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In re Domestic Airline Travel Antitrust Litigation

United States District Court, District of Columbia

August 22, 2018

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 ...


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