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From Antitrust Law Daily, August 28, 2013

State law antitrust claims against airline over denial of ticketing preempted

By Jeffrey May, J.D.

An airline passenger's claims against Delta Air Lines, Inc. and Koninklijke Luchtvaart Maatschappij, N.V., also known as KLM Royal Dutch Airlines (KLM), for conspiring to prevent the complaining passenger from purchasing a ticket from members of the airlines' “cartel” in violation of New York state law were expressly preempted by the Airline Deregulation Act of 1978 (ADA), the federal district court in Brooklyn, New York, has ruled. Delta’s and KLM’s motions to dismiss the New York Donnelly Antitrust Act claim and a dozen other claims were granted (Dogbe v. Delta Air Lines, Inc., August 27, 2013, Matsumoto, K.).

The complaining airline passenger sued Delta, KLM, and others for injuries suffered when he was forcibly removed from a Delta flight before it departed to Accra, Ghana, from New York City’s John F. Kennedy Airport. The 71-year-old passenger also claimed that, when he attempted to obtain another flight to Accra at a later date, a KLM sales agent refused to sell him a ticket and told him that “the system would not allow it because of an entry by Delta.” According to the plaintiff, KLM and Delta—partners in the “SkyTeam” airlines alliance—engaged in antitrust violations and deceptive business practices in refusing to sell him a plane ticket.

The ADA provides that states “may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier,” the court explained. An airline’s ticketing practices and procedures constituted a “service of an air carrier.”

Thus, there was “no question” that the complaining passenger's challenge to Delta’s ticketing and boarding procedures under New York consumer protection laws was preempted by the ADA, according to the court. The state law claims against KLM also were preempted. Citing a recent Second Circuit decision, In re Air Cargo Shipping Servs. Antitrust Litig., 697 F.3d 154, 2012-2 Trade Cases ¶78,083, the court explained that the ADA’s preemption provision applied to foreign as well as domestic air carriers.

The case is No. 11-CV-6289(KAM)(LB).

Attorneys: Steven A. Grant for Samuel K. Dogbe. John O. Brennan (Ryan & Brennan LLP) for Delta Airlines, Inc.

Companies: Delta Airlines, Inc.; Koninklijke Luchtvaart Maatschappij, N.V.; KLM Royal Dutch Airlines

MainStory: TopStory Antitrust NewYorkNews

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