With slopes limited, do Stevens Pass skiers have recourse?

STEVENS PASS — Stevens Pass skiers and snowboarders, frustrated by limited operations on the mountain this winter, might have a case against the ski conglomerate that owns the resort, consumer protection advocates say.

Customers paid Vail Resorts roughly $500 to $1,000 each for season passes to the Washington resort and other ski areas owned by the company. But when the season began last month at Stevens Pass, patrons were shocked to find long lift lines, scarce parking and about half of the trails, lift and terrain still closed.

Among the displeased skiers is Dan Johnson, a Seattle-based consumer protection attorney. He said season pass holders have “a pretty good start” for a valid claim that the company violated Washington’s Consumer Protection Act, given the pass prices and the amount of acreage still closed.

“I think that trying a class action is probably a good idea,” said Johnson, who has years of experience successfully representing plaintiffs in such lawsuits. “There’s plenty of people and a lot of evidence to support it.”

Before filing any sort of lawsuit, though, unhappy customers will have to revisit the fine print on Vail Resorts’ Epic Pass.

The pass “terms and conditions” agreement, published online, says customers cannot sue the seller over any claims that scaled-back operations prevented them from fully using their pass at Stevens Pass, or the dozens of other ski areas owned by the Colorado-based company.

One provision of the agreement explicitly bars class action lawsuits and states that customers must resolve any disputes with the company “on an individual basis.”

But that waiver might not hold up in court, Johnson said.

“It’s questionable whether that class action waiver is enforceable under current law,” he said.

Johnson, along with other attorneys who spoke to The Herald, did not formally review the circumstances, but weighed in on potential legal arguments Epic Pass holders might make.

The company has denied claims of deceptive business practices.

Spokeswoman Sara Roston said Vail Resorts is working to open more terrain at Stevens Pass, even with industry-wide staffing shortages and a nationwide rise in coronavirus infections.

“The impacts of the staffing shortages and the added challenges from the Omicron variant are, most certainly, a dynamic facing every business across the travel + leisure industry – it is not isolated to Vail Resorts,” Roston said in an email.

Stevens Pass “got hit harder than any of our other resorts in North America,” she added, “and that is something we need to address.”

Calls for refunds

Patrons say staffing shortfalls are heightened at Vail-owned establishments, particularly Stevens Pass, because the corporation oversold season passes while failing to hire and retain enough employees to keep the lifts running.

An online petition, with more than 35,000 signatures, calls on Vail Resorts to address the problems at Stevens Pass by Jan. 15 or commit to a 60% refund to season pass holders.

“We acknowledge the frustration expressed in this petition, and want to reiterate that we are listening to feedback carefully,” Roston said. “Stevens Pass is working hard to address operational challenges, including staffing shortages, to open more of the mountain as quickly – and safely – as possible.”

Some 50 miles east of Everett on U.S. 2, Stevens Pass’ remote location has made things harder, Roston said. Just last week, the pass shut down when a winter storm made road conditions dangerous.

“Regarding the request for partial refunds, it is important to remember that it is still early in the season – the resort opened less than a month ago – and the team continues to work diligently to open more terrain,” Roston said.

“Our passes are already an incredible value, and were reduced in price this season,” she added. “They also provide access to a wide number of resorts and are valid all season long.”

The pass refund policy says the season passes are non-refundable except for in cases of a “qualifying resort closure,” such as one due to disease, terrorism or a natural disaster, or a “qualifying personal event,” such as an injury, military service or visa rejection.

There are no refunds for a variety of other problems that could affect the “guest experience,” such as wind and other weather events, road closures, traffic jams and parking constraints.

“Unfortunately, ski passes are filled with caveats.” Jack Gillis, executive director and CEO of the non-profit Consumer Federation of America, said in an email. “There’s a lot in the fine print that most of us don’t read, but that absolves the operators of liability for both performance (availability of the facility) and safety.”

Anyone who used a credit card to buy their pass and is seeking a refund can contact their credit card company and report that the services paid for were not provided, he suggested.

“The credit card company will suspend payment pending an investigation,” Gillis said. “Otherwise, because of the fine print, consumers seeking a refund from (Vail Resorts) will likely be out of luck.”

Claims of deception

The Change.org petition alleges the company “deceived a substantial portion of the public and committed this deception in the conduct of commerce,” in violation of Washington’s Consumer Protection Act.

Sumeer Singla, an attorney who has represented governments and individuals in civil litigation, agreed there could be a strong argument the company violated state law.

“That would give you, so to speak, a lot more arrows in your quiver to be able to knock down some of the provisions that Vail would put up in their defense,” said Singla, of the Seattle-based firm Williams Kastner. “Washington state’s Consumer Protection Act is pretty broad in the sense that it applies to a lot of different deceptive acts and practices.”

Another provision of the purchase agreement says all lawsuits arising out of the terms must be filed in federal or state courts in Colorado. But Singla and Johnson questioned whether a judge would uphold that limitation.

“There is a pathway here, it would just be a little difficult,” Singla said.

The company maintains its practices are legal.

“Vail Resorts complies with all laws related to the marketing and sale of our passes, including by providing consumers with clear pass terms and FAQs on our website,” Roston said.

Without a class action, individual lawsuits against the company likely wouldn’t achieve financial relief for all season pass holders; however, a judge could grant a special injunction in such a case, ordering the company to compensate customers, said attorney Christina Henry, who practices consumer litigation in Seattle.

Given the “significant hurdles” posed by the extensive terms, she suggested that customers might have a better chance getting their money back by filing a complaint with the state Attorney General’s Office.

“There are issues here as to how things are interpreted,” Henry said of the purchase agreement. “It’s not clear cut to me.”

As of noon on Friday, more than 50 complaints had been filed with the Attorney General Bob Ferguson’s office against Stevens Pass and its ownership.

The office is responsible for enforcing state consumer protection laws and can take legal action against businesses for deceptive dealings and unfair practices. In such cases, the attorney general can impose civil penalties against violators or seek refunds for customers who fell victim.

Complaints filed with the Attorney General’s Office also are evaluated to determine whether they can be resolved informally, without litigation, said Communications Director Brionna Aho.

Per policy, the Attorney General’s Office does not comment on pending investigations and does not confirm whether or not a company is being investigated for complaints, Aho said.

Other avenues

Some critics of Vail Resorts have questioned whether the federal government could revoke the company’s permission to operate the Stevens Pass ski area on public lands.

The company has a “special use permit” from the U.S. Forest Service to occupy its site in the Mount Baker-Snoqualmie and Okanogan-Wenatchee national forests.

It’s in compliance with all of the permit’s conditions, said Colton Whitworth, a Forest Service public affairs officer.

“The permit includes terms and conditions for operation and references Stevens Pass Ski Resort’s Operating Plan,” Whitworth said in an email. “The operating plan identifies standard operating procedures for opening ski terrain, managing lifts, and general operations. It does not mandate the opening of ski terrain or ski lifts when there is insufficient staff to do so.”

“Additionally, the Steven’s Pass Ski Area Permit also requires compliance with state and local laws and regulations,” he added. “If the State of Washington determines a law has been violated, we will address the matter at that time.”

Edgar Hall, managing attorney of the Seattle-based firm Washington Debt Law, said speaking out online might be the best option for frustrated customers, given the exceptions in the purchase agreement.

“If they (Vail Resorts) have the right language there, then on paper — without social media pressure or public pressure — they could get by with it in a court of law, so to speak, because they have the right disclaimers,” said Hall, whose practice areas include consumer protection.

“Not everything gets solved in a court of law, honestly,” he added.

After Vail Resorts closed its ski resorts during the 2019-20 season due to the pandemic, the company responded to a groundswell of fed up customers.

Under fire on social media and flooded with angry emails, Vail announced in April 2020 it would offer season pass holders credits of 20% to 80% percent, to be applied in the purchase of their next pass.

That year, Epic Pass holders also brought a class-action lawsuit against Vail Resorts over the pandemic closures.

The lawsuit alleged that the company breached its contract with customers and violated consumer protection laws when it shuttered the resorts and kept customers’ money.

But U.S. District Court Judge R. Brooke Jackson dismissed the lawsuit, ruling that Vail “was within its rights to close its ski areas” due to a deadly pandemic.

“Vail did not close its resorts prematurely, it closed when skiing was no longer safe,” Jackson wrote in her October 2021 ruling. “Nor did Vail fail to compensate plaintiffs, it issued satisfactory credits.”

An appeal of the case is still pending, records show.

Rachel Riley: 425-339-3465; rriley@heraldnet.com. Twitter: @rachel_m_riley.