Rudolph v. United Airlines Holdings, Inc. et al

Filing 209

MEMORANDUM Opinion and Order: The Court denies Plaintiffs' motion for class certification (R. 171 ) for the reasons stated in the attached Memorandum Opinion and Order. Because Dr. Malone's testimony as offered by Plaintiffs is relevant to class certification and not to Plaintiffs' individual claims, the Court denies United's motion to exclude Malone's expert opinions (R. 182 ) as moot. The parties shall file a joint status report by April 17, 2024 setting forth how they intend to proceed, including whether they want the Court to consider the pending motion for summary judgment. Signed by the Honorable Thomas M. Durkin on 3/27/2024. Mailed notice. (ecw, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
MARK HANSEN and JASON BUFFER,
Plaintiffs,

No. 20 CV 2142

v.

Judge Thomas M. Durkin

UNITED AIRLINES, INC.,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiffs Mark Hansen and Jason Buffer filed this putative nationwide class
action alleging breach of contract by defendant United Airlines, Inc. (“United”).
Plaintiffs now move for class certification. R. 171. For the reasons stated below, that
motion is denied.
Background
This case arises out of United’s many flight cancellations during the COVID19 pandemic. Plaintiffs allege that United declined to refund their travel fares and
contend that this breached United’s Contract of Carriage (“COC”).
United’s Contract of Carriage: The COC identifies two categories of
cancellations: “Voluntary” cancellations initiated by consumers and “Involuntary”
cancellations initiated by United. R. 41-2 at 82–87. For “Voluntary” cancellations,
United provides flight credit for non-refundable tickets and refunds for refundable
tickets. Id. at 85–87. “Involuntary” cancellations fall into three categories: 1) Force
Majeure Events; 2) Schedule Changes; or 3) Irregular Operations. Id. at 71–74. If
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United cancels a flight due to a Force Majeure Event, the impacted passengers are
entitled to flight credit but not a refund. Id. at 73–74. If United cancels due to
Schedule Changes or Irregular Operations, the impacted passengers are entitled to a
refund “upon request” if not rebooked on another flight within the contractually
required timeframe. Id. If passengers book tickets with United for travel on one of
United’s partner airlines, United is responsible for all obligations to those passengers
as established in the COC. Id. at 38.
The COC defines a “Force Majeure Event” as “[a]ny condition beyond [United’s]
control” including, in relevant part, “[a]ny governmental regulation, demand or
requirement.” Id. at 72. The COC defines a “Schedule Change” as an “advance change
in [United’s] schedule (including a change in operating carrier or itinerary) that is
not a unique event such as Irregular Operations or Force Majeure Event.” Id. at 71.
Finally, the COC defines “Irregular Operations”, in relevant part, as “any other delay
or interruption in the scheduled operation of a carrier’s flight.” Id. at 72–73.
Mark Hansen: Hansen is a United States citizen who resides in the State of
Washington. R. 189 ¶ 1 On March 3, 2020, Hansen purchased four round-trip tickets
with United through third-party travel website Expedia. Id. ¶ 2. Hansen planned to
travel from Vancouver, Canada to Costa Rica with transfers in Houston on the way
and in Houston and Denver on the return, departing on March 28, 2020 and returning
on April 5, 2020. Id. ¶¶ 2–3. The purpose of Hansen’s trip was a spring break vacation
with his family and he planned to drive across the United States-Canada border to
catch the flight. Id. ¶¶ 4–5.

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On March 16, 2020 and in response to the COVID-19 pandemic, the Costa
Rican government announced that “only Costa Rican citizens, residents, and foreign
diplomats will be able to enter Costa Rica” from March 18, 2020 through April 12,
2020.

R. 45 at 14, n. 6. On March 20, 2020 and in response to the COVID-19

pandemic, the Canadian government banned entry from the United States by foreign
nationals for “optional or discretionary purpose[s]” including “tourism, recreation and
entertainment” from March 21, 2020 through April 21, 2020. R. 176-5.
Following March 16, United cancelled the flights between Houston and Costa
Rica. R. 189 ¶ 15. On March 25, 2020, United cancelled the flight from Denver to
Vancouver and cancelled Hansen’s tickets on the flight from Houston to Denver. Id.
¶ 14. United did not, at that time, cancel the flight from Houston to Denver itself. Id.
¶ 15. On March 26, 2020, United informed Hansen that the entire itinerary was
cancelled and issued a flight credit. Id. ¶ 15. On March 31, United cancelled the flight
from Houston to Denver. R. 176-10 ¶ 5.
Jason Buffer: Buffer is a United States citizen who resided in the State of
New York during the relevant time for this case. R. 41 ¶ 28. On August 22, 2019,
Buffer purchased two round-trip tickets on United’s website. R. 189 ¶ 18. Buffer was
set to travel from New York to Athens, Greece with transfers in Zurich, Switzerland
on the way and in Frankfurt, Germany on the return, departing on March 19, 2020
and returning on March 27, 2020. Id. The March 19 flights were operated by Swiss
International Airlines and the March 27 flights were operated by Lufthansa, both
partner airlines of United. Id.

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On March 11, the United States government announced a ban on travel
effective March 13 to the United States by persons, other than American citizens or
legal permanent residents, who had been in the Schengen region of Europe (which
includes Germany, Greece, and Switzerland). R. 176-14. On March 12, 2020, Swiss
International Airlines notified United that it had cancelled Buffer’s March 19 flights.
R. 189 ¶ 25. On March 14, 2020, United informed Buffer that his itinerary had been
cancelled and later issued a flight credit. Id. ¶¶ 26, 34.
Also of note, on March 16, 2020, the European Commission recommended a
thirty-day “travel restriction on non-essential travel from third countries into the
EU+ area with immediate effect at all part of the Schengen external borders.” R. 17615. On March 17, 2020, the European Union (which includes Germany and Greece)
accepted that recommendation and imposed “coordinated, temporary restrictions on
non-essential travel to the EU for a period of 30 days.” R. 176-16. On March 18, 2020,
the Greek government announced that “from March 18 through April 18, non-EU
citizens may not enter Greece.” R. 176-17. Finally, on March 19, 2020, the Swiss
government announced ban on all non-essential travel but specified that Swiss
citizens or persons “traveling directly through Switzerland with the intent of going to
a different country” may cross the border. R. 176-18.
United’s Motion to Dismiss: On February 12, 2021, the Court granted in part
and denied in part United’s motion to dismiss the complaint. R. 65. The Court stated
that even if COVID-19 and the related travel restrictions qualify as Force Majeure
Events, the “events also must have directly and proximately caused the

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cancellations.” Id. at 16 (citing Glen Hollow P’ship v. Wal-Mart Stores, Inc., 139 F.3d
901, 1998 WL 84144, at *3 (7th Cir. 1998)). The Court denied United’s motion to
dismiss with respect to Buffer’s claims. Id. at 17 (“Ultimately, whether the
cancellations [of Buffer’s flights] occurred because of economic considerations, or were
due to restrictions and warnings related to the pandemic, can only be answered with
discovery.”). Regarding Hansen claims, the Court took judicial notice of the Costa
Rican border closures.1 Id. Based on this judicial notice, the Court explained:
It is simply not plausible that [the Costa Rican border closures] were not
a proximate cause of at least the cancellation of Mr. Hansen’s travel in
and out of Costa Rica in March and April 2020. Indeed, Costa Rica was
Mr. Hansen’s destination, not a layover, and no reasonable air carrier
would agree to transport an American citizen and resident under those
circumstances, where he would not be permitted entry on arrival. Such
a government-ordered closure falls comfortably within the definition of
a Force Majeure Event.
Id. at 17 (citing R. 41-2 at 72 (COC defining “Force Majeure Event” to include “Any
governmental regulation, demand or requirement.”)). The Court thus found that
Hansen failed to state a plausible breach of contract claim as to the flights between
Costa Rica and Houston but that Hansen’s claim on the remainder of his itinerary
may proceed to discovery for the same reasons as Buffer’s claim. Id. at 18.

Courts may take “judicial notice of information on official government websites that
is not subject to reasonable dispute.” Fryman v. Atlas Fin. Holdings, Inc., 2022 WL
1136577, at *7 (N.D. Ill. Apr. 18, 2022) (citing Denius v. Dunlap, 330 F.3d 919, 926
(7th Cir. 2003). When briefing its motion to dismiss, United provided sufficient
information for the Court to take judicial notice of the Costa Rican border closures.
See R. 45 at 14, n. 6. When briefing its motion for summary judgment and as
described above, United provided sufficient information for the Court to take judicial
notice of travel restrictions issued by Canada, the United States, the European
Union, Greece, and Switzerland.
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Proposed Class Definition: Plaintiffs move to certify two classes, a thirdparty booking class with Hansen as the named representative and a direct booking
class with Buffer as the named representative. The classes include “[a]ll persons in
the United States who purchased tickets before June 18, 2020” either from travel
agencies or directly from United “for travel on [United] flights scheduled to operate
to, from, or within the United States from March 2020 through December 2020 and
[who] were not issued a refund upon request for monies paid in connection with an
itinerary cancelled by United.” R. 171 at 1. Excluded from the proposed classes are
1) individuals who initiated changes to their travel; 2) individuals who purchased
their tickets with miles or electronic certificates; 3) portions of travel itineraries to or
from countries that had closed their borders to U.S. residents; 4) United and its
employees; and 5) the Court and its staff. Id. at 2.
Pending Motions: There are three pending motions before the Court. First,
Plaintiffs move for class certification. R. 171. Second, United moves for summary
judgment as to Plaintiffs’ individual claims. R. 174. Third, United moves to exclude
the opinions of Plaintiffs’ expert Dr. Sean Malone. R. 182. Malone is a data analyst
who reviewed the ticket data and refund data provided by United during discovery.
R. 183-1 ¶¶ 6, 27. Based on his review, Malone estimates the size of the class at
approximately 219, 286 people. Id. ¶ 27. In ruling on Plaintiffs’ motion for class
certification, the Court considers facts cited and arguments raised by the parties in
these other pending motions but only to the extent those facts and arguments bear
on class certification.

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Legal Standard
To be certified, a putative class must satisfy the four requirements of Federal
Rule of Civil Procedure 23(a): numerosity, commonality, typicality, and adequacy of
representation. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th
Cir. 2012). The class must also satisfy one of the three alternatives set forth in Rule
23(b). Id. Here, Plaintiffs move to certify under Rule 23(b)(2) and 23(b)(3). Rule
23(b)(2) requires that final injunctive relief be appropriate for the class a whole. WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011). Rule 23(b)(3) requires that:
1) questions of law or fact common to class members predominate over questions
affecting only individual members; and 2) a class action is superior to other available
methods to adjudicate the controversy. Messner, 669 F.3d at 811.
Plaintiffs bear the burden to prove each Rule 23 requirement “by a
preponderance of the evidence.” Id. A Rule 23 analysis frequently entails “overlap
with the merits of the plaintiff’s underlying claim” because class determination
“generally involves considerations that are enmeshed in the factual and legal issues
comprising the plaintiff’s cause of action.” Comcast Corp. v. Behrend, 569 U.S. 27, 33–
34 (2013) (internal citations omitted). “Merits questions may be considered to the
extent—but only to the extent—that they are relevant to determining whether the
Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret.
Plans & Trust Funds, 568 U.S. 455, 466 (2013). District courts have “broad discretion”
to determine whether a proposed class satisfies Rule 23. Howland v. First Am. Title
Ins. Co., 672 F.3d 525, 528 (7th Cir. 2012).

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Analysis
I.

Rule 23(b)(2)
Plaintiffs seek “a single injunction that stops United from withholding refunds

requested in connection with flights it cancelled in breach of [the COC].” R. 172 at 30.
But Rule 23(b)(2) does “not authorize class certification when each class member
would be entitled to an individualized award of monetary damages.” Wal-Mart, 564
U.S. at 360–61. Plaintiffs contend that Johnson supports their position, see R. 199 at
23, but Johnson clearly explains that “individualized awards of monetary damages”
means “awards based on evidence specific to particular class members.” Johnson v.
Meriter Health Servs. Emp. Ret. Plan, 702 F.3d 364, 370 (7th Cir. 2012). Here, each
class member seeks an individualized award of monetary damages accounting for
their total ticket price and adjusted to exclude portions of travel itineraries to or from
countries that closed their borders to U.S. residents. Such a calculation is necessarily
based on evidence specific to each class member. Class certification is denied under
Rule 23(b)(2).
II.

Rule 23(b)(3)
In this case, certification under Rule 23(b)(3) turns on commonality and

predominance. The Court addresses these issues together because questions of
“commonality and predominance overlap in ways that make them difficult to analyze
separately.” Bell v. PNC Bank, Nat. Ass’n, 800 F.3d 360, 374 (7th Cir. 2015).
Commonality is met when there are “questions of law or fact common to the class.”
Fed. R. Civ. P. 23(a)(2). But “superficial common questions” are insufficient to satisfy
commonality. Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 497 (7th Cir. 2012). To
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satisfy commonality, the “claims must depend upon a common contention that is
capable of class-wide resolution.” Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of
City of Chi., 797 F.3d 426, 434 (7th Cir. 2015). Determining the truth or falsity of the
common contention must “resolve an issue that is central to the validity of each one
of the claims in one stroke.” Wal-Mart, 564 U.S. 338 at 350. Commonality is not met
by simply raising common questions “but, rather the capacity of a class-wide
proceeding to generate common answers apt to drive the resolution of the litigation.”
Id. (internal citations omitted). Where resolution of the claims requires “an
inherently particularized inquiry into the circumstances” of each class member,
commonality is not met. Jamie S., 668 F.3d at 498.
Predominance is a more demanding standard than commonality. Amchem
Prods., Inc. v. Windsor, 521 U.S. 591, 624 (1997). It tests “whether proposed classes
are sufficiently cohesive to warrant adjudication by representation.” Id. at 623. A
“common question predominates over individual claims if a failure of proof on the
common question would end the case and the whole class will prevail or fail in
unison.” Bell, 800 F.3d at 378 (internal citations omitted). “Predominance is not
satisfied where liability determinations are individual and fact-intensive.” Boundas
v. Abercrombie & Fitch Stores, Inc., 280 F.R.D. 408, 415 (N.D. Ill. 2012) (citing
Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 891 (7th Cir. 2011)).
Considering whether “questions of law or fact common to class members
predominate begins, of course, with the elements of the underlying cause of action.”
Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 810 (2011) (internal

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citations omitted). Under Illinois law, the elements for breach of contract are: 1) the
existence of a valid and enforceable contract; 2) substantial performance by the
plaintiff; 3) breach of contract by the defendant; and 4) resultant damages. TAS
Distrib. Co. v. Cummins Engine Co., 491 F.3d 625, 631 (7th Cir. 2007). There is no
dispute that the COC is a valid and enforceable contract, that Plaintiffs substantially
performed by paying for their tickets, and that Plaintiffs were damaged to the extent
United breached. The element in dispute is breach and thus, the common question of
law to which Plaintiffs must demonstrate a common answer is whether United
breached the COC by issuing flight credits instead of refunds. See Erica P. John
Fund, 563 U.S. at 810 (explaining that the predominance analysis may turn on a
single, key element). Critically, to establish breach of the COC, Plaintiffs must
demonstrate that Force Majeure Events were not the proximate cause of the flight
cancellations. This analysis requires a particularized inquiry into the circumstances
of each class member’s itinerary, and facts related to Hansen and Buffer’s itineraries
provide examples of why a particularized inquiry is necessary.
Regarding Hansen’s flight from and to Canada, respectively set for March 28
and April 5, the Canadian government banned entry from the United States by
foreign nationals effective March 21 through April 21.2 As the Court articulated in its
motion to dismiss opinion, the Costa Rican border closures proximately caused

Though the class definition excludes portions of travel itineraries to or from
countries that had closed their borders to U.S. residents, Plaintiffs contend that these
flights were not excluded from the class because Hansen would have been allowed to
return to Canada. See R. 199 at 12 n. 6; see also R. 188 at 20–21.
2

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United to cancel Hansen’s travel to Costa Rica because “no reasonable air carrier
would agree to transport an American citizen . . . where he would not be permitted
entry on arrival.” R. 65 at 17. At the surface level, the same logic appears to apply for
Hansen’s return flight to Canada. Plaintiffs argue, however, that Hansen would have
been permitted to enter Canada because Hansen was passing through Canada to
return to the United States, not vacationing there, and thus Hansen’s trip was
permitted as “essential travel.” R. 188 at 20–21. To support this assertion, Plaintiffs
cite a travel restriction from the United States Department of Homeland Security
effective March 20 through April 20, which allowed “essential travel” across the
United States-Canada border and defined “essential travel” to include “U.S. citizens
. . . returning to the United States.” R. 176-7. Plaintiffs’ argument demonstrates, by
way of example, that a particularized analysis of the language and exceptions in the
travel restrictions for both the origin and destination countries may be necessary to
determine whether a Force Majeure Event proximately caused the cancellation.
Regarding Hansen’s connection flight from Houston to Denver set for April 5,
it would have been nonsensical for United to maintain Hansen’s tickets on a
connection flight from Houston to Denver when all other flights in the itinerary had
already been cancelled. Here, a particularized inquiry would be necessary to consider
the itinerary as a whole and evaluate 1) whether the Costa Rican and Canadian
border closures proximately caused United to cancel the flights to Costa Rica and
Canada and 2) whether, in turn, the border closures proximately caused United to
cancel Hansen’s tickets on the connection flight. Also, for the connection flight, United

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cancelled Hansen’s tickets on March 25, cancelled Hansen’s itinerary on March 26,
and cancelled the flight itself on March 31. Here, a particularized inquiry would be
necessary to consider the timeline of the cancellations to determine whether the
March 25 ticket cancellation was proximately caused by border closures even if the
March 31 flight cancellation was not.
Regarding Buffer’s March 19 itinerary from New York to Zurich to Athens,
Swiss International Airlines cancelled these flights on March 12, the day after the
United States issued a travel ban to the Schengen region of Europe. Here, a
particularized inquiry would be necessary to determine whether Swiss International
Airlines cancelled these flights as a proximate cause of the United States travel ban.
Additionally, United cancelled the itinerary on March 14, before the European Union,
Greece, and Switzerland announced border closures, respectively, on March 17, 18
and 19.3 Here, a particularized inquiry would be necessary to consider the timeline of
the cancellations as compared with the border closures. Whether United cancelled
flights before or after the border closures impacts the proximate cause analysis.
Plaintiffs contend that they can use “common evidence to show that United
cancelled flights to save on operating costs, not because of Force Majeure Events.”
R. 199 at 17; see also R. 172 at 11–13. Plaintiffs identify, for example, a draft press
release where United states: “We continue to adjust our schedule to reduce costs and

Again, though the class excludes portions of travel itineraries to or from countries
that had closed their borders to U.S. residents, Plaintiffs contend that these flights
were not excluded from the class because United cancelled the flights prior to the
border closures. See R. 199 at 12–13; see also R. 188 at 22–23.
3

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address the significant decrease in demand resulting from the COVID-19 crisis.”
R. 173-6. And an internal United email stating that “[t]ravel demand is essentially
zero” and that in response, United “slashed [its] schedule by 90%.” R. 173-7. Indeed,
it may be true that United cancelled a large percentage of flights to save on operating
costs. But as shown above regarding Hansen and Buffer’s itineraries, it is impossible
to generalize across all flights. A particularized review of the circumstances for each
flight is required to determine whether a Force Majeure Event proximately caused
the cancellations.
Plaintiffs allege five common questions as to both classes: 1) whether United
cancelled a flight on which the class member was a ticketed passenger for reasons
other than a Force Majeure Event; 2) whether the COC obligates United to provide
class members with refunds for flights that United cancelled; 3) whether United had
in place a policy of denying refunds to class members for flights United cancelled;
4) whether United breached the COC; and 5) whether class members are entitled to
damages. R. 172 at 21. Questions 1, 2, 4, and 5 all require an answer to whether a
Force Majeure Event proximately caused the cancellations. If a Force Majeure Event
proximately caused the cancellations, the COC would not obligate United to provide
a refund, United would not be in breach, and the class members would not be entitled
to damages. These questions thus fail to satisfy commonality because they require a
particularized inquiry into circumstances of each class member. Question 3 is
superficial common question. See Jamie S., 668 F.3d at 497. As stated above, a
question only satisfies commonality when “determination of its truth or falsity will

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resolve an issue that is central to the validity of each one of the claims in one
stroke.” Wal-Mart, 564 U.S. 338 at 350. Commonality is not met by showing that all
class members suffered a violation of the same policy. McFields v. Dart, 982 F.3d 511,
515–17 (7th Cir. 2020) (The “mere existence of a policy” left the court “far from
resolving the litigation on a classwide basis.”). Here, the mere existence of a United
policy has no bearing on the resolution of the class member’s claims. The claims do
not depend on whether United had a policy of denying refunds but on whether United
was obligated to provide refunds. Question 3 thus fails to satisfy commonality.
This case is analogous to Pumputiena v. Deutsche Lufthansa, AG, 2017 WL
66823 (N.D. Ill. Jan. 6, 2017). In Pumputiena, the plaintiff sought to certify a class of
passengers on United flights that had been delayed under certain conditions and
United’s liability depended on whether United had complied with the Montreal
Convention by taking “all measures that could reasonably be required to avoid the
damage.” Id. at *10. Though the provisions and requirements of the Montreal
Convention applied to all class members, the court still denied class certification
finding it “impossible to imagine that the reasonableness of an airline’s efforts could
be the same for the hundreds or thousands of delayed flights that occur in any given
year.” Id. Similarly, in this case, though the provisions and requirements of the COC
apply to all class members, it is impossible to imagine that the hundreds or thousands
of cancelled flights during the COVID-19 pandemic were all cancelled for the same
reason.

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In conclusion, determining United’s liability to the class members is not subject
to a common answer and requires individualized factual inquiries as to each class
member’s itinerary, which could include over 200,000 such inquiries. Plaintiffs failed
to establish commonality and predominance. See Jamie S., 668 F.3d at 498
(Commonality is not met where resolution of the claims requires “an inherently
particularized inquiry into the circumstances” of each class member.); Boundas, 280
F.R.D. at 415 (“Predominance is not satisfied where liability determinations are
individual and fact-intensive.”). Class certification is denied under Rule 23(b)(3).
Conclusion
The Court denies Plaintiffs’ motion for class certification (R. 171) for the
reasons stated above. Because Dr. Malone’s testimony as offered by Plaintiffs is
relevant to class certification and not to Plaintiffs’ individual claims, the Court denies
United’s motion to exclude Malone’s expert opinions (R. 182) as moot. The parties
shall file a joint status report by April 17, 2024 setting forth how they intend to
proceed, including whether they want the Court to consider the pending motion for
summary judgment.

ENTERED:

______________________________
Honorable Thomas M. Durkin
United States District Judge
Dated: March 27, 2024

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