Delta, AirTran Passengers Win Class Certification in Bag-Fee MDL

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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.

U.S. District Judge Timothy Batten certified the plaintiffs’ proposed Class of persons allegedly affected by the two airlines’ new baggage fees, allowing their Delta and AirTran lawsuit to proceed as a class action.

The certified Class results from a consolidation of several different antitrust class action lawsuits filed soon after Delta and AirTran started charging passengers a fee for a first checked bag back in 2008.

Plaintiffs argued that the two airlines conspired to impose that fee, allegedly in violation of the Sherman Act.

In opposing class certification, Delta and AirTran said that when they started charging the new baggage fee, they offset those new charges with reductions in base fares and in fees for other baggage.

Calculating those offsets would require dealing with evidence on a case-by-case basis for each plaintiff, making the claims unsuitable for class action status, they argued.

Judge Batten disagreed.

He concluded that a person suffers an injury at the moment they pay an antitrust overcharge. Offsets to that injury do not change the fact that the injury occurred, and they certainly cannot eliminate the injured person’s right to sue for the amount of the overcharge, the judge said.

Judge Batten drew a similar conclusion on Delta and AirTran’s argument that they had reimbursed some passengers for the fees.

As with offsets, the judge said, reimbursement would affect the amount of damages but not the question of whether the injury occurred. Since the question of reimbursement is not legally relevant, it won’t cause individual questions of antitrust injury to dominate questions that are common to all Class Members, the judge said.

The Delta and AirTran baggage fee class action lawsuit already survived an October 2015 motion for summary judgment. Both airlines argued then that they independently decided to add a first bag fee, both to bring their policies in line with what their competitors were charging.

Plaintiffs briefly won an earlier bid for class certification in August 2015, but Judge Batten vacated that decision less than two weeks later without issuing a written opinion.

The certified Class will consist of “[a]ll 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 November 1, 2014.” Judge Batten notes the Class may contain as many as 28 million Class Members.

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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, and James L. Ward Jr. and Robert S. Wood of Richardson Patrick Westbrook & Brickman LLC.

The Delta and AirTran Baggage Fee Class Action 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 2: 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.