ASIANA SEEKS TO HAVE CARGO ANTITRUST CLAIMS DROPPED
September 15, 2016
More than 90 lawsuits have been filed following a joint investigation by the U.S. Department of Justice and the Federal Trade Commission investigation of an alleged price-fixing scheme of the air freight industry dating back to 2006. According to DOJ, the conspirators allegedly used meetings, conversations and other forms of communication to determine the rates that airlines should charge for various routes, and then imposed rates on consumers. Lawsuits related to this investigation were filed against numerous airlines, including Asiana Airlines Inc. (Asiana).
On August 16, 2016, Asiana petitioned a New York federal judge to dismiss claims against it by a subsidiary of Deutche Bahn AG, arguing that the $370 million antitrust suit should be dropped because the claimant isn’t a U.S. company. The claim, originally filed by Schenker AG, seeks damages for air freight purchases that Schenker or its affiliates made from air carriers including Asiana over a six year period. The complaint fails to identify any of the purported affiliates and as such, Asiana argues, “Neither the Constitution nor the Federal Rules permit Schenker to represent a group of absent, unidentified ‘affiliates’ under the guise of an ‘opt-out’ complaint.” Asiana also argues that to make Sherman Antitrust Act claims, Schenker must prove the actions of the defendants affected U.S. export commerce and that it is a U.S. exporter, which Schenker is unable to do under the Foreign Trade Antitrust Improvements Act.
We will keep readers updated on any new developments in this case.
If you have any questions, please contact Evelyn Sahr (esahr@eckertseamans.com, 202-659-6622) or Drew Derco (dderco@eckertseamans.com, 202-659-6665).
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