Second Court Rules No Private Right of Action for Violation of EC 261

On October 16, 2013, Delta Air Lines obtained a favorable ruling in Volodarskiy v. Delta,1 when Judge Edmond Chang dismissed the plaintiffs’ cause of action for a direct violation of the European Union consumer regulation, known as EU 261.2  Judge Chang’s opinion comes after Judge Sharon Coleman’s ruling in Gurevich v. Alitalia, that the Airline Deregulation Act (“ADA”) and the Montreal Convention did not preempt the Gurevich plaintiffs’ cause of action under EU 2613 and Judge John Nordberg’s ruling of first impression in Lozano v. Continental that no private right of action exists under EU 261 in the United States.4  Judge Chang, who considered both the private right of action and preemption arguments, ultimately followed Judge Nordberg’s reasoning in dismissing the case against Delta, finding that the text of EU 261 did provide plaintiffs with a private right of action in a United States court.


Before addressing Delta’s arguments on preemption and international comity, Judge Chang determined the critical threshold issue of whether the Regulation created an enforceable claim outside of the EU courts.  Like Judge Nordberg, Judge Chang was faced with the parties’ differing interpretation of the Regulation’s preamble, which allows passengers to pursue their rights under EU 261 in “courts.”  Delta, taking a position similar to Continental’s in Lozano, sought to limit the meaning of EU 261’s use of “courts” by arguing that the Regulation is only enforceable in courts of the EU Member States.  Plaintiffs, on the other hand, argued that, because the Regulation did not specify that passengers were only permitted to pursue their rights in courts of the EU Member States, they were permitted to assert their rights in any court.


In interpreting the text, Judge Chang found nothing in the Regulation that explicitly provided that a passenger’s rights under the Regulation could be enforced outside of the EU.  While Judge Nordberg found some merit in the arguments proffered by plaintiffs, Judge Chang found that the text clearly did not allow a private right of action, stating that the text of EU 261 could “only mean that the enforcement of EU 261 is directly tied to courts and administrative bodies in the EU” and that “by its own terms, EU 261 does not provide a cause of action that can be brought” in the United States.  Thus, while in agreement with Judge Nordberg’s interpretation of the Regulation, Judge Chang did not find any ambiguity in the text to indicate any other outcome.


While Judge Chang recognized that the absence of a private right of action under EU 261 warranted dismissal, he went on to consider Delta’s remaining arguments for the sake of completeness. Like Alitalia, Delta argued that the direct EU 261 cause of action was preempted by the ADA and the Montreal Convention.  Delta additionally argued that, because the EU does not recognize class actions as a procedural method, the case should be dismissed on international comity grounds.  Taking each argument in turn, Judge Chang disagreed with Delta’s contention that ADA preemption extended to “State enforcement” of foreign laws.  He held that the text of the ADA does not support such a reading, but instead requires that the law being enforced be a law of a State.  Because EU 261 is not a “State law,” Judge Chang found that it was not preempted by the ADA.  Similarly, Judge Chang found that the Montreal Convention did not preempt a direct EU 261 cause of action.  Relying on the Seventh Circuit precedent set forth in Sompo Japan Ins. v. Nippon Cargo Airlines,5 he held that Montreal Convention preemption only applies to claims that are inconsistent with its provisions.  He reasoned that, because plaintiffs are only seeking compensatory damages under EU 261, their claims were not inconsistent with the Montreal Convention.


Finally, Judge Chang rejected Delta’s argument that the direct EU 261 cause of action should be dismissed on international comity grounds. Judge Chang stated that if plaintiffs were able to assert their rights outside of the EU, United States courts would be capable of interpreting European case law.  Judge Chang further rejected Delta’s argument that the EU’s prohibition of class actions was a reason to dismiss on comity grounds, finding that even if there were a private right of action available under EU 261 in the United States, the availability of class actions in the EU would not be a factor in the court’s evaluation of dismissing the case on comity grounds.


Although Volodarskiy is the second decision denying plaintiffs the ability to pursue a private right of action under EU 261 in the United States, this important legal issue is far from resolved.  Judge Chang noted in his decision that the possibility of an appeal to the Seventh Circuit is “ever-present.”  Further, the plaintiffs in Lozano have filed a Motion to Amend or Alter Judge Nordberg’s September 26, 2013 Judgment dismissing the case.  Finally, other district court judges in the Northern District of Illinois have yet to weigh in on the issue: specifically Judge Durkin in Giannopoulos v. Iberia; Judge Tharp in Bergman v. United; and Judge Coleman in Polinovsky v. Lufthansa.


1 Volodarskiy v. Delta Air Lines, Inc., No. 11 C 00782, Order [Dkt No. 125] (N.D. Ill. October 16, 2013).

2 In full: Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004.

3 Gurevich v. Compagnia Aereas Italiana, SPA, d/b/a Alitalia Airlines, Case No. 11 C 1890, Order [Dkt No. 83] (N.D. Ill. Sept. 13, 2013).

4 Lozano v. Continental Airlines, Inc., Case No. 11 C 8258, Opinion and Order [Dkt No. 68] (N.D. Ill. Sept. 26, 2013).

5 522 F.3d 776 (7th Cir. 2008).