Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wortman v. All Nippon Airways

United States Court of Appeals, Ninth Circuit

April 14, 2017

Donald Wortman, individually and on behalf of all others similarly situated; William Adams; Margaret Garcia; Brenden G. Maloof; Micah Abrams; Martin Kaufman; Rachel Diller; Lori Barrett; Clyde H. Campbell; Matthew Evans; Thomas Schelly; Mark Foy; Jason Gregory Turner; Stephen Gaffigan; Bruce Hut; Dickson Leung; Kevin Moy; Rufus Browning; Lolly Randall; Christian Duke; Andrew Barton; Tracey Wadmore Smith; Michael Benson; Tori Kitagawa; Woodrow Clark, II; James Evans; Meor Adlin; Justin Labarge; Scott Frederick; Reiko Hirai; Ireatha Diane Mitchell; Larry Chen; David Kuo; David Murphy; Titi Tran; Robert Casteel, III, Plaintiffs-Appellees,
v.
All Nippon Airways, Defendant-Appellant. Donald Wortman, individually and on behalf of all others similarly situated; William Adams; Margaret Garcia; Brenden G. Maloof; Micah Abrams; Martin Kaufman; Rachel Diller; Lori Barrett; Clyde H. Campbell; Matthew Evans; Thomas Schelly; Mark Foy; Jason Gregory Turner; Stephen Gaffigan; Bruce Hut; Dickson Leung; Kevin Moy; Rufus Browning; Lolly Randall; Christian Duke; Andrew Barton; Tracey Wadmore Smith; Michael Benson; Tori Kitagawa; Woodrow Clark, II; James Evans; Meor Adlin; Justin Labarge; Scott Frederick; Ireatha Diane Mitchell; Larry Chen; David Kuo; David Murphy; Titi Tran; Robert Casteel, III, Plaintiffs-Appellees,
v.
China Airlines; Eva Airways, Defendants-Appellants.

          Submitted January 13, 2017

         Appeal from the United States District Court For the Northern District of California Charles R. Breyer, District Judge, Presiding. D.C. No. 3:07-CV-05634-CRB

         COUNSEL

          Gary J. Malone (argued), Ankur Kapoor, and Alysia Solow, Constantine Cannon LLP, New York, New York; Douglas R. Rosenthal, Richard O. Levine, and Aymeric Dumas-Eymard, Constantine Cannon LLP, Washington, D.C.; for Defendant-Appellant All Nippon Airways.

          Tammy Tsoumas (argued), Jonathan J. Faria, and Jason Y. Kelly, Kirkland & Ellis LLP, Los Angeles, California; James H. Mutchnik, Chicago, Illinois; for Defendant-Appellant Eva Airways.

          Steven N. Williams (argued) and Adam J. Zapala, Cotchett Pitre & McCarthy LLP, Burlingame, California; Michael P. Lehmann and Christopher L. Lebsock, Hausfeld LLP, San Francisco, California; for Plaintiffs-Appellees.

          Before: J. CLIFFORD WALLACE, RICHARD R. CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.

          Partial Concurrence and Partial Dissent by Judge Wallace

         SUMMARY[*]

         Antitrust

         Affirming the district court's partial denial of defendant airlines' motions for summary judgment, the panel held that the filed rate doctrine did not preclude a suit for antitrust damages challenging defendants' unfiled fares, fuel surcharges, or special "discount" fares.

         The plaintiffs alleged that the airlines colluded to fix the prices of certain passenger tickets and fuel surcharges on flights between the United States and Asia, in violation of Section 1 of the Sherman Antitrust Act.

         The filed rate doctrine prohibits individuals from asserting civil antitrust challenges to an entity's agency-approved rates. The panel held that the doctrine did not preclude plaintiffs' antitrust claims premised on unfiled fares because there were genuine issues of material fact as to whether the Department of Transportation effectively abdicated its authority over the unfiled air fares. The panel held that there were also genuine issues of material fact regarding the DOT's exercise of regulatory authority over fuel surcharges. Addressing one airline's "discount" fares, which differed in both price and terms from the airline's filed tariffs, the panel held that the district court did not err in declining to apply the filed rate doctrine given questions of fact regarding whether the discount fares constituted the same product as the fares actually filed.

         Concurring in part and dissenting in part, Judge Wallace concurred in the bulk of the majority's opinion. He dissented from the majority's conclusion, in Section III, Subsection B of its opinion, that genuine issues of material fact remained as to whether the DOT effectively abdicated its authority over fuel surcharges that the defendants actually filed with the DOT. Judge Wallace wrote that the filed rate doctrine should not be expanded by the rule the courts must determine when an agency has "effectively abdicated" its authority, notwithstanding the actual filing of rates.

          OPINION

          Milan D. Smith, Jr. Judge

         Defendants-Appellants All Nippon Airways (ANA), China Airlines, and EVA Airways (collectively, Defendants) challenge the district court's holding that the filed rate doctrine does not preclude Plaintiffs-Appellees' putative class action suit for antitrust damages based on allegations of collusion and price fixing. We have not previously addressed the application of the filed rate doctrine to airline fares and fees. For the reasons set forth in this opinion, we hold that, based on the record in this case, the filed rate doctrine does not preclude Plaintiffs' suit for antitrust damages challenging Defendants' unfiled fares, fuel surcharges, or "discount" fares. We therefore affirm the district court's partial denial of Defendants' motions for summary judgment.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiffs claim antitrust violations by Defendants in connection with three categories of Defendants' charged rates: (1) unfiled fares, (2) fuel surcharges, and (3) special "discount" fares.

         The DOT's present regulations require airlines to file their base-fare rates to differing extents, depending upon whether a particular airline is included within Country Category A, B, or C. Airlines headquartered in or traveling between the United States and a Category A country need not file any fares. Airlines headquartered in or traveling between the United States and a Category C country must file all fares. Finally, airlines headquartered in or traveling between the United States and a Category B country must file certain, but not all, of their fares. Those fares not required to be filed are the "unfiled fares" at issue in this appeal.

         In addition to charging base-fare rates, some airlines impose fuel surcharges, which are additional per-ticket fees based on the carrier's fuel costs. Prior to 2004, the DOT did not permit separate fuel surcharges. Rather, airlines were required to incorporate the cost of fuel into the base ticket price. However, in October 2004, the DOT lifted its prohibition on separate fuel surcharges. The parties dispute whether the DOT required filing of these newly allowed surcharges. Defendants argue that it did, citing a 1999 DOT statement that "all surcharges are to be filed," while Plaintiffs argue that the DOT's 1999 statement has no relevance to fuel surcharges given that the DOT did not permit fuel surcharges at the time the statement was made. In any event, the record reflects that regardless of whether the DOT required airlines to file fuel surcharges, in many cases airlines did file them.

         Finally, Defendant ANA offers a number of special "discount" fares. These include the "Satogaeri" fares and the "Business Discount," "Biziwari," or "Buz-Wari" fares, all of which operate in the same manner: Specifically, ANA files the respective fares with the DOT, then authorizes certain travel agents to sell tickets with more restrictive terms to consumers for some amount less than the filed rate. This lesser amount constitutes the "net fare," which travel agents remit to ANA as payment for the ticket. The travel agent retains as a commission any difference between the net fare and the amount charged to the consumer.

         The terms governing the fares actually filed by ANA differed substantially from the terms governing the discount fares. For instance, while one of ANA's publicly-filed fares could be used for "circle trips"[1] and "double open jaw trips,"[2] the discounted version of that fare could not. The same public fare had a minimum stay of three days and allowed for a stopover in Japan and up to six transfers, while the discounted fare had no minimum stay, and did not allow stopovers or transfers. Some other of ANA's filed fares similarly differed from their discounted versions in regard to the types of trips permitted, maximum stay required, the amount of time in advance the ticket needed to be purchased, restrictions on stopovers, and applicable cancellation fees.

         Plaintiff Donald Wortman filed a putative class action against Defendants on November 6, 2007, alleging that Defendants (as well as other airlines no longer in the suit) colluded to fix the prices of certain passenger tickets and fuel surcharges on flights between the United States and Asia, in violation of Section 1 of the Sherman Antitrust Act, 15 U.S.C. § 1. On November 23, 2009, Defendants filed motions to dismiss Plaintiffs' complaint, in part on the ground that the filed rate doctrine barred Plaintiffs' claims. The district court granted Defendants' motions in part on May 9, 2011, but denied their motions in regard to their assertion of the filed rate doctrine as a defense against claims for antitrust damages.

          On September 10, 2013, following over two years of discovery, Defendants moved for summary judgment, again on the basis of the filed rate doctrine. On September 23, 2014, the district court granted in part and denied in part Defendants' respective motions for summary judgment. The district court held that while the filed rate doctrine applied to bar Plaintiffs' antitrust damages claims based on actually-filed fares, the doctrine did not preclude Plaintiffs' claims regarding unfiled fares, fuel surcharges, or ANA's "discount" fares.[3] The district court then granted Defendants' respective motions to certify its order ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.