In re: National Ski Pass Refund Litigation

Brief in Support of Motion

Judicial Panel on Multidistrict Litigation, jpml-0:2020-md-02943

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Case MDL No. 2943 Document 1-1 Filed 04/29/20 Page 1 of 8 BEFORE THE UNITED STATES JUDICIAL PANEL ON MULTIDISTRICT LITIGATION In Re: NATIONAL SKI PASS CONSUMER LITIGATION MDL No. ________ _____________________________________________________________________________ BRIEF IN SUPPORT OF MOTION FOR TRANSFER AND COORDINATION OF ACTIONS PURSUANT TO 28 U.S.C. § 1407 Pursuant to 28 U.S.C. § 1407 and Rule 6.2 of the Rules of Procedure for the Judicial Panel on Multidistrict Litigation, Movants Michael McAuliffe and George T. Farmer ("Plaintiffs") respectfully move the Panel to centralize related actions for coordinated or consolidated pretrial proceedings. I. INTRODUCTION Pursuant to 28 U.S.C. § 1407 and Rule 6.2(e) of the Rules of Procedure of the U.S. Judicial Panel on Multidistrict Litigation (the "Panel"), Plaintiffs in the actions captioned McAuliffe v. The Vail Corporation, 1:20-cv-01176, and Farmer v. Alterra Mountain Company U.S. Inc., 1:20-cv- 01175, both currently pending in the United States District Court for the District of Colorado, respectfully submit this brief in support of their motion to transfer and coordinate at least ten related actions. The related actions arise out of the closure, due to COVID-19, of ski resorts and ski areas that accept national ski passes. Transfer and coordination is appropriate, and Plaintiffs request that the Panel transfer all cases identified in the Schedule of Related Actions, as well as subsequently filed tag-along actions, to the District of Colorado. The actions listed in the Schedule of Related Actions are putative class actions (hereinafter, the "Related Actions") seeking recovery of the unused value of certain ski passes following the COVID-19 closures. Five actions have been filed against The Vail Resorts, Inc. and The Vail Corporation d/b/a Vail Resorts Management Company (collectively "Vail") and five actions have been filed against Alterra Mountain Company U.S. Inc. and Ikon Pass Inc. (collectively "Alterra") 1 Case MDL No. 2943 Document 1-1 Filed 04/29/20 Page 2 of 8 (Vail and Alterra collectively, "Defendants"). Vail and Alterra are the only defendants in the Related Actions, and each action concerns either Vail's Epic Pass or Alterra's Ikon Pass and related season or multi-day passes (collectively, "national ski passes"). The Related Actions focus on Vail's and Alterra's refusal to issue partial refunds to Plaintiffs and other individuals who purchased one of Defendants' national ski passes for the 2019-20 ski season, after closing their ski resorts and ski areas in response to the COVID-19 pandemic. Significantly, the District of Colorado is where all Defendants are headquartered, and where Defendants conduct the majority of their business—including marketing and selling the national ski passes and decision-making regarding the refusal to issue any refunds—and thus is where most or all potential witnesses are located. Further, the terms and conditions for Defendants' websites, where national ski passes are often purchased, provide that legal proceedings against any of the Defendants must be commenced in state or federal court in Colorado. Indeed, only two of the Related Actions were commenced outside of the District of Colorado. The District of Colorado clearly is the locus of events and witnesses; none of the other fora in which actions are pending possess a comparable evidentiary nexus or relevant business presence. Accordingly, centralization and coordination in the District of Colorado will best further Section 1407's objectives: promoting convenience and the efficient prosecution of the Related Actions. Moreover, centralization and coordination in the District of Colorado is appropriate due to its favorable docket statistics, as the District of Colorado does not have any pending MDL proceedings and hasn't been assigned an MDL matter for many years. Accordingly, Plaintiffs respectfully request the Related Actions be transferred to and coordinated in the District of Colorado. 2 Case MDL No. 2943 Document 1-1 Filed 04/29/20 Page 3 of 8 II. RELEVANT FACTS Each of the Related Actions allege claims against Defendants arising out of similar circumstances. Plaintiff McAuliffe purchased, for the 2019-20 ski season, an Epic Pass that Vail represents provides "unlimited, unrestricted" skiing at any of the 37 ski resorts and ski areas that Vail owns and operates. Similarly, Plaintiff Farmer purchased, for the 2019-20 ski season, an Ikon Base Pass, which Alterra represents provides unlimited access to 15 ski areas. On March 15, 2020, Vail and Alterra both suspended operations at all of their ski areas in the United States due to the COVID-19 pandemic. Within days, Defendants announced that they would close all of their ski areas in the United States for the remainder of the 2019-20 ski season. Despite the fact that the closures rendered the national ski passes unusable for a substantial portion of the 2019-20 ski season, Defendants refused to issue any refunds to Plaintiffs or other individuals who purchased national ski passes for the 2019-20 ski season. Each of the Related Actions also seek to certify similar classes. The Related Actions seek to certify a nationwide class of persons who purchased either an unlimited ski pass for 2019-20 ski season or a multi-day ski pass that had unused days to access one of Defendants' ski resorts after March 15, 2020. III. ARGUMENT A. Legal standard "When civil actions involving one or more common questions of fact are pending in different districts, such actions may be transferred to any district for. . . the convenience of parties and witnesses and [promotion of] just and efficient conduct of such actions." 28 U.S.C. § 1407. Pursuant to 28 U.S.C. § 1407(a), transfer and centralization is appropriate where (1) the pending actions involve one or more common questions of fact; (2) transfer will aid the convenience of 3 Case MDL No. 2943 Document 1-1 Filed 04/29/20 Page 4 of 8 parties and witnesses; and (3) transfer will promote the just and efficient conduct of such actions. In these instances, transfer and centralization streamlines discovery, avoids conflicting rulings and scheduling issues, minimizes costs and conserves time and resources of the parties, witnesses and the courts. See Manual For Complex Litigation § 20.131 (4th ed. 2016). As discussed below, these factors weigh heavily in favor of transfer and centralization of the Related Actions in the District of Colorado. B. The Actions Share Common Factual and Legal Issues The Related Actions undoubtedly meet the threshold requirement for centralization under 28 U.S.C. § 1407(a) because they share common factual and legal questions. See In re Fed. Election Campaign Act Litig., 511 F. Supp. 821, 823 (J.P.M.L. 1979) (transfer was appropriate in cases sharing common factual issues in order to avoid duplication of discovery efforts and prevent inconsistent rulings). It matters not that each Related Action brings varying state law claims; centralization is appropriate so long as related actions raise common questions. See In re Antibiotic Drugs, 309 F. Supp. 155, 156 (J.P.M.L. 1970) ("the applicability of different legal principles will not prevent the transfer of an action under section 1407 if the requisite common questions of fact exist."). Here, where the Related Actions arise from the same operative facts—Defendants' closure of their ski areas for the remainder of the 2019-20 ski season and refusal to issue any refunds for national ski passes—and seek to recover under similar legal theories, transfer and centralization undoubtedly is appropriate. In re Zyprexa Prod. Liab. Litig., 314 F. Supp. 2d 1380, 1381 (J.P.M.L. 2004) ("transfer under Section 1407 does not require a complete identity or even majority of common factual issues as a prerequisite to transfer"). Also, because the Related Actions seek to certify overlapping classes, centralization will guard against inconsistent rulings and inconsistent 4 Case MDL No. 2943 Document 1-1 Filed 04/29/20 Page 5 of 8 class determinations. See In re U. S. Fin. Sec. Litig., 375 F. Supp. 1403, 1404 (J.P.M.L. 1974) ("the prevalence of common factual issues and similar class allegations necessitates transfer of all actions to a single district for coordinated or consolidated pretrial proceedings under Section 1407 in order to prevent duplication of discovery and eliminate the possibility of inconsistent or overlapping class determinations"). The eventual transferee judge can easily separately handle and manage the two different groups of related cases. Moreover, the Panel should consolidate and transfer all Related Actions involving different national ski passes sold by Vail and Alterra. While the national ski passes sold by Vail and Alterra do not permit access to the other Defendant's ski areas, the Related Actions raise common legal and factual issues involving both Defendant's national ski passes. For example, whether the purchase of a national ski pass creates a contract, whether Defendants' representations that the national ski passes provided unlimited access constituted express warranties, whether Defendants' decisions to close their ski areas breaches their contracts or warranties with purchasers of the national ski passes, and whether Defendants were unjustly enriched by closing their ski resorts and refusing to issue refunds for the national ski passes. While some legal or factual issues may be different for the different Defendants' national ski passes, a complete identity of common issues is not required. See In re: 100% Grated Parmesan Cheese Marketing and Sales Practices Litig., 201 F. Supp. 3d 1375, 1378 (J.P.M.L. 2016) ("Section 1407 does not require a complete identity of factual issues or parties as a prerequisite to transfer, and the presence of additional facts is not significant when the actions arise from a common factual core."). C. The District of Colorado is the Most Appropriate Transferee Forum In determining the most appropriate forum for centralization under 28 U.S.C. § 1407, relevant factors include "the site of the occurrence of the common facts, where the cost and 5 Case MDL No. 2943 Document 1-1 Filed 04/29/20 Page 6 of 8 inconvenience will be minimized, and the experience, skill, and caseloads of available judges." Manual for Complex Litigation § 20.131 (4th ed. 2016). The District of Colorado has the strongest nexus to the litigation, is a convenient forum for all parties, and has shown an ability to move and resolve like cases efficiently. Accordingly, it is the most appropriate transferee forum. See In re FCA US LLC Monostable Elec. Gearshift Litig., 214 F. Supp. 3d 1354, 1356 (J.P.M.L. 2016) (holding that the Eastern District of Michigan was the appropriate transferee district because defendant was headquartered in that district and key witnesses and documents were located there). The District of Colorado possesses the strongest factual nexus to the litigation, and therefore is the most convenient transferee forum. As noted above, all Defendants are headquartered in the District. As such, many of Defendants' relevant employees are located within the District; the decision-making related to the marketing and selling of, and refusal to issue any refunds related to, the national ski passes, occurred in the District; and the majority of documents and witnesses relating to the Related Actions likely are located within the District, which is also where all but two of the related cases were filed. See, e.g., In re Upjohn Co. Antibiotic "Cleocin" Prod. Liab Litig., 450 F. Supp. 1168, 1170-71 (J.P.M.L. 1978) (holding that the transfer to the selected forum was appropriate because the defendant was headquartered in district, where "many relevant documents and witnesses w[ould] be found"). Importantly, the terms and conditions for both Vail's and Alterra's website provide that legal proceedings against any of the Defendants must be commenced in eith