Delta, AirTran Urge Court to Kick Baggage Fee Antitrust MDL to the Curb

Top Class Actions’s website and social media posts use affiliate links. If you make a purchase using such links, we may receive a commission, but it will not result in any additional charges to you. Please review our Affiliate Link Disclosure for more information.

Delta Air Lines Inc. and AirTran Airways Inc. filed separate motions for summary judgment Friday asking the U.S. District Court in Georgia to dismiss a proposed class action lawsuit accusing the airlines of colluding to institute a $15 first-checked baggage fee.

Delta told the Court it had “an obvious, legitimate business reason” for adopting the fee after observing that competitors had reported hundreds of millions of dollars in revenue from instituting a first-checked baggage fee.

Delta and AirTran were called out in an antitrust class action lawsuit filed in 2009 by plaintiffs who alleged the two airlines conspired to introduce a first-checked baggage fee. Plaintiffs allege that the companies acted together so that both airlines could profit while keeping their market shares, which violated the Sherman Act.

In separate briefs issued by Delta and Air Tran, both companies tore apart the idea of the conspiracy theory presented by the plaintiffs, saying that the passengers contorted the facts about the baggage fees initiated in 2008. The two airlines maintain that they both came to the conclusion independently to begin requiring fees for baggage, and the fact that they instituted their policy the same day did not mean they were working together in collusion.

Delta and AirTran are also trying to oppose class certification for the passengers, saying that the precedents on which plaintiffs based their earlier requests for certification are now outdated.

The Delta and Air Tran baggage fee lawsuit was originally filed as a consolidated complaint back in February of 2010. The original complaint alleged that the airlines decided to implement baggage fees after the companies participated in earnings class, industry conferences and joint negotiations with the Hartsfield-Jackson Atlanta International Airport.

According to the baggage fee class action lawsuit, the CEO of AirTran said that they had not charged for a first bag fee “primarily because our largest competitor in Atlanta” was not charging fees. After the conference call, Delta announced their first-checked bag fee, and AirTran quickly followed.

On August 5, 2015, federal judge Timothy Batten certified the Delta/Air Tran passenger class consisting of customers who paid baggage fees to the airline from 2008 until the time of the certification. Without issuing an opinion on the decision, Judge Batten then vacated the certification order 12 days later.

AirTran summarized in its brief, “In the end, after more than six years of litigation, tens of millions of pages of documents, dozens of depositions, an exhaustive sanctions detour, and millions of dollars in attorney fees, plaintiffs have little more than they had at the pleading stage: a response to an analyst’s question during a public earnings call and consciously parallel decisions by AirTran and Delta to adopt first bag fees that followed their numerous competitors.”

They went on to assert, “their request to reopen discovery in order to do so. More importantly, however, even if Delta had relied on AirTran’s statement in making its own decision, that would not have violated Sherman Act § 1. Plaintiffs cite no case that holds otherwise. Businesses are legally entitled to consider public information, including the public statements of their competitors, when making business decisions.”

The plaintiffs are represented by Daniel A. Kotchen and Daniel L. Low of Kotchen & Low LLP, David H. Flint and Michelle Roback Kraynak of Schreeder Wheeler & Flint LLP, R. Bryant McCulley and Stuart H. McCluer of McCulley McCluer PLLC, Cale H. Conley and Richard A. Griggs of Conley Griggs Partin LLP, James L. Ward Jr. and Robert S. Wood of Richardson Patrick Westbrook & Brickman LLC.

The Delta/Air Tran Baggage Fee Lawsuit is In re: Delta/AirTran Baggage Fee Antitrust Litigation, Case No. 1:09-md-02089, in the U.S. District Court for the Northern District of Georgia.

UPDATE: On July 12, 2016, plaintiffs in an antitrust lawsuit against Delta Air Lines Inc. and AirTran Airways Inc. have won certification of a plaintiff Class that could include about 28 million Class Members.

UPDATE 3: On Jan. 25, 2017, plaintiffs challenging baggage fees charged by Delta and AirTran asked a federal appeals court touphold certification of a Class consisting of around 28 million former airline passengers.