Vail Resorts leaves state's cloud seeding program for this season

Resort has been hit hard by pandemic- related business losses.

Vail Resorts did not breach its contract with season pass holders when it closed its facilities amid the spread of COVID-19, a federal judge decided in tossing a lawsuit from those seeking refunds.

The Broomfield-based company suspended operations of its North American ski areas on March 15, 2020, days before Colorado's governor issued a statewide stay-at-home order. But one month later, customers began filing lawsuits against Vail Resorts in federal court demanding refunds. Because their Epic Pass entitled them to "unlimited" skiing, they argued, the operator had broken its contract by ending the season early.

But on Friday, U.S. District Court Senior Judge R. Brooke Jackson dismissed the consolidated lawsuit from 18 plaintiffs, saying Vail Resorts was within its rights to close facilities when conditions were no longer safe.

"That the safety threat came from a deadly virus rather than thinning snow is immaterial — skiing was too dangerous, so Vail closed its resorts. Plaintiffs nowhere allege that passholders could ski and snowboard safely after March 15, 2020. They therefore fail to allege that Vail breached its contractual obligations," Jackson wrote in an Oct. 15 order.

Currently, there is a separate lawsuit pending in Colorado against ski corporation Alterra Mountain Company in which season pass holders are similarly seeking restitution after COVID-19 cancelations. U.S. District Court Judge Raymond P. Moore is overseeing that litigation, but in contrast to the Vail case, he has declined to dismiss those customers' breach of contract claims.

The plaintiffs who filed legal claims against Vail Resorts relied on a straightforward theory: their 2019-2020 Epic Pass provided "unlimited, unrestricted access" to ski areas during the entirety of the ski season. Given that Vail closed its facilities early and refused to provide refunds, it did not live up to its end of the agreement.

The plaintiffs estimated the amount of money at stake for all affected persons as being $5 million or greater. If the company prevailed in court, the plaintiffs wrote, it meant Vail Resorts "could close its ski resorts at any time for any reason, or not open at all, and passholders would have no recourse."

Jackson disagreed with that narrative. "Unlimited, unrestricted access" to him simply meant the ability to use the Epic Pass without holiday blackout dates or a cap on the number of days of admission. 

"Literal 'unlimited, unrestricted access' would grant passholders free reign to ski after business hours or enter restricted areas like private offices and boiler rooms," the judge noted.

Although Vail Resorts could not close its resorts arbitrarily, Jackson determined the company had acted in good faith after skiing and snowboarding was no longer safe amid the spread of the novel coronavirus. Vail Resorts' policy of giving at least a 20% credit toward the purchase of the following season's Epic Pass could be seen as "generous," the judge wrote, given that more than 80% of the core ski season had elapsed.

"Vail’s decision to shutter ski operations in response to a deadly worldwide pandemic that had already been classified a national emergency — and whose transmission had been specifically linked to ski resorts — was neither dishonest nor outside accepted commercial practices," Jackson concluded. "Forgoing profits for the health of one’s customers is not dishonest. And closing down a business when required to do so by state and local officials is well within accepted commercial practices."

He also found the plaintiffs had failed to advance claims under various states' consumer protection laws.

Earlier this year, Vail Resorts announced it would offer a 100% credit on certain Epic Passes toward the current season, a response to COVID-19 travel restrictions that left some customers unable to use their passes at all due to state-mandated quarantines for travelers. The policy came after pass holders voiced frustration that the only way to take advantage of their non-refundable pass for the 2020-2021 ski season was to violate some states' public health directives.

Vail also reduced the price of its Epic Pass by 20% for the current ski season — now at $819 for an adult. According to the company's quarterly report last month, season pass sales increased by 42% compared to the prior fiscal year, while overall revenue dropped by 2.7%.

The case is McAuliffe et al. v. The Vail Corporation.

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