Atlanta, GA, July 12, 2016 – Judge Timothy Batten issued an Order today granting Plaintiffs’ Motion for Class Certification in In re Delta/AirTran Baggage Fee Antitrust Litigation, MDL 2089 (N.D. Ga.).

The class consists of passengers of Delta Air Lines or AirTran Airways who paid one or more first checked bag fees between December 5, 2008 (when both airlines imposed first bag fees) and November 1, 2014 (when AirTran stopped charging first bag fees after being acquired by Southwest Airlines).

According to Plaintiffs, neither airline could unilaterally impose the fee in an open and competitive market without losing customers to the other, so Defendants conspired to impose the fee using a variety of public and private communications, including public earnings calls and private meetings and phone calls.

In opposing Plaintiffs’ motion for class certification, Defendants arguments focused on three of the requirements of Federal Rule of Civil Procedure 23: predominance, adequacy, and ascertainability.  Defendants argued that individualized issues predominated over common issues, asserting that the imposition of first bag fees caused a reduction in demand for air travel that caused Defendants to lower base fares in an amount that varied for each individual passenger based on route, flight, carrier, and date of purchase.  The court rejected the argument, holding that: “Because of the nature of price-fixing, offsetting benefits that consumers allegedly received may not be used to reduce any damages a defendant owes for its anti-competitive conduct.”

In addressing whether the named Plaintiffs would fairly and adequately represent the interests of the class, defendants argued that there were substantial conflicts of interest between the class representatives and the unnamed class members, relying on its base fare offset argument to suggest that some class members benefited from Defendants’ collusion. In its opinion, the courts stated that it “easily concludes that in this case no fundamental conflict exists between Plaintiffs and the class members.”  The court found that any fare reductions were de minimis, that class members were not subjectively aware of any offsetting benefits, and that fare reductions would not cause a fundamental conflict of interest.

Finally, the court found that the class was ascertainable, i.e., that the class definition contains objective criteria that allows for class members to be identified in an administratively feasible way.  The court found that Defendants’ records “undoubtedly contain information that is ‘useful for identification purposes,'” and that “class members’ own records — such as receipts and bank or credit-card statements — and self-identification affidavits can be used to further aid identification of class members in a feasible manner.”

The Court appointed as class counsel the same team of law firms that were appointed interim lead class counsel in January 2010, led by Kotchen & Low LLP.

Related page. Press coverage from the Atlanta Journal Constitution; Daily Report; Consumerist; Law360 (subscription).