United States District Court, District of Columbia
IN RE DOMESTIC AIRLINE TRAVEL ANTITRUST LITIGATION This Document Relates To ALL CASES
MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
Pending
before this Court is Plaintiffs' [218] Motion for
Approval of Settlement Notice Program, pertaining to
Plaintiffs' proposed settlement with Defendant Southwest
Airlines Co. and the [218-1] Memorandum in support thereof;
and Plaintiffs' [257] Motion for Approval of Settlement
Notice Program, pertaining to Plaintiffs' proposed
settlement with Defendant American Airlines, Inc. and the
[257-1] Memorandum in support thereof.[1] Attached to both
of Plaintiffs' motions is a [257-2] Declaration by
Shannon Wheatman, as well as a list of properties and
websites in online networks where banner ads will be posted
[Ex.1]; the proposed E-mail Notice [Ex. 2]; the proposed
Publication Notice [Ex. 3]; and the proposed Long Form Notice
[Ex. 4]. Ms. Wheatman is the president of Kinsella Media,
LLC, an advertising and notification consulting firm in
Washington, D.C. specializing in the design and
implementation of class action and bankruptcy notification
programs.[2] Plaintiffs' proposed Notice Program
envisions notification to customers/prospective class members
through both e-mail addresses and publication, which
necessitates that the Non-Settling Defendants (and American)
provide Plaintiffs with their customer e-mail
addresses.[3] The Non-Settling Defendants have suggested
that Plaintiffs provide notification by direct mail instead
of e-mail.
In the
Plaintiffs' American Motion, Plaintiffs acknowledge that
“[t]he Notice Program sought through [the second
motion] is in substance the same as that previously proposed
in connection with the Southwest Settlement [and] [further, ]
[t]he notice forms submitted in connection with the Southwest
settlement have been revised to include information
concerning the American settlement.” Pls.' Am.
Mot., ECF No. 257, at 1. The Court notes that the two motions
submitted by the Plaintiffs are significantly analogous as
they discuss the same Notice Program and same arguments in
support thereof. Similarly, the Non-Settling Defendants'
Response to the American Motion reiterates that “the
non-settling Defendants have not refused, and do not object
to, providing relevant customer e-mail addresses in their
possession [i]f the Court decides that information is
necessary to effectuate the “best notice
practicable” pursuant to Rule 23(c)(2)(B) and Rule
23(e)(1). . . .” See Non-Settling Defs.'
Am. Resp., ECF No. 263, at 1; see also Non-Settling
Defs.' SW Resp., ECF No. 219, at 1. The Non-Settling
Defendants estimate however that it may take “up to a
month” to retrieve the e-mail addresses. Id.
[4]
Accordingly,
the issue to be resolved by this Court is a determination of
what constitutes the “best notice practicable”
under the circumstances of this particular multidistrict
litigation. For the reasons explained herein, the Court shall
GRANT the Plaintiffs' motions for approval of Settlement
Notice Program and order the production of customer e-mail
addresses by the Non-Settling Defendants. A separate Order,
including a schedule for notice and final approval of the
Settlement, accompanies this Memorandum Opinion.
I.
BACKGROUND
Plaintiffs
are purchasers of air passenger transportation for domestic
travel directly from Defendants - American Airlines, Inc.
(“American”), Delta Air Lines, Inc.
(“Delta”), Southwest Airlines Co.
(“Southwest”), and United Airlines, Inc.
(“United”) - or their predecessors and/or through
websites including Travelocity.com, Orbitz.com,
Priceline.com, Expedia.com, and Flyfar.ca. See
Corrected Consolidated Amended Class Action Complaint, ECF
No. 184, ¶¶ 11-22. The plaintiffs named in the
Complaint include individuals who are residents of various
states and the District of Columbia, a non-profit
corporation, and a corporation. Id. Plaintiffs
define the putative class, with certain exceptions, as:
“All persons and entities that purchased air passenger
transportation services for flights within the United States
and its territories and the District of Columbia from
Defendants or any predecessor, subsidiary or affiliate
thereof, at any time between July 1, 2011 and the
present.” Id. ¶ 142. Plaintiffs assert
that they do not know the exact number of members in the
putative class because that information is within the
Defendants' control, but Plaintiffs believe that the
number of Class Members is in the millions and that Class
Members “are sufficiently numerous and geographically
dispersed throughout the United States so that joinder of all
Class [M]embers is impracticable.” Id. ¶
143.
The
basis of Plaintiffs' lawsuit is Plaintiffs'
allegation that Defendants colluded to limit capacity on
their respective airlines in a conspiracy to fix, raise,
maintain, and/or stabilize prices for air passenger
transportation services within the United States, its
territories, and the District of Columbia in violation of
Sections 1 and 3 of the Sherman Antitrust Act (15 U.S.C.
§§ 1, 3), and that Plaintiffs suffered pecuniary
injury by paying artificially inflated ticket prices as a
result of this purported antitrust violation. Id.
¶¶ 1, 11-22. Defendants filed a motion to dismiss
the Plaintiffs' Consolidated Amended Complaint, but that
motion was denied by this Court. See Order, ECF No.
123, Memorandum Opinion, ECF No. 124. The Court entered a
subsequent Scheduling Order regarding Discovery and Briefing
on the Motion for Class Certification, ECF No. 152, and
appointed a Special Master to consider and rule upon
discovery disputes. See Order Appointing Special
Master, ECF No. 154. That Scheduling Order was later amended,
see ECF No. 207, and discovery is currently ongoing.
On
December 29, 2017, Plaintiffs filed a [196] Motion for
Preliminary Approval of Settlement with Southwest Airlines
Co., and the Court entered an Order Preliminarily Approving
the Settlement with Defendant Southwest. See January
3, 2018 Order, ECF No. 197. In that January 3, 2018 Order,
the Court found that “the prerequisites for a class
action have been met” and certified for settlement
purposes the following Settlement Class:
All persons and entities that purchased air passenger
transportation services for flights within the United States
and its territories and the District of Columbia from
Defendants or any predecessor, subsidiary or affiliate
thereof, at any time between July 1, 2011 and December 20,
2017. Excluded from the class are governmental entities,
Defendants, any parent, subsidiary or affiliate thereof,
Defendants' officers, directors, employees, and immediate
families, and any judges or justices assigned to hear any
aspect of this action.
January 3, 2018 Order, ECF No. 197, at 2.
On June
15, 2018, Plaintiffs filed a [248] Motion for Preliminary
Approval of Settlement with Defendant American Airlines,
Inc., and the Court entered an Order preliminarily Approving
the Settlement with Defendant American. See June 18,
2018 Order, ECF No. 249. In that June 18, 2018 Order, the
Court found that “the prerequisites for a class action
have been met” and certified a Settlement Class
virtually identical to the aforementioned Settlement Class,
except that the dates run “between July 1, 2011 and
June 14, 2018.” See June 18, 2018
Order, ECF No. 249, at 2.
Now
pending before this Court are Plaintiffs' two [almost
verbatim] motions for approval of the Settlement Notice
Program. Plaintiffs move this Court for approval of their
proposed Settlement Notice Program, which is intended to
advise Settlement Class Members of their rights regarding
objecting to the Settlement Agreement and excluding
themselves from the Settlement Class, the procedure for
submitting such exclusion request; and specifics about the
Fairness Hearing and their right to appear at that Hearing.
Plaintiffs further request that this Court order the
Non-Settling Defendants - Delta and United - to provide
Plaintiffs with e-mail customer contact information in order
that Plaintiffs may give notice to possible class members. As
previously noted, the Non-Settling Defendants “do not
object to providing the e-mail addresses associated with the
relevant tickets in their transactional data” but they
request 30 days from the date of this Court's Order in
which to do so.
II.
LEGAL STANDARD
Pursuant
to Federal Rule of Civil Procedure 23(e)(1), a district
court, when approving a class action settlement, “must
direct notice in a reasonable manner to all class members who
would be bound by the proposal.” Furthermore,
“[f]or any class certified under Rule 23(b)(3), the
court must direct to class members the best notice that is
practicable under the circumstances, including individual
notice to all members who can be identified through
reasonable effort.” Fed.R.Civ.P. 23(c)(2)(B). As the
Supreme Court has explained, “Rule 23 instructs the
court to ‘direct to the members of the class the best
notice practicable under the circumstances, including
individual notice to all members who can be identified
through reasonable ...