Antitrust Law Daily Wrap Up, ANTITRUST—N.D. Ga.: Class certification granted in Delta/AirTran baggage fee suit, (Aug 12, 2015)

By Greg Hammond, J.D.

A group of individuals and entities who paid a first-bag fee as a result of an alleged conspiracy between AirTran Airways, Inc. and Delta Air Lines, Inc. has received class certification. The federal district court in Atlanta rejected the argument that the proposed class members did not all suffer the same effects as a result of the first-bag fee, finding that the plaintiffs can adequately represent the class members and have satisfied the predominance requirement of Federal Rule of Civil Procedure 23(b)(3) (In re Delta/AirTran Baggage Fee Antitrust Litigation, August 5, 2015, Batten, T.).

The only claim remaining in this multi-district litigation is that Delta and AirTran violated Section 1of the Sherman Act by colluding to implement a first-bag fee. While the companies initially publicized that they would not impose such fees, Delta announced on November 5, 2008, that it would implement a $15 first-bag fee effective December 5, and AirTran followed suit, announcing on November 8, 2008, that it too would begin charging passengers a $15 first-bag fee on December 5.

The plaintiffs have moved for class certification, seeking to represent: All persons or entities in the United States and its territories that directly paid Delta and/or AirTran one or more first bag fees on domestic flights from December 5, 2008, through the present (and continuing until the effects of Delta’s and AirTran’s anticompetitive conspiracy ceases).

Adequacy of representation. Delta and AirTran claim that the plaintiffs cannot adequately represent the class because class members have both benefitted from and been harmed by the alleged conspiracy to implement the first-bag fee, and that the disparate effects of their behavior create a fundamental conflict between class members that prevents class certification.

The court rejected this argument, first finding that, based on the record, the plaintiffs have presented sufficient evidence that any potential conflict between them and the class members does not rise to the level of being a fundamental conflict of interest that would prevent plaintiffs from vigorously prosecuting the interests of the class through qualified counsel. AirTran also failed to provide any case or statutory law to support its position that plaintiffs cannot adequately represent the class because class members could not align around a conspiracy in which the airlines raised their first-bag fees at different times and in different amounts.

Predominance. The proposed class members argued that they will use common proof to demonstrate that: (1) the defendants conspired to introduce the first-bag fee; (2) the illegal fee impacted the entire class; and (3) payment of the fee caused the class members to suffer damages. Delta and AirTran, however, claimed that individual issues dominated the injury and damages elements of the plaintiffs’ claim. As a result, these elements could not be established with common proof, the airlines alleged.

The court rejected the defendants’ arguments, finding that the analysis and evaluation of plaintiffs’ proposed proof that defendants conspired to impose the first-bag fee and that the resulting antitrust violation impacted the class will be done once for the benefit of the class. All that mattered at this stage, according to the court, was that plaintiffs’ theory of liability rested upon a colorable analytical method that was susceptible to generalized proof. The plaintiffs therefore carried their burden of showing that common questions predominated over the individual issues with regard to the injury element of their antitrust claim. The airlines’ arguments concerning the plaintiffs’ proposed method of calculating damages could be dealt with in the future, the court also determined, finding that it was enough to conclude that the individual issues do not predominate.

The case number is 1:09-md-2089-TCB.

Attorneys: Cale Howard Conley (Conley Griggs Partin, LLP) for Martin Siegel. Andrew Hoyt Rowell (Richardson, Patrick, Westbrook & Brickman, LLC) for Avery Insurance Group, Inc. James P. Denvir (Boies Schiller & Flexner-DC) and Nowell D. Berreth (Alston & Bird) for Delta Air Lines, Inc. Alden L. Atkins (Vinson & Elkins, LLP), Bert W. Rein (Wiley Rein LLP), and Joshua A. Hartman (Morrison & Foerster, LLP) for AirTran Holdings, Inc., and AirTran Airways, Inc.

Companies: Avery Insurance Group, Inc.; Delta Air Lines, Inc.; AirTran Holdings, Inc.; AirTran Airways, Inc.

Cases: Antitrust GeorgiaNews