Antitrust Law Daily Wrap Up, ANTITRUST—E.D.N.Y.: Airfreight shipping purchasers, airlines to commence summary judgment process, (Jan 27, 2015)

By Greg Hammond, J.D.

In an airfreight shipping services price fixing action, direct purchaser plaintiffs and airline defendants have been ordered to commence summary judgment practice before a decision is made on class certification. The magistrate judge determined that given the length of time before any motions for summary judgment are decided, there is virtually no danger that the various summary judgment motions will be decided before the class certification motion, which is currently pending before the federal district court in Brooklyn (In re Air Cargo Shipping Services Antitrust Litigation, January 26, 2015, Pohorelsky, V.).

Background. Six freight forwarders that purchased air freight services from one or more domestic and foreign airlines filed suit, alleging that the airline defendants conspired to develop and implement an industry-wide index for calculating fuel and security surcharges at supra-competitive rates that were applied to thousands of routes flown worldwide by the defendants, including flights to and from the United States. According to the plaintiffs, the airlines’ purported conspiracy to fix prices violated the Sherman Act.

The magistrate judge previously recommended certification of the following class: “All persons or entities (but excluding Defendants, their parents, predecessors, successors, subsidiaries, affiliates, as well as government entities) who purchased airfreight shipping services for shipments to or from the United States directly from any of the Defendants or from any of their parents, predecessors, successors, subsidiaries, or affiliates, at any time during the period from January 1, 2000 up to and including September 30, 2006.” Plaintiffs thereafter requested a pre-motion conference with the magistrate judge concerning summary judgment motions that both the plaintiffs and defendants wished to make.

Summary judgment practice. The court first determined that there is “no clear answer” to whether it is appropriate to determine motions for summary judgment prior to rendering a decision on class certification. The magistrate judge’s recommendation is currently before Judge Gleeson concerning a number of objections filed by the defendant airlines. Nevertheless, the magistrate judge concluded that provided the length of time that will occur before any motions for summary judgment are finally decided, there is little reason to delay the motions for summary judgment until after a final decision is rendered on class certification, as “there is virtually no danger that the various summary judgment motions will be decided before the class certification motion is decided.” Consequently, the parties were ordered to commence the summary judgment process. Under the magistrate judge’s order, moving papers must be served by March 30, 2015; opposition papers must be served by June 1, 2015; and reply papers must be served by July 1, 2015.

The case number is 06-MD-1775.

Attorneys: Gary L. Specks (Kaplan Fox & Kilsheimer, LLP) and Jason A. Zweig (Hagens Berman Sobol Shapiro LLP) for ABM International, Inc. Barbara J. Hart (Labaton Sucharow) for Fleurchem, Inc. David Jaroslawicz (Jaroslawicz & Jaros) for Zucker's Gifts, Inc. Marc I. Gross (Pomerantz, Haudek, Block, Grossman & Gross LLP) for Rock International Transport, Inc. Roger J. Bernstein for Gold Eye Distributors, Inc. Gary A. MacDonald (Skadden, Arps, Slate, Meagher & Flom LLP) for KLM Royal Dutch Airlines. John R. Fornaciari (Baker & Hostetler LLP) and Robert M. Disch (Sheppard Mullin Richter & Hampton) for Nippon Cargo Airlines Co., Ltd.

Companies: ABM International, Inc.; Fleurchem, Inc.; Zucker's Gifts, Inc.; Rock International Transport, Inc.; Gold Eye Distributors, Inc.; Ace Aviation Holdings, Inc.; AMR Corp.; American Airlines, Inc.; KLM Royal Dutch Airlines; Nippon Cargo Airlines Co., Ltd.

Cases: Antitrust NewYorkNews