TEN-YEAR PRICE-FIXING MDL SAGA CONTINUES
May 22, 2017
On April 14, 2017 the 9th Circuit Court of Appeals affirmed Judge Charles R. Breyer’s (Northern District of California) grant of summary judgment to a group of plaintiffs in a suit against All Nippon Airways, EVA Airways and China Airlines, concerning allegations of price-fixing on trans-Pacific flights.
The airlines’ defense was predicated on the filed rate doctrine, which is a judicially created rule that prevents collateral attacks on rates that are filed and/or regulated by the Department of Transportation (DOT) (or other state or federal agencies). In 2014, Judge Breyer held that fares actually filed with DOT were barred by the filed rate doctrine. However, for unfiled fares, fuel surcharges and discount fares, Judge Breyer’s opinion ruled that airlines cannot avoid antitrust damages claims simply because DOT oversees the airlines’ fares and surcharges. Rather, immunity would require that the airline actually file the fares and surcharges to DOT.
The 9th Circuit’s recent opinion holds that if additional evidence is presented to show DOT did regulate the unfiled discount fares and surcharges then the district court would be required to rethink its finding. The litigation has been ongoing since 2007 and has involved several other airline defendants but many have since settled.
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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