Nobody is talking about unforeseeable circumstances here - we are talking about possible misrepresentations based on what Disney already knows.
It's not a defense to fraud to say, "but we gave them there money back and a little extra!" That is an issue of damages. It is a good reason we probably won't see any lawsuits, but it isn't a basis for the judge to "throw out" a case. Furthermore, it doesn't mean some customers won't have actual damages if they incur other nonrefundable expenses or the like. Not to mention punitive damages, which are likely in a fraud case.
You want to raise the defense that the customer should have known the cruises being sold this summer wouldn't sail. Your intuition isn't wrong - what is wrong is where it would come into play in a trial. One element to fraud is that the plaintiff had to have reasonably relied on the misrepresentation. You are making the argument that it wasn't reasonable for people booking cruises right now to rely on Disney's implied representation that they might actually sail. The problem is that even if you are right, that is usually an issue of fact (a legal term of art, meaning a fact finder - usually a jury - gets to decide). A judge can't throw out a case based on an issue of fact - those are what trials are actually for.
And, I don' think that issue is as clean cut as you say. What about a customer who doesn't follow the cruise industry religiously and simply goes up to Disney's website to book? I think it is perfectly reasonable for someone in that situation to assume that if Disney is selling the cruise, Disney will sail if possible and it hasn't already decided it won't or can't. Heck, there are informed customers on Disboards who said they were surprised by the comments because they thought Disney might sail sooner.
And keep in mind, the actual issue here isn't whether sailing is likely, it is whether Disney
already knows it won't happen, but is selling cruises anyway. When I see Chapek's comments in full context, as posted by
@Intr3pid, I think Disney has more wiggle room in the comments than the short snippets posted above indicated. But, I still think Disney left itself vulnerable to a fraud claim, depending on what is happening behind the scenes, which is something a plaintiff could learn in discovery. I am not even saying it is a good case, or that someone should file it (I would never file a case like this one). But, Disney would be wise to release a clarification if their intent is actually to sail this summer if reasonably possible. Either that, or yank the cruises from the website - which is the right thing to do if they know they aren't sailing already.
There may even be some state consumer protection law violations in this situation if Disney really is still selling a product it has no intention of providing if reasonably possible.
Royal Caribbean made it clear that the reason it keeps canceling three months out, is because it keeps aiming to sail in 90 days, which is the timeframe it needs to be up and running after CDC clearance. So we know it has the intent to sail just as soon as it can, which is apparently not the case with Disney.
If you don't mind, can we move on from the technical legal claims? Fraud doesn't always rise to the level of a legal claim for it to be wrong, and a case is very unlikely here. Let's focus on what really matters - do you think it is ethically right for a company to sell a product it knows it has no intention of delivering?
