A federal judge has rejected an attempt to require Vail Resorts to submit for court review the company’s future communications to season pass holders affected by the COVID-19 pandemic.

“[T]he Court does not find the communication to be abusive or contrary to any authority,” wrote U.S. District Judge R. Brooke Jackson on Thursday, referring to an offer the ski conglomerate advertised in the wake of its COVID-19-induced closure in March.

“As a reminder, we are providing credits to 2019/20 Season Pass Holders, valued up to 20%-80% of the 2019/20 season pass, to apply toward the purchase of a 2020/21 season pass of equal or greater value,” wrote the company in an Aug. 28 email included in court documents. “Your 2019/20 season credit (if applicable) will be applied to your final payment.”

On March 14, Gov. Jared Polis ordered the closure of ski resorts due to the spread of the novel coronavirus, and Vail announced a few days later that all of its facilities in North America would shutter for the remainder of the ski season.

Beginning on April 21, pass holders began filing class action lawsuits in federal court in Colorado against Vail, seeking refunds. Shortly afterward, on April 27, Vail did first announce the offer to credit the unexpired portion of 2019-20 season passes toward the purchase of a 2020-21 season pass. 

Although the company recognized that some people had not yet used their passes and were waiting until the spring, Vail set the maximum credit at 80%, worth $575.20 for an adult pass. To receive the credit, customers could not participate in the class action lawsuit.

The plaintiffs, in turn, argued the company’s move was “misleading, deceptive, coercive, and interfere[s] with Plaintiffs’ rights in this lawsuit.” They objected to Vail allegedly hiding the condition in “fine print” that in order to receive the credit, an individual would forfeit their ability to benefit from the litigation.

Similar wording appeared in the approximately-600 word Aug. 28 email from Vail, advising customers: “Please understand that your acceptance of this Credit includes a release of legal claims, including any claims for a refund or compensation related to the 2019/2020 resort closures due to COVID-19.”

Plaintiffs requested the federal court issue a protective order because the communications were misleading about the litigation or served to dissuade members of the season pass class from waiting to receive payment from the lawsuit. They argued Vail omitted key information about the litigation, and requested the court require the company to submit any future communications with the class to the plaintiffs’ lawyers and the court for approval.

“Vail Resorts has voluntarily done for its customers what this lawsuit cannot — offer a meaningful resolution to the closure of its ski areas due to COVID-19,” the company responded. “Plaintiffs, whose lawsuit demands refunds for non-refundable ski passes, now move to undercut Vail Resorts’ efforts and request that the Court impose a ‘corrective’ action order to dictate Vail Resorts’ customer communications.”

Jackson sided with Vail, explaining that he expected a company to impose such a condition in order to resolve customers’ grievances out of court.

“In a seasonal business where repeat customers are potentially critical, it is hardly surprising that Vail Resorts would attempt to preserve its customers’ good will,” Jackson wrote. “Specifically, it is difficult for the Court to understand how it is an abusive tactic for the company, in the unique circumstances created by the pandemic and the shutdown order, to reach out to its season pass base and try to entice pass holders to return by offering a credit against a future pass, just because a few customers were able to get lawsuits seeking refunds on file before Vail was able to put together a plan to offer a range of credits against the purchase of a future pass.”

Also on Oct. 15, Jackson signed an order designating the Chicago law firm of Cafferty Clobes Meriwether & Sprengel as interim lead counsel in the 10-case consolidated lawsuit and Denver’s Sherman & Howard as liaison counsel.