Curtin, James A. v. United Airln Inc

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 10, 2001 Decided December 28, 2001

No. 00-7274

James A. Curtin, et al.,
Appellants

v.

United Airlines, Inc.,
Appellee

Appeal from the United States District Court
for the District of Columbia
(No. 99cv03056)

Leonard N. Bebchick argued the cause and filed the briefs
for appellants.

Frederick C. Schafrick argued the cause for appellee.
With him on the brief was Timothy G. Lynch.

Before: Sentelle, Randolph, and Garland, Circuit Judges.

Opinion for the Court filed by Circuit Judge Garland.

 Garland, Circuit Judge: Three United Airlines passengers,
on behalf of themselves and others similarly situated, sued
United under an international treaty known as the Warsaw
Convention to recover the value of baggage lost on interna-
tional flights. Without reaching the question of class certifi-
cation, the district court granted summary judgment against
the three named plaintiffs, on the ground that each had
entered into an accord and satisfaction with United by accept-
ing a check from the air carrier "in full and complete settle-
ment of any and all claims." We affirm the judgment of the
district court.

I

In September 1998, James Curtin flew from Cork, Ireland
to Dulles Airport in Virginia. After landing at Dulles, he
reported that a bag of golf clubs, estimated to be worth $921,
was missing. In January 1999, Margaret Wombacher flew
from London to Chicago. One of her bags never arrived in
Chicago, and she reported a loss of $1855. In the same
month, David Simmons flew from London to Atlanta, connect-
ing through Chicago. His bag made it to Chicago but not to
Atlanta, and he filed a claim for $1355.

In response to the claims for compensation filed by Curtin
and Wombacher, United sent each a letter stating:

Because your itinerary involved an international destina-
tion, claim settlement is governed by the 'Warsaw Con-
vention' which limits our liability to $635 due to loss,
damage or delay.

J.A. at 35, 126. It sent Simmons a slightly different letter,
which read:

As your trip involved international travel, payment for
your loss is based on the weight of your checked bag.
The maximum liability our company assumes is $9.07 per
pound, up to 70 pounds per checked item unless excess
valuation is declared and purchased prior to travel. Our
check for $635 in settlement for the missing property,
will be mailed to you shortly.

J.A. at 116. Subsequently, United mailed each plaintiff a
check for $635. Above the endorsement line on each check
was the following legend:

By endorsement of this check payee(s) agree that the
amount shown is accepted in full and complete settlement
of any and all claims which payee(s) may have against
United Air Lines, Inc., its connecting carriers, their
agents or employees for loss, damage or delay sustained
by reason of an incident involving a United flight.

J.A. at 36, 119, 127. Curtin, Wombacher, and Simmons all
signed and deposited their checks, the latter after consulting
with an attorney.1

Article 18 of the Warsaw Convention, an international air
carriage treaty ratified by the United States in 1934, creates
a cause of action against an air carrier for loss of or damage
to a passenger's checked baggage. 49 U.S.C. s 40105 note.
Article 22(2) of the Convention limits a carrier's liability for
such loss to a maximum of 250 francs per kilogram, or $9.07
per pound. See Trans World Airlines, Inc. v. Franklin Mint
Corp., 466 U.S. 243 (1984). United calculated its liability to
each plaintiff as no more than $635--the amount it tendered
by check--because the maximum weight of a bag permitted
on its flights was 70 pounds. Article 4(3) of the Convention,
however, requires that baggage checks contain certain partic-
ulars, including the number and weight of the bags, and
Article 4(4) states that "if the baggage check does not con-

__________
1 Wombacher signed only after inserting the word "not" before
the phrase "accepted in full and complete settlement" on the back of
the check. The district court held that the validity of the release
was not affected by the insertion of "not." Curtin v. United
Airlines, Inc., 120 F. Supp. 2d 73, 77 n.2 (D.D.C. 2000) (citing
Restatement (Second) of Contracts s 281 cmt. d, illus. 6 (1979)
(explaining that a creditor cannot avoid the consequences of cashing
a check offered as payment in full by declaring that he regards it as
part payment)); see U.C.C. s 3-311 cmt. 2 (noting that a seller who
deposits a check accepts the accord notwithstanding that he "adds a
notation to the check indicating that the check is accepted under
protest or in only partial satisfaction of the claim"). Plaintiffs do
not challenge that ruling on appeal.

tain" those particulars "the carrier shall not be entitled to
avail himself of those provisions of the convention which
exclude or limit his liability." It is undisputed that United
did not record the weight of any of the plaintiffs' bags.

In Cruz v. American Airlines, Inc., 193 F.3d 526 (D.C. Cir.
1999), this circuit ruled that the plain language of Article 4(4)
precludes an air carrier's invocation of the liability limits of
Article 22(2) when it has not recorded the weight of the
baggage. Cruz acknowledged that passengers are not preju-
diced by an airline's failure to note a bag's weight if the
carrier's maximum weight allowance is used to determine the
amount of its liability, and that in such circumstances the
recording requirement "makes little real sense." Id. at 529.
Nonetheless, Cruz concluded that "the language of the Con-
vention is unyielding and we have no warrant to dispense
with portions we might think purposeless." Id.

This case was filed on November 17, 1999, five weeks after
the decision in Cruz. The First Amended Complaint was
brought by Curtin, Wombacher, and Simmons, as a class
action on behalf of themselves and all others similarly situat-
ed.2 The class was defined as all persons who checked
baggage on an international United flight "without the weight
of that baggage having been recorded," and who received
payment of less than what they claimed was the fair value of
the loss of or damage to that baggage--such payment "being
an amount (usually $635) which United asserted or believed
was the limit of its liability for such baggage loss/damage
under Warsaw's Article 22(2) $9.07 per pound liability limita-
tion." First Am. Compl. p 5. Plaintiffs proposed a class
period "beginning the two years prior to initiation of this suit
and ending on March 3, 1999." Id.3 They claimed that they

__________
2 Curtin was the only plaintiff named in the original complaint.
The court granted subsequent petitions by Wombacher and Sim-
mons to intervene as additional plaintiffs and putative class repre-
sentatives. J.A. at 83.

3 Effective March 4, 1999, amendments to the Warsaw Conven-
tion eliminated Article 4's requirement that the weight of checked
baggage be recorded. Montreal Protocol No. 4 to Amend the

were entitled to recover the full value of their lost or dam-
aged baggage, and that the Warsaw Convention's liability
limit was inapplicable because the weight of their baggage
had not been recorded on their baggage checks.

United moved for summary judgment pursuant to Federal
Rule of Civil Procedure 56, raising the defense of accord and
satisfaction by virtue of plaintiffs' endorsement and deposit of
the checks that United had tendered in settlement of their
claims. Plaintiffs countered that there were no valid accords
and satisfactions, and that even if there were, they should be
rescinded on the grounds of mistake and/or misrepresenta-
tion. Plaintiffs also asked the district court to permit discov-
ery and to rule on the issue of class certification before
addressing defendant's motion for summary judgment. The
district court denied those requests and granted United's
motion.

II

We begin with two preliminary matters: plaintiffs' conten-
tions that the district court erred by deciding United's motion
for summary judgment (1) without permitting discovery and
(2) without ruling on the question of class certification. The
first of these arguments is readily dispatched. Although it is
true that summary judgment ordinarily "is proper only after
the plaintiff has been given adequate time for discovery,"
First Chicago Int'l v. United Exch. Co., 836 F.2d 1375, 1380
(D.C. Cir. 1988), plaintiffs' briefs fail to identify any facts
essential to opposing United's motion as to which discovery is
needed. Moreover, at oral argument, plaintiffs agreed that in
light of factual concessions made by United below, all the
facts required to decide the summary judgment issue are
already in the record and further discovery is unnecessary.
See also Appellants' Br. at 18, 27. Accordingly, there is no
possible ground for reversing the district court's denial of

__________
Convention for the Unification of Certain Rules Relating to Interna-
tional Carriage by Air, signed at Warsaw on October 12, 1929, as
amended by the Protocol Done at the Hague on September 8, 1955,
reprinted in S. Exec. Rep. No. 105-20, at 21-32 (1998).

discovery. See Moore v. United States, 213 F.3d 705, 710 n.3
(D.C. Cir. 2000) (holding that "a district court may deny
discovery requests when additional facts are not necessary to
resolve the summary judgment motion"); Fed. R. Civ. P. 56(f)
(providing that the court may continue an application for
summary judgment to give time for discovery if the opposing
party "cannot ... present by affidavit facts essential to
justify the party's opposition").

The certification issue detains us only slightly longer. The
plaintiffs assert that the district court was obliged to deter-
mine whether their suit could proceed as a class action before
it could consider the merits of their individual claims, in light
of Federal Rule of Civil Procedure 23(c) and the Supreme
Court's holding in Eisen v. Carlisle & Jacquelin, 417 U.S. 156
(1979). Neither of these authorities, however, suggests that a
court is barred from rendering an easy decision on an individ-
ual claim to avoid an unnecessary and harder decision on the
propriety of certification.

We begin with Rule 23(c), which states only that the
district court shall determine whether a case may be main-
tained as a class action "[a]s soon as practicable after the
commencement of [the] action." As the Seventh Circuit has
noted, although a certification decision will usually be "practi-
cable" before the case is ripe for summary judgment, that will
not always be so, and the word " 'practicable' allows for
wiggle room"--enough to make the order of disposition of
motions for summary judgment and class certification a ques-
tion of discretion for the trial court. Cowen v. Bank United
of Texas, 70 F.3d 937, 941 (7th Cir. 1995); see Telfair v. First
Union Mortgage Corp., 216 F.3d 1333, 1343 (11th Cir. 2000);
Thompson v. County of Medina, 29 F.3d 238, 240-41 (6th Cir.
1994); Adamson v. Bowen, 855 F.2d 668, 677 n.12 (10th Cir.
1988); Christensen v. Kiewit-Murdock Inv. Corp., 815 F.2d
206, 214 (2d Cir. 1987); Wright v. Schock, 742 F.2d 541, 544
(9th Cir. 1984).

Nor is Eisen to the contrary. There, the Court reversed a
district court that had held a preliminary hearing on the
merits of the case in order to decide whether the plaintiff

should be required to bear the cost of notice to the members
of the asserted class. "We find nothing in either the lan-
guage or history of Rule 23," the Court said, "that gives a
court any authority to conduct a preliminary inquiry into the
merits of a suit in order to determine whether it may be
maintained as a class action." Eisen, 417 U.S. at 177
(emphasis added).4 Nothing of the sort occurred here. The
district court did not conduct a preliminary inquiry, but
rather reached a final resolution on summary judgment.5
Moreover, it did so to determine not whether the case could
be maintained as a class action, but rather whether any of the
named plaintiffs had a viable claim on the merits. Under
such circumstances, nothing in Eisen or Rule 23(c) requires
the district court to rule on class certification before granting
or denying a motion for summary judgment. See Thompson,
29 F.3d at 240-41; Wright, 742 F.2d at 544-46.

As plaintiffs note, it is often more efficient and fairer to the
parties to decide the class question first. But that was not so
in this case where, as we discuss below, the district court
readily and correctly perceived fatal flaws in plaintiffs' claims.
Reversing the usual order of disposition in such circum-
stances spares both the parties and the court a needless,
time-consuming inquiry into certification. See Federal Judi-
cial Center, Manual for Complex Litigation (Third) s 30.11
(1995) (stating that "[w]hen it is clear that the action lacks
merit, dismissal [before certification] will avoid unnecessary
expense for the parties and burdens for the court").

__________
4 See also Miller v. Mackey Int'l, Inc., 452 F.2d 424, 437 (5th Cir.
1971) ("In determining the propriety of a class action, the question
is not whether the plaintiff or plaintiffs have stated a cause of action
or will prevail on the merits, but rather whether the requirements
of Rule 23 are met." (emphasis added)), quoted in Eisen, 417 U.S.
at 178.

5 In Eisen, the Court expressed concern "that a preliminary
determination of the merits may result in substantial prejudice to a
defendant, since ... [t]he court's tentative findings, made in the
absence of established [trial] safeguards, may color the subsequent
proceedings...." 417 U.S. at 178.

 Plaintiffs also observe that it is often more protective of the
interests of defendants to begin with the issue of class
certification, because only a merits decision made after certifi-
cation will bind all members of the class. But here, the
defendant itself sought an early decision on the merits and,
needless to say, does not suggest that it was prejudiced by
winning on that basis. Nor do the named plaintiffs suggest
any prejudice to their own interests traceable to the order in
which the district court made its decision, rather than to the
decision itself. The plaintiffs do contend that, due to the
passage of time since the lawsuit began, when the suit is
dismissed putative class members "will be left holding a time
barred claim." Appellants' Br. at 22. That contention, how-
ever, is simply incorrect. The filing of a class action tolls the
statute of limitations as to all asserted members of the class,
and potential plaintiffs other than the three named in this
case remain free to file their own suits against United. See
Crown, Cork & Seal Co. v. Parker, 462 U.S. 345, 353-54
(1983). They will, of course, face the problem of stare decisis
(at least in this circuit), but even so their legal position is
better than it would be if the merits decision had been made
after class certification--in which case they would face the
bar of res judicata.

In sum, in circumstances like these, where the merits of the
plaintiffs' claims can be readily resolved on summary judg-
ment, where the defendant seeks an early disposition of those
claims, and where the plaintiffs are not prejudiced thereby, a
district court does not abuse its discretion by resolving the
merits before considering the question of class certification.

III

We now turn to plaintiffs' challenge to the district court's
grant of summary judgment in favor of United on the ground
that plaintiffs' damage claims are barred by the doctrine of
accord and satisfaction. We review the district court's deci-
sion to grant summary judgment de novo, and may affirm

only if there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
Borgo v. Goldin, 204 F.3d 251, 254 (D.C. Cir. 2000) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986)).

Plaintiffs contend that (1) there were no valid accords and
satisfactions in this case, and (2) even if there were, they
should be rescinded on the grounds of mistake and/or misrep-
resentation. We consider each of these arguments below.
Plaintiffs maintain that we should look to federal common law
to decide these issues, while United urges us to look to the
law of each individual passenger's domicile. That, however, is
a dispute we need not resolve. Both sides agree that the
Uniform Commercial Code (U.C.C.) and the Restatement
(Second) of Contracts provide the applicable legal standards
regardless of which law governs.6 And neither side cites any
case to suggest that the choice of law would effect a differ-

__________
6 All arguably relevant jurisdictions--Colorado (Curtin's and
Wombacher's domicile), Georgia (Simmons' domicile and where his
bag was reported missing), Illinois (United's principal place of
business and where Wombacher's bag was reported missing), and
Virginia (where Curtin's bag was reported missing)--have enacted
U.C.C. s 3-311, which establishes the elements of accord and
satisfaction. See Colo. Rev. Stat. s 4-3-311; Ga. Code Ann.
s 11-3-311; 810 Ill. Comp. Stat. Ann. 5/3-311; Va. Code Ann.
s 8.3A-311; see also Curtin v. United Airlines, Inc., 120 F. Supp.
2d 73, 76 n.1 (finding that "all relevant jurisdictions rely on the
U.C.C. s 3-311 and Restatement (Second) of Contracts s 281 defi-
nitions of accord and satisfaction, which codify the common law
doctrine"). Courts also often look to the U.C.C. and Restatement
when deciding questions of federal common law. See, e.g., O'Neill
v. United States, 50 F.3d 677, 684 (9th Cir. 1995) (relying on the
U.C.C. as "a source of federal common law"); FDIC v. Tennessee
Wildcat Servs., Inc., 839 F.2d 251, 253 (6th Cir. 1988) (same); see
also, e.g., Bowden v. United States, 106 F.3d 433, 439 (D.C. Cir.
1997) (explaining that the principles of the Restatement (Second) of
Contracts are those "from which we would be inclined to fashion a
federal common-law rule"); Turner v. American Fed'n of Teachers
Local 1565, 138 F.3d 878, 882 (11th Cir. 1998) (using the Restate-
ment (Second) of Contracts as a source of federal common law).

ence in the interpretation of the relevant U.C.C. or Restate-
ment provisions.

A

U.C.C. s 3-311 is entitled "Accord and Satisfaction by Use
of Instrument." It provides, with exceptions not relevant
here, that a claim is discharged if the person against whom
the claim is asserted proves that: "(i) that person in good
faith tendered an instrument to the claimant as full satisfac-
tion of the claim, (ii) the amount of the claim was unliquidated
or subject to a bona fide dispute, and (iii) the claimant
obtained payment of the instrument." U.C.C. s 3-311(a). In
addition, the instrument or an accompanying written commu-
nication must contain "a conspicuous statement to the effect
that the instrument was tendered as full satisfaction of the
claim." U.C.C. s 3-311(b).7

The district court held that United's tender to each plaintiff
of a check for $635, stamped with the legend that the payee's
endorsement would constitute acceptance in "full and com-
plete settlement of any and all claims which payee(s) may
have against United Air Lines, Inc.," became an effective
accord and satisfaction when the plaintiff signed and deposit-
ed the check. See U.C.C. s 3-311 cmts. 2, 3 (noting that an
accord and satisfaction occurs when a seller deposits a check
marked with the notation that it is in full satisfaction of a
bill). On appeal, plaintiffs' challenge relies only upon the
second U.C.C. requirement: that the amount of the claim be
unliquidated. The Restatement defines an "unliquidated"
obligation as one "that is uncertain or disputed in amount."
s 74 cmt. c. Plaintiffs contend that United's correspondence
conceded the carrier's liability for $635, and thereby showed

__________
7 The Restatement provides that "[a]n accord is a contract under
which an obligee promises to accept a substituted performance in
future satisfaction of the obligor's duty," s 281 cmt. a, and that
"[p]erformance of the accord discharges the original duty," s 281(1).
It further states that "[t]he enforceability of an accord is governed
by the rules applicable to the enforceability of contracts in general."
s 281 cmt. d.

that United regarded each claim as an undisputed, "liquidated
claim for $635." Appellants' Br. at 10.

At oral argument, plaintiffs agreed that, at least if consid-
ered in isolation, the legend stamped on United's checks
indicated United's view that the amount in question was not
undisputed, since it stated that endorsement would constitute
"settlement" of all claims. Nonetheless, plaintiffs contend
that the clarity of the check legend was muddied by United's
earlier letters. Those letters, plaintiffs assert, did not dem-
onstrate an intention to compromise or settle, but instead
flatly stated that United's liability was limited to $635--and
thus rendered that amount a liquidated claim.

This argument has two principal defects. First, the lan-
guage of the letters that United sent to the plaintiffs is not
materially different from the language on the checks. Like
the checks, all three letters used the word "settlement" to
describe the nature of the transaction between the parties.8
Second, and more important, there is simply no question but
that the parties did consider the amount of the claims to be in
dispute, and hence that the $635 figure was far from "liqui-
dated." The three plaintiffs clearly did not regard $635 as
the amount they were owed, since their demands were for
$921, $1855, and $1355. Nor did United signal agreement
that the amount it owed was in fact $635. Rather, the carrier
described $635 as the "limit[ ]" or "maximum" of its liability.
That figure was calculated solely on the basis of the maximum
weight of plaintiffs' luggage, and could have been reduced had
United successfully challenged plaintiffs' estimates of the
value of the bags' contents.9

__________
8 See J.A. 35, 126 (letters to Curtin and Wombacher, stating that
"claim settlement" is governed by the Warsaw Convention); J.A.
116 (letter to Simmons, stating that United's check for $635 "in
settlement" will be mailed shortly).

9 Moreover, even "[a]n admission by the obligor that a minimum
amount is due does not liquidate the claim even partially unless he
is contractually bound to the admission." Restatement (Second) of
Contracts s 74 cmt. c.

 There is only one way in which the $635 tendered by
United could be considered evidence of a liquidated claim: if
it were the law that a debtor automatically turns a debt (or a
portion thereof) into a liquidated sum simply by offering a
fixed amount in settlement. But if that were the law, there
would be no such thing as an accord and satisfaction: every
offer to settle a debt would liquidate the debt (at least to the
extent of the offer), rendering every such offer ineligible
under U.C.C. s 3-311(a)(ii). In this case, in order to dis-
charge a claim, United paid more than it conceded owing and
plaintiffs accepted less than they conceded being owed. That
is more than sufficient to satisfy U.C.C. s 3-311(a)(ii),10 and
the fact that the amount accepted was the same as the
amount tendered no more justifies calling plaintiffs' claims
"liquidated" than it would those in any other dispute. Ac-
cordingly, we conclude that the tender, endorsement, and
deposit of each check constituted a valid accord and satisfac-
tion.11

__________
10 The U.C.C. does not require that the party against whom the
claim is asserted offer an amount different from the amount it
believes it owes. Rather, the party "against whom the claim is
asserted may attempt an accord and satisfaction of the disputed
claim by tendering a check to the claimant for some amount less
than the full amount claimed by the claimant"--just as United did
here. U.C.C. s 3-311 cmt. 1.

11 Plaintiffs also argue that the printed legend on United's checks
demonstrated an absence of the good faith necessary for a valid
accord and satisfaction. In support, they cite U.C.C. s 3-311 cmt.
4. That comment, however, refers only to "the practice of some
business debtors in routinely printing full satisfaction language" on
all or most of their checks, "whether or not there is any dispute
with the creditor." In such cases, the comment states, "the claim-
ant cannot be sure whether a tender in full satisfaction is or is not
being made," and the practice may therefore "prevent an accord
and satisfaction on the ground that the check was not tendered in
good faith." Here, plaintiffs assert neither that United routinely
printed the settlement legend on its checks, nor that they did not
understand that tenders in full satisfaction were being made to
them.

 B

Finally, plaintiffs contend that, even if there were valid
accords and satisfactions in this case, they should be rescind-
ed on the grounds of mistake (unilateral or mutual) and/or
misrepresentation.12 For either doctrine to apply in this case,
United's statements to plaintiffs must--at a minimum--have
been "not in accord with the facts."13 The point that was not
in accord with the facts here, plaintiffs contend, was United's
claim that its maximum liability was limited to $635, the
product of $9.07 and the maximum weight of each plaintiff's
lost bag. Plaintiffs argue that, because the Warsaw Conven-
tion's liability limit applied only if United's baggage checks
recorded the bags' actual weights, and because United's
checks concededly did not do so, United's claim that there
was any limit to its liability at all (other than the fair value of
the lost baggage) was in error.

Had United's letters been sent or its checks tendered or
deposited after this court's decision in Cruz, plaintiffs might
have an argument for their position. But all of those events
transpired months before Cruz was issued,14 and that subse-

__________
12 See U.C.C. s 1-103 (providing that "the principles of law and
equity, including ... the law relative to ... misrepresentation ...
[and] mistake," shall "supplement" the provisions of the U.C.C.);
Restatement (Second) of Contracts s 152 (entitled "When Mistake
of Both Parties Makes a Contract Voidable"); id. s 153 (entitled
"When Mistake of One Party Makes a Contract Voidable"); id.
s 164 (entitled "When a Misrepresentation Makes a Contract Void-
able").

13 See Restatement (Second) of Contracts s 151 ("A mistake is a
belief that is not in accord with the facts."); id. s 159 ("A misrepre-
sentation is an assertion that is not in accord with the facts."); see
also id. s 151 cmt. b (stating that "[f]acts include law" and that "[a]
party's erroneous belief with respect to the law ... may, therefore,
come within these rules"); id. s 170 cmt. a ("A statement as to a
matter of law is subject to the same rules as are other assertions.").

14 The letters to Curtin, Wombacher, and Simmons were mailed
in February, May, and March of 1999, respectively. The plaintiffs

quent decision can therefore play no role in the analysis.
Instead, we must look to the state of the law at the time of
the events in question. See Restatement (Second) of Con-
tracts s 152 (providing that a mutual mistake capable of
voiding a contract must be a mistake "at the time [the]
contract was made"); id. s 153 (same with respect to unilat-
eral mistake); id. s 159 cmt. c ("An assertion must relate to
something that is a fact at the time the assertion is made in
order to be a misrepresentation."). At that time, the applica-
bility of Article 22(2)'s liability limit in the absence of the
recording of weights required by Article 4 was an unsettled
question, and the existing law provided a more than adequate
basis for United to conclude that its view was correct. Cf.
Moses-Ecco Co. v. Roscoe-Ajax Corp., 320 F.2d 685, 690
(D.C. Cir. 1963) (holding that "a settlement payment, made
when the law was uncertain, cannot be successfully attacked
on the basis of any subsequent resolution of the uncertainty").

When the accords and satisfactions in this case were
reached, no Supreme Court or D.C. Circuit case had yet
addressed the question subsequently decided in Cruz.15 The
only federal appellate court to have considered the question,
the Second Circuit, had held--consistent with United's view--
that the liability limit of Article 22(2) continued to apply
notwithstanding a failure to follow the requirements of Article
4.16 Two of the three state appellate courts to have ruled had

__________
deposited their checks between March and June of 1999. See J.A.
36, 119, 127. Cruz did not issue until October 12, 1999.

15 Plaintiffs call our attention to Chan v. Korean Air Lines, Inc.,
490 U.S. 122 (1989), a case that did not involve the baggage liability
limitation question at issue here. Chan held that Article 3 of the
Warsaw Convention does not eliminate the Convention's limitation
on damages for passenger injury or death when the carrier fails to
provide adequate notice of the limitation on its passenger tickets.
Id. at 135. Although the Court held that its decision in Chan was
"governed by the text" of the Convention, id. at 134, it had no
occasion to consider the text of Article 4 or its meaning.

16 See Republic Nat'l Bank of N.Y. v. Eastern Airlines, Inc., 815
F.2d 232 (2d Cir. 1987) (regarding commercial shippers).

also decided in accord with United's position.17 So, too, had
many federal district judges,18 including all that had ruled in
this circuit,19 although district courts had ruled the other way
as well.20 Moreover, the position expressed in United's let-
ters was supported by advice to passengers published by the
United States Department of Transportation. See Aviation
Consumer Prot. Div., U.S. Dep't of Transp., Fly Rights: A
Consumer Guide to Air Travel ch. 5 (10th rev. ed. 1994)
(stating that an airline may limit its liability under the
Warsaw Convention to $9.07 per pound if, "[i]nstead of weigh-
ing [the] luggage, the carrier assumes that each of [the] bags
weighs the maximum that it agrees to accept as checked
baggage, usually 70 pounds," and noting that this "yields a
liability limit of about $640 per bag").

The plaintiffs have cited no authority, in any jurisdiction,
suggesting that when an issue of law is unsettled, a party

__________
17 See Feeney v. America West Airlines, 948 P.2d 110 (Colo. Ct.
App. 1997); Hibbard v. Trans World Airlines, Inc., 592 N.E.2d 889
(Ohio Ct. App. 1990). But see Arkin v. New York Helicopter Corp.,
544 N.Y.S.2d 343 (App. Div. 1989).

18 See, e.g., Tseng v. El Al Israel Airlines, Ltd., 919 F. Supp. 155,
160 (S.D.N.Y. 1996), aff'd with respect to plaintiff's baggage claim,
122 F.3d 99, 107 (2d Cir. 1997), rev'd on other grounds, 525 U.S. 155
(1999); Gonzales v. TACA Int'l Airlines, No. 91-0175, 1992 U.S.
Dist. LEXIS 9111 (E.D. La. June 17, 1992); Klein v. Northwest
Airlines, No. C-90-3174, 1991 U.S. Dist. LEXIS 10614 (N.D. Cal.
July 17, 1991); Abbaa v. Pan Am. World Airways, Inc., 673
F. Supp. 991 (D. Minn. 1987).

19 See Cruz v. American Airlines, Inc., No. 96-02817, Mem. Op.
at 16-17 (D.D.C. Oct. 24, 1997), rev'd, 193 F.3d 526 (D.C. Cir. 1999);
Martin v. Pan Am. World Airways, Inc., 563 F. Supp. 135 (D.D.C.
1983).

20 See, e.g., Tchokponhove v. Air Afrique, 953 F. Supp. 79
(S.D.N.Y. 1996); Siben v. American Airlines, Inc., 913 F. Supp. 271
(S.D.N.Y. 1996); Da Rosa v. Tap Air Portugal, 796 F. Supp. 1508
(S.D. Fla. 1992); Vekris v. Peoples Express Airlines, Inc., 707
F. Supp. 675 (S.D.N.Y. 1988); Maghsoudi v. Pan Am. World
Airways, Inc., 470 F. Supp. 1275 (D. Haw. 1979).

makes a misrepresentation or mistake by reaching a conclu-
sion that is well supported by existing law. Measuring
United's statement against the state of the law at the relevant
time, we reject plaintiffs' contention that the accords and
satisfactions are void for misrepresentation or mistake.21

IV

We find no abuse of discretion in the district court's
decision to rule on United's motion for summary judgment
without first permitting discovery or ruling on class certifica-
tion. Nor do we discern any error in the district court's
grant of summary judgment in United's favor. Accordingly,
the judgment of the district court is

Affirmed.

__________
21 Because we conclude that there was no misrepresentation (or
mistake), we need not address the "troublesome" issue of when one
party's reliance on an assertion as to a matter of law by another
party is justified. Restatement (Second) of Contracts s 164 cmt.
d; see id. s 170.