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

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Plaintiffs challenging baggage fees charged by Delta and AirTran are asking a federal appeals court to uphold certification of a plaintiff Class consisting of around 28 million former airline passengers.

U.S. District Judge Timothy Batten certified the proposed plaintiff Class in July 2016, throwing the years-long litigation into high gear.

Defendants Delta Air Lines Inc. and AirTran Airways Inc. then appealed, hoping to avoid facing an entire Class of aggrieved plaintiffs. In opposing Class certification, Delta and AirTran argue that determining membership in the certified Class is not “administratively feasible.”

The airlines claim that the process for determining who does or doesn’t fall within the Class must not require “much, if any individual inquiry” into the circumstances of each prospective Class Member.

The plaintiffs counter that there’s no such requirement. They cite applicable court rules that allow for Class certification even when some individualized inquiry is necessary. The airlines have even admitted that the “administratively feasible” requirement is an “add-on” that is not in the actual rule.

Plaintiffs argue further that the district court’s finding that all applicable requirements of administrability were met was well within that court’s discretion. The district court noted that plaintiffs had proposed an administrable way to determine Class membership by comparing each claimant’s documentation to the airlines’ own records.

Delta and AirTran also argued that damage calculations would vary in the case of each individual Class Member, and as a result, individualized issues would predominate over issues shared by the entire Class.

The companies claim their baggage fees were offset by reductions in base fares and fees for second checked bags, and that the amount of that offset would vary in each Class Member’s case.

The plaintiffs responded that Delta and AirTran are not entitled to such offsets in the calculation of damages. They argue that allowing companies to justify anti-competitive behavior by claiming it produces purported benefits for consumers is contrary to the whole point of antitrust law.

And in any case, such offsets would not defeat the predominance of Class-wide issues, the plaintiffs say. They argue that according to clear and undisputed rules, a need for individualized damages calculations does not defeat predominance.

This Delta and AirTran antitrust class action lawsuit began with a claim filed in 2010. Several similar actions were later consolidated into a multidistrict litigation, or MDL.

Plaintiffs allege that in 2008, Delta and AirTran agreed to start charging a baggage fee for each passenger’s first checked bag. That agreement amounted to an anti-competitive practice prohibited by the Sherman Antitrust Act, the plaintiffs claim.

As certified, the plaintiff Class would represent all persons in the U.S. who paid Delta and AirTran a first-bag fee on domestic flights between Dec. 5, 2008 through Nov. 1, 2014.

On appeal, the plaintiffs are represented by attorneys Daniel A. Kotchen and Daniel L. Low of Kotchen & Low LLP, R. Bryant McCulley of McCulley McCluer PLLC, Kevin K. Russell and Eric Citron of Goldstein & Russell PC, and Robert S. Wood of Richardson Patrick Westbrook & Brickman LLC.

The Delta and 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.