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UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION

MARK HANSEN and JASON BUFFER,

Plaintiffs,

v.

UNITED AIRLINES, INC.,

Defendant.

No. 20 CV 2142

Judge Thomas M. Durkin

MEMORANDUM OPINION AND ORDER

Plaintiffs Mark Hansen and Jason Buffer filed this putative nationwide class 

action alleging breach of contract by defendant United Airlines, Inc. (“United”).

Plaintiffs now move for class certification. R. 171. For the reasons stated below, that 

motion is denied.

Background

This case arises out of United’s many flight cancellations during the COVID19 pandemic. Plaintiffs allege that United declined to refund their travel fares and 

contend that this breached United’s Contract of Carriage (“COC”).

United’s Contract of Carriage: The COC identifies two categories of 

cancellations: “Voluntary” cancellations initiated by consumers and “Involuntary” 

cancellations initiated by United. R. 41-2 at 82–87. For “Voluntary” cancellations, 

United provides flight credit for non-refundable tickets and refunds for refundable 

tickets. Id. at 85–87. “Involuntary” cancellations fall into three categories: 1) Force 

Majeure Events; 2) Schedule Changes; or 3) Irregular Operations. Id. at 71–74. If 

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United cancels a flight due to a Force Majeure Event, the impacted passengers are 

entitled to flight credit but not a refund. Id. at 73–74. If United cancels due to 

Schedule Changes or Irregular Operations, the impacted passengers are entitled to a 

refund “upon request” if not rebooked on another flight within the contractually 

required timeframe. Id. If passengers book tickets with United for travel on one of 

United’s partner airlines, United is responsible for all obligations to those passengers 

as established in the COC. Id. at 38.

The COC defines a “Force Majeure Event” as “[a]ny condition beyond [United’s] 

control” including, in relevant part, “[a]ny governmental regulation, demand or 

requirement.” Id. at 72. The COC defines a “Schedule Change” as an “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, the COC defines “Irregular Operations”, in relevant part, as “any other delay 

or interruption in the scheduled operation of a carrier’s flight.” Id. at 72–73.

Mark Hansen: Hansen is a United States citizen who resides in the State of 

Washington. R. 189 ¶ 1 On March 3, 2020, Hansen purchased four round-trip tickets

with United through third-party travel website Expedia. Id. ¶ 2. Hansen planned to 

travel from Vancouver, Canada to Costa Rica with transfers in Houston on the way 

and in Houston and Denver on the return, departing on March 28, 2020 and returning 

on April 5, 2020. Id. ¶¶ 2–3. The purpose of Hansen’s trip was a spring break vacation 

with his family and he planned to drive across the United States-Canada border to 

catch the flight. Id. ¶¶ 4–5.

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On March 16, 2020 and in response to the COVID-19 pandemic, the Costa 

Rican government announced that “only Costa Rican citizens, residents, and foreign 

diplomats will be able to enter Costa Rica” from March 18, 2020 through April 12, 

2020. R. 45 at 14, n. 6. On March 20, 2020 and in response to the COVID-19 

pandemic, the Canadian government banned entry from the United States by foreign 

nationals for “optional or discretionary purpose[s]” including “tourism, recreation and 

entertainment” from March 21, 2020 through April 21, 2020. R. 176-5.

Following March 16, United cancelled the flights between Houston and Costa 

Rica. R. 189 ¶ 15. On March 25, 2020, United cancelled the flight from Denver to 

Vancouver and cancelled Hansen’s tickets on the flight from Houston to Denver. Id. 

¶ 14. United did not, at that time, cancel the flight from Houston to Denver itself. Id. 

¶ 15. On March 26, 2020, United informed Hansen that the entire itinerary was 

cancelled and issued a flight credit. Id. ¶ 15. On March 31, United cancelled the flight 

from Houston to Denver. R. 176-10 ¶ 5.

Jason Buffer: Buffer is a United States citizen who resided in the State of 

New York during the relevant time for this case. R. 41 ¶ 28. On August 22, 2019, 

Buffer purchased two round-trip tickets on United’s website. R. 189 ¶ 18. Buffer was 

set to travel from New York to Athens, Greece with transfers in Zurich, Switzerland 

on the way and in Frankfurt, Germany on the return, departing on March 19, 2020 

and returning on March 27, 2020. Id. The March 19 flights were operated by Swiss

International Airlines and the March 27 flights were operated by Lufthansa, both 

partner airlines of United. Id.

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On March 11, the United States government announced a ban on travel 

effective March 13 to the United States by persons, other than American citizens or 

legal permanent residents, who had been in the Schengen region of Europe (which 

includes Germany, Greece, and Switzerland). R. 176-14. On March 12, 2020, Swiss

International Airlines notified United that it had cancelled Buffer’s March 19 flights. 

R. 189 ¶ 25. On March 14, 2020, United informed Buffer that his itinerary had been 

cancelled and later issued a flight credit. Id. ¶¶ 26, 34.

Also of note, on March 16, 2020, the European Commission recommended a 

thirty-day “travel restriction on non-essential travel from third countries into the 

EU+ area with immediate effect at all part of the Schengen external borders.” R. 176-

15. On March 17, 2020, the European Union (which includes Germany and Greece) 

accepted that recommendation and imposed “coordinated, temporary restrictions on 

non-essential travel to the EU for a period of 30 days.” R. 176-16. On March 18, 2020, 

the Greek government announced that “from March 18 through April 18, non-EU 

citizens may not enter Greece.” R. 176-17. Finally, on March 19, 2020, the Swiss 

government announced ban on all non-essential travel but specified that Swiss 

citizens or persons “traveling directly through Switzerland with the intent of going to 

a different country” may cross the border. R. 176-18.

United’s Motion to Dismiss: On February 12, 2021, the Court granted in part 

and denied in part United’s motion to dismiss the complaint. R. 65. The Court stated 

that even if COVID-19 and the related travel restrictions qualify as Force Majeure 

Events, the “events also must have directly and proximately caused the 

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cancellations.” Id. at 16 (citing Glen Hollow P’ship v. Wal-Mart Stores, Inc., 139 F.3d 

901, 1998 WL 84144, at *3 (7th Cir. 1998)). The Court denied United’s motion to 

dismiss with respect to Buffer’s claims. Id. at 17 (“Ultimately, whether the 

cancellations [of Buffer’s flights] occurred because of economic considerations, or were 

due to restrictions and warnings related to the pandemic, can only be answered with 

discovery.”). Regarding Hansen claims, the Court took judicial notice of the Costa 

Rican border closures.1 Id. Based on this judicial notice, the Court explained: 

It is simply not plausible that [the Costa Rican border 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 government-ordered closure falls comfortably within the definition of 

a Force Majeure Event.

Id. at 17 (citing R. 41-2 at 72 (COC defining “Force Majeure Event” to include “Any 

governmental regulation, demand or requirement.”)). The Court thus found that 

Hansen failed to state a plausible breach of contract claim as to the flights between 

Costa Rica and Houston but that Hansen’s claim on the remainder of his itinerary

may proceed to discovery for the same reasons as Buffer’s claim. Id. at 18.

1 Courts may take “judicial notice of information on official government websites that 

is not subject to reasonable dispute.” Fryman v. Atlas Fin. Holdings, Inc., 2022 WL 

1136577, at *7 (N.D. Ill. Apr. 18, 2022) (citing Denius v. Dunlap, 330 F.3d 919, 926 

(7th Cir. 2003). When briefing its motion to dismiss, United provided sufficient 

information for the Court to take judicial notice of the Costa Rican border closures. 

See R. 45 at 14, n. 6. When briefing its motion for summary judgment and as 

described above, United provided sufficient information for the Court to take judicial 

notice of travel restrictions issued by Canada, the United States, the European 

Union, Greece, and Switzerland.

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Proposed Class Definition: Plaintiffs move to certify two classes, a thirdparty booking class with Hansen as the named representative and a direct booking 

class with Buffer as the named representative. The classes include “[a]ll persons in 

the United States who purchased tickets before June 18, 2020” either from travel 

agencies or directly from United “for travel on [United] flights scheduled to operate 

to, from, or within the United States from March 2020 through December 2020 and 

[who] were not issued a refund upon request for monies paid in connection with an 

itinerary cancelled by United.” R. 171 at 1. Excluded from the proposed classes are 

1) individuals who initiated changes to their travel; 2) individuals who purchased 

their tickets with miles or electronic certificates; 3) portions of travel itineraries to or 

from countries that had closed their borders to U.S. residents; 4) United and its 

employees; and 5) the Court and its staff. Id. at 2.

Pending Motions: There are three pending motions before the Court. First, 

Plaintiffs move for class certification. R. 171. Second, United moves for summary 

judgment as to Plaintiffs’ individual claims. R. 174. Third, United moves to exclude 

the opinions of Plaintiffs’ expert Dr. Sean Malone. R. 182. Malone is a data analyst 

who reviewed the ticket data and refund data provided by United during discovery. 

R. 183-1 ¶¶ 6, 27. Based on his review, Malone estimates the size of the class at 

approximately 219, 286 people. Id. ¶ 27. In ruling on Plaintiffs’ motion for class 

certification, the Court considers facts cited and arguments raised by the parties in 

these other pending motions but only to the extent those facts and arguments bear 

on class certification.

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Legal Standard

To be certified, a putative class must satisfy the four requirements of Federal 

Rule of Civil Procedure 23(a): numerosity, commonality, typicality, and adequacy of 

representation. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th 

Cir. 2012). The class must also satisfy one of the three alternatives set forth in Rule 

23(b). Id. Here, Plaintiffs move to certify under Rule 23(b)(2) and 23(b)(3). Rule 

23(b)(2) requires that final injunctive relief be appropriate for the class a whole. WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 360 (2011). Rule 23(b)(3) requires that: 

1) questions of law or fact common to class members predominate over questions 

affecting only individual members; and 2) a class action is superior to other available 

methods to adjudicate the controversy. Messner, 669 F.3d at 811. 

Plaintiffs bear the burden to prove each Rule 23 requirement “by a 

preponderance of the evidence.” Id. A Rule 23 analysis frequently entails “overlap 

with the merits of the plaintiff’s underlying claim” because class determination 

“generally involves considerations that are enmeshed in the factual and legal issues 

comprising the plaintiff’s cause of action.” Comcast Corp. v. Behrend, 569 U.S. 27, 33–

34 (2013) (internal citations omitted). “Merits questions may be considered to the 

extent—but only to the extent—that they are relevant to determining whether the 

Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret. 

Plans & Trust Funds, 568 U.S. 455, 466 (2013). District courts have “broad discretion” 

to determine whether a proposed class satisfies Rule 23. Howland v. First Am. Title 

Ins. Co., 672 F.3d 525, 528 (7th Cir. 2012).

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Analysis

I. Rule 23(b)(2)

Plaintiffs seek “a single injunction that stops United from withholding refunds 

requested in connection with flights it cancelled in breach of [the COC].” R. 172 at 30. 

But Rule 23(b)(2) does “not authorize class certification when each class member 

would be entitled to an individualized award of monetary damages.” Wal-Mart, 564 

U.S. at 360–61. Plaintiffs contend that Johnson supports their position, see R. 199 at 

23, but Johnson clearly explains that “individualized awards of monetary damages” 

means “awards based on evidence specific to particular class members.” Johnson v. 

Meriter Health Servs. Emp. Ret. Plan, 702 F.3d 364, 370 (7th Cir. 2012). Here, each 

class member seeks an individualized award of monetary damages accounting for 

their total ticket price and adjusted to exclude portions of travel itineraries to or from 

countries that closed their borders to U.S. residents. Such a calculation is necessarily 

based on evidence specific to each class member. Class certification is denied under

Rule 23(b)(2).

II. Rule 23(b)(3)

In this case, certification under Rule 23(b)(3) turns on commonality and 

predominance. The Court addresses these issues together because questions of 

“commonality and predominance overlap in ways that make them difficult to analyze 

separately.” Bell v. PNC Bank, Nat. Ass’n, 800 F.3d 360, 374 (7th Cir. 2015). 

Commonality is met when there are “questions of law or fact common to the class.”

Fed. R. Civ. P. 23(a)(2). But “superficial common questions” are insufficient to satisfy 

commonality. Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 497 (7th Cir. 2012). To

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satisfy commonality, the “claims must depend upon a common contention that is 

capable of class-wide resolution.” Chi. Teachers Union, Local No. 1 v. Bd. of Educ. of 

City of Chi., 797 F.3d 426, 434 (7th Cir. 2015). Determining the truth or falsity of the 

common contention must “resolve an issue that is central to the validity of each one 

of the claims in one stroke.” Wal-Mart, 564 U.S. 338 at 350. Commonality is not met 

by simply raising common questions “but, rather the capacity of a class-wide 

proceeding to generate common answers apt to drive the resolution of the litigation.”

Id. (internal citations omitted). Where resolution of the claims requires “an 

inherently particularized inquiry into the circumstances” of each class member, 

commonality is not met. Jamie S., 668 F.3d at 498.

Predominance is a more demanding standard than commonality. Amchem 

Prods., Inc. v. Windsor, 521 U.S. 591, 624 (1997). It tests “whether proposed classes 

are sufficiently cohesive to warrant adjudication by representation.” Id. at 623. A 

“common question predominates over individual claims if a failure of proof on the 

common question would end the case and the whole class will prevail or fail in 

unison.” Bell, 800 F.3d at 378 (internal citations omitted). “Predominance is not 

satisfied where liability determinations are individual and fact-intensive.” Boundas 

v. Abercrombie & Fitch Stores, Inc., 280 F.R.D. 408, 415 (N.D. Ill. 2012) (citing 

Kartman v. State Farm Mut. Auto. Ins. Co., 634 F.3d 883, 891 (7th Cir. 2011)). 

Considering whether “questions of law or fact common to class members 

predominate begins, of course, with the elements of the underlying cause of action.” 

Erica P. John Fund, Inc. v. Halliburton Co., 563 U.S. 804, 810 (2011) (internal 

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citations omitted). Under Illinois law, the elements for breach of contract are: 1) the 

existence of a valid and enforceable contract; 2) substantial performance by the 

plaintiff; 3) breach of contract by the defendant; and 4) resultant damages. TAS 

Distrib. Co. v. Cummins Engine Co., 491 F.3d 625, 631 (7th Cir. 2007). There is no 

dispute that the COC is a valid and enforceable contract, that Plaintiffs substantially 

performed by paying for their tickets, and that Plaintiffs were damaged to the extent 

United breached. The element in dispute is breach and thus, the common question of 

law to which Plaintiffs must demonstrate a common answer is whether United 

breached the COC by issuing flight credits instead of refunds. See Erica P. John 

Fund, 563 U.S. at 810 (explaining that the predominance analysis may turn on a 

single, key element). Critically, to establish breach of the COC, Plaintiffs must 

demonstrate that Force Majeure Events were not the proximate cause of the flight 

cancellations. This analysis requires a particularized inquiry into the circumstances 

of each class member’s itinerary, and facts related to Hansen and Buffer’s itineraries 

provide examples of why a particularized inquiry is necessary.

Regarding Hansen’s flight from and to Canada, respectively set for March 28 

and April 5, the Canadian government banned entry from the United States by 

foreign nationals effective March 21 through April 21.2 As the Court articulated in its 

motion to dismiss opinion, the Costa Rican border closures proximately caused

2 Though the class definition excludes portions of travel itineraries to or from 

countries that had closed their borders to U.S. residents, Plaintiffs contend that these 

flights were not excluded from the class because Hansen would have been allowed to 

return to Canada. See R. 199 at 12 n. 6; see also R. 188 at 20–21.

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United to cancel Hansen’s travel to Costa Rica because “no reasonable air carrier 

would agree to transport an American citizen . . . where he would not be permitted 

entry on arrival.” R. 65 at 17. At the surface level, the same logic appears to apply for 

Hansen’s return flight to Canada. Plaintiffs argue, however, that Hansen would have 

been permitted to enter Canada because Hansen was passing through Canada to 

return to the United States, not vacationing there, and thus Hansen’s trip was 

permitted as “essential travel.” R. 188 at 20–21. To support this assertion, Plaintiffs 

cite a travel restriction from the United States Department of Homeland Security 

effective March 20 through April 20, which allowed “essential travel” across the 

United States-Canada border and defined “essential travel” to include “U.S. citizens 

. . . returning to the United States.” R. 176-7. Plaintiffs’ argument demonstrates, by 

way of example, that a particularized analysis of the language and exceptions in the 

travel restrictions for both the origin and destination countries may be necessary to 

determine whether a Force Majeure Event proximately caused the cancellation.

Regarding Hansen’s connection flight from Houston to Denver set for April 5, 

it would have been nonsensical for United to maintain Hansen’s tickets on a 

connection flight from Houston to Denver when all other flights in the itinerary had 

already been cancelled. Here, a particularized inquiry would be necessary to consider 

the itinerary as a whole and evaluate 1) whether the Costa Rican and Canadian 

border closures proximately caused United to cancel the flights to Costa Rica and 

Canada and 2) whether, in turn, the border closures proximately caused United to 

cancel Hansen’s tickets on the connection flight. Also, for the connection flight, United 

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cancelled Hansen’s tickets on March 25, cancelled Hansen’s itinerary on March 26, 

and cancelled the flight itself on March 31. Here, a particularized inquiry would be 

necessary to consider the timeline of the cancellations to determine whether the 

March 25 ticket cancellation was proximately caused by border closures even if the 

March 31 flight cancellation was not.

Regarding Buffer’s March 19 itinerary from New York to Zurich to Athens, 

Swiss International Airlines cancelled these flights on March 12, the day after the 

United States issued a travel ban to the Schengen region of Europe. Here, a 

particularized inquiry would be necessary to determine whether Swiss International 

Airlines cancelled these flights as a proximate cause of the United States travel ban.

Additionally, United cancelled the itinerary on March 14, before the European Union, 

Greece, and Switzerland announced border closures, respectively, on March 17, 18 

and 19.3 Here, a particularized inquiry would be necessary to consider the timeline of 

the cancellations as compared with the border closures. Whether United cancelled 

flights before or after the border closures impacts the proximate cause analysis. 

Plaintiffs contend that they can use “common evidence to show that United 

cancelled flights to save on operating costs, not because of Force Majeure Events.” 

R. 199 at 17; see also R. 172 at 11–13. Plaintiffs identify, for example, a draft press 

release where United states: “We continue to adjust our schedule to reduce costs and 

3 Again, though the class excludes portions of travel itineraries to or from countries 

that had closed their borders to U.S. residents, Plaintiffs contend that these flights 

were not excluded from the class because United cancelled the flights prior to the 

border closures. See R. 199 at 12–13; see also R. 188 at 22–23.

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address the significant decrease in demand resulting from the COVID-19 crisis.” 

R. 173-6. And an internal United email stating that “[t]ravel demand is essentially 

zero” and that in response, United “slashed [its] schedule by 90%.” R. 173-7. Indeed, 

it may be true that United cancelled a large percentage of flights to save on operating 

costs. But as shown above regarding Hansen and Buffer’s itineraries, it is impossible 

to generalize across all flights. A particularized review of the circumstances for each 

flight is required to determine whether a Force Majeure Event proximately caused 

the cancellations.

Plaintiffs allege five common questions as to both classes: 1) whether United 

cancelled a flight on which the class member was a ticketed passenger for reasons 

other than a Force Majeure Event; 2) whether the COC obligates United to provide 

class members with refunds for flights that United cancelled; 3) whether United had 

in place a policy of denying refunds to class members for flights United cancelled; 

4) whether United breached the COC; and 5) whether class members are entitled to 

damages. R. 172 at 21. Questions 1, 2, 4, and 5 all require an answer to whether a 

Force Majeure Event proximately caused the cancellations. If a Force Majeure Event 

proximately caused the cancellations, the COC would not obligate United to provide 

a refund, United would not be in breach, and the class members would not be entitled 

to damages. These questions thus fail to satisfy commonality because they require a 

particularized inquiry into circumstances of each class member. Question 3 is

superficial common question. See Jamie S., 668 F.3d at 497. As stated above, a 

question only satisfies commonality when “determination of its truth or falsity will 

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resolve an issue that is central to the validity of each one of the claims in one 

stroke.” Wal-Mart, 564 U.S. 338 at 350. Commonality is not met by showing that all 

class members suffered a violation of the same policy. McFields v. Dart, 982 F.3d 511, 

515–17 (7th Cir. 2020) (The “mere existence of a policy” left the court “far from 

resolving the litigation on a classwide basis.”). Here, the mere existence of a United 

policy has no bearing on the resolution of the class member’s claims. The claims do 

not depend on whether United had a policy of denying refunds but on whether United 

was obligated to provide refunds. Question 3 thus fails to satisfy commonality.

This case is analogous to Pumputiena v. Deutsche Lufthansa, AG, 2017 WL 

66823 (N.D. Ill. Jan. 6, 2017). In Pumputiena, the plaintiff sought to certify a class of 

passengers on United flights that had been delayed under certain conditions and

United’s liability depended on whether United had complied with the Montreal 

Convention by taking “all measures that could reasonably be required to avoid the 

damage.” Id. at *10. Though the provisions and requirements of the Montreal 

Convention applied to all class members, the court still denied class certification 

finding it “impossible to imagine that the reasonableness of an airline’s efforts could 

be the same for the hundreds or thousands of delayed flights that occur in any given 

year.” Id. Similarly, in this case, though the provisions and requirements of the COC 

apply to all class members, it is impossible to imagine that the hundreds or thousands 

of cancelled flights during the COVID-19 pandemic were all cancelled for the same 

reason. 

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In conclusion, determining United’s liability to the class members is not subject 

to a common answer and requires individualized factual inquiries as to each class 

member’s itinerary, which could include over 200,000 such inquiries. Plaintiffs failed 

to establish commonality and predominance. See Jamie S., 668 F.3d at 498

(Commonality is not met where resolution of the claims requires “an inherently 

particularized inquiry into the circumstances” of each class member.); Boundas, 280 

F.R.D. at 415 (“Predominance is not satisfied where liability determinations are 

individual and fact-intensive.”). Class certification is denied under Rule 23(b)(3).

Conclusion

The Court denies Plaintiffs’ motion for class certification (R. 171) for the 

reasons stated above. Because Dr. Malone’s testimony as offered by Plaintiffs is 

relevant to class certification and not to Plaintiffs’ individual claims, the Court denies 

United’s motion to exclude Malone’s expert opinions (R. 182) as moot. The parties 

shall file a joint status report by April 17, 2024 setting forth how they intend to 

proceed, including whether they want the Court to consider the pending motion for 

summary judgment.

ENTERED:

______________________________

Honorable Thomas M. Durkin

United States District Judge

Dated: March 27, 2024

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