Epic Pass holders may be able to revive legal action against Vail Resorts following the closure of its resorts during the early stages of the covid-19 pandemic following a judgment by The US Court of Appeals for the Tenth Circuit. However, the court determined that refunds are not a viable remedy.
While acknowledging the possibility that Vail may have acted unfairly or deceptively by advertising Epic Passes as providing access to its resorts for the entire 2019-2020 ski season, the court concluded that passholders’ claims for refunds are precluded by the terms of their contracts. Circuit Judge Carolyn B. McHugh, joined by Chief Circuit Judge Jerome A. Holmes, stated, “a reasonable jury could find that Vail acted unfairly or deceptively,” but emphasized that seeking refunds goes against the contractual provisions explicitly prohibiting such requests.
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While the panel ruled out refunds as a remedy, it determined that passholders should be permitted to pursue alternative relief. As a result, the panel vacated the trial court’s dismissal of the passholders’ claims under state consumer protection laws, allowing the claims to be dismissed without prejudice.
The panel recognized that the interpretation of a “ski season” is open to ambiguity, and the passholders’ understanding of the season’s duration is reasonable. However, the court held that the passholders are not entitled to refunds under their contract with Vail, as the company’s website clearly stated that the passes were non-refundable.
During oral arguments, the issue of the no refunds provision played a significant role in the proceedings before the panel. While the passholders cannot seek refunds, they may still pursue compensation if they can demonstrate that Vail breached its contracts by closing its resorts. The panel suggested that passholders could seek future access to the resorts for the duration they were closed during the 2019-2020 ski season due to the pandemic.
The same reasoning applied to the passholders’ claim of breach of warranty, which was deemed to be properly dismissed. However, the panel upheld the trial court’s dismissal of the passholders’ claim of violation of the implied duty of good faith, as it was based on the argument that Vail breached its duty by failing to provide refunds, which was explicitly prohibited under the contract.
Additionally, the panel upheld the dismissal with prejudice of the passholders’ claims for unjust enrichment and money had and received, as the ski pass contracts already addressed these issues.
Regarding the passholders multiple consumer protection claims based on various state laws, the panel viewed them similarly to the breach of contract claim. Judge McHugh wrote, “Passholders have plausibly alleged the advertisements were unfair or deceptive,” as they could have reasonably interpreted the advertisements to promise access to Vail’s ski resorts for a period longer than the resorts remained open. However, the court noted that passholders could not have been misled into believing they were entitled to refunds.
The panel directed the trial court to amend its dismissal of the consumer protection claims, allowing the passholders to refile and seek alternative remedies.
Circuit Judge Allison H. Eid dissented, expressing her support for the trial court’s dismissal of all claims with prejudice. Judge Eid noted that the passholders solely sought cash relief and did not argue for a dismissal without prejudice.
On April 27, 2020, after the initial complaint had already been filed, Vail Resorts announced it would provide credits to individuals who purchased Epic Passes for the 2019–2020 ski season to use towards the purchase of an Epic Pass for the 2020–2021 ski season. The credits ranged from 20–80% of purchase price, based on what type of pass individuals had purchased and how many times they had used it. The credit offer had a deadline of September 17, 2020. At least 200,000 purchasers of 2019–2020 Epic Passes, including Passholders, chose not to accept the credit offer. Vail refused to issue refunds of any amount to Passholders.
In a similar case, Vail’s competitor, Alterra Mountain Co., reached a $20 million settlement with its Ikon Pass holders, which received final approval in January 2023.