Proposed Class of Norwegian Air Shuttle ASA Customers
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Case 5:20-cv-00767 Document 1 Filed 04/13/20 Page 1 of 28 Page ID #:1 BURSOR & FISHER, P.A. 1 L. Timothy Fisher (State Bar No. 191626) 2 Yeremey Krivoshey (State Bar No. 295032) 1990 North California Blvd., Suite 940 3 Walnut Creek, CA 94596 Telephone: (925) 300-4455 4 Facsimile: (925) 407-2700 5 E-Mail: [email protected] [email protected] 6 Attorneys for Plaintiff 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 CHERISH DAVERSA-EVDYRIADIS, Case No. 5:20-cv-767 13 on behalf of herself and all others similarly situated, 14 CLASS ACTION COMPLAINT Plaintiff, 15 v. JURY TRIAL DEMANDED 16 NORWEGIAN AIR SHUTTLE ASA and KIWI.COM, INC. d/b/a KIWI.COM USA, 17 INC. 18 Defendants. 19 20 21 22 23 24 25 26 27 28 CLASS ACTION COMPLAINT Case 5:20-cv-00767 Document 1 Filed 04/13/20 Page 2 of 28 Page ID #:2 1 Plaintiff Cherish Daversa-Evdyriadis (“Plaintiff”), individually and on behalf 2 of all others similarly situated, alleges the following on the investigation of her 3 counsel and upon information and belief, except as to Plaintiff’s allegations 4 regarding her own actions which are based on personal knowledge. 5 NATURE OF THE ACTION AND FACTS COMMON TO ALL CLAIMS 6 1. This is a class action lawsuit regarding Defendants Norwegian Air 7 Shuttle ASA (“Norwegian”) and Kiwi.com’s (“Kiwi”) (collectively, “Defendants”) 8 failure to provide full refunds to customers whose flights were cancelled as a result 9 of the coronavirus, or COVID-19. 10 2. Given the outbreak of the coronavirus, Defendants have cancelled a vast 11 percentage of their international and United States flights. However, Defendants 12 have, to date, refused to issue refunds for flights that Defendants cancelled. 13 3. The United States Department of Transportation (“DOT”) has “issued 14 an Enforcement Notice clarifying, in the context of the 2019 Novel Coronavirus 15 (COVID-19) public health emergency, that U.S. and foreign airlines remain 16 obligated to provide a prompt reFund to passengers for flights to, within, or from 17 the United States when the carrier cancels the passenger’s scheduled flight or makes 18 a significant schedule change and the passenger chooses not to accept the alternative 19 offered by the carrier. The obligation of airlines to provide refunds, including the 20 ticket price and any optional fee charged for services a passenger is unable to use, 21 does not cease when the flight disruptions are outside of the carrier’s control (e.g., a 22 result of government restrictions).”1 Indeed, the DOT’s Enforcement Notice makes 23 perfectly clear that offering “vouchers or credits for future travel” is not an adequate 24 25 1 DEP’T OF TRANSP., U.S DEPARTMENT OF TRANSPORTATION ISSUES ENFORCEMENT NOTICE CLARIFYING AIR CARRIER REFUND REQUIREMENTS, GIVEN THE IMPACT OF 26 COVID-19 (Apr. 3, 2020), https://www.transportation.gov/briefing-room/us- 27 department-transportation-issues-enforcement-notice-clarifying-air-carrier-refund (last accessed Apr. 10, 2020) (hereinafter “DOT NOTICE”) (emphasis added). 28 CLASS ACTION COMPLAINT 1 Case 5:20-cv-00767 Document 1 Filed 04/13/20 Page 3 of 28 Page ID #:3 1 or appropriate substitute for airlines’ obligations to offer refunds for cancelled 2 flights.2 3 4. Norwegian focuses heavily on travel between the United States and 4 Europe, and was the largest foreign airline in New York City in 2019, carrying over 5 two million passengers.3 Norwegian’s business was disrupted as a result of the 6 recent travel ban between the United States and Europe.4 7 5. Defendant Norwegian announced in March 2020 that it would ground 8 40 percent of its long-haul fleet and cancel up to 25 percent of its short-haul flights.5 9 6. Plaintiff, like many other travelers, was scheduled to fly with 10 Norwegian: on a departing flight from Los Angeles to Paris, and on a returning flight 11 from Berlin to Los Angeles. 12 7. Plaintiff’s flight to Paris was cancelled by Norwegian due to the 13 coronavirus travel ban. 14 8. Norwegian claims that passengers affected by Coronavirus cancellations 15 “can request a refund of your unused ticket, or choose CashPoints and get an extra 16 20% that can be used for your next trip.”6 17 9. Plaintiff requested a refund from Norwegian, which never came. 18 10. Norwegian’s acts are in violation of the DOT’s Enforcement Notice, 19 which requires airlines to provide “a prompt refund to passengers . when their 20 21 2 See id. 22 3 Michael Goldstein, Norwegian Airlines Cuts 4000 Flights Due to Coronavirus, 23 European Travel Ban, FORBES, Mar. 12, 2020, https://www.forbes.com/sites/michaelgoldstein/2020/03/12/norwegian-airlines-cuts- 24 4000-flights-due-to-coronavirus-european-travel-ban/#726bda70305d (last accessed Apr. 10, 2020). 25 4 Id. 26 5 Id. 27 6 COVID-19 UPDATES, NORWEGIAN, https://www.norwegian.com/us/flight- status/updates/ (last accessed Apr. 10, 2020). 28 CLASS ACTION COMPLAINT 2 Case 5:20-cv-00767 Document 1 Filed 04/13/20 Page 4 of 28 Page ID #:4 1 carrier cancels the passenger’s scheduled flight.”7 The DOT Enforcement Notice 2 applies to “U.S. and foreign airlines.”8 3 11. As of right now, Norwegian feigns that refunds are available to 4 customers, when it in fact is only offering customers an opportunity to get credit for 5 a future flight – not refunds. 9 For instance, Norwegian has a section of its website 6 dedicated to answering customers’ questions (in question and answer format) 7 regarding its policy with respect to cancelled flights due to COVID-19. One of the 8 “questions” states: Can I claim a reFund or CashPoints iF my Flight is cancelled? 9 The “answer” states, “If we have cancelled your flights and you don’t want to travel, 10 you can request a refund of your unused ticket, or choose CashPoints and get an 11 extra 20% that can be used for your next trip.” Just below this answer, Norwegian 12 provides a prominent link allowing customers to get travel credit. Then, further 13 down, in small print, Norwegian states that customers wanting a refund have to 14 submit a claim – even though, as discussed herein, Norwegian is not currently 15 providing refunds. Further, if customers do not select the CashPoints option to get 16 travel credit, Norwegian does not refund affected customers the price of their ticket 17 even where Norwegian cancelled the flight. Norwegian’s default option, should a 18 customer not reach out to Norwegian at all regarding a flight that Norwegian 19 cancelled, is to pocket the price of the ticket and provide neither travel credits nor 20 refunds. 21 12. Just below the above question and answer, the next section is titled: 22 Options iF you don’t want to travel. This section purports to inform customers 23 who do not want to travel on Norwegian in the future and, accordingly, do not want 24 travel credits. The first question in this section states: Can I claim a reFund or 25 7 26 DOT NOTICE 8 Id. 27 9 COVID-19 UPDATES, NORWEGIAN, https://www.norwegian.com/us/flight- 28 status/updates/ (last accessed Apr. 10, 2020). CLASS ACTION COMPLAINT 3 Case 5:20-cv-00767 Document 1 Filed 04/13/20 Page 5 of 28 Page ID #:5 1 CashPoints if I cancel my booking? The “answer” states: “In light of the travel 2 restrictions due to COVID-19, we are we’re [SIC] offering to convert your ticket to 3 CashPoints if you choose to cancel you booking.” Just below this answer, 4 Norwegian provides a prominent link for customers to opt to obtain travel credits 5 (“CashPoints”). Norwegian is not, however, currently providing actual refunds – 6 only travel credits in the form of CashPoints. 7 13. As discussed above, Plaintiff booked her flight on Norwegian from Los 8 Angeles to Paris (through Norwegian’s website), and a returning flight from Berlin 9 to Los Angeles (through Kiwi’s website). Given that Norwegian cancelled her flight 10 from Los Angeles to Paris, Plaintiff requested a refund of the return flight from 11 Berlin to L.A.X. Neither Kiwi nor Norwegian has issued a refund of either flight – 12 the flight from Los Angeles to Paris cancelled by Norwegian, or the flight from 13 Berlin to Los Angeles that Plaintiff was forced to cancel. To make matters worse, 14 Norwegian charged Plaintiff a $30 per passenger cancellation fee on her return flight 15 (Berlin to Los Angeles), and Kiwi charged Plaintiff a $20 per passenger cancellation 16 fee for her return flight. Plaintiff could not have possibly made her return flight, as 17 Norwegian had already cancelled Plaintiff’s flight from Los Angeles to Paris. 18 Further, Plaintiff could not have possibly made her return flight because, upon 19 information and belief, Norwegian later itself cancelled the flight. Still, even though 20 the return flight from Berlin to Los Angeles was ultimately cancelled by the airline, 21 neither Norwegian nor Kiwi has budged on their refusal to refund either the costs of 22 the ticket or the cancellation fees. The cost of the flight and associated cancellation 23 fees should be refunded to Plaintiff in full. 24 14. Reports show that, due to financial strains, Norwegian is incapable of 25 meeting its obligation to provide its customers refunds even for flights that 26 Norwegian cancelled. While Norwegian is reportedly Europe’s third-largest budget 27 airline carrier, it does not keep a sufficient amount of cash on hand to provide 28 CLASS ACTION COMPLAINT 4 Case 5:20-cv-00767 Document 1 Filed 04/13/20 Page 6 of 28 Page ID #:6 1 customers refunds for cancelled flights, as Norwegian’s total liability for required 2 refunds may be almost double the amount of money Norwegian has on hand.10 3 15.