[00:00:06] Speaker 02:
And so if counsel is ready to proceed, you may begin.

[00:00:15] Speaker 01:
Good morning, Your Honors, and may it please the Court.

[00:00:18] Speaker 01:
My name is Bridget Asey.

[00:00:19] Speaker 01:
I represent the plaintiff appellants in this case.

[00:00:21] Speaker 01:
I'd like to reserve three minutes for rebuttal, please.

[00:00:25] Speaker 01:
The decision below should be reversed and the plaintiff's claim should be allowed to go forward.

[00:00:30] Speaker 01:
Before turning to the merits, however, I'd like to begin with the issue raised by the panel in its April 12th order, namely whether the record sufficiently demonstrates that Section 1332D's amount and controversy requirement is met here, citing Moe v. Geico.

[00:00:49] Speaker 01:
The amount controversy requirement is readily met here, and I'd like to start my explanation of why by emphasizing a key difference between this case and Moe.

[00:00:59] Speaker 01:
Moe was a removal case under the Class Action Fairness Act, or CAFA.

[00:01:04] Speaker 01:
The defendant had removed to federal court

[00:01:07] Speaker 01:
And in those cases, Section 1446 sets up a process for assessing jurisdiction when the defendant's allegation of the amount in controversy is questioned.

[00:01:20] Speaker 02:
Let me ask you, counsel, assuming the booking conditions are a valid and enforceable contract, what duty or obligation did global travel breach?

[00:01:35] Speaker 01:
The obligation that Global Travel breached was its obligation to refund the prepaid trip fees that were paid by travelers when the trips that they paid.

[00:01:44] Speaker 02:
Let me ask you, where in the contract does Global Travel promise to provide full refunds for trips that don't take place as scheduled?

[00:01:59] Speaker 01:
There's multiple parts of this contract that talk about the circumstances under which a traveler would forfeit all or part of the fee.

[00:02:10] Speaker 01:
There are at least six different places in the contract that discuss when a refund would be limited.

[00:02:18] Speaker 01:
Starting at paragraph one and going through

[00:02:23] Speaker 01:
the standard cancellation policies.

[00:02:25] Speaker 01:
None of those circumstances that specifically in the policy limit a refund of the prepaid fees happened here.

[00:02:34] Speaker 01:
These trips did not go forward.

[00:02:36] Speaker 04:
The standard cancellation policy that's referred to here does not refer back to any specific conditions.

[00:02:44] Speaker 04:
Why shouldn't we read this as a general

[00:02:47] Speaker 04:
cancellation policy for any of the covered cancellations as well as any other time that either party wants to cancel.

[00:02:56] Speaker 01:
The standard cancellation policy only applies to student cancellations.

[00:02:59] Speaker 01:
That was not disputed by global travel below.

[00:03:03] Speaker 01:
And that is how the entire standard cancellation policy is framed.

[00:03:07] Speaker 04:
Where is that?

[00:03:10] Speaker 04:
Where is it limited?

[00:03:10] Speaker 04:
I'm looking at it.

[00:03:12] Speaker 04:
How is it limited to students?

[00:03:14] Speaker 04:
You're looking at ER?

[00:03:15] Speaker 04:
ER 463, 462?

[00:03:17] Speaker 04:
Correct.

[00:03:18] Speaker 01:
It is phrased in terms of

[00:03:22] Speaker 01:
you cancelling.

[00:03:23] Speaker 01:
So the first little bullet, the first sub-bullet, no refund will be issued should you cancel 30 days or less.

[00:03:29] Speaker 01:
Cancellations must be made in writing to our office.

[00:03:33] Speaker 01:
We strongly recommend that you consider purchasing our trip protection program.

[00:03:37] Speaker 01:
So this policy, and this was not disputed below, that this policy governs when a traveler cancels.

[00:03:44] Speaker 01:
It doesn't provide for any provisions for when the trip itself does not go forward.

[00:03:49] Speaker 01:
And that's reflected in other provisions of the policy that interpret it.

[00:03:53] Speaker 01:
So for example, paragraph two, which is on ER 460, says, I understand that if the school declares me ineligible to participate, my cancellation is subject to the refund policy in the standard cancellation policy.

[00:04:07] Speaker 02:
But aren't we focusing, or shouldn't the folks be on condition number seven?

[00:04:14] Speaker 02:
It says the company shall have the right at any time in its discretion

[00:04:18] Speaker 02:
and without liability or cost to cancel any trip or portion of a trip or make an alteration in itinerary or accommodation in the event of any trip being rendered unsafe.

[00:04:31] Speaker 02:
Why isn't that the main controlling provision here?

[00:04:37] Speaker 01:
It is a relevant provision here, Your Honor, absolutely, and it is what global travel relies on.

[00:04:42] Speaker 01:
But it does not give them a right to withhold the prepaid trip fees.

[00:04:47] Speaker 00:
Again, this... So how do you construe without cost?

[00:04:52] Speaker 00:
I mean, it seems to me, and you've cited the case of Unruh Education Travel Services,

[00:04:58] Speaker 00:
There was a refund, but they were entitled to deduct the cost they had.

[00:05:02] Speaker 00:
Your argument is here they get a full refund, no offset, correct?

[00:05:07] Speaker 01:
That is our argument because this contract does not allocate any risk of loss to the students in the case of what essentially happened here, which is a force majeure type event.

[00:05:16] Speaker 01:
They could have put that clause in the contract.

[00:05:19] Speaker 01:
They didn't.

[00:05:19] Speaker 01:
Without liability or cost is best construed as it protecting global travel from consequential damages, penalties, liability for other damages that could be incurred when a trip is canceled.

[00:05:34] Speaker 01:
But it does not.

[00:05:35] Speaker 01:
I think it's critical that this paragraph says nothing about the refund policy.

[00:05:39] Speaker 04:
And again, if you look at paragraph one... Well, I guess that depends on what we make of without liability or cost.

[00:05:45] Speaker 04:
Those are pretty strong terms.

[00:05:48] Speaker 01:
under Montana law for this contract, which is a contract of adhesion, it has to be interpreted most strongly against the drafter, which is global travel.

[00:05:57] Speaker 01:
And when they put together this contract that in multiple places explains when the standard cancellation policies limits on refund explicitly provide in paragraph one, in paragraph two,

[00:06:11] Speaker 01:
I think it's in paragraph 17 as well.

[00:06:13] Speaker 01:
There's at least five different places in here where there's a specific cross reference or a specific reference to refunds.

[00:06:20] Speaker 01:
Nothing in paragraph 7.

[00:06:22] Speaker 01:
Under Montana law, that ambiguous, even if it's considered ambiguous, and I don't think it is, could not be construed so harshly.

[00:06:29] Speaker 01:
Their position is, under this paragraph,

[00:06:34] Speaker 01:
we can wholesale cancel a trip that's been fully paid for, for any safety reason, no obligation to reschedule, no obligation to pay any refund whatsoever.

[00:06:45] Speaker 01:
And was the trip canceled or postponed?

[00:06:48] Speaker 01:
I don't, Your Honor, I don't think those terms are inconsistent, and in fact, neither does global travel.

[00:06:54] Speaker 01:
I would point the Court to

[00:06:56] Speaker 01:
to ER 363, which is an email from Global Travel in the spring of 2020 that says the trip was, quote, canceled, slashed, postponed due to CDC and government travel restrictions and goes on also at ER 363 and 365 to refer to the trips being, quote, canceled due to the pandemic.

[00:07:18] Speaker 04:
But this, I guess this raises another question given this posture as a putative class.

[00:07:27] Speaker 04:
Each of the plaintiffs did something different.

[00:07:30] Speaker 04:
Some of them appear to have been the first movers, or at least with respect to that they'd canceled after they tried to negotiate.

[00:07:38] Speaker 04:
They're all kind of differently situated.

[00:07:40] Speaker 04:
How does, I mean, is your position here that with respect to every one of the plaintiffs at issue, global travel is the one who canceled?

[00:07:53] Speaker 01:
Our position is that there's a class claim here

[00:07:57] Speaker 01:
for travelers who were enrolled in trips in the spring of 2020 that did not go forward were canceled due to the pandemic and who received less than a full refund.

[00:08:07] Speaker 01:
And that is five of the six, the situation of five of the six of the named plaintiffs.

[00:08:12] Speaker 01:
The fact that some received 50% and some received 70%, that's just a

[00:08:19] Speaker 01:
mechanistic damages calculation, the breach by global travel was refusing to offer them a full refund.

[00:08:29] Speaker 01:
I would like to go back if I made it a standard cancellation policy to another point about it.

[00:08:34] Speaker 04:
You talk about a mechanistic damages calculation.

[00:08:36] Speaker 04:
Isn't that precisely what the standard cancellation policy provides?

[00:08:42] Speaker 01:
If the traveler cancels, again, that policy governs

[00:08:45] Speaker 01:
when a traveler is canceling for personal reasons, the kinds of reasons that they could insure against.

[00:08:52] Speaker 01:
I mean, I think it's also notable that the standard cancellation policy includes this recommendation to purchase the trip protection plan, which allows you to insure against cancellations for personal reasons actually doesn't cover pandemic cancellation.

[00:09:06] Speaker 04:
So if a student is signed up to take this trip to Washington DC and COVID happens and then

[00:09:12] Speaker 04:
It's postponed to the next year.

[00:09:15] Speaker 04:
They say we're going to reschedule.

[00:09:17] Speaker 04:
And one of the students or parents then says in response, I'm out.

[00:09:26] Speaker 04:
I cancel, or in so many terms, is your position that that's not the student canceling, that that's global travel canceling?

[00:09:33] Speaker 01:
Yes, it's our position.

[00:09:34] Speaker 01:
Again, as they said in the spring of 2020, the trips were canceled.

[00:09:38] Speaker 01:
The students did not cancel from the trips.

[00:09:41] Speaker 01:
The trips themselves did not go forward.

[00:09:44] Speaker 01:
If you, in fact, if global travel were going to be consistent and say these trips that happened in the spring of 2021 were the same trip, it is the exact same trip, then these students were denied the standard cancellation policy because that allows them

[00:10:01] Speaker 01:
a refund 90 days before departure.

[00:10:04] Speaker 02:
What is your best argument, though, to support that the booking conditions are so unreasonable that they are unconscionable?

[00:10:14] Speaker 02:
Because that's what you're asking us to determine, correct?

[00:10:19] Speaker 01:
That's a pretty high standard.

[00:10:20] Speaker 01:
Our first line is actually not that the court has to hold them unconscionable.

[00:10:23] Speaker 01:
It's that under Montana law, they have to be interpreted most strongly against global travel and in favor of the consumer.

[00:10:32] Speaker 01:
That is a statutory requirement for interpreting this contract under Montana law.

[00:10:37] Speaker 01:
And that language without liability or cost, to construe that to mean no refunds

[00:10:43] Speaker 01:
If we wholesale cancel a trip for a safety reason, no matter what we might, whether we rescheduled or not, that's the interpretation that the court would have to adopt.

[00:10:51] Speaker 01:
Ms.

[00:10:51] Speaker 04:
AC, I guess given that, I want to segue back into the jurisdictional question, because I do want to make sure I'm clear on your math.

[00:11:00] Speaker 04:
The claim here, there were partial refunds in most of these cases, right?

[00:11:04] Speaker 01:
For the named plaintiffs, there were partial refunds.

[00:11:07] Speaker 04:
Okay.

[00:11:07] Speaker 04:
That's what we've got to work with.

[00:11:10] Speaker 04:
Claim then is for the difference between what was paid and what was already paid out as a refund.

[00:11:17] Speaker 04:
Over 1,500 class members.

[00:11:19] Speaker 01:
Yes, your honor.

[00:11:19] Speaker 04:
How does that add up to $5 million?

[00:11:21] Speaker 04:
Okay.

[00:11:22] Speaker 01:
So I'd like to start with the math and then go back to the standard.

[00:11:25] Speaker 01:
Good.

[00:11:25] Speaker 01:
Thank you.

[00:11:26] Speaker 01:
I've got my pencil ready.

[00:11:29] Speaker 01:
Although we, at the class certification stage, which was well into the case and after other issues had been briefed and there was a motion to dismiss, there's a discussion of over 1,500 class members.

[00:11:40] Speaker 01:
Jurisdiction is tested at the time of the filing.

[00:11:43] Speaker 01:
The complaint alleges thousands of chores were sold to class members.

[00:11:46] Speaker 01:
And that is in fact backed up by later discovery.

[00:11:50] Speaker 01:
The court looks at ER 466 to 67, shows that there were over 60 trips in this time period with over 2,900 participants.

[00:12:00] Speaker 01:
So first of all, for a jurisdictional inquiry that's looking at the time of filing, the starting point is much higher.

[00:12:08] Speaker 01:
And even if the damages are, you know, 1,000, 2,000,

[00:12:13] Speaker 01:
One plaintiff in this case got none of their money back because the trip was, they took a voucher which they couldn't sell.

[00:12:20] Speaker 01:
So again, in the jurisdictional inquiry, thousands of dollars per plaintiff.

[00:12:23] Speaker 01:
And under Montana law, under the Consumer Protection Act, those damages can be troubled.

[00:12:29] Speaker 01:
Also under the Consumer Protection Act.

[00:12:31] Speaker 04:
Do you have, what's your authority for troubling damages in a CAFA situation under state law?

[00:12:42] Speaker 01:
If the question goes to whether that's included in the amount in controversy, again, this takes me back to the actual standard for this case, which is an original jurisdiction case, not a removal case.

[00:12:53] Speaker 01:
So the jurisdictional question is consistent with NAFI, which is a diversity case that explains the standard for original jurisdiction.

[00:13:02] Speaker 01:
It's a very generous standard, the legal certainty test, where the plaintiffs invoke federal jurisdiction.

[00:13:09] Speaker 01:
Their allegation as to the amount in controversy controls unless it appears to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal.

[00:13:20] Speaker 01:
So plaintiffs asked for treble damages.

[00:13:22] Speaker 01:
They are available under Montana law.

[00:13:25] Speaker 01:
Plaintiffs asked for attorney's fees, which would also be included in the amount in controversy

[00:13:29] Speaker 01:
Internet class action, 25% is a contingency amount.

[00:13:33] Speaker 01:
Also under Montana law, that is potentially recoverable.

[00:13:37] Speaker 00:
But you would agree that without your Montana Consumer Protection Act claim, you don't meet the $5 million, correct?

[00:13:46] Speaker 01:
I'm not sure that I can see that, Your Honor, although the court doesn't have to address that, again, because you're relying on travel damages, and if my math is correct, you're far short.

[00:13:55] Speaker 00:
unless you get treble damages, which are only available under the Montana Consumer Protection Act.

[00:14:01] Speaker 01:
And I think, Your Honor, this goes back to the standard, the legal certainty standard that's looking at the time of filing, 2,900 potential thousands is what we alleged, and it gets you to 2,900.

[00:14:12] Speaker 01:
If it's $2,000 a person, that gets you to $5.8 million.

[00:14:17] Speaker 01:
And again, the question is not what would plaintiffs likely recover or what developments happened after filing that might affect the amount.

[00:14:24] Speaker 01:
The question is, at the time of filing, what was alleged you could make?

[00:14:28] Speaker 00:
The odd thing about this is that the Montana Consumer Protection Act forbids class actions and you're relying on that to form the basis of your class action fairness jurisdiction.

[00:14:43] Speaker 01:
Your Honor, the Consumer Protection Act restricts bringing class actions in state court.

[00:14:49] Speaker 00:
I understand there's an argument that Rule 23 preempts the Montana Consumer Protection Act prohibition on class actions.

[00:14:59] Speaker 00:
But in every case I've seen that's come up, and there's been some decide about the district court, the district court makes the decision that it's preempted.

[00:15:07] Speaker 00:
And here you're relying on a statute

[00:15:10] Speaker 00:
that forbids class action, but you need the class action to get to five million.

[00:15:14] Speaker 00:
So I find it a little puzzling.

[00:15:16] Speaker 00:
I didn't realize that the other side didn't raise this, or you're hitting it for the first time today, but it is jurisdictional.

[00:15:24] Speaker 01:
It is jurisdictional.

[00:15:25] Speaker 01:
I see that my time is up.

[00:15:27] Speaker 01:
You can answer if you'd like to.

[00:15:28] Speaker 01:
It is jurisdictional, but again, the test of what the court is assessing in terms of whether that requirement is satisfied is whether it was alleged in good faith by the plaintiffs and would not appear to a legal certainty that it's impossible for them to recover.

[00:15:42] Speaker 04:
When you come back, could you just be ready with where should we look in the complaint where the allegation of the amount is?

[00:15:49] Speaker 01:
Actually, Your Honor, I believe I did run through my time, but if the court allows rebuttal.

[00:15:52] Speaker 02:
I'll give you a couple minutes.

[00:15:54] Speaker 02:
Thank you.

[00:16:00] Speaker 05:
Thank you.

[00:16:00] Speaker 05:
May it please the court.

[00:16:01] Speaker 05:
My name is Ian McIntosh.

[00:16:03] Speaker 05:
I'm here today with Kristin Meredith and Mack Morris, and we represent Global Travel Alliance.

[00:16:08] Speaker 05:
The district court's decision in this case, both granting summary judgments to global travel and also denying the class claims, was absolutely correct.

[00:16:16] Speaker 05:
based on the record before the district court.

[00:16:19] Speaker 05:
And I specifically emphasize that term, based on the record before the district court, because plaintiffs have hired new appellate counsel and they're completely trying to recast their argument and they're completely restating and misstating the facts down below.

[00:16:31] Speaker 05:
I want to start off talking about one of the most obvious misstatements that they're making.

[00:16:35] Speaker 04:
Mr. McIntosh, I wonder if you could start with a jurisdiction piece that we just left and asked you about.

[00:16:43] Speaker 05:
I know it's a bit unusual on an appellate argument, but may I approach so that we can avoid math?

[00:16:50] Speaker 05:
No.

[00:16:50] Speaker 04:
No?

[00:16:51] Speaker 03:
Okay.

[00:16:52] Speaker 05:
There will be math then.

[00:16:54] Speaker 05:
Okay.

[00:16:54] Speaker 05:
So if you look at

[00:16:56] Speaker 04:
And is your, what's your, to start out here, do you argue that there is or isn't jurisdiction?

[00:17:01] Speaker 05:
There is, yes.

[00:17:02] Speaker 05:
That's one point we agree on.

[00:17:03] Speaker 05:
There is, there is CAFE jurisdiction.

[00:17:05] Speaker 05:
And so if you look at ER 258 to 260, that goes through the amount being claimed by each individual plaintiff.

[00:17:16] Speaker 05:
And, Your Honor, you were exactly correct.

[00:17:19] Speaker 05:
It is just the amount of refunds that we're talking about here.

[00:17:22] Speaker 05:
But if you look at the original six named plaintiffs and the amount of refunds they're seeking, the average of that is $1,392 being sought per person.

[00:17:34] Speaker 05:
Then if you look at ER 466 and 467, you will see an early estimate of the number of class members.

[00:17:44] Speaker 05:
And as counsel indicated, that number is 2,973.

[00:17:52] Speaker 05:
Because this was not questioned below, and after the court raised this issue, we went back to our client and tried to get a more accurate number.

[00:18:01] Speaker 05:
The actual number of estimated class numbers based on plaintiff's class definition is 3,831.

[00:18:08] Speaker 05:
But even using that lower number, the 2,973, you times that by the 1,392 at issue per plaintiff on average, and you get 4.138 million.

[00:18:21] Speaker 05:
And if you use the higher number, the 3,831, then you get 5.3 million.

[00:18:28] Speaker 05:
But even considering the lower number, the 4.138 million, then of course plaintiffs are seeking trouble damages and attorney's fees.

[00:18:36] Speaker 05:
And to answer your prior question, the case is COPL.

[00:18:39] Speaker 05:
It's out of the Western District of Washington, and it includes trouble damages on a

[00:18:44] Speaker 05:
for CAFA jurisdiction in a calculated amount at issue.

[00:18:50] Speaker 04:
So you concede that treble damages would be available in the event plaintiffs are successful?

[00:18:54] Speaker 05:
Well, I do not.

[00:18:56] Speaker 05:
No, I do not concede that.

[00:18:58] Speaker 04:
Well, we have to assure ourselves of our own jurisdiction, so that's why the math is important.

[00:19:02] Speaker 05:
I do not concede.

[00:19:03] Speaker 05:
Judge Thompson's question.

[00:19:05] Speaker 00:
Without treble damages, I don't see how

[00:19:08] Speaker 00:
the jurisdictional amount is met.

[00:19:11] Speaker 00:
I mean, by math, even at 2,900, it's short if you just look at actual damages.

[00:19:21] Speaker 05:
Well, Your Honor, actually the number, as I just indicated, the actual number of class members using plaintiff's definition is 3,831.

[00:19:27] Speaker 00:
Well, according to you now, by her pleading it was about 2,900, right?

[00:19:34] Speaker 00:
We look at the time of pleading to make this determination, right?

[00:19:38] Speaker 05:
Correct, but at the time the time planes filed their complaint and you heard them today, they're seeing a class of everyone whose trip was delayed during 2020.

[00:19:47] Speaker 00:
Right.

[00:19:47] Speaker 00:
I mean, you didn't contest it, so it's just puzzling to me in a sense because it seems to me that you had to thread the needle on a couple of issues.

[00:19:57] Speaker 00:
For example, saying that the Montana statute that prohibits class actions is preempted, which there's no determination of that in this case.

[00:20:07] Speaker 00:
And if it's not preempted, then I don't see how you get there without the trouble damage.

[00:20:13] Speaker 00:
Now, that's an ancillary issue, and it may wash out, but it's puzzling to me.

[00:20:18] Speaker 05:
Yeah, I understand, Your Honor.

[00:20:19] Speaker 05:
And our position would be that there is 3,831 class members, and you simply multiply that by the average amount being sought, 1,392, and you get 5.3 million.

[00:20:31] Speaker 05:
So therefore, the jurisdictional amount is met.

[00:20:33] Speaker 05:
And if it's 2,900, you come just short.

[00:20:36] Speaker 05:
and then if you count the trouble damages.

[00:20:38] Speaker 05:
Correct, Your Honor.

[00:20:39] Speaker 05:
So back to what I was saying earlier.

[00:20:42] Speaker 05:
Plaintiffs start off their entire brief by claiming that global travel kept their money.

[00:20:47] Speaker 05:
That is false, and they know it's false.

[00:20:49] Speaker 05:
They've been told it's false since before this case was even filed.

[00:20:53] Speaker 05:
In group travel situations like this, vendors typically do not provide refunds.

[00:20:58] Speaker 05:
And if you look in the record at ER 561, you'll see a discovery response from global travel explaining that to plaintiffs.

[00:21:06] Speaker 05:
One thing they didn't include in their excerpts was

[00:21:09] Speaker 05:
an email where Global Travel sent an email to Marriott asking for, give us back these monies we've prepaid.

[00:21:17] Speaker 05:
Marriott says no, and that's $26,700 that Marriott refuses to give back and instead Marriott says you can have credit.

[00:21:25] Speaker 04:
And that's exactly- Mr. McIntosh, I don't think we've talked a little bit about this.

[00:21:31] Speaker 04:
You're not alleging that you provided everything net of your costs back as a refund.

[00:21:39] Speaker 04:
What policy in the contract were you guided by in paying the amount of the refund?

[00:21:46] Speaker 05:
Paying the amount of the refund for travelers that canceled was guided by the standard cancellation policy.

[00:21:52] Speaker 00:
But the standard cancellation policy is by the traveler, correct?

[00:21:57] Speaker 00:
The standard cancellation policy is by the traveler.

[00:22:03] Speaker 05:
Correct.

[00:22:03] Speaker 00:
And all of these travelers canceled as the district... What you said was, I think you told them, if you don't accept our offer, we will treat it as a cancellation.

[00:22:15] Speaker 00:
Now what in the contract allows you to do that?

[00:22:17] Speaker 05:
Paragraph 7, your honor, that says that trips may be rescheduled if they become unsafe.

[00:22:23] Speaker 05:
I know it says change in itinerary or accommodation, but I'm using reschedule or postpone because I'm going to flub itinerary if I try to say it too many times.

[00:22:32] Speaker 04:
What do we make of your friend's point of the bottom two solid bullet points that suggest that the cancellations here would not be triggered by

[00:22:45] Speaker 04:
paragraph 7, but here would have to be triggered by the parents canceling.

[00:22:51] Speaker 05:
Yes, and that's exactly what happened here.

[00:22:53] Speaker 05:
The district court found that the district court reached a factual conclusion.

[00:22:57] Speaker 05:
This is the issue we raised in our 28-J letter.

[00:23:00] Speaker 05:
The district court concluded that global travel did not cancel any of these trips.

[00:23:05] Speaker 05:
And then when plaintiffs responded and they objected to the magistrate's findings, they said specifically that they did not respond to global travel's statement of undisputed facts because the facts set forth by global travel were correct.

[00:23:19] Speaker 05:
So this argument about cancellation is something that they waved down below, and it's a brand new argument they're making on appeal, and it's factually incorrect.

[00:23:26] Speaker 04:
So your position is that they rescheduled the itinerary.

[00:23:29] Speaker 04:
They rescheduled it, wasn't it?

[00:23:30] Speaker 04:
And that they canceled in response.

[00:23:31] Speaker 00:
Wasn't there at least one school, Sacajawea Bozeman, where it was actually canceled?

[00:23:36] Speaker 05:
It was.

[00:23:37] Speaker 00:
By the trip leader.

[00:23:39] Speaker 05:
Yeah, the trip leader immediately, pandemic comes up, global travel context, the trip leader says, we are working to reschedule.

[00:23:46] Speaker 05:
The trip leader says, don't worry about it.

[00:23:49] Speaker 05:
Just give us a 70% refund.

[00:23:51] Speaker 05:
So clearly, their choice.

[00:23:52] Speaker 05:
The same thing for Smith, one of the other original named plaintiffs.

[00:23:56] Speaker 05:
And the other thing we haven't yet talked about is, and this is why this case is inappropriate for class determination, is that global travel offered a whole host of people that could not go on the rescheduled trips, it offered them travel vouchers.

[00:24:10] Speaker 05:
So Ms.

[00:24:11] Speaker 05:
Swenson at the Castle Rock trip

[00:24:13] Speaker 05:
Her trip was rescheduled and 80% of the people that were originally signed up for the Castle Rock trip either went on the rescheduled trip or they accepted a travel voucher.

[00:24:26] Speaker 04:
Mr. McAdams, I just want to take you back to the cancellation policy and the contract here.

[00:24:34] Speaker 04:
Did global travel

[00:24:38] Speaker 04:
give the refunds according to the departure date of the trip that never happened?

[00:24:44] Speaker 04:
And why isn't that a problem for you under the policy?

[00:24:46] Speaker 05:
I'll tell you why it's not a problem for me.

[00:24:47] Speaker 05:
It's not a problem for me because Global Travel gave refunds pursuant to the original departure date.

[00:24:53] Speaker 05:
And this new argument the plaintiffs are making on appeal about they should have changed the departure date is not an issue in this case.

[00:25:00] Speaker 04:
Well, we're just trying to read the contract.

[00:25:03] Speaker 04:
I understand.

[00:25:03] Speaker 04:
And we've got these terms in front of us.

[00:25:05] Speaker 04:
And it seems like Global Travel's

[00:25:07] Speaker 04:
may be having it both ways if they can say, we're going to postpone the trip to some new unknown date.

[00:25:14] Speaker 04:
We're going to give you a refund as if the trip that didn't happen, that we've postponed, has already happened.

[00:25:20] Speaker 05:
A couple things, Your Honor.

[00:25:21] Speaker 05:
First of all, that allegation is not in the complaint.

[00:25:24] Speaker 05:
And when we asked plaintiffs in discovery, how do you contend that plaintiffs breached the contract, they mentioned nothing about that.

[00:25:31] Speaker 05:
And that's in the excerpts of record.

[00:25:32] Speaker 04:
Well, the contracts before us, and we have to figure out what to do.

[00:25:35] Speaker 05:
Correct.

[00:25:35] Speaker 05:
Correct, Your Honor.

[00:25:36] Speaker 05:
I'm just, just before I get there, that's an ER 319.

[00:25:39] Speaker 05:
But also that simply makes no sense as a matter of practicality.

[00:25:43] Speaker 05:
First of all, you need to take us back to the time when all of this occurred.

[00:25:47] Speaker 05:
This was COVID.

[00:25:48] Speaker 05:
I mean, nobody knew what was going on.

[00:25:50] Speaker 05:
And I don't think that

[00:25:52] Speaker 05:
at least very few trips ever of global travel had ever been postponed before.

[00:25:58] Speaker 05:
But even beyond that, just look at the reality.

[00:26:00] Speaker 05:
Let's say you're 75 days out from someone's trip and that person contacts global travel and they say, my kid's grades are really going down, I can't go on the trip, I want my refund.

[00:26:15] Speaker 05:
If you take plaintiff's interpretation,

[00:26:17] Speaker 05:
Global travel would have to say, well, I'm sorry, we can't give you that refund right now because this trip might get delayed and therefore we would have to recalculate the department.

[00:26:25] Speaker 04:
Did any of the plaintiffs at issue here ask for a refund before they heard that the trips were postponed or canceled or delayed?

[00:26:32] Speaker 05:
Excuse me, Your Honor.

[00:26:33] Speaker 04:
I'm just wondering whether this, the hypothetical you're offering us is this case or not because I don't think, again, I think the theory of the case is that global travel canceled or postponed to some later date.

[00:26:47] Speaker 04:
whatever you call it, just say postponed.

[00:26:50] Speaker 04:
And then in response they cancelled.

[00:26:51] Speaker 04:
So it isn't the case where it's a unilateral I'm worried about COVID, I don't want to travel.

[00:26:56] Speaker 04:
They're all reacting to global travel moving first and saying we're going to take this trip later but then still enforcing the standard cancellation policy that acts as if

[00:27:07] Speaker 04:
the trip is going to happen.

[00:27:08] Speaker 05:
Exactly, Your Honor.

[00:27:09] Speaker 05:
And so just play that out a little bit.

[00:27:12] Speaker 05:
Global travel, this was again during the pandemic.

[00:27:15] Speaker 05:
So global travel, when it first started to reschedule these trips, it didn't know when it was safe to reschedule them.

[00:27:21] Speaker 05:
And in fact, if you look at the record, they had to be rescheduled three or four times.

[00:27:24] Speaker 05:
Again, going back to Judge Thompson's question about the Sacajawea trip, when Global Travel said, okay, we're going to postpone this trip, and then the travelers say, well, you know, we want to cancel, Global Travel would have to say, well, I don't know if we can provide you a refund, because we don't know when or if it's going to be rescheduled.

[00:27:43] Speaker 05:
I mean, it's just unworkable.

[00:27:46] Speaker 02:
Unless you use the original department.

[00:27:47] Speaker 02:
At the time of contracting,

[00:27:50] Speaker 02:
The only date known was the original date of departure.

[00:27:55] Speaker 02:
Correct.

[00:27:55] Speaker 02:
There was no other date, right?

[00:27:57] Speaker 05:
Correct, Your Honor.

[00:27:58] Speaker 05:
Not only at the time of contracting, but throughout the history of global travel, the departure date was known and it was the only one that was ever used.

[00:28:09] Speaker 00:
Mr. McIntosh, you didn't have an opportunity to address the case NRAE Educational Travel Services, the bankruptcy decision in Oregon because it was raised in the reply brief.

[00:28:20] Speaker 00:
Would you address that case?

[00:28:21] Speaker 00:
I mean, what it essentially holds is that refunds are owed except to the extent that you've had their non-refundable vendor costs to which you've alluded.

[00:28:32] Speaker 00:
Why isn't that the logical construction of what happens under paragraph seven of this?

[00:28:37] Speaker 05:
Yeah, Your Honor, I'm glad you raised that case.

[00:28:40] Speaker 05:
A couple of issues about that case.

[00:28:41] Speaker 05:
First of all, in that case, of course, it was a different contract, so you're interpreting different language.

[00:28:46] Speaker 05:
But I think the important aspect of that case is that case recognizes that

[00:28:53] Speaker 05:
in group travel situations just like this, very often the vendors do not receive refunds.

[00:28:59] Speaker 05:
And in fact, in that case, it specifically talks about a trip to Costa Rica and where the company got zero in refunds.

[00:29:06] Speaker 05:
And the plaintiffs in that case were only seeking the amount refunded less overhead.

[00:29:12] Speaker 05:
So in other words, less all of the

[00:29:15] Speaker 05:
the employee expenses, everything else that the travel company was seeking.

[00:29:19] Speaker 05:
And that claim has never been made in this case.

[00:29:22] Speaker 05:
Plaintiffs from the outset have been making a claim for full refunds.

[00:29:26] Speaker 00:
I understand that.

[00:29:27] Speaker 00:
I think my question was, why isn't that the right answer to this case, that you have to do an accounting of the actual non-refundable vendor fees you made and the difference goes back to the parents?

[00:29:38] Speaker 05:
Because of the language of the contract, Your Honor.

[00:29:42] Speaker 00:
You mean you're relying on paragraph seven?

[00:29:44] Speaker 00:
So you say without cost means you don't have to pay anything as opposed to without loss to you.

[00:29:53] Speaker 05:
I would say that if they cancel, they receive refunds pursuant to the standard cancellation policy, which in this case is typically 50 or 70 percent.

[00:30:02] Speaker 00:
So if your position is, if you cancel for whimsical reason, they're not entitled any refund.

[00:30:10] Speaker 05:
No, if someone can cancel for a whimsical reason.

[00:30:13] Speaker 05:
And if they cancel for a whimsical reason, then the refund is calculated.

[00:30:15] Speaker 00:
No, I'm talking about the company.

[00:30:16] Speaker 00:
You know, the company.

[00:30:18] Speaker 05:
Oh, can the company cancel for a whimsical reason?

[00:30:20] Speaker 05:
No.

[00:30:21] Speaker 05:
You know, Your Honor, I think that, I mean, first of all, again, the district court concluded that global travel did not cancel any of these.

[00:30:27] Speaker 05:
But beyond that, I mean, we all know that in Montana, there's a duty of good faith and fair dealing read into any contract.

[00:30:34] Speaker 05:
And so reasonable is essentially ready.

[00:30:36] Speaker 00:
Excuse me?

[00:30:37] Speaker 00:
How does that help you?

[00:30:38] Speaker 05:
Well, because, as the district court concluded here, that these trips were rescheduled as soon as it was reasonably safe to do so.

[00:30:46] Speaker 05:
So if there was a thunderstorm and global travel postponed a trip for a year, I don't think that would be reasonable.

[00:30:54] Speaker 05:
But that's not the situation here.

[00:30:56] Speaker 05:
We were dealing with a national pandemic.

[00:30:57] Speaker 05:
No one knew what was going on.

[00:31:00] Speaker 00:
Go ahead.

[00:31:02] Speaker 05:
I'm sorry.

[00:31:02] Speaker 00:
No, no.

[00:31:03] Speaker 00:
Well, I know unjust enrichment isn't part of the case right now, but it seems to me that if you made a profit on this, that's a fair claim.

[00:31:13] Speaker 00:
In other words, if the standard cancellation policy, 70 percent, 30 percent, whatever, doesn't equal what your actual loss was, then in fact you've made a profit on this, even though the trip was canceled or postponed.

[00:31:28] Speaker 05:
And that's something that's an argument that plaintiffs have never raised because they've always been looking for a 100% absolute refund.

[00:31:35] Speaker 05:
So frankly, it is not an issue that has been addressed.

[00:31:41] Speaker 05:
I'm out of time.

[00:31:42] Speaker 05:
I would just encourage the court in this case to examine the record from the district court and compare it to the arguments on appeal.

[00:31:48] Speaker 05:
The district court absolutely made the correct decision based on the record before it.

[00:31:53] Speaker 05:
Thank you.

[00:31:53] Speaker 02:
Thank you.

[00:31:55] Speaker 02:
I'll give you two minutes.

[00:31:59] Speaker 01:
If I could start briefly with the jurisdictional point, because I promised to, in the complaint, paragraph 5, the request, the assertion of $5 million in damages, paragraph 8, the reference to thousands of tours being sold, paragraph 11A, one named plaintiff's payment of $41.90 for the trip, paragraph 27, the treble damages and attorney's fee requests under the Consumer Protection Act.

[00:32:24] Speaker 01:
I'd like to turn to some of the issues that my friend raised.

[00:32:27] Speaker 01:
First of all, the argument that we waved arguing that these trips were canceled is not correct.

[00:32:37] Speaker 01:
The magistrate's factual background is set forth at 1ER 23-27.

[00:32:41] Speaker 01:
In the factual background, the magistrate judge did not say that the trips were not canceled.

[00:32:47] Speaker 01:
The discussion of the cancellation versus postponing

[00:32:51] Speaker 01:
is in the legal analysis section of the opinion.

[00:32:54] Speaker 01:
At 2ER 94 to 95 are plaintiffs' objections to the magistrate's decision, which clearly dispute this question of whether the trips were canceled.

[00:33:04] Speaker 01:
And also note what I think is really the gist of the point here today.

[00:33:08] Speaker 01:
The historical facts here are not disputed.

[00:33:10] Speaker 01:
What happened is not disputed.

[00:33:12] Speaker 01:
The characterization of whether the trips were canceled or how that applies under the contract is a legal issue, which the plaintiffs have consistently disputed.

[00:33:20] Speaker 01:
On the standard cancellation policy and its relation to the booking conditions, paragraphs 1, 2, 16, 17, 24, and the policy itself all specifically discuss refund issues.

[00:33:34] Speaker 01:
Paragraph 7 does not.

[00:33:37] Speaker 01:
And that is a very persuasive reason why it cannot be read.

[00:33:40] Speaker 01:
to allow global travel to withhold refunds when the trips don't go forward.

[00:33:45] Speaker 01:
I would point the court again to ER 363, 365 global travel's own emails saying that the trips were canceled.

[00:33:55] Speaker 01:
They are trying to have it both ways.

[00:33:56] Speaker 01:
When they told the travelers that their trip insurance were voided, they said it was because the trips were canceled due to the pandemic.

[00:34:05] Speaker 01:
They used the date of the original scheduled date to effectuate the refunds.

[00:34:10] Speaker 01:
even though that is not what the language of the policy says, it says prior to departure.

[00:34:15] Speaker 01:
We would ask the court to please reverse the decision below and reverse the order on class certification and allow these claims to go forward.

[00:34:22] Speaker 01:
Thank you.

[00:34:23] Speaker 02:
Thank you.

[00:34:26] Speaker 02:
Mrs. Say and Mr. McIntosh, we really appreciate the oral argument presentations here today.

[00:34:31] Speaker 02:
The case of Lisa Sides versus Global Travel Alliance is now submitted.

[00:34:35] Speaker 02:
That concludes our oral argument calendar for today.

[00:34:38] Speaker 02:
we are adjourned thank you very much.

[00:34:42] Speaker 01:
All rise.

[00:34:46] Speaker 01:
This court for this session stands adjourned.