Delta, AirTran Motion To Decertify Checked Baggage Fee Class Action

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Delta Air Lines Inc. and AirTran Airways Inc. have filed a motion to decertify a Class of 28 million passengers who allege the airlines colluded to charge first-checked baggage fees.

The airlines asked the Eleventh Circuit Appeals Court to reverse a lower court’s ruling to certify the massive Class, arguing that the plaintiffs did not establish an “administratively feasible method to identify the more than 28 million members of the proposed class.”

“Out of the seven named plaintiffs, four claim to have paid first bag fees that defendants’ records show to be associated with someone else,” the airlines stated.

The airlines went on to say that “[i]ndividual discovery of the named plaintiffs showed that their recollections were faulty or incomplete, and what records they had were often inconsistent. Neither plaintiffs nor the district court identified an administratively feasible way to ascertain the millions of class members.”

U.S. District Judge Timothy Batten granted class certification of the class action in July. The Class consists of all customers who paid Delta or AirTran first checked bag fees on domestic flights from Dec. 5, 2008 through Nov. 1, 2014.

That group potentially consists of more than 28 million people, according to the Judge Batten’s order. The lawsuit, which was originally filed in 2009, seeks billions of dollars in damages for all first checked-bag fees paid during the period, with amounts tripled under antitrust law.

But in their request for oral arguments Monday, the airlines stated the lower court made a fundamental error by refusing to consider evidence showing that a large number of Class Members were not injured, which demonstrated that common evidence cannot be used to prove individual Class Members were injured.

“The evidence also showed the impact on base fares of unbundling the first bag fee varied by route, time period, fare and other factors,” the airlines said. “As a result of these base fare reductions, many class members who paid one or more first bag fees to defendants paid less overall for air travel after first bag fees were charged separately than they would have paid if bag fees and fares remained bundled in a single price.”

Judge Batten initially granted the plaintiffs’ five-years pending motion for Class certification in August 2015 but then vacated the ruling two days later without an opinion.

The airlines then filed a brief to dismiss the class action lawsuit, citing recent Supreme Court rulings in Wal-Mart Stores Inc. v. Dukes and Comcast v. Behrend to support their arguments for decertifying the Class.

One of the attorneys for the passengers, David H. Flint, stated that Judge Batten was correct in certifying the Class, noting that he “can’t think of a case more suited for class certification.”

The plaintiffs are represented by Daniel A. Kotchen and Daniel L. Low of Kotchen & Low LLP, David H. Flint 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, AirTran Checked Baggage Fee Class Action Lawsuit is Martin Siegel, et al. v. Delta Air Lines Inc., et al., Case No. 16-16401, in the U.S. Court of Appeals for the Eleventh Circuit.

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