UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

JACOB RUDOLPH, MARK HANSEN, and )

JASON BUFFER, individually and on behalf )

of all others similarly situated, )

)

Plaintiffs, ) No. 20 C 2142

)

v. )

) Judge Thomas M. Durkin

UNITED AIRLINES HOLDINGS, INC. and )

UNITED AIRLINES, INC., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiffs Jacob Rudolph, Mark Hansen, and Jason Buffer filed this putative 

nationwide class action alleging breach of contract by defendants United Airlines 

Holdings, Inc. and United Airlines, Inc. (together, “United”) for failure to refund 

travel fares in the wake of the COVID-19 pandemic. Now before the Court are

United’s motions to stay Mr. Hansen’s claim pending arbitration, R. 52, and to 

dismiss the consolidated complaint in its entirety, R. 44. For the following reasons, 

United’s motion to stay is denied, and its motion to dismiss is granted in part, and

denied in part.

Background

This case arises against the backdrop of numerous United flight cancellations 

during the COVID-19 pandemic. As discussed in more detail below, Plaintiffs allege 

that they sought refunds from United for travel plans never fulfilled, but were offered 

only credits for future travel. According to Plaintiffs, United’s refusal to extend

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refunds was in breach of its Conditions of Carriage (“COC”), a copy of which is 

attached to the complaint. A summary of the COC’s key provisions is set forth below, 

followed by a review of the United States Department of Transportation’s (“DOT”) 

pronouncements regarding passenger refunds referenced in the complaint, and 

finally the allegations specific to each Plaintiff. 

United’s Contract of Carriage. The COC groups cancellations into two 

categories: (1) “Voluntary” cancellations, in which a passenger cancels his flight; and 

(2) “Involuntary” cancellations, in which United initiates the cancellation. R. 41-2 at 

82-87. For a “Voluntary” cancellation of a refundable ticket, the COC allows for a 

refund. But for a “Voluntary” cancellation of a non-refundable ticket, the COC does 

not. Id. at 86-87. Instead, the COC provides that United “may allow a portion of the 

non-refundable fare . . . to be applied towards the purchase of future travel.” Id. at 

87. In other words, United may offer a travel credit. 

In turn, an “Involuntary” cancellation—a cancellation initiated by United—

falls into one of three categories: (1) a “Force Majeure Event;” (2) a “Schedule 

Change;” or (3) “Irregular Operations.” If United cancels a flight due to a Force 

Majeure Event, ticketed passengers are entitled to a travel credit, but no refund. Id.

at 73-74. But if a cancellation is due to a Schedule Change or Irregular Operations 

(and affected passengers are not rebooked on another flight within the contractually 

required timeframe), United must issue a refund “upon request.” Id. The COC defines 

a “Force Majeure Event” as:

a. Any condition beyond [United’s] control including, but not limited 

to, meteorological or geological conditions, acts of God, riots, 

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terrorist activities, civil commotions, embargoes, wars, hostilities, 

disturbances, or unsettled international conditions, either actual, 

anticipated, threatened or reported, or any delay, demand, 

circumstances, or requirement due directly or indirectly to such 

condition; 

b. Any strike, work stoppage, slowdown, lockout, or any other laborrelated dispute involving or affecting [United’s] services;

c. Any governmental regulation, demand or requirement;

d. Any shortage of labor, fuel, or facilities of UA or others;

e. Damage to [United’s] Aircraft or equipment caused by another 

party;

f. Any emergency situation requiring immediate care or protection 

for a person or property; or

g. Any event not reasonably foreseen, anticipated, or predicted by 

[United].

Id. at 72. A “Schedule Change” is defined as:

[A]n advance change in [United’s] schedule (including a change in 

operating carrier or itinerary) that is not a unique event such as 

Irregular Operations or Force Majeure Event.

Id. at 71. Finally, “Irregular Operations” are:

[A]ny of the following irregularities:

a. Delay in scheduled departure or arrival of a carrier’s flight 

resulting in a Misconnection;

b. Flight or service cancellation, omission of a scheduled stop, or any 

other delay or interruption in the scheduled operation of a 

carrier’s flight;

c. Substitution of aircraft type that provides different classes of 

service or different seat configurations;

d. Schedule changes which require Rerouting of Passengers at 

departure time of the original flight; or

e. Cancellation of a reservation by [United] pursuant to Rule 5.

Id. at 72-73. A Rule 5 cancellation includes (among other things) cancellations that 

are “necessary or advisable by reason of weather or other conditions beyond UA’s 

control, (including, but not limited to acts of God, force majeure events, strikes, civil 

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commotions, embargoes, wars, hostilities, or other disturbances, whether actual, 

threatened, or reported).” Id. at 19-20.

DOT Communications Regarding Refunds. The complaint notes that the 

DOT has issued various statements regarding customer refunds. Prior to the COVID19 pandemic, the DOT advised consumers as follows: 

If your flight is cancelled and you choose to cancel your trip as a result, 

you are entitled to a refund for the unused transportation—even for nonrefundable tickets. You are also entitled to a refund for any bag fee that 

you paid, and any extras you may have purchased, such as a seat 

assignment.

R. 41 ¶ 70 (citing Flight Delays & Cancellations, U.S. Dep’t of Trans., 

https://www.transportation.gov/individuals/aviation-consumer-protection/flightdelays-cancellations (Mar. 4, 2020)). In April 2020, and in the midst of the COVID-19 

pandemic, the DOT issued an enforcement notice due to complaints that passengers 

had been offered only “vouchers or credits for future travel” after their flights were 

“cancelled or significantly delayed.” Id. ¶ 71. That notice stated in relevant part:

Carriers have a longstanding obligation to provide a prompt refund to a 

ticketed passenger when the carrier cancels the passenger’s flight or 

makes a significant change in the flight schedule and the passenger 

chooses not to accept the alternative offered by the carrier. The 

longstanding obligation of carriers to provide refunds for flights that 

carriers cancel or significantly delay does not cease when the flight 

disruptions are within or outside the carrier’s control (e.g., a result of 

government restrictions). The focus is not whether the flight disruptions 

are within or outside the carrier’s control, but rather on the fact that the 

cancellation is through no fault of the passenger.

Id. ¶ 72. The DOT issued a second enforcement notice in May 2020 reiterating that 

“airlines have an obligation to provide a refund to a ticketed passenger when the 

carrier cancels or significantly changes the passenger’s flight, and the passenger 

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chooses not to accept an alternative offered by the carrier” (the April and May 2020 

enforcement notices together, the “DOT Notices”). Id. ¶ 76. 

James Rudolph. Mr. Rudolph purchased three tickets for travel on United

beginning on April 4, 2020 to and from Hilton Head, South Carolina to 

Minneapolis/St. Paul, Minnesota, with connecting flights in Chicago. Id. ¶ 13. He paid 

$1,521.45 for his tickets. Id. ¶ 14. Mr. Rudolph requested a refund on March 16, 2020 

due to his concerns about the pandemic. Id. ¶ 15. United representatives denied his 

request, indicating that his ticket purchase did not qualify for a refund. Id. ¶ 16. 

Instead, Mr. Rudolph was offered a rebooking or ticket credit for travel within one 

year of the original purchase date. Id. Later, United cancelled one or more segments 

of his itinerary. Id. ¶ 17. 

Jason Buffer. Mr. Buffer purchased two roundtrip tickets for travel beginning 

on March 19, 2020 from New York, New York to Athens, Greece via Frankfurt, 

Germany. Id. ¶ 29. The tickets cost $668.00. Id. About four days before his departure, 

a United representative informed Mr. Buffer that at least one leg of his trip had been 

cancelled, and offered him a rebooking or cancellation of the remainder of his trip 

with flight credits. Id. ¶ 30. Mr. Buffer declined, and United declined his request for 

a refund. Id.

Mark Hansen. Mr. Hansen used travel booking website Expedia to purchase 

four roundtrip tickets on United for travel beginning on March 28, 2020 from 

Vancouver, British Columbia, to Liberia, Costa Rica, with connecting flights via 

Houston, Texas. Id. ¶¶ 21-22. Mr. Hansen paid $1,483.40 for the tickets. Id. ¶ 22. 

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United changed Mr. Hansen’s itinerary several times in the days leading up to the 

trip. It then canceled a portion of his itinerary, and ultimately canceled the remainder 

two days before his scheduled departure. Id. ¶ 23. United issued Mr. Hansen a flight 

credit. Id. Mr. Hansen contacted both Expedia and United for a refund, to no avail. 

Id. ¶ 24.

I. Motion to Stay Pending Arbitration

United moves to stay Mr. Hansen’s claim pending arbitration, attaching the 

declaration of David Coons, Expedia’s Vice President for Product and Technology, and 

Expedia’s Terms of Use in support. The Court sets forth additional relevant facts from

these exhibits below, before analyzing the parties’ arguments. 

A. Additional Background Facts

It is undisputed that before Expedia users like Mr. Hansen purchase airfare

through the website, they are required to acknowledge that they have read and 

accepted specific terms and policies, including Expedia’s Terms of Use. R. 53-1 ¶ 5. 

Among other things, the Terms of Use to which Mr. Hansen agreed included an 

arbitration clause stating in relevant part that: 

Any and all claims will be resolved by binding arbitration, rather than 

in court, except you may assert Claims on an individual basis in small 

claims court if they qualify. This includes any Claims you assert against 

us, our subsidiaries, travel suppliers or any companies offering products 

or services through us (which are beneficiaries of this arbitration

agreement).

R. 53-1 at 44-45 (“Arbitration Clause”). The Terms of Use expressly indicate that 

airlines are “travel suppliers,” and define “Claims” as “any disputes or claims relating 

in any way to . . . any services or products provided.” See id. at 44, 47. 

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B. Standard

The Federal Arbitration Act (“FAA”) “governs the enforcement, validity, and 

interpretation of arbitration clauses in commercial contracts in both state and federal 

courts.” Jain v. de Mere, 51 F.3d 686, 688 (7th Cir. 1995). It provides that “an 

agreement in writing to submit to arbitration an existing controversy . . . shall be 

valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity 

for the revocation of any contract.” 9 U.S.C. § 2. As such, the FAA embodies a “liberal 

federal policy favoring arbitration agreements.” Moses H. Cone Mem’l Hosp. v. 

Mercury Constr. Corp., 460 U.S. 1, 24-25 (1983). But it “does not mandate 

enforcement of arbitration agreements entered in violation of federal regulations.” In 

re Conticomm. Servs., Inc. Sec. Litig., 1987 WL 10987, at *3 (N.D. Ill. May 8, 1987).

C. Analysis

United argues that the Arbitration Clause contained in Expedia’s Terms of Use 

is valid, and that Hansen’s refund claim falls within its broad scope. Generally, 

ordinary contract principles govern whether an arbitration agreement is valid and 

enforceable. First Options of Chicago v. Kaplan, 514 U.S. 938, 944 (1995). Here, 

United contends that Washington state law and federal arbitration law control. Mr. 

Hansen does not contest this and the Court agrees. Indeed, the Terms of Use provide 

that the applicable law is the FAA, federal arbitration law, and for reservations made 

by U.S. citizens, the laws of the state in which the purchaser’s billing address is 

located. R. 53-1 at 65. And the complaint indicates that Mr. Hansen is a citizen and 

resident of Washington state. R. 41 ¶ 21. Consistent with the FAA, Washington law 

recognizes a strong public policy favoring arbitration when “the parties agree[d] by 

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contract to submit their disputes to an arbitrator.” Davidson v. Hensen, 954 P.2d 

1327, 1330 (Wash. 1998). A valid and enforceable contract exists where: (1) the 

parties “objectively manifest their mutual assent;” (2) the terms assented to are 

“sufficiently definite;” and (3) the agreement is supported by consideration. Keystone 

Land & Dev. Co. v. Xerox Corp., 94 P.3d 945, 949 (Wash. 2004). 

Mr. Hansen does not meaningfully dispute that the Arbitration Clause is valid 

and enforceable with respect to covered claims between himself and Expedia. Instead, 

Mr. Hansen contends that the clause cannot bind him as to his breach of contract 

claim against United because: (1) the Airline Deregulation Act of 1978 (“ADA”)

prevents United from enlarging its COC through Expedia’s Terms of Use; (2) federal 

regulations prohibit United from enforcing the Arbitration Clause; and (3) Mr. 

Hansen’s claim does not fall within the scope of the Arbitration Clause. 

ADA Preemption. Mr. Hansen argues that United cannot acquire a right to 

arbitration that does not exist in the COC, because “federal precedent makes clear 

this dispute is governed exclusively by the terms of the COC (along with any terms 

specifically incorporated by reference),” and the Arbitration Clause was not so 

incorporated. R. 58 at 10. The ADA contains a preemption provision that prohibits a 

state from “enact[ing] or enforc[ing] a law, regulation, or other provision having the 

force and effect of law related to a price, route, or service of an air carrier.” 49 U.S.C. 

§ 41713. As a result, the Supreme Court has held that courts are confined “in breachof-contract actions, to the parties’ bargain, with no enlargement or enhancement 

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based on state laws or policies external to the agreement.” Am. Airlines, Inc. v. 

Wolens, 513 U.S. 219, 233 (1995). 

United does not argue that the Arbitration Clause was incorporated into the 

COC. But it is unclear whether United is preempted from invoking the Arbitration 

Clause as a third-party beneficiary. Indeed, the purpose of the ADA’s preemption 

provision is to prevent states from undoing federal de-regulation by imposing 

obligations on air carriers. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 

378 (1992) (ADA preemption intended to “ensure that the States would not undo 

federal deregulation with regulation of their own”). An order staying Mr. Hansen’s 

refund claim pursuant to the FAA and the Arbitration Clause would not implicate 

these concerns. And Mr. Hansen cites no authority finding preemption in a case in 

which an air carrier sought to benefit from terms outside of its contract of carriage.1

The Court thus declines to decide United’s motion on this basis.

Federal Regulations. Mr. Hansen next contends that DOT regulations 

prevent United from enforcing the arbitration agreement. Mr. Hansen points first to

1 Each of the decisions Mr. Hansen cites in support of his argument held that the 

ADA preempted an effort to use state third-party beneficiary law to impose 

obligations on the air carrier beyond those to which it had agreed. See McGarry v. 

Delta Air Lines, Inc., 2019 WL 2558199, at *5 (C.D. Cal. June 18, 2019) (plaintiff’s 

claim as a third-party beneficiary to an agreement between Delta and another entity 

preempted); A.C.L. Computers & Software, Inc. v. Fed. Express Corp., 2016 WL 

946127, at *4 (N.D. Cal. Mar. 14, 2016) (plaintiff’s breach of contract action as a thirdparty beneficiary to agreement between FedEx and another entity preempted); In re 

Am. Airlines, Inc. Privacy Lit., 2005 WL 3323028, at *3-4 (N.D. Tex. Dec. 7, 2005) 

(plaintiff’s breach of contract action preempted by ADA because it required court to 

apply state law to determine whether plaintiff had rights as a third-party beneficiary 

to the contract between the airline and another entity, and thus to impose obligations 

on the airline beyond that to which it agreed). Accordingly, those cases are inapposite.

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14 C.F.R. § 253.10, which he argues makes clear that he is “entitled to sue in this 

Court” even if the Arbitration Clause is otherwise valid and enforceable. That 

regulation provides:

No carrier may impose any contract of carriage provision containing a 

choice-of-forum clause that attempts to preclude a passenger, or a 

person who purchases a ticket for air transportation on behalf of a 

passenger, from bringing a claim against a carrier in any court of 

competent jurisdiction, including a court within the jurisdiction of that 

passenger’s residence in the United States (provided that the carrier 

does business within that jurisdiction). 

14 C.F.R. § 253.10. United concedes that this regulation “prohibits an airline from 

including an arbitration clause in its own Contract of Carriage.” R. 63 at 5; see also 

Jackson v. Payday Fin., LLC, 764 F.3d 765, 773 (7th Cir. 2014) (“An agreement to 

arbitrate is a type of forum selection clause.”) (citing Mitsubishi Motors Corp. v. Soler 

Chrysler-Plymouth, Inc., 473 U.S. 614, 630-31 (1985)). But United argues that it still 

may rely on the Arbitration Clause, because Section 253.10’s plain language only

prohibits restrictions by air carriers in their own contracts of carriage, not travel 

booking websites like Expedia in their agreements with customers. United points out 

that Mr. Hansen fails to cite any authority that interprets Section 253.10 otherwise, 

and contends that at least one court has held that Section 253.10 does not prohibit 

arbitration in this context. See R. 63 at 5-6 (“United is not aware of any case in which 

a court has held that Section 253.10 (or any other DOT regulation) forbids United 

from enforcing a binding arbitration clause as a third-party beneficiary, and at least 

one court has reached the opposite conclusion.”) (citing Ward v. Am. Airlines, Inc., 

No. 4:20-cv-00371-O (N.D. Tex. Nov. 2, 2020)).

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While the court in Ward did enforce the same Arbitration Clause under 

virtually identical circumstances, the court did not analyze or discuss Section 253.10.

In fact, neither party cited any case law construing Section 253.10, and nor could the

Court locate any. Nevertheless, the Court agrees with Mr. Hansen that United should 

not be permitted to do indirectly what federal regulations prohibit it from doing 

directly, particularly given the regulation’s purpose to provide protections to 

consumers. See Jessica Rapoport, Warsaw, Montreal, and the U.S. Department of 

Transportation: Consumer Protection for Forum Selection?, 77 J. Air L. & Com. 247, 

264 (2011) (“The title of the regulations promulgated—‘Enhancing Airline Passenger 

Protections’—along with language of the regulation and commentary, evidence a 

strong intent and a concerted effort by the DOT to afford airline passengers a right 

to bring suit in the jurisdiction where they reside.”). The Court will not aid an

attempted end-run around the regulation. The motion to stay is denied.2

II. Motion to Dismiss

Having determined that a stay is not proper as to Mr. Hansen’s claim, the 

Court turns to United’s motion to dismiss his and the other Plaintiffs’ claims.

A. Standard

A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v. 

Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must 

provide “a short and plain statement of the claim showing that the pleader is entitled 

2 Because the Court denies United’s motion to stay based on 14 C.F.R. § 253.10, the 

Court declines to address Mr. Hansen’s other arguments in opposition to United’s 

motion. 

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to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of 

the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). 

This standard “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed 

factual allegations” are not required, “labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. 

The complaint must “contain sufficient factual matter, accepted as true, to ‘state a 

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 

550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d 

362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard, 

the Court accepts all well-pleaded facts as true and draws all reasonable inferences 

in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

B. Analysis

To state a breach of contract claim under Illinois law,3 a plaintiff must

plausibly allege: (1) the existence of a valid and enforceable contract; (2) substantial 

performance by the plaintiff; (3) breach by the defendant; and (4) damages resulting 

from defendant’s breach. Reger Dev., LLC v. Nat’l City Bank, 592 F.3d 759, 764 (7th 

Cir. 2010). United argues that the complaint fails to allege a breach because: (1) the 

3 Plaintiffs allege and United does not dispute for purposes of this motion that the 

COC is governed by Illinois law.

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COVID-19 pandemic and its fallout constitute a Force Majeure Event under the COC, 

meaning that United was not contractually required to provide a refund; and (2) the 

DOT Notices were not incorporated into the COC or otherwise binding on United, and 

thus do not change the result. United also contends that United Airlines Holdings, 

Inc. is not a proper defendant. The Court addresses each argument in turn.

COC/Force Majeure Provision. United’s principal argument is that 

Plaintiffs’ claim fails as a matter of law because the COVID-19 pandemic and related 

restrictions and warnings referenced in the complaint constitute Force Majeure 

Events within the meaning of the COC. As a result, United was only obligated to

extend a travel credit to affected passengers (which it did). United points specifically 

to the following allegations: 

• On January 31, 2020, the United States Health and Human Services Secretary 

determined that COVID-19 posed a public health emergency, R. 41 ¶ 45;

• On February 29, 2020, the United States federal government issued a “do not 

travel” warning for areas most affected by the virus, id. ¶ 46;

• On March 11, 2020, the World Health Organization declared COVID-19 a 

global pandemic, and the United States federal government announced an 

expansion of its travel ban, blocking most visitors from continental Europe to 

the United States, id. ¶ 47; and

• On March 31, 2020, the United States Department of State issued a Global 

Level 4 Health Advisory not to travel, id. ¶ 52.

R. 45 at 2-3. Additionally, United asks the Court to take judicial notice of the fact 

that Costa Rica’s borders were closed to all persons other than citizens, residents, and 

foreign diplomats from March 18, 2020 through April 12, 2020—a date range that

encompassed Mr. Hansen’s planned travel. See R. 45 at 10, n.6. Further, and relevant 

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at-home order prior to his travel dates. R. 41 ¶ 50. United argues that all of these 

allegations concern “condition[s] beyond [United’s] control,” “not reasonably foreseen, 

anticipated, or predicted,” and thus fall squarely within the COC’s definition of a 

Force Majeure Event. R. 45 at 11 (quoting R. 41-2 at 72). 

In response, Plaintiffs point to the complaint’s allegations that United’s 

decision to cancel flights was based on pure economics. See R. 48 at 9 (citing R. 41 ¶¶ 

54, 56-60) (alleging that United: “cancelled flights in the United States because of a 

desire to save on operating expenses;” was “planning” for “domestic bookings to 

decrease;” had “informed investors they expected the flight cancellations would 

continue;” and informed the SEC that it would “proactively evaluate and cancel 

flights” until it saw “signs of a recovery in demand”). And Plaintiffs argue that none 

of the circumstances that United cites outright prohibited the operation of the flights 

at issue. Finally, Plaintiffs contend that reading “Force Majeure Event” as broadly as 

United urges would eviscerate the Schedule Change and Irregular Operations

provisions, such that any change that was unforeseen or beyond United’s control 

would disqualify affected passengers from receiving refunds. For the most part, the 

Court agrees. 

Indeed, while a force majeure provision generally must “be interpreted in 

accordance with its language and context, like any other provision in a written 

contract,” Wisc. Elec. Power Co. v. Union Pac. R.R. Co., 557 F.3d 504, 507 (7th Cir. 

2009), courts must also “attempt to give meaning to every provision of the contract 

and avoid a construction that would render a provision superfluous,” Land of Lincoln 

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Goodwill Indus., Inc. v. PNC Fin. Servs. Grp., Inc. 762 F.3d 673, 679 (7th Cir. 2014) 

(applying Illinois law). The Court agrees with Plaintiffs that reading “Force Majeure

Event” too broadly could gut the Schedule Change and Irregular Operations 

provisions. Compare R. 41-2 at 72 (COC defining “Force Majeure Event” to include 

“[a]ny condition beyond [United]’s control,” or “[a]ny event not reasonably foreseen, 

anticipated or predicted” by United), with id. at 73 (COC defining “Irregular 

Operations” to include “[f]light or service cancellation, omission of a scheduled stop, 

or any other delay or interruption in the scheduled operation of a carrier’s flight”). 

Certainly, there must be some point where a Force Majeure Event ends, and a 

Schedule Change or Irregular Operation begins. And to the extent that boundary is 

unclear, the COC, drafted entirely by United, must be construed in Plaintiffs’ favor.4

See Yasko v. Reliance Standard Life. Ins. Co., 53 F. Supp. 3d 1059, 1068 (N.D. Ill. 

2014) (where the agreement may reasonably be interpreted in more than one manner, 

the “ambiguity must be construed against . . . the drafter”) (citing Tranzact Tech.,

Ltd. v. Evergreen Partners, Ltd., 366 F.3d 542, 546 n.2 (7th Cir. 2004)).5

4 The Court notes that the COC definitions of “Force Majeure Event” and “Irregular 

Operations” seem to directly overlap. Indeed, by defining “Irregular Operations” to 

include a “[c]ancellation of a reservation by [United] pursuant to Rule 5,” that 

definition includes cancellations that are “necessary or advisable by reason of 

weather or other conditions beyond UA’s control, (including, but not limited to acts of 

God, force majeure events, strikes, civil commotions, embargoes, wars, hostilities, or 

other disturbances, whether actual, threatened, or reported).” R. 41-2 at 73.

5 In a footnote, United cites to several decisions in which other courts have 

characterized the pandemic as a force majeure event. See R. 49 at 4 n.1 (collecting 

cases). However, none of those decisions are binding on this Court, and nor are they 

particularly persuasive; indeed, none concerned airfare refunds, and as discussed 

supra, force majeure provisions must be construed in accordance with their own 

language and context in any case.

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But even assuming COVID-19 and/or the related restrictions United cites 

qualify as Force Majeure Events, that is not enough to excuse United from offering a 

refund for flights it cancels. Those events also must have directly and proximately 

caused the cancellations. See Glen Hollow P’ship v. Wal-Mart Stores, Inc., 139 F.3d 

901, 1998 WL 84144, at *3 (7th Cir. 1998) (for force majeure provision to excuse 

nonperformance, the nonperformance “must be both directly and proximately caused 

by” the allegedly triggering condition); see also N. Ill. Gas Co. v. Energy Co-op., Inc., 

461 N.E.2d 1049, 1058 (Ill. App. Ct. 1984) (the allegedly triggering condition must

“clearly direct or prohibit an act which proximately causes non-performance or [the] 

breach”). And “generally the issue of proximate cause is a jury question.” Shick v. Ill.

Dep’t of Human Servs., 307 F.3d 605, 615 (7th Cir. 2002) (courts can decide the issue 

of causation as a matter of law in “extreme circumstances,” but typically only after 

discovery, not on the pleadings); see also Palm Springs Mile Assocs., Ltd. v. Kirkland’s 

Stores, Inc., 2020 WL 5411353, at *2 (S.D. Fla. Sept. 9, 2020) (the applicability of a 

force majeure clause in the context of COVID-19 is typically a “factual question that 

cannot be determined on a motion to dismiss”); see also Gibson v. Lynn Univ., Inc., 

2020 WL 7024463, at *4 (S.D. Fla. Nov. 29, 2020) (same). With this in mind, the Court 

takes Plaintiffs’ claims in turn. 

First, it is plausible that United cancelled Mr. Buffer’s flights in mid-March 

2020 “because of a desire to save on operating expenses” as the complaint alleges, R. 

41 ¶ 54, and not because COVID-19 had been declared at that time as a public health 

emergency and global pandemic. Indeed, according to the complaint, United made 

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various statements in public filings with the SEC regarding “adjustments” to its flight 

schedule due to “reduced demand.” Id. ¶¶ 59-60. And that United continued to 

operate some flights during this time cuts against blaming the pandemic itself. See 

id. ¶ 57 (alleging that United cut its flights by 50% for April and May). United does 

not contend that economic motivations constitute a Force Majeure Event, and nor 

could it. Ultimately, whether the cancellations at issue occurred because of economic 

considerations, or were due to restrictions and warnings related to the pandemic, can 

only be answered with discovery. Accordingly, United’s motion is denied as to Mr. 

Buffer.

But Mr. Hansen’s claim is another story. While Mr. Hansen contends that the 

Costa Rican border closures are “irrelevant,” R. 48 at 11, the Court disagrees. It 

simply is not plausible that such closures were not a proximate cause of at least the 

cancellation of Mr. Hansen’s travel in and out of Costa Rica in March and April 2020. 

Indeed, Costa Rica was Mr. Hansen’s destination, not a layover, and no reasonable 

air carrier would agree to transport an American citizen and resident under those

circumstances, where he would not be permitted entry on arrival. Such a governmentordered closure falls comfortably within the definition of a Force Majeure Event. See 

R. 41-2 at 72 (COC defining “Force Majeure Event” to include “Any governmental 

regulation, demand or requirement”). Accordingly, Mr. Hansen fails to state a

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plausible breach of contract claim as to those flights. But Mr. Hansen’s claim as to 

the remainder of his itinerary may proceed for the same reasons Mr. Buffer’s does.6

Finally, Mr. Rudolph’s claim fails in full, because, according to the complaint, 

Mr. Rudolph cancelled his flight before United did. R. 41 ¶¶ 15-17. Plaintiffs do not 

contend that the COC obligates United to offer a refund when a passenger cancels a 

non-refundable ticket first. But they argue that Mr. Rudolph nevertheless states a 

claim because United repudiated the agreement with Mr. Rudolph before he cancelled 

his plans.

Generally, “[w]hen one party to a contract repudiates his contractual duties 

before time for performance, the other party may elect to treat the contract as ended. 

In such cases the nonbreaching party is not required to tender performance or to

comply with conditions precedent.” Bituminous Cas. Corp. v. Com. Union Ins. Co., 

652 N.E.2d 1192, 1197 (Ill. App. Ct. 1995). But “Illinois law requires a repudiation be 

manifested clearly and unequivocally.” Truman L. Flatt & Sons Co., Inc. v. Schupf, 

649 N.E.2d 990, 994 (Ill. App. Ct. 1995). There is no repudiation “if a party does no 

more than make doubtful or indefinite statements that it will not perform.” Busse v. 

Paul Revere Life Ins. Co., 773 N.E.2d 779, 783-84 (Ill. App. Ct. 2003).

6 United also argues that Mr. Hansen has sued the wrong party because he purchased 

his travel through Expedia, not United. But Expedia’s Terms of Use expressly 

indicate that purchasers are bound by the “full terms and conditions” of the air 

carrier’s COC. See id. at 47 (“If you have purchased an airfare, please ensure you read 

the full terms and conditions of carriage issued by the travel supplier, which can be 

found on the supplier’s website. You agree to abide by the terms and conditions of 

purchase imposed by any supplier with whom you elect to deal . . . .”).

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Here, the complaint alleges only that United made “public announcements” of 

“cuts to its April and May 2020 flight schedules,” and that it “was planning for . . .

domestic bookings to decrease in the weeks to come.” R. 41 ¶¶ 55-56. These are

“indefinite statement[s],” not repudiation. Accordingly, Mr. Rudolph fails to state a

claim for breach of the COC’s terms.

DOT Notices. United also argues that the DOT Notices referenced in the 

complaint and purporting to require refunds cannot bolster Plaintiffs’ breach of 

contract claims because: (1) the notices themselves indicate that they are merely 

“guidance” that do not have the “force and effect of law,” and are “not meant to bind 

the regulated entities in any way,” R. 45 at 12 (citing R.45-1); and (2) they were not 

incorporated into the COC, id. at 12-13. Rather than respond to these critiques, 

Plaintiffs pivot, pointing instead to language in an April 25, 2011 DOT regulation

(“2011 DOT Regulation”) that they argue is incorporated into the COC. But the Court 

disagrees. The 2011 DOT Regulation states:

Since at least the time of an Industry Letter of July 15, 1996 . . . the 

Department’s Aviation Enforcement Office has advised carriers that 

refusing to refund a non-refundable fare when a flight is canceled and 

the passenger wishes to cancel is a violation of 49 U.S.C. 41712 (unfair 

or deceptive practices) and would subject a carrier to enforcement 

action.

Enhancing Airline Passenger Protections, 76 Fed. Reg. 23110-01 (Dep’t of Transp. 

Apr. 25, 2011). And the COC states that “in the event of a conflict” between the COC’s 

provisions and “laws, regulations, rules, and security directives imposed by 

governmental agencies, the latter shall prevail.” R. 41, Ex. B at 16.

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“The intent to incorporate another document into a contract must be clear and 

specific.” Volodarskiy v. Delta Air Lines, Inc., 2012 WL 5342709, at *3 (N.D. Ill. Oct.

29, 2012). Vague references will not do. See Rosenblum v. Travelbyus.com Ltd., 299 

F.3d 657, 666 (7th Cir. 2002) (“mere reference to another . . . document is not 

sufficient to incorporate its terms into a contract”). Courts have found language

similar to the COC’s too general to effect incorporation. See Daversa-Evdyriadis v. 

Norwegian Air Shuttle ASA, 2020 WL 5625740, at *5 (C.D. Cal. Sept. 17, 2020) 

(contract of carriage indicating that where a conflict existed between its provisions 

and “applicable Tariffs and Conventions, the Tariffs and/or Conventions will always 

take precedence” did not incorporate DOT regulations regarding refund timing); 

Volodarskiy, 2012 WL 5342709 at *3 (contract of carriage provision indicating that 

where contract was contrary to “applicable laws, government regulations, or orders,” 

the latter was insufficient to incorporate European regulation governing customer 

refunds). Plaintiffs point to no contrary authority, and the Court cannot find a reason 

to reach a different conclusion here.7

Finally, as stated, Plaintiffs have apparently abandoned their arguments 

regarding the DOT Notices. But no matter; for the same reasons applicable to the 

2011 DOT Regulation, those notices do not factor into the evaluation of Plaintiffs’ 

contract claims. 

7 Nor does the 2011 DOT Regulation create a private right of action. See 76 Fed. Reg.

23110-01 (refusing to refund non-refundable airfare when a flight is cancelled is a 

violation of 49 U.S.C. 41712 that may subject a carrier to an “enforcement action”); 

see also Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 302 (1976) (“[I]ndividual 

consumers are not even entitled to initiate proceedings under § [41712]”).

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United Airlines Holdings, Inc. Finally, United contends that United 

Airlines Holdings, Inc. must be dismissed because it is not a party to the COC. 

Plaintiffs fail to respond, and thus have waived the argument. See Alioto v. Town of 

Lisbon, 651 F.3d 715, 719 (7th Cir. 2011) (“a person waives an argument by failing to 

make it before the district court”). Accordingly, and because United’s argument is

sound, United Airlines Holdings, Inc. is dismissed with prejudice.

III. Conclusion

For the reasons stated, United’s motion to stay Mr. Hansen’s claim pending 

arbitration is denied. R. 52. United’s motion to dismiss is: (1) granted without 

prejudice as to Mr. Rudolph’s claim; (2) granted with prejudice as to Mr. Hansen’s 

claim to the extent he seeks a refund for the portions of his itinerary that involved 

his arrival in, or departure from, Costa Rica; (3) granted with prejudice as to

defendant United Airlines Holdings, Inc.; and (4) otherwise denied. R. 44. If Plaintiffs 

believe they can remedy the deficiencies identified in this opinion as to those aspects 

of the complaint that were not dismissed with prejudice, they may move to amend 

their complaint by March 5, 2021. Any such motion shall be accompanied by a brief 

of no more than ten pages explaining how the amendments cure the deficiencies 

identified here. 

ENTERED:

_______________________

Honorable Thomas M. Durkin

United States District Judge

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Dated: February 12, 2021

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