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.

In Re Air Cargo Shipping Services Antitrust Litigation

October 11, 2012

IN RE AIR CARGO SHIPPING SERVICES ANTITRUST LITIGATION


The opinion of the court was delivered by: Dennis Jacobs, Chief Judge:

11-5464-cv

In re Air Cargo Shipping Servs. Anitrust Litig.

Argued: April 19, 2012

Before: JACOBS, Chief Judge, KEARSE and HALL, Circuit Judges.

Plaintiffs (indirect purchasers of air freight shipping 22 services) allege that numerous foreign airlines conspired to 23 fix prices in violation of state antitrust, consumer 24 protection, and unfair competition laws. The United States 25 District Court for the Eastern District of New York 26 (Gleeson, J.) accepted, in relevant part, the report and 27 recommendation of Magistrate Judge Pohorelsky, dismissing 28 those claims as expressly preempted by the Federal Aviation 29 Act. 49 U.S.C. § 41713(b)(1). We agree that Plaintiffs' 30 claims are expressly preempted. 31 Affirmed.

Plaintiffs (indirect purchasers of air freight shipping 3 services) brought suit against numerous foreign airlines 4 ("Defendants"), alleging a conspiracy to fix prices in 5 violation of state antitrust, consumer protection, and 6 unfair competition laws. The United States District Court 7 for the Eastern District of New York (Gleeson, J.) dismissed 8 those claims as expressly preempted by federal law. The 9 Federal Aviation Act preempts state-law claims "related to a 10 price, route, or service of an air carrier." 49 U.S.C. 11 § 41713(b)(1). The question is whether "air carrier" in 12 that provision applies to foreign air carriers. We conclude 13 that it does, and affirm.

BACKGROUND

At least 22 foreign air carriers have been subject to 17 federal criminal charges in the United States in connection 18 with a global price-fixing conspiracy. Some have settled, 19 agreeing to pay fines and penalties totaling almost $2 20 billion.

21 Plaintiffs bring this civil suit alleging that they 22 paid excessive prices when Defendants entered into that 1 conspiracy, beginning in 2000, and began levying a number of 2 surcharges, including a fuel surcharge, a war-risk-insurance 3 surcharge, a security surcharge, and a United States customs 4 surcharge. Plaintiffs, as indirect purchasers of air 5 freight shipping, dealt with the defendant airlines through 6 intermediaries, such as freight forwarders. They bring 7 their claims under state law because indirect purchasers are 8 unable to obtain money damages under federal antitrust law. 9 See Ill. Brick Co. v. Illinois, 431 U.S. 720, 729 (1977).

10 Additional claims were brought by other plaintiffs who were 11 direct purchasers. The claims of those direct-purchaser 12 plaintiffs remain in district court and are not before us. 13 Below, the district court accepted, in relevant part, 14 Magistrate Judge Pohorelsky's recommendation to dismiss 15 Plaintiffs' state claims on the ground that it was expressly 16 preempted by federal law. The district court then entered 17 partial final judgment under Rule 54(b) of the Federal Rules 18 of Civil Procedure, so Plaintiffs could immediately appeal 19 the dismissal decision. This appeal followed.

DISCUSSION

We review de novo a dismissal for failure to state a 23 claim upon which relief can be granted. Harris v. Mills, 6 1 572 F.3d 66, 71 (2d Cir. 2009). We also review de novo 2 questions of statutory interpretation, Bodansky v. Fifth on 3 the Park Condo, LLC, 635 F.3d 75, 82 (2d Cir. 2011), and 4 questions of preemption, New York SMSA Ltd. Partnership v. 5 Town of Clarkstown, 612 F.3d 97, 103 (2d Cir. 2010). 6 The relevant provision of the Federal Aviation Act is 7 as follows:

8 Except as provided in this subsection, a State, 9 political subdivision of a State, or political 10 authority of at least 2 States may not enact or enforce 11 a law, regulation, or other provision having the force 12 and effect of law related to a price, route, or service 13 of an air carrier that may provide air transportation 14 under this subpart.

15 49 U.S.C. ยง 41713(b)(1). Plaintiffs' claims undoubtedly 16 arise under state law and are related to "price." Id. The 17 dispositive question, then, is whether foreign air carriers 18 (such as Defendants) are "air ...


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.