UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ARBEN BAJRA, JOHN BRENNAN,
ASHER EINHORN, and MELANIE
SUSMAN, individually and on behalf
of all others similarly situated,
Plaintiffs,
v.
DELTA AIR LINES, INC.
Defendant.
Case No.
JURY TRIAL DEMANDED
CLASS ACTION COMPLAINT
Plaintiffs Arben Bajra, John Brennan, Asher Einhorn, and Melanie Susman
(collectively “Plaintiffs”), individually and on behalf of all others similarly
situated, bring this action against Defendant Delta Air Lines, Inc. (“Defendant” or
“Delta”), by and through their attorneys, and allege as follows based on
information and belief and the investigation by their attorneys, except as to
allegations specifically pertaining to Plaintiffs, which are made upon personal
knowledge:
INTRODUCTION
1. On the morning of Friday, July 19, 2024, an automatic update to a
cybersecurity software developed by CrowdStrike resulted in millions of
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 1 of 59
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computers running Microsoft Windows to crash and display blue screens of death
(the “CrowdStrike outage”).
2. The CrowdStrike outage affected CrowdStrike customers who use
Microsoft Windows products, including many airports and airlines.
3. Most airlines rely on Microsoft’s Office365 for scheduling, and for
getting crew, passengers, and bags where they need to be.
4. When the CrowdStrike outage crashed these online systems, the
affected airlines resorted to manual operations, such as checking passengers in on
paper.
5. The CrowdStrike outage resulted in massive delays throughout the
global airline industry. According to flight tracking firm FlightAware, there were
more than 4,000 flight cancellations and 35,500 flight delays worldwide by Friday
afternoon.
1
6. Delta, for example, reportedly canceled more than 4,500 flights
between Friday, July 19 and Sunday, July 21, 2024.
2
1
https://www.wired.com/story/crowdstrike-windows-outage-airport-travel-delays/
(last visited August 5, 2024).
2
https://www.cnn.com/2024/07/23/business/delta-flight-cancellations/index.html
(last visited August 5, 2024).
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7. By the end of the weekend, nearly every airline had managed to
recover and resume normal operations. Delta, however, did not resume normal
operations.
8. By the start of the workweek, Delta continued to cancel a staggering
number of flights. On Monday, July 22, it was reported that Delta canceled more
than 1,250 flights. These cancellations accounted for nearly 70% of all flights
within, to, or from the United States that had been canceled on Monday.
3
No other
US airline had canceled one-tenth as many flights.
4
9. On Tuesday, July 23, Delta continued to cancel flights. By 2pm that
day, more than 450 flights had been canceled and more than 1,000 flights had been
delayed.
5
10. While Delta purports that its “operational reliability” returned to
“normal” on Thursday, July 25,
6
passengers reported flight disruptions and
cancelations through July 31, 2024, nearly two weeks after the CrowdStrike
outage.
3
Id.
4
Id.
5
Id.
6
https://news.delta.com/update/july-2024-operation/delta-starts-thursdays-
operation-zero-cancellations (last visited August 5, 2024).
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4
11. Delta attributed the delay to its disproportionate reliance on Windows
software and its inability to fix problems with its crew tracking system, leaving it
unable to find the pilots and flight attendants it needed to fly its planes.
7
12. The impact on Delta passengers was disastrous. Delta’s failure to
recover from the CrowdStrike outage left passengers stranded in airports across the
country and the world and, in many cases, thousands of miles from home.
13. When affected passengers requested prompt refunds for their canceled
or delayed flights, Delta refused or ignored these requests. In addition, Delta
refused to provide all affected passengers with meal, hotel, and ground
transportation vouchers, despite its previous commitments, and continues to refuse
or ignore requests for reimbursements of these unexpected expenses.
14. As a result of Delta’s failures, affected passengers were forced to
spend thousands of dollars in unexpected expenses, including flights from other
airlines, hotels, rental cars, ground transportation, and food. Further, Delta
separated thousands of passengers from their luggage, leaving many without
necessary medication, clothes, and other belongings.
15. These unfair, unlawful, and unconscionable practices resulted in Delta
unjustly enriching itself at the expense of its customers. Accordingly, Plaintiffs
7
https://news.delta.com/update/july-2024-operation/delta-people-working-247-
restore-operation-support-customers-get-crews (last visited August 5, 2024).
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bring this action in order to secure refunds for each and every similarly situated
consumer Delta has wronged by refusing to issue full refunds for flights cancelled
or significantly affected as a direct and proximate result of the CrowdStrike outage.
JURISDICTION AND VENUE
16. This Court has subject matter jurisdiction of this action pursuant to 28
U.S.C. § 1332(d)(2), the Class Action Fairness Act of 2005, because: (i) there are
100 or more Class members, (ii) there is an aggregate amount in controversy
exceeding $5,000,000, exclusive of interest and costs, and (iii) there is minimal
diversity because at least one plaintiff and one defendant are citizens of different
States. This Court has supplemental jurisdiction over the state law claims pursuant
to 28 U.S.C. § 1367.
17. This Court has personal jurisdiction over Defendant because they are
headquartered and/or have conducted substantial business in this judicial district.
18. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391
because Defendant are headquartered in this district, transact business in this
district, are subject to personal jurisdiction in this district, and therefore are
deemed to be citizens of this district, and because a substantial part of the events or
omissions giving rise to the claims occurred in this District.
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PARTIES
Plaintiff Arben Bajra
19. Plaintiff Arben Bajra is a citizen and resident of Colorado.
20. Plaintiff purchased two roundtrip tickets to Amsterdam, Netherlands
through Delta’s website. Plaintiff paid $2,299 for the tickets using a credit card.
21. On July 20, 2024, Plaintiff and his significant other arrived at the
Denver airport and checked his luggage. Delta later informed Plaintiff that his
flight was delayed and that he would miss his connecting flight in New York.
Plaintiff spoke with a Delta agent to rebook his flight. Delta informed Plaintiff that
the only available flight was two days later, on July 22, 2024. Relying upon Delta’s
representations, Plaintiff accepted the flight for July 22, 2024. Plaintiff then waited
another 6 hours to retrieve his luggage.
22. On July 22, 2024, Plaintiff and his significant other arrived at the
Denver airport. Delta informed Plaintiff that the flight was again canceled. Delta
informed Plaintiff that there were no available flights for several days. Delta did
not provide Plaintiff with any meal or hotel vouchers. Additionally, Delta informed
Plaintiff that the ticket price would be automatically refunded, that Plaintiff did not
need to do anything to receive the funds, and that another flight was available in
the coming days.
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23. Plaintiff booked a flight to Amsterdam that was leaving that day using
a different airline. He paid approximately $1,500 for the tickets using a credit card.
Plaintiff and his significant other arrived in Amsterdam on July 23, 2024.
24. On July 30, 2024, Plaintiff was scheduled to fly from Amsterdam
back home to Denver. Upon arrival at the airport in Amsterdam, Delta informed
Plaintiff that the flight had been canceled and the earliest available flight was
scheduled for the next day.
25. As a result of Delta’s cancelation, Plaintiff and his significant other
were stranded in Amsterdam for one day.
26. As a result of Delta’s multiple cancelations, Plaintiff was forced to
pay for a flight with a different airline, hotel nights which he didn’t use because of
Delta’s cancelation, a hotel room for one night, and alternative transportation.
Plaintiff incurred out of pocket expenses in the amount of approximately $1,975.
27. After waiting approximately 10 days after Delta informed Plaintiff
that his ticket price would be automatically refunded, Plaintiff called Delta to
check on the status of his refund. Delta then told Plaintiff that refunds were not
automatic and that Plaintiff would be forced to submit a request for a refund.
28. On July 31, 2024, Plaintiff submitted two refund requests: one for the
original canceled flight and one for his out of pocket expenses. In response, Delta
offered Plaintiff a $100 voucher to use towards a future flight with Delta.
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29. To date, Delta has not provided Plaintiff with a refund or
reimbursement for the original ticket price or any of his out of pocket expenses.
Plaintiff John Brennan
30. Plaintiff John Brennan is a citizen and resident of Florida.
31. Plaintiff purchased two roundtrip tickets for him and his wife to
Seattle, Washington to board a cruise to celebrate their anniversary. Plaintiff paid
$1,281.12 for the tickets using a credit card through Delta’s website. Plaintiff’s
flights were scheduled for July 21, and 30, 2024.
32. On July 21, 2024, Plaintiff and his wife were scheduled for a direct
flight from Tampa to Seattle. Upon their arrival in Tampa, Delta informed Plaintiff
that the flight was canceled. Delta rebooked Plaintiff on a flight to Seattle with a
layover in Atlanta. Delta checked Plaintiff’s bags and informed Plaintiff that he
would be able to retrieve their bags in Seattle. Plaintiff arrived in Atlanta around
6:00 p.m. that evening. However, Delta later informed Plaintiff that the layover
flight from Atlanta to Seattle scheduled for that evening was canceled.
33. In Atlanta, Plaintiff waited in line several hours to speak with a Delta
customer service agent in an attempt to book another flight. Around 2 a.m. on July
22, 2024, Plaintiff realized that all the Delta agents had left, and no one was
working the customer service desk. An airport representative informed Plaintiff to
return at 6 a.m. to resume waiting in line to be rebooked.
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34. By then, Plaintiff realized that he and his wife would be unable to get
to Seattle in time to board the cruise, so they were forced to return home to Tampa.
Plaintiff began calling all the nearby hotels and was told they were all sold out.
Plaintiff then called all of the rental car companies in Atlanta, to which he was
informed they would not rent to him because they did not want to run out of rental
vehicles. Plaintiff purchased tickets to take a Greyhound Bus from Atlanta back
home to Tampa.
35. As a result of Delta’s cancelation, Plaintiff and his wife were stranded
in Atlanta without their luggage. More egregious, Plaintiff and his wife missed the
anniversary cruise.
36. Delta refused to provide Plaintiff with the meal and hotel vouchers.
Delta further refused to automatically provide a refund for the ticket price. Instead,
Delta offered a $100 voucher – less than Plaintiff is entitled – to use towards a
future flight with Delta.
37. Plaintiff incurred out of pocket expenses of no less than $800.00.
Further, Plaintiff spent approximately $10,000 on the cruise that he and his wife
missed as a direct and proximate result of Delta’s cancellation. Plaintiff submitted
a reimbursement request using Delta’s website for the canceled flight, the out-of-
pocket expenses, and the cost of the cruise. In response, Delta emailed Plaintiff
offering $219.45 - less than he is entitled to.
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Plaintiff Asher Einhorn
38. Plaintiff Asher Einhorn is a citizen and resident of Washington.
39. Plaintiff purchased two roundtrip tickets to Boston, Massachusetts
through Delta’s website. Plaintiff paid $696.20 for the tickets using a credit card.
40. On July 21, 2024, Plaintiff and his partner arrived at the Boston
airport to board their return flight home to Washington. Upon their arrival at the
airport, Delta informed Plaintiff that the flight was canceled. Plaintiff attempted to
rebook another flight by contacting Delta’s customer service phone line and
Delta’s website, but Delta did not assist.
41. Delta informed Plaintiff that there were no available flights for several
days. Delta did not provide Plaintiff with any meal or hotel vouchers.
42. As a result of Delta’s cancelation, Plaintiff was forced to pay for a
hotel for one night, transportation, and forced to pay for another flight home with a
different airline. Plaintiff and his partner incurred out of pocket expenses in the
amount of approximately $1,500.
43. On or around July 22, 2024, Plaintiff submitted two refund requests:
one for the original canceled flight and one for his out-of-pocket expenses. Delta
provided Plaintiff with a partial refund for the ticket price in the amount of
$408.11. In response to Plaintiff’s reimbursement request for his out-of-pocket
expenses of approximately $1,500, Delta emailed Plaintiff informing him that
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 10 of 59
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Delta would provide a reimbursement of $100 – less than he is entitled to – in
exchange for a release of Plaintiff’s claims against Delta.
44. Plaintiff contacted Delta to inform Delta that he wanted to accept the
reimbursement but did not agree to release his claims. To date, Delta has not
responded to Plaintiff.
Plaintiff Melanie Susman
45. Plaintiff Melanie Susman is a citizen and resident of California.
46. Plaintiff purchased a roundtrip ticket to New York through Delta’s
website. Plaintiff paid approximately $600 for the ticket using a credit card.
Plaintiff’s flights were scheduled for July 20, and July 30, 2024.
47. On July 20, 2024, Plaintiff’s flight was canceled. At the direction of
Delta, Plaintiff had no choice but to book a new flight on July 23, 2024. Delta
subsequently canceled the new flight, which forced Plaintiff to purchase a new
flight with a different airline.
48. As a result of Delta’s cancelation, Delta provided Plaintiff with a meal
voucher. However, when Plaintiff attempted to use the meal voucher, it was
rejected at the airport.
49. Plaintiff incurred out-of-pocket expenses of approximately $950 for a
new flight, fees, and meals.
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50. Plaintiff submitted multiple reimbursement requests using Delta’s
website for the ticket price of the canceled flight and for her out of pocket
expenses.
51. On or around July 30, 2024, Delta emailed Plaintiff informing her that
Delta would provide a refund of approximately $300, less than what she is entitled
to.
52. Delta has provided Plaintiff with SkyMiles to use towards a future
flight. However, to date, Delta has not provided a refund for her ticket price or out
of pocket expenses.
Defendant
53. Delta Air Lines, Inc. (“Delta”) is a Delaware corporation with its
principal place of business at 1030 Delta Boulevard, Atlanta, Georgia 30354.
54. Delta is one of the top three biggest airline companies, serving more
than 200 million travelers annually. It boasts up to 4,000 daily departures to more
than 1,000 destinations worldwide.
8
8
https://www.delta.com/us/en/about-delta/overview (last visited August 5, 2024).
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 12 of 59
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GENERAL FACTUAL ALLEGATIONS
CrowdStrike Outage and its Impact on Airline Travel
55. At 12:09AM EST on Friday, July 19, 2024, a faulty automatic update
to a cybersecurity software developed by CrowdStrike resulted in millions of
computers running Microsoft Windows to crash.
9
56. The CrowdStrike outage impacted CrowdStrike customers who use
Microsoft Windows products, including many airports and airlines.
57. Most airlines rely on Microsoft’s Office365 for scheduling, and for
getting crew, passengers, and bags where they need to be.
58. Though CrowdStrike reverted the defective update by 1:27AM EST
on July 19, Windows users continued to experience system crashes and outages
throughout the day.
10
59. When the CrowdStrike outage crashed these online systems, affected
airlines, while normally reliant on cloud-based technology, were forced to resort to
manual operations. For example, many airlines had to check in their passengers on
paper rather than through their online systems, a process that is significantly
slower.
9
https://www.crowdstrike.com/falcon-content-update-remediation-and-guidance-
hub/ (last visited August 5, 2024).
10
Id.
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 13 of 59
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60. As a result, the CrowdStrike outage resulted in massive delays and
cancellations throughout the global airline industry. According to flight tracking
firm FlightAware, more than 4,000 flight cancellations and 35,500 flight delays
worldwide by Friday afternoon.
11
61. Even once systems were back online, the phenomenon of “delay
propagation” prevented immediate recovery. Delay propagation occurs when a
delay at a flight stage causes a ripple effect in the subsequent stages of a flight.
Delays propagate into and out of an airport. Arrival delays are tracked at the end of
each flight leg traveled by the same aircraft identified by a tail number.
12
62. As a result, most airlines continued to cancel and delay flights
throughout the weekend. Delta, for example, reportedly canceled more than 4,500
flights between Friday, July 19 to Sunday, July 21, 2024.
13
Delta’s Failure to Recover from the Outage
63. By the end of the weekend, nearly every airline had managed to
recover and resume normal operations. Delta, however, continued to cancel and
delay a staggering number of flights.
11
https://www.wired.com/story/crowdstrike-windows-outage-airport-travel-delays/
(last visited August 5, 2024).
12
https://aspm.faa.gov/aspmhelp/index/Delay_Propagation.html (last visited
August 5, 2024).
13
https://www.cnn.com/2024/07/23/business/delta-flight-cancellations/index.html
(last visited August 5, 2024).
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 14 of 59
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64. On Monday, July 22, however, Delta canceled more than 1,250
flights, about a third of its schedule.
14
These cancellations accounted for nearly
70% of all flights within, to, or from the United States that had been canceled on
Monday.
15
No other US airline had canceled one-tenth as many flights.
16
65. On Tuesday, July 23, Delta continued to cancel and delay flights. By
2 p.m. that day, more than 450 flights had been cancelled and more than 1,000
flights had been delayed.
17
66. On Thursday, July 25, Delta announced that its “operational
reliability” had returned to “normal.”
18
Yet, passengers continued to report that
Delta canceled their flights through July 31, 2024.
67. Delta reportedly canceled more flights between Friday and Tuesday
than it did in 2018 and 2019 combined.
19
There were 5,470 flight cancellations for
14
Id.
15
Id.
16
Id.
17
https://www.nytimes.com/2024/07/23/us/pete-buttigieg-delta-outage.html (last
visited August 5, 2024).
18
https://news.delta.com/update/july-2024-operation/delta-starts-thursdays-
operation-zero-cancellations (last visited August 5, 2024).
19
https://www.businessinsider.com/delta-canceled-more-flights-in-5-days-than-2-
years-2024-
7#:~:text=Delta%20canceled%20more%20flights%20in%205%20days%20after%
20the%20CrowdStrike,in%202018%20and%202019%20combined&text=Delta%2
0canceled%20more%20flights%20in%20less%20than%20a%20week%20due,it%2
0canceled%20a%20combined%205%2C370 (last visited August 5, 2024).
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 15 of 59
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the airline between Friday and Tuesday, per FlightAware.
20
By contrast, a total of
5,370 flights were canceled by Delta across the whole 2018 and 2019.
21
68. On Monday, July 22, Delta released the following statement,
attributing its failures to its reliance on Windows software and to its inability to fix
problems with its crew tracking system:
22
Upward of half of Delta’s IT systems worldwide are Windows based. The
CrowdStrike error required Delta’s IT teams to manually repair and reboot
each of the affected systems, with additional time then needed for
applications to synchronize and start communicating with each other.
Delta’s crews are fully staffed and ready to serve our customers, but one of
Delta’s most critical systems – which ensures all flights have a full crew in
the right place at the right time – is deeply complex and is requiring the most
time and manual support to synchronize.
69. In the days following the CrowdStrike outage, Delta sought to shift
the blame to CrowdStrike and Microsoft by retaining a law firm to pursue potential
damages against CrowdStrike and Microsoft.
23
70. However, CrowdStrike has refuted Delta’s allegations, stating that the
threat of litigation “has contributed to a misleading narrative that CrowdStrike is
responsible for Delta’s IT decisions and response to the outage.”
24
20
Id.
21
Id.
22
https://news.delta.com/update/july-2024-operation/delta-people-working-247-
restore-operation-support-customers-get-crews (last visited August 5, 2024).
23
https://www.law360.com/articles/1863550/delta-hires-boies-schiller-to-recoup-
outage-related-damages (last visited August 5, 2024).
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 16 of 59
17
71. According to CrowdStrike, Delta rejected repeated offers to help
restore Delta’s impacted systems.
25
In addition, CrowdStrike stated that its CEO
“personally reached out to Delta’s CEO to offer onsite assistance, but received no
response.”
26
Traveler Experiences
72. The impact on Delta passengers was disastrous. Delta’s failure to
recover from the CrowdStrike outage left passengers stranded in airports across the
country for days, in many cases thousands of miles from home.
73. When informing passengers that their flights had been canceled, Delta
offered e-credits as compensation but made no mention to passengers of their
rights under federal law to receive cash refunds.
27
74. Upon information and belief, Delta’s misrepresentation resulted in
thousands of passengers forgoing their right to a refund by accepting the offered e-
credits instead.
75. Even when affected passengers did exercise their rights to request
prompt refunds for their cancelled or delayed flights, Delta refused or ignored
24
https://apple.news/AWlK7OnFxRnGwB7FARQAMGg (last visited August 5,
2024).
25
Id.
26
Id.
27
https://www.washingtonpost.com/transportation/2024/07/26/delta-canceled-
flights-investigation-crowdstrike/# (last visited August 5, 2024).
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 17 of 59
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these requests, or failed to provide real-time assistance from customer service
agents.
76. In addition, Delta refused to provide all affected passengers with
meal, hotel, and ground transportation vouchers, despite its previous commitments.
77. As a result, affected passengers were forced to spend thousands of
dollars in unexpected expenses, including flights from other airlines, hotels, rental
cars, ground transportation, and food.
78. Further, Delta separated thousands of passengers from their luggage,
leaving many without clothes, necessary medication, and other belongings.
79. As a result, affected passengers were forced to spend hundreds of
dollars purchasing replacements.
80. When affected passengers attempted to seek reimbursement for these
expenses, Delta refused or ignored these requests, despite its previous
commitments.
81. Even when agreeing to reimbursements, Delta forced passengers to
release their legal claims against the airline.
28
28
See infra ¶¶ 91-94.
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Delta Violates its Policies Related to Flight Disruptions
82. According to the U.S. Department of Transportation’s Airline
Customer Service Dashboard, Delta has made the following commitments to
passengers affected by a cancellation within the airline’s control:
29
• Meal or meal cash/voucher when cancellation results in passenger
waiting for 3 hours or more for new flight
• Complimentary hotel accommodations for any passenger affected by
an overnight cancellation
• Complimentary ground transportation to and from hotel for any
passenger affected by an overnight cancellation
83. In addition, Delta has made the following commitments to passengers
affected by a significant delay within the airline’s control:
30
• Meal or meal cash/voucher when flight delay results in passenger
waiting for 3 hours or more for new flight
• Complimentary hotel accommodations for any passenger affected by
an overnight delay
• Complimentary ground transportation to and from hotel for any
passenger affected by an overnight delay
84. In a statement made by Delta on July 22, Delta recommitted to its
promises and pledged to offer affected passengers the following:
31
29
https://www.transportation.gov/airconsumer/airline-customer-service-dashboard
(last visited August 5, 2024).
30
Id.
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20
Extending a travel waiver. Delta extended a travel waiver for all customers
with travel booked from July 19-23. The waiver offers customers the ability
to make a one-time change to their itinerary. The fare difference for
customers will be waived when rebooked travel occurs on or before July 28,
in the same cabin of service as originally booked. Customers are encouraged
to manage changes to their travel via delta.com or the Fly Delta app.
Right to a Refund Upon Request. Customers whose travel has been
disrupted due to a canceled or significantly delayed flight may choose to
cancel their travel and receive an eCredit for the unflown portion of the trip,
or may instead request a refund for the unflown portion of the trip at
delta.com/refund.
Issuing SkyMiles Program miles or a travel voucher in an amount based
on the customer’s affected travels.
Covering eligible expenses resulting from this flight disruption, including
providing meal vouchers, hotel accommodations where available and ground
transportation.
Reimbursement of eligible expenses. Customers who have incurred hotel,
meal or ground transportation expenses while in transit during this
operational disruption may submit eligible expenses for reimbursement.
85. On July 26, Delta made further commitments to affected customers:
32
Flight Cancellation/Extended Delay Refunds & Trip Cancellation
Option
Customers whose travel was disrupted due to a canceled or significantly
delayed flight may choose to cancel their travel via Delta.com or the Fly
Delta app and receive an automatic refund for the unflown portion of the
trip. Since July 19, of the refunds processed, 70% were completed via
Delta.com or the app.
31
https://news.delta.com/update/july-2024-operation/delta-people-working-247-
restore-operation-support-customers-get-crews (last visited August 5, 2024).
32
https://news.delta.com/what-delta-doing-make-things-right-customers-impacted-
crowdstrike-disruption (last visited August 5, 2024).
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No Questions Asked Trip Cancellation
Delta is also permitting customers with travel booked from July 19-28 who
chose not to travel to cancel and request a refund of the unflown portion of
their trip – regardless of whether their flight was canceled or significantly
delayed. Enhanced refund flexibility applies to tickets with Delta-operated
flights, purchased on or before July 23.
Out-of-Pocket Expense Reimbursement
We know many customers who experienced a significant delay or flight
cancellation incurred unplanned, out-of-pocket expenses during the
disruption period, between July 19 and July 28. Delta has expanded the list
of eligible expenses that may be covered for this disruption, including flight
tickets purchased on other airlines in the same cabin of service or lower,
train and bus tickets, rental cars and ride shares.
As part of our Delta Customer Commitment, we will continue to cover
reasonable costs for additional categories of expenses.
…
Automatic Refunds for Bag and Seat Fees
As an added gesture, Delta is automatically refunding all paid checked bag
fees for customers who were charged for checking a bag since July 19 (when
the disruption started). Delta is continuing to waive bag fees for up to three
checked bags for customers traveling through 11:59 p.m. local time July 28.
Additionally, Delta is automatically refunding seat purchases including paid
upgrade and preferred seats for customers who were not able to take
advantage of those purchases. For example, if a customer paid for a Delta
Comfort+ upgrade post purchase and did not travel in that upgraded seat,
Delta is automatically refunding the fee.
No action is needed to receive either the baggage or upgrade fee refund; they
are being processed automatically over the coming days.
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For all ticket or fee refunds, customers will receive the refund back to their
original form of payment. Customers may see multiple refund transactions in
their credit card or bank statement as fee refunds are processed separately
from flight refunds. Customers eligible for out-of-pocket expense
reimbursement will receive an email with instructions on how to receive the
reimbursement.
Customer Apology Gesture
Customers impacted by a cancellation or significant delay during the
disruption period also received an email offering SkyMiles or an electronic
Transportation Credit Voucher (ETCV).
Extending a travel waiver
Delta extended a travel waiver for all customers with travel booked from
July 19-28. The waiver offers customers the ability to make a one-time
change to their itinerary. The fare difference for customers will be waived
when rebooked travel occurs on or before Aug. 4, in the same cabin of
service as originally booked. Customers are encouraged to manage changes
to their travel via delta.com or the Fly Delta app.
86. In addition, on July 25, U.S. Secretary of Transportation Pete
Buttigieg made clear in a statement on his X (formerly Twitter) account: “If you’ve
racked up out-of-pocket expenses on hotels, meals, alternative flights, etc. Delta is
required to reimburse passengers.”
33
Delta Violates Department of Transportation Regulations
87. The Department of Transportation “require[es] automatic refunds to
consumers when a U.S. air carrier… cancels or makes a significant change to a
33
https://x.com/SecretaryPete/status/1816550304533369165 (last visited August 5,
2024).
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 22 of 59
23
scheduled flight to, from, or within the United States and the consumer is not
offered or rejects alternative transportation and travel credits, vouchers, or other
compensation.”
34
88. Automatic refunds must be provided “promptly,” which is defined as
“within 7 business days for credit card payments and within 20 calendar days for
other forms of payment.”
35
89. The Department of Transportation also “require[es] refunds to
consumers for fees for ancillary services that passengers paid for but did not
receive and for checked baggage fees if the bag is significantly delayed.”
36
90. To ensure passengers know that they are entitled to a refund, the
Department of Transportation further “require[es] carriers and ticket agents to
inform consumers of their right to a refund if that is the case before making an
offer for alternative transportation, travel credits, vouchers, or other compensation
in lieu of refunds.”
37
91. Delta’s failures further violate Department of Transportation
Regulations because it conditions its offer of reimbursements to passengers on a
waiver releasing Delta of all legal claims passengers have against Delta.
34
https://www.govinfo.gov/content/pkg/FR-2024-04-26/pdf/2024-07177.pdf (last
visited August 5, 2024).
35
Id.
36
Id.
37
Id. (emphasis added).
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 23 of 59
24
92. Delta’s waiver is reproduced in full below:
93. Delta’s waiver is unconscionable and unenforceable because it fails to
inform consumers of their legal rights, namely their “right to a refund if that is the
case before making an offer for alternative transportation, travel credits, vouchers,
or other compensation in lieu of refunds.”
38
94. Additionally, Delta’s offer of reimbursements is only a fraction of
what passengers are entitled to.
Delta’s Failures Prompt Federal Scrutiny
95. On July 23, Secretary Buttigieg released a statement that the
Department of Transportation had opened an investigation into Delta “to ensure the
airline is following the law and taking care of its passengers during continued
widespread disruptions.”
39
By that time, the Department of Transportation had
received more than 3,000 complaints against Delta.
40
96. In a news conference later that day, Secretary Buttigieg stated:
38
https://www.govinfo.gov/content/pkg/FR-2024-04-26/pdf/2024-07177.pdf (last
visited August 5, 2024).
39
https://www.npr.org/2024/07/23/nx-s1-5049792/deltas-airlines-delays-and-
cancelations-prompt-dot-investigation (last visited August 5, 2024).
40
https://www.washingtonpost.com/transportation/2024/07/26/delta-canceled-
flights-investigation-crowdstrike/# (last visited August 5, 2024).
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 24 of 59
25
There’s a lot of things I’m very concerned about, including people being on
hold for hours and hours, trying to get a new flight, people having to sleep
on airport floors, even accounts of unaccompanied minors being stranded in
airports, unable to get on a flight.
97. On July 24, Secretary Buttigieg posted to his X (formerly Twitter)
account the following: “On hold for hours, sleeping on airport floors,
unaccompanied minors stranded—these are the stories we are hearing from Delta
passengers.”
41
98. According to The Washington Post, the Department of
Transportation’s investigation is examining text messages sent by Delta to
passengers “that regulators say did not spell out their rights to a refund.”
42
99. In addition to the Department of Transportation’s investigation, on
July 23, U.S. Senator Maria Cantwell (D-Wash.), Chair of the Senate Committee
on Commerce, Science and Transportation, sent a letter to Delta Air Lines CEO Ed
Bastian regarding the airline’s operational and customer communications problems
in the wake of the CrowdStrike outage.
43
41
https://x.com/SecretaryPete/status/1816147652288913674 (last visited August 5,
2024).
42
https://www.washingtonpost.com/transportation/2024/07/26/delta-canceled-
flights-investigation-crowdstrike/# (last visited August 5, 2024).
43
https://www.commerce.senate.gov/services/files/374240F2-C0B2-4B38-8B64-
37678CDF9D28 (last visited August 5, 2024).
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 25 of 59
26
100. In the letter, Senator Cantwell expressed concern “that Delta is failing
to meet the moment and adequately protect the needs of passengers.”
44
101. In particular, Senator Cantwell expressed concern that Delta was
violating Section 503 the Federal Aviation Administration Reauthorization Act of
2024, which codified the right to a refund for airline passengers whose flights are
canceled, significantly delayed, or significantly changed.
45
102. Senator Cantwell stated that “Delta’s public website does not
accurately and transparently reflect a passenger’s legal right to a refund.”
46
103. Similarly, Section 505 of the FAA law provides that “customers
should be able to access real-time assistance from customer service agents of air
carriers without an excessive wait time, particularly during times of mass
disruptions.”
47
In her letter, Senator Cantwell noted reports of Delta’s failure to
connect passengers with its customer service representatives.
48
104. Senator Cantwell demanded Delta to “make clear to all its customers
subjected to cancellations and significant delays and changes, including as a result
of the technology outage, that they are entitled to refunds as a matter of law” and
44
Id.
45
Id.
46
Id.
47
Id.
48
Id.
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 26 of 59
27
that Delta “should invest significant resources into its customer service operations
to ensure that customers are made whole in short order.”
49
CLASS ALLEGATIONS
105. Plaintiffs bring this action, individually, and on behalf of a nationwide
class, pursuant to Federal Rule of Civil Procedure 23(a), 23(b)(2), and/or 23(b)(3),
defined as follows:
All persons in the United States who purchased airline tickets
through Delta, or for flights on Delta, to, from or within the
States, and sought to cancel their flights, or had their flights
cancelled, between July 19, 2024 and July 31, 2024.
50
106. In the alternative, Plaintiffs brings this class action on behalf of the
following State Subclasses:
California Class:
All persons in California who purchased airline tickets through
Delta, or for flights on Delta, to, from or within the States, and
sought to cancel their flights, or had their flights cancelled,
between July 19, 2024 and July 31, 2024.
Colorado Class:
All persons in Colorado who purchased airline tickets through
Delta, or for flights on Delta, to, from or within the States, and
sought to cancel their flights, or had their flights cancelled,
between July 19, 2024 and July 31, 2024.
49
Id.
50
Plaintiffs reserve the right to amend or add to the timeframe included in the
definition of the Class after conducting discovery.
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 27 of 59
28
Florida Class:
All persons in Florida who purchased airline tickets through
Delta, or for flights on Delta, to, from or within the States, and
sought to cancel their flights, or had their flights cancelled,
between July 19, 2024 and July 31, 2024.
Washington Class:
All persons in Washington who purchased airline tickets
through Delta, or for flights on Delta, to, from or within the
States, and sought to cancel their flights, or had their flights
cancelled, between July 19, 2024 and July 31, 2024.
107. Excluded from the Class(es) are: (a) Defendant; (b) Defendant’s
affiliates, agents, employees, officers and directors; and (c) the judge assigned to
this matter, the judge’s staff, and any member of the judge’s immediate family.
Plaintiffs reserve the right to modify, change, or expand the various class
definitions set forth above based on discovery and further investigation.
108. Numerosity: Upon information and belief, the Class is so numerous
that joinder of all members is impracticable. While the exact number and identity
of individual members of the Class are unknown at this time, such information
being in the sole possession of Delta and obtainable by Plaintiffs only through the
discovery process. Plaintiffs believe, and on that basis allege, that the Class
consists of tens of thousands of people. The number of Class members can be
determined based on Delta’s records.
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29
109. Commonality: Common questions of law and fact exist as to all
members of each Class. These questions predominate over questions affecting
individual Class members. These common legal and factual questions include, but
are not limited to:
a. Whether federal regulations require Delta to provide passengers
a refund when Delta cancels the passenger’s flight;
b. Whether Delta committed common law fraud;
c. Whether Delta was unjustly enriched by its conduct; and
d. Whether Delta violated the Florida Deceptive and Unfair Trade
Practices Act.
e. Whether Delta violated the California Unfair Competition Law,
California Consumers Legal Remedies Act, and False
Advertising Law; and
f. Whether Delta violated the Washington Consumer Protection
Act.
110. Typicality: Plaintiffs have the same interest in this matter as all Class
members, and Plaintiffs’ claims arise out of the same set of facts and conduct as
the claims of all Class members. Plaintiffs’ and Class members’ claims all arise out
Delta’s uniform conduct, statements, and unlawful, unfair, and deceptive acts and
practices.
111. A
dequacy: Plaintiffs have no interest that conflicts with the interests
of the Class, and is committed to pursuing this action vigorously. Plaintiffs have
retained counsel competent and experienced in complex consumer class action
litigation. Accordingly, Plaintiffs and their counsel will fairly and adequately
protect the interests of the Class.
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30
112. Superiority: A class action is superior to all other available means of
fair and efficient adjudication of the claims of Plaintiffs and members of the Class.
The injury suffered by each individual Class member is relatively small compared
to the burden and expense of individual prosecution of the complex and extensive
litigation necessitated by Delta’s conduct. It would be virtually impossible for
members of the Class individually to effectively redress the wrongs done to them.
Even if the members of the Class could afford such individual litigation, the court
system could not. Individualized litigation increases the delay and expense to all
parties, and to the court system, presented by the complex legal and factual issues
of this case. Individualized rulings and judgments could result in inconsistent relief
for similarly-situated individuals. By contrast, the class action device presents far
fewer management difficulties, and provides the benefits of single adjudication,
economy of scale, and comprehensive supervision by a single court.
113. Delta has acted or refused to act on grounds generally applicable to
the Class, thereby making appropriate final injunctive relief and corresponding
declaratory relief with respect to the Class as a whole.
COUNT I
BREACH OF CONTRACT
FAILURE TO REFUND FARE
114. Plaintiffs restate, re-allege, and incorporate herein by reference the
preceding paragraphs as if fully set forth herein.
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31
115. Defendant made offers to Plaintiffs and the Class Members to enter
into a contract for Defendant to provide transportation services to Plaintiffs and the
Class Members through passenger tickets for air travel between specific locations,
on specific flight numbers, on specific dates and times, at specific prices.
116. Defendant’s offer to provide transportation services to Plaintiffs and
the Class Members also included Defendant’s offer that it would refund Plaintiffs
and the Class Members for all cancellations and/or significantly changed flights.
117. At all times relevant, such offers and terms were specifically
identified in Defendant’s Conditions of Carriage entered into between Plaintiffs
and the Class Members on one hand, and Defendant on the other, at the time of
ticket purchases.
118. The Conditions of Carriage reflect Defendant’s self-imposed
undertakings and obligations voluntarily undertaken by Defendant.
119. Moreover, Plaintiffs and the Class Members did not draft the terms of
the Conditions of Carriage, rather, on information and belief, Defendant (and/or
Defendant’s agents at Defendant’s direction) drafted all terms therein.
120. Defendant made such offers in writing through the Delta’s direct
channels (such as Delta’s direct-to-consumer sales website, www.delta.com, and
the company’s mobile applications) and through traditional travel agencies and
online travel agencies.
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121. Numerous sections of the Conditions of Carriage applicable at the
time Plaintiffs and the Class Members purchased their tickets confirm passengers’
contractual rights to refunds where a flight has been cancelled and/or significantly
changed, regardless of the reason for a cancellation or delay.
122. For example, Rule 19 Delta’s Conditions of Carriage (attached as
Exhibit A) provides as follows:
RULE 19: FLIGHT DELAYS/CANCELLATIONS
A. Delta’s Liability in the Event of Schedule Changes, Delays and Flight
Cancellations
If there is a flight cancellation, diversion, delay of greater than 120
minutes, or that will cause a passenger to miss connections, Delta will (at
passenger’s request) cancel the remaining ticket and refund the unused
portion of the ticket and unused ancillary fees in the original form of
payment in accordance with Rule 22.
123. Rule 22 of Delta’s Conditions of Carriage provides as follows:
RULE 22: REFUNDS
A. Involuntary Refunds
If a refund is required because of Delta’s failure to operate on schedule or
refusal to transport (except as a result of passenger’s failure to comply with
the contract of carriage), the following refund will be made directly to you:
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 32 of 59
33
1) If no portion of the ticket has been used, the refund will be an
amount equal to the fare paid.
2) If a portion of the ticket has been used and termination
(interruption) occurs:
a) At A Fare Breakpoint - The refund will be an amount equal to the
fare paid for the unused transportation from the point of termination
(interruption) to the destination or next Stopover point named on the
ticket, or to a point at which transportation is to be resumed. No
refund will apply when alternate transportation is provided by Delta
and accepted by the passenger.
b) Within A Fare Component - The refund will be an amount equal
to the percentage of unflown mileage to fare component total
mileage by prorating the fare paid for the fare component, from the
point of termination/interruption to the destination, or next Stopover
point named on the ticket, or to the point at which transportation is to
be resumed. No refund will apply when alternate transportation is
provided by Delta and accepted by the passenger.
124. The terms of Defendant’s offer to provide transportation services
contained a definite promise by Defendant and gave Plaintiffs and the Class
Members the power to agree to the terms of Defendant’s offer to provide
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 33 of 59
34
transportation services, including but not limited to, through the act of purchasing a
ticket or accepting transportation on Defendant’s aircraft.
125. Plaintiffs and the Class Members accepted Defendant’s offer to
provide transportation services, agreeing to the material terms contained in
Defendant’s offer.
126. Plaintiffs and the Class Members communicated their acceptance of
Defendant’s offer to Defendant by purchasing one or more tickets, booking
transportation services with Defendant.
127. The agreement between Plaintiffs, the Class Members, and Defendant
included an exchange of promises or value, i.e., consideration. Here, Plaintiffs and
the Class Members provided Defendant with consideration in the form of amounts
equal to the monetary value of the fare and all charges and taxes paid.
128. Plaintiffs and the Class Members performed all obligations and
conditions required and expected of them and/or had a valid excuse for not
performing any such obligations.
129. Defendant cancelled and/or significantly changed Plaintiffs’ and the
Class Members’ flights.
130. Defendant has failed to provide and/or has outright refused to provide
refunds to Plaintiffs and the Class Members for such cancelled and/or significantly
changed flights.
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35
131. Defendant did so even though Defendant was contractually obligated
to provide refunds to Plaintiffs and the Class Members in such circumstances.
132. As a result, Defendant has failed to perform and/or has materially
breached its contracts with Plaintiffs and the Class Members.
133. Because of Defendant’s failure to perform under the contract,
Plaintiffs and the Class Members have been damaged and/or did not receive the
refunds, benefits, payment, and/or performance to which they were entitled.
134. As a result, Plaintiffs and the Class Members are entitled to fair
compensation in the form of complete refunds for all fares, charges, and taxes paid.
COUNT II
BREACH OF CONTRACT
FAILURE TO COVER ADDITIONAL AMENITIES
135. Plaintiffs restate, re-allege, and incorporate herein by reference the
preceding paragraphs as if fully set forth herein.
136. Defendant made offers to Plaintiffs and the Class Members to enter
into a contract for Defendant to provide transportation services to Plaintiffs and the
Class Members through passenger tickets for air travel between specific locations,
on specific flight numbers, on specific dates and times, at specific prices.
137. Defendant’s offer to provide transportation services to Plaintiffs and
the Class Members also included Defendant’s offer that it would provide a
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 35 of 59
36
passenger with certain additional amenities during a delay of more than four (4)
hours.
138. At all times relevant, such offers and terms were specifically
identified in Defendant’s Conditions of Carriage entered into between Plaintiffs
and the Class Members on one hand, and Defendant on the other, at the time of
ticket purchases.
139. The Conditions of Carriage reflect Defendant’s self-imposed
undertakings and obligations voluntarily undertaken by Defendant.
140. Moreover, Plaintiffs and the Class Members did not draft the terms of
the Conditions of Carriage, rather, on information and belief, Defendant (and/or
Defendant’s agents at Defendant’s direction) drafted all terms therein.
141. Defendant made such offers in writing through Delta’s direct channels
(such as Delta’s direct-to-consumer sales website, www.delta.com, and the
company’s mobile applications) and through traditional travel agencies and online
travel agencies.
142. For example, Rule 19(B) Delta’s Conditions of Carriage provides as
follows:
B. Delta’s Liability for Additional Amenities in the Event of Schedule
Changes, Delays and Flight Cancellations
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 36 of 59
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Except as provided above, Delta shall have no liability if the flight
cancellation, diversion or delay was due to force majeure. As used in this
rule, “force majeure” means actual, threatened or reported:
(1) Weather conditions or acts of God;
(2) Riots, civil unrest, embargoes, war, hostilities, or unsettled
international conditions;
(3) Strikes, work stoppages, slowdowns, lockout, or any other labor-
related dispute;
(4) Government regulation, demand, directive or requirement;
(5) Shortages of labor, fuel, or facilities; or
(6) Any other condition beyond Delta’s control or any fact not
reasonably foreseen by Delta.
However, when a passenger’s travel is interrupted for more than 4 hours
after the scheduled departure time as a result of flight cancellation or delay
on the date of travel other than from force majeure, Delta will provide the
passenger with the following additional amenities during the delay:
(a) Hotels
If overnight accommodations are available at Delta contracted facilities,
Delta will provide the passenger with a voucher for one night’s lodging
when the delay is during the period of 10:00 pm to 6:00 am. Delta will
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 37 of 59
38
provide free public ground transportation to the hotel if the hotel does not
offer such service. If accommodations are not available, Delta will provide
the passenger with a voucher that may be applied to future travel on Delta
equal in value to the contracted hotel rate, up to $100 USD.
(b) Ground Transportation
In lieu of lodging or other amenities, Delta will furnish ground
transportation to the destination airport if a passenger’s flight is diverted to an
alternative airport and if the destination on the ticket and the diverted airport
destination are within the following city groups:
San Francisco, CA (SFO)/ Oakland, CA (OAK)/ San Jose, CA (SJC) Los
Angeles, CA (LAX)/ Long Beach, CA (LGB)/ Ontario, CA (ONT)/ Santa
Ana, CA (SNA) Denver, CO (DEN)/ Colorado Springs (COS) O’Hare –
Chicago, IL (ORD)/ Midway – Chicago, IL (MDW) Dallas-Ft. Worth, TX
(DFW)/ Dallas, TX Love Field (DAL) Bush Intercontinental – Houston,
TX (IAH)/ Hobby – Houston, TX (HOU) Fort Lauderdale, FL (FLL)/
Miami, FL (MIA)/ West Palm Beach, FL (PBI) Baltimore, MD (BWI)/
National – Washington, DC (DCA)/ Dulles – Washington, DC (IAD)
Newark, NJ (EWR)/ LaGuardia – New York, NY (LGA)/ John F. Kennedy
– New York, NY (JFK) Orlando, FL (MCO)/ Tampa, FL (TPA)/ Daytona
Beach, FL (DAB)/ Melbourne, FL (MLB)/Sarasota Bradenton, FL (SRQ)
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 38 of 59
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(c) Additional Amenities
Delta will provide such additional or alternative amenities as are necessary
to maintain the safety and/or welfare of customers with special needs such
as unaccompanied children and Persons with a Disability. Such amenities
will be furnished consistent with special needs and/or circumstances.
143. The terms of Defendant’s offer to provide transportation services
contained a definite promise by Defendant and gave Plaintiffs and the Class
Members the power to agree to the terms of Defendant’s offer to provide
transportation services, including but not limited to, through the act of purchasing a
ticket or accepting transportation on Defendant’s aircraft.
144. Plaintiffs and the Class Members accepted Defendant’s offer to
provide transportation services, agreeing to the material terms contained in
Defendant’s offer.
145. Plaintiffs and the Class Members communicated their acceptance of
Defendant’s offer to Defendant by purchasing one or more tickets, booking
transportation services with Defendant.
146. The agreement between Plaintiffs, the Class Members, and Defendant
included an exchange of promises or value, i.e., consideration. Here, Plaintiffs and
the Class Members provided Defendant with consideration in the form of amounts
equal to the monetary value of the fare and all charges and taxes paid.
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40
147. Plaintiffs and the Class Members performed all obligations and
conditions required and expected of them and/or had a valid excuse for not
performing any such obligations.
148. Defendant cancelled and/or significantly changed Plaintiffs’ and the
Class Members’ flights.
149. Defendant has failed to provide and/or has outright refused to cover
the hotel, transportation, and additional amenity expenses incurred by Plaintiffs
and the Class Members for cancelled and/or significantly changed flights.
150. Defendant did so even though Defendant was contractually obligated
to provide refunds to Plaintiffs and the Class Members in such circumstances.
151. As a result, Defendant has failed to perform and/or has materially
breached its contracts with Plaintiffs and the Class Members.
152. Because of Defendant’s failure to perform under the contract,
Plaintiffs and the Class Members have been damaged and/or did not receive the
refunds, benefits, payment, and/or performance to which they were entitled.
153. As a result, Plaintiffs and the Class Members are entitled to fair
compensation in the form of complete refunds for all fares, charges, and taxes paid.
COUNT III
BREACH OF IMPLIED/ORAL CONTRACT
154. Plaintiffs restate, re-allege, and incorporate herein by reference the
preceding paragraphs as if fully set forth herein.
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 40 of 59
41
155. In addition to the express written contractual terms between Plaintiffs
and Delta relating to refunds for flights that have been cancelled and/or
significantly delayed, as set forth in paragraphs 84 and 85, supra, Delta entered
into oral contracts and/or implied contracts with Plaintiffs and the members of the
putative classes.
156. Delta promised those whose travel had been disrupted due to a
canceled or significantly delayed flight that they could request refunds and
reimbursements for their out of pocket expenses.
157. Delta also promised to refund the unplanned, out-of-pocket expenses
incurred by Plaintiffs and the putative class members during the disruption period.
158. Delta, Plaintiffs, and the members of the putative classes mutually
assented to the terms of these oral/implied contracts.
159. Delta, Plaintiffs, and the members of the putative classes each gave
consideration to support the terms of these oral/implied contracts.
160. Plaintiffs and the members of the putative classes suffered injuries as
a result of Delta’s breach of these oral/implied contracts.
COUNT IV
COMMON LAW FRAUD
161. Plaintiffs restate, re-allege, and incorporate herein by reference the
preceding paragraphs as if fully set forth herein.
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42
162. Delta made material misrepresentations and/or omissions concerning
the ability of Plaintiffs and class members to receive refunds for cancelled flights.
For example, Delta falsely represented that Plaintiffs and the class members were
only able to receive travel vouchers Delta did not fully and truthfully disclose to its
customers that they were entitled to receive refunds. As a result, Plaintiffs and the
other Class members were fraudulently induced to purchase airline tickets and
were unable to pursue refunds of amounts paid for tickets.
163. Delta had a duty to disclose that Plaintiffs and the class members were
entitled to refunds when Plaintiffs and the class members contacted Delta seeking
refunds.
164. Delta had a duty to disclose that Plaintiffs and the class members were
entitled to reimbursement of out-of-pocket expenditures incurred as a result of
Delta’s cancellations.
165. These misrepresentations and omissions were made by Delta with
knowledge of their falsity, and with the intent that Plaintiffs and Class members
rely upon them.
166. Plaintiffs and Class members reasonably relied on these omissions,
and suffered damages as a result.
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COUNT V
UNJUST ENRICHMENT
167. Plaintiffs restate, re-allege, and incorporate herein by reference the
preceding paragraphs as if fully set forth herein.
168. This claim is pled in the alternative to Plaintiffs’ contract-based
claims.
169. Plaintiffs and the class conferred a direct benefit on Delta by
purchasing airline tickets.
170. Delta knowingly and willingly accepted and enjoyed the benefits
conferred on it by Plaintiffs and the class.
171. Delta’s retention of these benefits is unjust and inequitable due to the
conduct described herein.
172. As a direct and proximate cause of Delta’s unjust enrichment,
Plaintiffs and the Class are entitled to an accounting, restitution, attorneys’ fees,
costs and interest.
COUNT VI
VIOLATIONS OF THE CALIFORNIA UNFAIR COMPETITION LAW
(on behalf of the California Class)
173. Plaintiffs restate, re-allege, and incorporate herein by reference the
preceding paragraphs as if fully set forth herein.
174. To the extent required, this cause of action is pled in the alternative.
Case 1:24-cv-03477-MHC Document 1 Filed 08/06/24 Page 43 of 59
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175. Delta’s conduct described herein violates the “unfair” and “unlawful”
prongs of California’s Unfair Competition Law (the “UCL”), codified at California
Business and Professions Code §§ 17200, et seq.
176. By its conduct alleged herein, Delta has violated the “unfair” prong of
the UCL, including without limitation by: (a) promising Plaintiff Susman and the
California Class refunds for cancelled or severely delayed flights, and then
reneging on that promise; (b) promising Plaintiff Susman and the California Class
reimbursement of travel expenses incurred as a result of the cancelled or severely
delayed flights, and then reneging on that promise; and (c) failing to comply with
the refund and reimbursement obligations imposed by the federal government.
177. Delta’s conduct alleged herein is immoral, unethical, oppressive,
unscrupulous, unconscionable, and substantially injurious to Plaintiff Susman and
the California Class. By its conduct alleged herein, Delta has already improperly
extracted at least several millions of dollars from customers in California and
throughout the United States. There is no utility to Delta’s conduct, and even if
there were any utility, it would be significantly outweighed by the gravity of the
harm caused by Delta’s conduct alleged herein.
178. Delta’s conduct alleged herein also violates California public policy,
including as such policy is reflected in Cal. Civ. Code § 1750, et seq., Cal. Civ.
Code §§ 1709-1710, and California common law relating to contracts.
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179. By its conduct alleged herein, Delta has also violated the “unlawful”
prong of the UCL, including by breaching contractual promises and/or violating
the implied covenant of good faith and fair dealing, in violation of California
common law.
180. By its conduct alleged herein, Delta received money from Plaintiff
Susman and the California Class that Delta should not have received, including but
not limited to fees paid for airline tickets, meals, hotels, and other valuable benefits
as alleged herein.
181. As a direct and proximate result of Delta’s unfair and unlawful
conduct, Plaintiff Susman and the proposed California Class lost money and have
lost other property and benefits in which Plaintiff Susman and the California Class
have a vested interest.
182. Plaintiff Susman and the California Class lack an adequate remedy at
law to recover the amounts they have paid Delta for the service: (a) to the extent
those amounts (in part or in whole) are deemed not recoverable as damages under
their breach of contract claims; and/or (b) to the extent such payments are
considered “voluntary” (as that term is used for the “voluntary payment” defense)
and rendered not recoverable under legal claims. The UCL gives courts broad
equitable power to “make such orders or judgments…as may be necessary to
restore to any person in interest any money or property, real or personal, which
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may have been acquired by means of such unfair competition.” Cal. Bus. & Prof.
Code § 17203. As alleged, all amounts paid to Delta by Plaintiff Susman and the
California Class for airfare were and are amounts that Delta acquired by means of
its misconduct in violation of the UCL. All such amounts may properly be
awarded as restitution under the UCL even in the event it is determined
recoverable damages under their legal claims are more limited or damages are not
available at all. Moreover, the voluntary payment defense is not applicable to
equitable claims under the UCL – see Torliatt v. Ocwen Loan Servicing, LLC 570
F. Supp. 3d 781, 800 (N.D. Cal. 2021); Bautista v. Valero Mktg. & Supply Co.,
2018 WL 11356583, at *4 (N.D. Cal. Dec. 4, 2018) – and a party may state a claim
and obtain restitution of payments under the UCL in the factual scenario where
those payments are made with knowledge of the relevant facts.
183. Plaintiff Susman and the California Class lack an adequate remedy at
law to obtain injunctive relief requiring Delta to stop refusing to offer refunds and
reimburse California customers for out-of-pocket expenses, to the extent the
specific performance remedy for their breach of contract claims is determined to
require anything less than such relief. The UCL gives courts broad equitable
power to “make such orders or judgments…as may be necessary to prevent the use
or employment by any person of any practice which constitutes unfair
competition.” Cal. Bus. & Prof. Code § 17203.
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184. Plaintiff Susman seeks an order granting restitution to Plaintiff and the
California Class in an amount to be proven at trial, including for the amounts they
have paid to third parties for expenses that should have been reimbursed by Delta.
185. Delta’s conduct has caused substantial injury to Plaintiff Susman and
the California Class. Delta’s conduct is ongoing and will continue absent a
permanent injunction. Accordingly, Plaintiff Susman seeks an order enjoining
Delta from continuing its misconduct alleged herein, ordering Delta to honor its
obligations.
186. Plaintiff Susman further seeks an award of attorneys’ fees and costs
under Cal. Code Civ. Proc. § 1021.5.
COUNT VII
VIOLATIONS OF THE CALIFORNIA CONSUMERS LEGAL REMEDIES
ACT (“CLRA”) CAL. CIV. CODE §§ 1750–1785
(on behalf of the California Class)
187. Plaintiffs restate, re-allege, and incorporate herein by reference the
preceding paragraphs as if fully set forth herein.
188. Plaintiff Susman and the members of the California Subclass are
“consumers” as defined under the CLRA. See Cal. Civ. Code § 1761(d).
189. Delta is a “person” as defined under the CLRA. See Cal. Civ. Code §
1761(c).
190. Airline tickets are “goods” as defined under the CLRA. See Cal. Civ.
Code § 1761(a).
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191. The CLRA proscribes “unfair methods of competition and unfair or
deceptive acts or practices undertaken by any person in a transaction intended to
result or which results in the sale or lease of goods or services to any consumer.”
Cal. Civ. Code § 1770(a).
192. Delta engaged in unfair and deceptive acts in violation of the CLRA
by the practices described above and by (a) promising Plaintiff Susman and the
California Class refunds for cancelled or severely delayed flights, and then
reneging on that promise; (b) promising Plaintiff Susman and the California Class
reimbursement of travel expenses incurred as a result of the cancelled or severely
delayed flights, and then reneging on that promise; and (c) failing to comply with
the refund and reimbursement obligations imposed by the federal government.
Delta’s conduct violates the CLRA in that it:
a. represented that the airline tickets have characteristics, uses, or
benefits that they do not have, which is in violation of section
1770(a)(5);
b. represented that the airline tickets are of a particular standard, quality,
or grade when, in fact, they are not, which is in violation of section
1770(a)(7);
c. advertises airline tickets with the intent not to sell them as advertised,
which is in violation of section 1770(a)(9);
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d. represents that airline tickets have been supplied in accordance with a
previous representation when they have not, which is in violation of
section 1770(a)(16); and
e. inserts an unconscionable provision into its reimbursement of out of
pocket expenses in violation of section 1770(a)(19).
193. Delta’s unfair or deceptive acts or practices occurred repeatedly in its
trade or business and were capable of deceiving a substantial portion of the
purchasing public.
194. Delta knew, should have known, or was reckless in not knowing that
it was incapable of providing airline travel and should have disclosed to passengers
of its lack of capabilities and offered to cover the costs of rebooking flights and
other associated costs.
195. Delta was under a duty to Plaintiff and the California Subclass
members to disclose the facts about the flight cancellations and Delta’s promises to
refund and reimburse passengers because:
a. Delta knew of but actively concealed these facts from Plaintiff and the
California Subclass;
b. Delta was in a superior and exclusive position to know the true facts
about its operations which affects the ability of Delta to offer flights,
and Plaintiff and the Subclass members could not reasonably have
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been expected to discover that Delta would be unable to offer them
flights; and
c. Delta made partial representations regarding the status of flights,
including future flights which Delta booked passengers, and Delta’s
promises to refund and reimburse passengers of their costs.
196. The facts that Delta misrepresented to and concealed from Plaintiff
and the other California Subclass members are material because a reasonable
consumer would have considered them to be important in deciding whether to
purchase airline tickets from Delta or pay a lesser price for them.
197. Delta’s business operations and its ability to fly passengers to their
destinations at the scheduled times are material terms.
198. In failing to disclose Delta’s inability to operate flights, Delta has
knowingly and intentionally concealed material facts in breach of its duty to
disclose.
199. Plaintiff and the California Subclass have suffered injury in fact and
actual damages resulting from Delta’s material misrepresentations and omissions,
including by paying an inflated purchase price for airline tickets and incurring
additional out-of-pocket expenses to deal with the flight cancelation. Had Plaintiff
and the Subclass known about Delta’s flight cancelations, they would not have
purchased their airline tickets or would have paid less in doing so.
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200. As a direct and proximate result of Delta’s unfair and deceptive
conduct, therefore, Plaintiff and the California Subclass members have been
harmed.
201. Pursuant to Cal. Civ. Code § 1782(a), Plaintiff Susman sent a letter to
Delta notifying it of its CLRA violations and providing them with an opportunity
to correct their business practices on August 5, 2024. If Delta does not correct its
business practices, Plaintiff will amend (or seek leave to amend) the complaint to
add claims for monetary relief, including for actual, restitutionary, and punitive
damages under the CLRA.
202. Pursuant to Cal. Civ. Code § 1780(a), Plaintiff, individually and on
behalf of the California Subclass, seeks injunctive relief for Delta’s violation of the
CLRA.
203. Additionally, pursuant to Cal. Civ. Code §§ 1780 and 1781, Plaintiff,
individually and on behalf of the California Subclass, seeks compensatory and
punitive damages under the CLRA and to recover their attorneys’ fees and costs.
204. Plaintiff’s CLRA venue declarations are attached as Exhibit “A” to
this complaint in accordance with Cal. Civ. Code § 1780(d).
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COUNT VIII
VIOLATION OF CALIFORNIA FALSE ADVERTISING LAW
(Cal. Bus. & Prof. Code § 17500, et seq.)
(on behalf of the California Class)
205. Plaintiffs restate, re-allege, and incorporate herein by reference the
preceding paragraphs as if fully set forth herein.
206. Plaintiff Susman brings this claim on behalf of herself and on behalf
of the California Class against Defendant.
207. California Business & Professions Code § 17500 states: “It is
unlawful for any . . . corporation . . . with intent directly or indirectly to dispose of
real or personal property . . . to induce the public to enter into any obligation
relating thereto, to make or disseminate or cause to be made or disseminated . . .
from this state before the public in any state, in any newspaper or other
publication, or any advertising device, . . . or in any other manner or means
whatever, including over the Internet, any statement . . . which is untrue or
misleading, and which is known, or which by the exercise of reasonable care
should be known, to be untrue or misleading.”
208. Defendant caused to be made or disseminated through California and
the United States, through advertising, marketing and other publications,
statements that were untrue or misleading, and which were known, or which by the
exercise of reasonable care should have been known to Defendant, to be untrue and
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misleading to consumers, including Plaintiff Susman and the other California Class
Members.
209. Defendant has violated section 17500 because the misrepresentations
and omissions regarding the operability of flights, refunds, and reimbursements as
set forth in this Complaint were material and likely to deceive a reasonable
consumer.
210. Plaintiff Susman and the other California Class Members have
suffered an injury in fact, including the loss of money or property, as a result of
Defendant’s unfair, unlawful, and/or deceptive practices. In purchasing an airline
ticket, Plaintiff Susman and the other California Class Members relied on the
misrepresentations and/or omissions of Defendant with respect to the ability of
Delta to fly the aircraft at the scheduled time. Moreover, Plaintiff Susman and the
California class relied on the misrepresentations and/or omissions of Defendant
with respect to the issuance of refunds for canceled flights, reimbursements for out
of pocket expenses as a result of Delta’s cancelations, and other commitments
Delta made with respect to offering additional benefits, including meal and hotel
vouchers. Defendant’s representations were untrue because Delta canceled Plaintiff
Susman’s and the California class members’ flights and failed to provide the
refunds and reimbursements to which they were entitled and Delta failed to
provide additional benefits described herein. Had Plaintiff Susman and the other
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California Class Members known this, they would not have purchased airline
tickets from Delta and/or paid as much for them. Accordingly, Plaintiff Susman
and the other California Class Members overpaid for their airline tickets and did
not receive the benefit of their bargain.
211. All of the wrongful conduct alleged herein occurred, and continues to
occur, in the conduct of Defendant’s business. Defendant’s wrongful conduct is
part of a pattern or generalized course of conduct that is still perpetuated and
repeated, both in the state of California and nationwide.
212. Plaintiff Susman, individually and on behalf of the other California
Class Members, requests that this Court enter such orders or judgments as may be
necessary to enjoin Defendant from continuing their unfair, unlawful, and/or
deceptive practices and to restore to Plaintiff Susman and the other California
Class Members any money Defendant acquired by unfair competition, including
restitution and/or restitutionary disgorgement, and for such other relief set forth
below.
COUNT IX
VIOLATIONS OF THE FLORIDA DECEPTIVE AND
UNFAIR TRADE PRACTICES ACT
(on behalf of the Florida Class)
213. Plaintiffs restate, re-allege, and incorporate herein by reference the
preceding paragraphs as if fully set forth herein.
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214. The Florida Deceptive and Unfair Trade Practices Act, Fla. Stat. Ann.
§ 501.201, et seq. (FDUTPA), is designed to protect consumers from those who
engage in unfair methods of competition, or unconscionable, deceptive, or unfair
acts or practices in the conduct of any trade or commerce.
215. Plaintiff Brennan is a “consumer” as defined in the FDUTPA.
216. Delta engages in “trade or commerce” as defined in the FDUTPA.
217. In the course of Delta’s business, it engaged in conduct that was
consumer-oriented and did so in a manner which was materially deceptive and
unfair towards customers such as Plaintiff Brennan.
218. Delta had actual knowledge of a consumer’s right to a refund as
described herein, but refused to provide refunds to consumers.
219. Delta had actual knowledge of a consumer’s right to have their costs
covered as described herein, but refused to reimburse consumers.
220. Delta’s unfair and deceptive practices were done to enrich its bottom
line to the detriment of Plaintiff Brennan and the Florida Class.
221. As set forth above, Delta’s actions occurred in the conduct of trade or
commerce and constitute unfair and/or deceptive trade practices under the
FDUTPA.
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222. Plaintiff Brennan and the Florida Class relied upon and were
deceived by Delta’s unfair and deceptive misrepresentations of material fact in
deciding to purchase airline tickets from Delta.
223. Plaintiff Brennan and the Florida Class were injured as a result of
Delta’s conduct, and suffered ascertainable monetary loss. Plaintiff Brennan and
the class members conveyed to Delta a thing of value, but did not receive the
benefit of their bargain.
224. Pursuant to the FDUTPA, Plaintiff Brennan and the Florida Class are
entitled to an award of reasonable legal fees and costs incurred in connection with
this action.
COUNT X
VIOLATIONS OF THE WASHINGTON
CONSUMER PROTECTION ACT
(on behalf of the Washington Class)
225. Plaintiffs restate, re-allege, and incorporate herein by reference the
preceding paragraphs as if fully set forth herein.
226. Defendant Delta Air Lines engaged in unfair or deceptive practices
prohibited by the Washington Consumer Protection Act, Wash. Rev. Code § 19.86,
et seq. (“WCPA”).
227. Plaintiff Einhorn is a “person” as defined in the WCPA.
228. Delta engages in “trade” and/or “commerce” as defined in the WCPA.
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229. In the course of Delta’s business, it knowingly and intentionally failed
to provide refunds to consumers and cover costs incurred by customers, such as
Plaintiff Einhorn, when Delta canceled their flights.
230. Delta had actual knowledge of a consumer’s right to a refund as
described herein, but refused to provide refunds to consumers.
231. Delta had actual knowledge of a consumer’s right to have their costs
covered as described herein, but refused to reimburse consumers.
232. Delta’s unfair and deceptive practices were done to enrich its bottom
line to the detriment of Plaintiff Einhorn and the Washington Class.
233. As set forth above, Delta’s actions occurred in the conduct of trade or
commerce and constitute unfair and/or deceptive trade practices under the WCPA.
234. Plaintiff Einhorn and the Washington Class relied upon and were
deceived by Delta’s unfair and deceptive misrepresentations of material fact in
deciding to purchase airline tickets from Delta.
235. Plaintiff Einhorn and the Washington Class were injured as a result of
Delta’s conduct, and suffered ascertainable monetary loss. Plaintiff Einhorn and
the class members and did not receive the benefit of their bargain.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs, on behalf of themselves and the Class,
respectfully request that this Court:
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A. Determine that the claims alleged herein may be maintained as
a class action under Rule 23 of the Federal Rules of Civil
Procedure, and issue an order certifying the Class(es) as defined
above;
B. Appoint Plaintiffs as the representatives of the Class and their
counsel as Class Counsel;
C. Award all actual, general, special, incidental, statutory,
punitive, and consequential damages to which Plaintiffs and
Class members are entitled;
D. Award pre-judgment and post-judgment interest on such
monetary relief;
E. Grant appropriate injunctive and/or declaratory relief,
including, without limitation, an order that requires Delta to
issue refunds of ticket prices to any member of the class who
requests a refund;
F. Award reasonable attorney’s fees and costs; and
G. Grant such further relief that this Court deems appropriate.
JURY DEMAND
Plaintiffs, individually and on behalf of the putative Class demand a trial by
jury on all issues so triable.
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Dated: August 6, 2024
Respectfully submitted,
/s/ G. Franklin Lemond, Jr.
E. Adam Webb
G. Franklin Lemond, Jr.
WEBB, KLASE & LEMOND, LLC
1900 The Exchange, S.E.
Suite 480
Atlanta, Georgia 30339
Tel: (770) 444-9325
Facsimile: (770) 217-9950
Adam@WebbLLC.com
Franklin@WebbLLC.com
Joseph G. Sauder
Joseph B. Kenney
Juliette T. Mogenson
S
AUDER SCHELKOPF
1109 Lancaster Avenue
Berwyn, PA 19312
Tel: 888.711.9975
jgs@sstriallawyers.com
jbk@sstriallawyers.com
jtm@sstriallawyers.com
Attorneys for the Plaintiffs
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