Cox v. Spirit Airlines, Inc.
1:17-cv-05172
| E.D.N.Y | Feb 14, 2023Background
- Plaintiffs sued Spirit Airlines alleging the advertised ticket "price" implied the right to bring a carry-on; Spirit charged separate fees for carry-ons and the district court denied Spirit's summary judgment and certified a class (Opinion, Mar. 29, 2022).
- Spirit moved for reconsideration; the court held argument, solicited supplemental briefing, and now amends the Opinion in three limited respects while otherwise denying reconsideration.
- Central factual disputes: whether the OTA booking webpages (or the PNRs they generated) constitute the written contract memorializing the price term, and whether industry practice/custom would lead a reasonable consumer to understand carry-ons were included.
- Evidence: Spirit introduced carry-on fees starting Aug. 2010 and was the first major airline to do so; plaintiffs’ expert contends >99% of the market still included carry-ons in ticket price in 2012. Plaintiffs agreed to exclude Spirit employees from the certified class.
- The court: (1) struck a footnote about custom-and-usage, (2) removed references treating OTAs as Spirit’s agents, and (3) corrected the date Spirit’s contract of carriage was publicly posted (2012, not 2017).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Predominance / class certification | Common evidence (industry practice, OTA disclosures) predominates; class certification appropriate | Individualized issues (some consumers knew of carry-on fees) defeat predominance | Denied reconsideration as to predominance; common evidence suffices and U.S. Foodservice controls |
| Knowledge defense / notice | No admissible evidence that a meaningful portion knew of fee; any news/blog reading is insufficient | Some class members may have known via media, blogs, friends, or purchase behavior | Defendant must present admissible individualized proof; speculation/hearsay insufficient to defeat certification |
| Statute of limitations for four named plaintiffs | Plaintiffs maintain written contract exists via OTA pages or PNRs, so longer written-contract limitations apply | If contract is only implied/oral, shorter state limitations apply and some named plaintiffs’ claims time-barred | Court finds plaintiffs have consistently relied on written price term (booking page/PNR); limitations defense waived for summary-judgment purposes and cannot be resolved now |
| Subclasses | Plaintiffs: one class sufficient because OTA disclosures materially similar | Spirit: subclasses necessary to account for different OTA disclosures | Court declines to create subclasses now; may revisit as case develops under Rule 23(c)(1)(C) |
| Custom-and-usage / ambiguity | Plaintiffs: industry practice and market share admissible to show what a reasonable consumer understood price to include | Spirit: custom-and-usage should be narrowly applied and cannot create ambiguous terms | Court struck footnote limiting usage evidence; threshold for admitting custom-and-usage exists but evidence here raises factual disputes for the jury |
| OTAs as agents / contract formation | Plaintiffs treat OTA booking interfaces or resulting PNRs as the written memorial of the contract | Spirit contends OTAs were passengers’ agents, not Spirit’s; disputes location of the written contract | Court removed language calling OTAs Spirit’s agents; the agency label was immaterial — factual question whether booking page or PNR memorializes contract remains for trial/jury |
Key Cases Cited
- In re U.S. Foodservice Inc. Pricing Litig., 729 F.3d 108 (2d Cir. 2013) (common evidence can satisfy predominance at class-certification stage)
- Shrader v. CSX Transp., 70 F.3d 255 (2d Cir. 1995) (standards for reconsideration motions)
- Nicosia v. Amazon.com, 834 F.3d 220 (2d Cir. 2016) (individual plaintiff’s knowledge of term relevant to certification analysis)
- In re Asacol Antitrust Litig., 907 F.3d 42 (1st Cir. 2018) (class-certification analysis and individualized injury issues)
- SR Int’l Bus. Ins. Co. v. World Trade Ctr. Props., LLC, 467 F.3d 107 (2d Cir. 2006) (standard for proving custom-and-usage to create a jury question)
- Law Debenture Tr. Co. of N.Y. v. Maverick Tube Corp., 595 F.3d 458 (2d Cir. 2010) (custom-and-usage evidence may show parties contracted with reference to a practice)
- Mazzei v. Money Store, 829 F.3d 260 (2d Cir. 2016) (district courts must monitor and revise class definitions as evidence develops)