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BEFORE THE UNITED STATES JUDICIAL PANEL

ON MULTIDISTRICT LITIGATION

IN RE: COVID-19 Airfare Refund Litigation

MDL Docket No. ________

Rule 6.2, Movants Deanna Herr, Winifredo Herrera, Macaria Herrera, Jamie Sweet, Stephanie

Faust, Anthony Greaves, Minely Diaz, Milica Milosevic, Carlos W. Martinez-Sanchez, Kathy

Belanger, Robert Chandler, Martha Dumitrescu, Kevin Polk, and Paula Gimello respectfully move

the Panel for an Order transferring the currently-filed cases listed in the attached Schedule of

Actions (collectively, “the Actions”), as well as any cases subsequently filed involving similar

facts or claims (“tag-along cases”) to the United States District Court for the Northern District of

Illinois or, alternatively, to any other court with the capacity to facilitate their expeditious

litigation.

loan (which in many cases will never be repaid before the voucher expires) from their customers

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in addition to the billions of taxpayer dollars provided in the form of federal bailouts. As a result,

passengers nationwide have been deprived of refunds to which they are entitled for flights that

they did not take, in the midst of the greatest economic crisis in living memory.

to remind airlines including the defendants “that passengers should be refunded promptly when

their scheduled flights are cancelled or significantly delayed.”

COVID-19 public health emergency has had an unprecedented impact on air travel, the airlines’

obligation to refund passengers for cancelled or significantly delayed flights remains unchanged.”

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49 U.S.C. 41712 prohibits unfair or deceptive practices in the air carrier industry and “since at

least the time of an Industry Letter of July 15, 1996…the [DOT]’s Aviation Enforcement Office

has advised carriers that refusing to refund a non-refundable fare when a flight is canceled and the

passenger wishes to cancel is a violation” of that section. Enhancing Airline Passenger Protections,

Actions include cases against foreign (12) and domestic (9) carriers of all sizes, each of which is

alleged to have breached its obligation to provide its customers with refunds. Multiple, overlapping

class actions have been filed against 11 of the airlines, with as many as 4 such cases brought against

a single airline (both Spirit and Frontier). Numerous additional cases will undoubtedly continue to

be filed in the coming weeks against these and other carriers.

contracts of carriage, which in general contain substantially similar provisions mandating refunds

in the event of flight cancellation. Instead of providing refunds to passengers with tickets on

cancelled flights, the defendants are each alleged to have provided passengers with expiring

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vouchers for future use at a time when many people are uncertain if and when they will be

comfortable boarding an aircraft in the future.

court supervision of pretrial proceedings of multidistrict litigation to assure the ‘just and efficient’

conduct of such actions.” In re New York City Mun. Sec. Litig., 572 F.2d 49, 51 (2d Cir. 1978)

(citation and internal quotations omitted). Section 1407 authorizes transfer where (1) one or more

cases raising common questions of fact are pending in different districts, (2) transfer would serve

(J.P.M.L. 1973). Beyond airlines, the Panel has ordered coordination or consolidation of litigation

stemming from industry-wide business practices on numerous occasions. See, e.g., In re Checking

Account Overdraft Litig., 626 F. Supp. 2d 1333, 1335 (J.P.M.L. 2009). Transfer of the Actions to

a single court will allow for orderly and consistent determinations regarding the refund rights of

airline passengers nationwide, providing judicial economy and convenience for all parties.

I. The Panel Should Order Centralization.

contemporaneous pretrial rulings by coordinate district and appellate courts in multidistrict related

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should be centralized pursuant to 28 U.S.C. § 1407 if the movant establishes three elements: that

“common questions of fact” exist, that centralization will “be for the convenience of [the] parties

and witnesses,” and that centralization “will promote the just and efficient conduct of [the]

actions.” See 28 U.S.C. § 1407(a). Here, the salient factual core is the same in each case; the

pandemic resulted in the cancellation of many flights and the airlines failed to refund passengers

for those flights. Because of their overwhelming similarity and the overlapping classes,

centralization will serve the convenience of the parties and witnesses and will promote the just and

efficient conduct of the actions. Having a single judge preside over and make pretrial rulings for

2013). Section 1407 transfer does not require a complete identity or even a majority of common

factual and legal issues. See, e.g., In re Satyam Computer Servs., Ltd., Sec. Litig., 712 F. Supp. 2d

1381, 1382 (J.P.M.L. 2010). Centralization should be granted because the Actions assert nearly

identical claims involving common factual allegations and legal theories.

action because other claims are likely preempted by the Airline Deregulation Act of 1978. See

Northwest., Inc. v. Ginsberg, 572 U.S. 273, 289, 134 S. Ct. 1422, 1433 (2014). “[T]he elements

of breach of contract do not differ much from state to state.” Rapp v. Green Tree Servicing, Ltd.

Liab. Co., 302 F.R.D. 505, 509 (D. Minn. 2014). To the extent that there are any significant

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to refunds, those differences are likely irrelevant. This is because DOT and other federal guidance

and regulation mandates the issuance of such refunds such that any contractual provision that

would purport to require a contrary outcome is likely void as contrary to law and/or public policy.

centralization. For example, in In re Yosemite National Park Hantavirus Litigation, 24 F. Supp.

3d 1370, 1370 (J.P.M.L. 2014), the Panel found that “not only will these actions involve common

questions with regard to the alleged negligence of the defendants, but it is anticipated that the

United States will assert jurisdictional defenses under the Federal Tort Claims Act (FTCA).” It

issues as a prerequisite to transfer.” In re Zimmer Nexgen Knee Implant Prods. Liab. Litig., 802 F.

Supp. 2d 1374, 1376-77 (J.P.M.L. 2011); accord, e.g., In re Xarelto (Rivaroxaban) Prods. Liab.

number of individualized factual issues, the existence of such issues does not negate the common

ones.”); In re Katz Interactive Call Processing Patent Litig., 481 F. Supp. 2d 1353, 1355 (J.P.M.L.

2007) (“Transfer under Section 1407 does not require a complete identity or even a majority of

common factual or legal issues as a prerequisite to transfer.”).See, e.g., In re Proton-Pump

Inhibitor Prods. Liab. Litig. (No. II), 261 F. Supp. 3d 1351, 1354 (J.P.M.L. 2017) (granting MDL

treatment where constituent cases presented common questions of fact, even though they involved

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functionally identical and there are numerous overlapping issues. See, e.g., In re Managed Care

Litig., 2000 WL 1925080, at *2 (J.P.M.L. Oct. 23, 2000) (consolidating multiple actions against

disparate defendants over defendants’ objection that the actions should be separate consolidated

MDLs organized by defendant); In re Checking Account Overdraft Litig., 626 F. Supp. 2d 1333,

1335 (J.P.M.L. 2009) (“While there will be some unique questions of fact from bank-to-bank,

these actions share sufficient factual questions relating to industry-wide bank posting policies and

parties named. In every Action, each of the defendants is alleged to have cancelled flights in

response to the pandemic without providing refunds to ticketed passengers in violation of its

contractual obligations. Though there will certainly be “unique questions of fact from” airline-to-

airline, “these actions share sufficient factual questions relating to industry-wide [airline refund]

policies and procedures to warrant centralization of all actions in one MDL docket. See In re

Checking Account Overdraft Litig., 626 F. Supp. 2d 1333, 1335 (J.P.M.L. 2009).

and Witnesses.

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on the same issues, could make contradictory findings on significant pre-trial disputes. Litigation

of this scope and importance should not be beset with such inconsistencies and inefficiencies.

Given the similarity of the Actions and the potential for duplicative discovery, transfer would

inevitably conserve the parties’ resources and prevent repetitive instances of the same factual

inquiries and pretrial rulings. See, e.g., In re Air Crash at Dallas/Fort Worth Airport, 623 F. Supp.

634, 635 (J.P.M.L. 1985). An important feature of centralization is to “[prevent inconsistent

Litig., 249 F. Supp. 2d 1379, 1380 (J.P.M.L. 2003). Numerous overlapping class actions are

given the early stage of the litigation it is likely that there will be more. This too counsels in favor

of transfer. See In re Discover Card Payment Prot. Plan Mktg. & Sales Practices Litig., 764 F.

Supp. 2d 1341, 1343 (J.P.M.L. 2011) (“the actions and potential tag-along actions in this litigation

are brought by several competing counsel, which makes voluntary cooperation among counsel in

the different districts a less workable alternative[.]). Transfer will therefore provide convenience

to all parties.

expertise in the common factual and legal questions and make consistent rulings that may apply

to, and/or inform decisions across, multiple cases. Due to the (likely increasing) number of actions,

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the pretrial litigation process.“ [T]ransfer under Section 1407 has the salutary effect of placing all

actions in th[e] docket before a single judge who can formulate a pretrial program that: 1) allows

discovery with respect to any non-common issues to proceed concurrently with discovery on

common issues; [] and 2) ensures that pretrial proceedings will be conducted in a manner leading

to a just and expeditious resolution of the actions to the benefit of not just some but all of the

litigation’s parties.” In re Ins. Brokerage Antitrust Litig., 360 F. Supp. 2d at 1372.

II. II. The Panel Should Order Centralization in the Northern District of Illinois, or

Any Other District Court With the Resources to Quickly Advance the Litigation.

including: (1) whether the district “offers a forum that is both convenient and accessible for the

parties and witnesses”; (2) the location of “relevant witnesses and evidence”; (3) the positions of

the parties; and (4) the experience of the transferee judge and district in navigating “the nuances

of complex and multidistrict litigation.” In re: Aggrenox Antitrust Litig., 11 F. Supp. 3d 1342,

1343 (J.P.M.L. 2014). This Panel has also recognized the importance of transferring actions to a

pending (or some other district) may thus be appropriate for centralization. In re Onglyza