engaged with Southwest’s COC and additional online

terms when purchasing tickets through Southwest’s desktop website and mobile application

purchasing platforms. Southwest provides evidence that by purchasing tickets through

Southwest’s desktop website and mobile application, Bombin and Rood agreed to Southwest’s

COC and T&Cs, among other terms. See e.g., Defs. Br. In Opp’n to Pls. Mot. to Strike, ECF No.

100-18 at 2 (providing information found on the purchase page of Southwest’s iOS application);

id. at 5 (providing displayed information found on the purchase page of the Southwest.com

desktop); Defs. Notice Regarding Certification Opp’n., ECF 143-2 at 81 (displaying a purchase

page found though Southwest’s iOS application); id. at 69 (displaying a purchase page found

through Southwest’s southwest.com; ECF No. 143-2 at 26, Hursh Dep. Tr. 108:6-14 (providing

consumers must click the purchase button to complete their transaction in order to create a ticket

through Southwest’s desktop webpage or mobile applications). And the full text of the COC and

T&Cs were available to Bombin and Rood via hyperlink on the same purchase page. See e.g.,

Behrens Decl., 85-15 at 2-3 (providing what information was accessible to customers, including

Rood and Bombin, within Southwest’s desktop and mobile application purchasing platforms

during the proffered class period).

Because the Court finds the T&Cs at issue apply to the present issue of Plaintiffs’ adequacy

under Rule 23(a), the Court will now consider Plaintiffs’ averments that enforcement of the class

action waiver in the T&Cs is barred by relevant federal regulations.

Carriage Section 10(c), ECF No. 85-3 at 46 (“This Contract of Carriage represents the entire,

integrated agreement between the parties relating to transportation by Carrier . . . .”).

ii. Enforceability of the Class Action Waiver Under Section 253.10

Plaintiffs aver the class action waiver is barred by 14 C.F.R. § 253.10. ECF No. 145 at 25.

On the other hand, Southwest contends Section 253.10 does not bar the present class action waiver

because it “only prohibits forum-selection clauses.” ECF No. 153 at 10 (internal citation omitted).

The Court agrees Section 253.10 does not bar the present class action waiver.

“Federal law, not state law, governs many aspects of interstate air transportation.” Schoene

v. Spirit Airlines, Inc., No. 3:22-CV-1568-SI, 2023 WL 3495832, at *4 (D. Or. May 17, 2023).

“The Airline Deregulation Act of 1978 (Airline Deregulation Act) preempts state law regarding

pricing, routes, and services of carriers that provide interstate air transportation.” Id. (citing 49

U.S.C. § 41713(b)(1)). And “[t]he United States Department of Transportation (DOT) is charged

with promulgating comprehensive regulations interpreting the Airline Deregulation Act.” Id.

(citing 49 U.S.C. § 40113). Therefore, “[a]n airline's ‘[c]ontract of [c]arriage is a federally

regulated contract that governs the rights of the parties.’”13

Here, Plaintiffs first contend Section 253.10 bars enforcement of Southwest’s class action

waiver incorporated by reference into its contract of carriage. Section 253.10 provides:

No carrier may impose any contract of carriage provision containing a choice-of-forum

clause that attempts to preclude a passenger, or a person who purchases a ticket for air

transportation on behalf of a passenger, from bringing a claim against a carrier in any

13 Román v. Spirit Airlines, Inc., 482 F. Supp. 3d 1304, 1309–10 (S.D. Fla. 2020), aff'd, No. 20-

13699, 2021 WL 4317318 (11th Cir. Sept. 23, 2021) (quoting Pons v. Arubaanse Luchtvaart

Maatschappij, No. 17-cv-22008, 2018 WL 2188477, at *3 (S.D. Fla. Mar. 29, 2018)). Moreover,

regulations contained in the Code of Federal Regulations are legally binding, and are described in

United States Code as, “complete codifications of the documents of each agency of the

Government having general applicability and legal effect.” 44 U.S.C.S. § 1510 (LexisNexis, Lexis

Advance through Public Law 118-6, approved June 14, 2023).

court of competent jurisdiction, including a court within the jurisdiction of that

passenger's residence in the United States.

14 C.F.R. § 253.10 (emphasis added). Notes surrounding the adoption of Section 253.10 provide

the DOT’s goals behind the regulation. See Enhancing Airline Passenger Protections, 76 Fed. Reg.

23110-01 (April 25, 2011). DOT sought to “specifically permit consumers to file suit where they

live provided that the carrier does business within that jurisdiction.”14 Therefore, the DOT adopted

Section 253.10 among concerns airlines would limit where customers bring lawsuits. See generally

Enhancing Airline Passenger Protections, 76 Fed. Reg. 23110-01 (April 25, 2011).

Few federal courts have considered whether Section 253.10 bars provisions other than

forum selection clauses. For example, only a handful of federal courts have found Section 253.10

prohibits arbitration provisions as well as forum selection clauses. See e.g., Rudolph v. United

Airlines Holdings, Inc., 519 F. Supp. 3d 438, 447 (N.D. Ill. 2021) (preventing United Airlines from

enforcing an arbitration agreement in its contract of carriage under Section 253.10); Bugarin v. All

Nippon Airways Co., No. 20-CV-03341-BLF, 2021 WL 4974978, at *4 (N.D. Cal. Oct. 26, 2021)

(finding “[w]hile [Section] 253.10 prohibits a carrier from including in its COC a ‘choice-of-forum

clause’ that would preclude suit against the carrier ‘in any court of competent jurisdiction,’ an

14 Id. Moreover, the DOT adopted the rule as proposed, noting that the rule:

[P]rohibit[s] a U.S. carrier from including language in its contract of carriage

precluding a passenger from bringing a consumer-related claim involving a

domestic flight against the carrier in any court of competent jurisdiction. The

Department feels that if a carrier reaches out to do business in a particular

jurisdiction, i.e., reaches out to solicit business within that jurisdiction, and sells

tickets in a jurisdiction, then it is fair and reasonable to expect that the carrier can

defend itself against litigation brought by a consumer who resides in that

jurisdiction.

Id.

arbitration provision appears to fall within this prohibition, as it would preclude suit against the

carrier in any court.” (citing 14 C.F.R. § 253.10)).

Here, Southwest seeks to enforce a class action waiver located in a subsection of its T&Cs

titled “Forum Selection.” The Parties’ briefs—and the Court’s own research—has not identified

a federal court that has interpreted Section 253.10 to bar a class action waiver provision. Plaintiffs’

Reply in Support of their Motion to Certify the Class provides citations to case law interpreting

Section 253.10 to prohibit arbitration clauses, not class waivers. See ECF No. 145 at 25 (citing

Sholopa v. Turk Hava Yollari A.O., Inc., 595 F. Supp. 3d 257, 264 n. 2 (S.D.N.Y. 2022); Bugarin

v. All Nippon Airways Co., No. 20-CV-03341-BLF, 2021 WL 4974978, at *6 (N.D. Cal. Oct. 26,

2021)). Plaintiffs submit that the class waiver language should be barred because it is found within

the forum selection clause. Id. The Court is not persuaded. The Court looks to the substance of

the provision Southwest seeks to enforce. Southwest does not attempt to enforce any provision

relating to forum selection—instead seeking to enforce the class action waiver language. See ECF

No. 90 at 14 (“Plaintiffs are inadequate because they are subject to a class-action waiver.”). The

Court will not prevent Southwest from enforcing a class action waiver agreed to by Plaintiffs

merely because it is found in a subsection titled “forum selection.”

Furthermore, the only federal court to consider whether Section 253.10 bars a class action

waiver answered in the negative. See Román v. Spirit Airlines, Inc., 482 F. Supp. 3d 1304, 1315

(S.D. Fla. 2020) (finding a class action waiver enforceable under Section 253.10 and thus

dismissing plaintiffs’ class claims of breach of contract). In Román v. Spirit Airlines, Plaintiffs

sued Spirit Airlines for breach of Spirit’s Contract of Carriage. 482 F. Supp. 3d at 1307. In their

complaint, plaintiffs acknowledged a class action waiver provision located of Spirit’s COC. Id. at

1315. At the motion to dismiss stage, the federal district court considered whether federal

regulations barred the enforceability of a class action provision in Spirit’s COC. Id. at 1315-16.

The court found, “[A]lthough the [Federal Aviation Regulations] expressly prohibit ‘any contract

of carriage provision containing a choice-of-forum clause[,]’. . . they are silent regarding class

action waiver provisions in the airlines' contracts of carriage.” Id. at 1315 (internal citations

omitted). The court also found the class action waiver enforceable due to “[p]laintiff’s awareness

of the class action waiver provision and the incorporation of the COC into their ticket purchases”

Id. (internal footnote omitted). Accordingly, the court dismissed plaintiff’s class action claims.

Id. (internal footnote omitted).

The Court finds the district court’s narrow interpretation of Section 253.10 in Román

persuasive. See generally 482 F. Supp. 3d 1304. Section 253.10 explicitly applies to—and

prohibits—forum-selection clauses and is silent concerning class waiver provisions. 14 C.F.R. §

253.10. Moreover, notes concerning Section 253.10 provide the DOT’s goal to prevent against

inconvenient forums and “specifically permit consumers to file suit where they live provided that

the carrier does business within that jurisdiction.” Enhancing Airline Passenger Protections, 76

Fed. Reg. 23110-01. Thus the purpose and language of Section 253.10 concern the location of

consumers’ lawsuits, not the substance or manner of the claims brought. Therefore, the Court

declines to interpret Section 253.10 as prohibiting Southwest’s class action waiver in its T&Cs.

iii. Notice of Southwest’s Online T&Cs Under Sections 253.4 & 253.5

Lastly, Plaintiffs aver the terms of Southwest’s online T&Cs are not sufficiently

conspicuous under federal regulations. ECF No. 145 at 24 (citing 14 C.F.R. §§ 253.4, 253.5)

(additional internal citations omitted). Here, Southwest’s desktop website and mobile application

provided Plaintiffs Bombin and Rood with hyperlinks to Southwest’s T&Cs upon purchasing

tickets. See e.g., Behrens Decl., 85-15 at 2-3 (providing what information was accessible to

customers, including Rood and Bombin, within Southwest’s desktop and mobile application

purchasing platforms during the proffered class period); ECF No. 143-2 at 7-9 (testifying to the

information provided by Southwest to customers, including Rood and Bombin, throughout the

“purchase flow” process of purchasing tickets in February 2020); ECF 143-2 at 69 (screenshot

of a purchase page on Southwest’s desktop during the relevant time period); ECF No. 143-2 at 81

(screenshot of purchase page on Southwest’s iOS application during the relevant time period).

Southwest contends the terms included in the T&Cs are incorporated by reference into its COC.

See ECF No. 153 at 9 (citing COC Section 1(a)(1), ECF No. 85-3) (“Transportation . . . is subject

to the following terms and conditions, in addition to any terms and conditions . . . specified in the

Carrier’s website.”). Southwest also submits Plaintiffs Bombin and Rood assented to the T&Cs

upon purchasing their ticket through Southwest’s desktop and/or mobile application.15

Plaintiffs submit Southwest did not provide customers with sufficient notice of these

additional contract terms and thus the terms—including the class action waiver—cannot be

enforceable under relevant federal regulations. On the other hand, Southwest submits “the notice

of assent to the Terms & Conditions on the online purchase page was reasonable, conspicuous,

and sufficient.” ECF No. 153 at 10.

“DOT regulations provide that an airline carrier may incorporate by reference in a ticket

‘any term of the contract for providing interstate air transportation,’ if proper notice is provided.”

Covino v. Spirit Airlines, Inc., 406 F. Supp. 3d 147, 152 (D. Mass. 2019) (citing 14 C.F.R. §§

15 For further discussion of Bombin and Rood’s interaction with and assent to the T&Cs at issue,

see supra pgs. 2-6.

253.4(a), 253.5(a)). Section 253.416 and Section 253.517 govern whether passengers have

sufficient notice of contract of carriage terms incorporated by reference. See 14 C.F.R. §§ 253.4,

253.5. “The [notice] regulations prescribe the form of the ‘conspicuous notice’ for incorporated

terms: the notice must state that any terms incorporated by reference are part of the contract, that

passengers may inspect the full text of each term at the carrier's airport or city ticket office, that

passengers may receive the full text of terms by mail or other delivery service, and that passengers

may obtain more information about the terms from any location where the carrier's tickets are

sold.” Schoene, No. 3:22-CV-1568-SI, 2023 WL 3495832, at *5 (D. Or. May 17, 2023) (citing 14

C.F.R. §§ 253.4(b)-(c), 253.5)). Thus, “[i]n sum, airlines must give proper notice that incorporated

terms exist and instruct passengers where and how they can view those terms.” Id. (citing 14

C.F.R. §§ 253.4(b)-(c), 253.5).

To determine whether an airline has provided sufficient notice under Sections 253.4 and

253.5, federal courts have considered whether the incorporation by reference of important legal

16 Section 253.4 provides:

(b) Each air carrier shall make the full text of each term that it incorporates by

reference in a contract of carriage available for public inspection at each of its

airport and city ticket offices.

passengers, upon their request, a copy of the full text of its terms incorporated by

reference in the contract. Each carrier shall keep available at all times, free of

charge, at all locations where its tickets are sold within the United States

information sufficient to enable passengers to order the full text of such terms.

17 Section 245.5 provides:

[E]ach air carrier shall include on or with a ticket, or other written instrument given

to a passenger, that embodies the contract of carriage and incorporates terms by

reference in that contract, a conspicuous notice that:

(a) Any terms incorporated by reference are part of the contract . . . .

rights was “reasonably communicate[d]” to the passenger. Covino, 406 F. Supp. 3d at 152 (citing

Shankles v. Costa Armatori, S.P.A., 722 F.2d 861, 864 (1st Cir. 1983)). And “[t]he reasonable

communicativeness test is a two-pronged analysis that requires the Court to consider 1) the facial

clarity of the contract and whether it ‘make[s] the relevant provisions sufficiently obvious and

understandable’ and 2) whether the ‘circumstances of the passenger's possession of and familiarity

with the ticket,’ indicate the passenger had the ability to become “meaningfully informed of the

contractual terms at stake.” Id. (quoting Lousararian v. Royal Caribbean Corp., 951 F.2d 7, 8-9

(1st Cir. 1991)).

With respect to the first prong, Southwest’s COC makes clear in its introduction that

passengers will be subject to additional terms and conditions, such as those found on a ticket and/or

on Southwest’s website. See ECF No. 85-3 at 5 (providing, in the “Application of Conditions of

Contract” Section of the “Introduction,” “Transportation by Southwest Airlines Co. . . . is subject

to the following terms and conditions, in addition to any terms and conditions printed on any

Ticket, or specified on the Carrier’s website.”). Then, throughout the purchasing process,

Southwest provides a ticket purchase is subject to various terms and conditions, including its “fare

rules, Terms & Conditions, Privacy Policy, and Contract of Carriage.” ECF 143-2 at 69. The fare

rules, Terms & Conditions, Privacy Policy, and Contract of Carriage are clearly shown to

prospective purchasers in blue font, which indicates hyperlinks to pages containing the full terms

found in each. ECF No. 143-2, Hursh Dep. Tr., 79:3-15; 95:2-10. Thus the COC itself and the

information concerning additional terms and conditions found on Southwest’s purchase pages are

“sufficiently obvious and understandable” and clearly community that various terms govern

passengers’ ticket purchases.

With respect to the second prong, Southwest’s desktop and mobile application booking

pages explain in plain language that by purchasing Southwest’s ticket, the passenger is agreeing

to Southwest’s Fare Rules, Terms & Conditions, Privacy Policy, and Contract of Carriage. ECF

143-2 at 69. The positioning of the various terms are near the purchase button and within plain

view. See id. Moreover, the blue color of the terms clearly communicates their hyperlink nature—

through which passengers can click to view the complete text of the terms to which they are

agreeing. See ECF No.85-15 (providing the terms are presented in hyperlinks that link to

webpages containing); and see ECF No. 85-16 (providing the T&Cs accessible through hyperlink

on the desktop purchase page), ECF No. 85-17(providing the relevant T&Cs accessible through

mobile application).

Southwest’s presentation of clear hyperlinked terms on the same page as the “Purchase”

button and requirement of assent before purchase is similar in substance to clickwrap agreements

routinely enforced in the Eastern District of Pennsylvania, as well as federal courts in Texas. See

e.g., Dobbs v. Health IQ Ins. Servs., No. 21-5276, 2022 U.S. Dist. LEXIS 133182 *10 (E.D. Pa.

July 27, 2022) (finding, in part, the plaintiff assented to the Terms of Use through the clickwrap

agreement, and there was sufficient constructive notice because the terms, “included a hyperlink,

and the letters were purposely and conspicuously set off from the remaining text in a blue,

underlined font”); Putt v. Trip Advisors, 2021 U.S. Dist. LEXIS 12997 at *15 (E.D. Pa. Jan. 25,

2021) (finding clickwrap agreements are "routinely enforced by the courts") (quoting

HealthPlanCRM, LLC v. AvMed, Inc., 458 F. Supp. 3d 308, 334) (citing Meyer v. Uber Techs.,

Inc., 868 F.3d 66, 75 (2d Cir. 2017) ("Courts routinely uphold clickwrap agreements for the

principal reason that the user has affirmatively assented to the terms of agreement by clicking 'I

agree.'"); RealPage, Inc. v. EPS, Inc., 560 F. Supp. 2d 539, 545 (E.D. Tex. 2007) (Texas law

recognizes the validity of clickwrap agreements.”)).

Moreover, Southwest provides evidence it unambiguously stated on its desktop and mobile

application purchase pages that by purchasing a ticket, Bombin and Rood agreed to Southwest’s