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,
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,
China Airlines; Eva Airways, Defendants-Appellants.
Submitted January 13, 2017
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
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.
Tsoumas (argued), Jonathan J. Faria, and Jason Y. Kelly,
Kirkland & Ellis LLP, Los Angeles, California; James H.
Mutchnik, Chicago, Illinois; for Defendant-Appellant Eva
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
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.
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.
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
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.
D. Smith, Jr. Judge
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.
AND PROCEDURAL BACKGROUND
claim antitrust violations by Defendants in connection with
three categories of Defendants' charged rates: (1)
unfiled fares, (2) fuel surcharges, and (3) special
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.
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.
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.
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" and "double open jaw
trips," 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.
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.
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. The district court then granted
Defendants' respective motions to certify its order