The Last District Court Judge to Determine the Enforceability of EU 261 in the US “Joins the Chorus” in Holding that a Direct Claim for EU 261 Compensation Cannot be Brought in US Courts

On June 18, 2014, District Court Judge John A. Tharp of the Northern District of Illinois decided the last of six separate motions filed by airline defendants to dismiss a claim for direct violation of Regulation (EC) No 261/2004 (“EU 261”), the EU regulation governing compensation to passengers for flight cancellations and long delays.1 The case, Bergman v. United Airlines, Inc.,2 is the sixth lawsuit filed since 2011 by US residents seeking to recover EU 261 compensation by requesting that a federal court directly enforce EU 261 in US class action litigation.3  Before the Bergman case was filed, EU 261 class actions had been filed against Continental, Delta, Iberia, Alitalia, and Lufthansa,4 and in each case the respective airline moved to dismiss the plaintiffs’ direct EU 261 claim on various grounds.  Agreeing with the decisions issued in the earlier filed EU 261 class actions, Judge Tharp’s opinion states that he “joins the chorus in holding that a direct claim for compensation under EU 261 cannot be brought in courts of the United States.”

Following the reasoning of Judge Nordberg in Lozano v. Continental Airlines, Inc.5 and Judge Chang in Volodarskiy v. Delta,6 the first two district court judges to issue opinions determining the enforceability of EU 261 in the US, Judge Tharp granted United’s motion to dismiss on the ground that EU 261 does not create a private right of action enforceable in US courts.  Judge Tharp agreed with Judge Chang that the text of the Regulation alone sufficiently demonstrates that the private right of action conferred by EU 261 is expressly limited and can only be brought in the courts of the Member States of the EU, not US courts.  Acknowledging Judge Nordberg’s analysis of the legislative history of EU 261 in the Lozano case, Judge Tharp agreed that the legislative history of the Regulation further confirms that EU 261 was not intended to be applied extraterritorially in courts outside the EU.

Judge Tharp’s June 18, 2014 decision followed on the heels of two other EU 261 decisions issued by Judge Coleman in Polinovsky v. Lufthansa and Gurevich v. Alitalia.  These were the fourth and fifth decisions issued by the Northern District of Illinois on the issue of the viability of a direct right of action under EU 261.  In both cases, Judge Coleman agreed with the reasoning of Judges Nordberg, Chang and Durkin, and dismissed the plaintiffs’ claims for violation of EU 2617 because no private right of action under the Regulation exists in US courts.8

The five Northern District of Illinois judges tasked with determining the enforceability of EU 261 by domestic courts now unanimously agree that EU 261 does not create a private cause of action enforceable in US courts.  The question that remains is whether the Seventh Circuit Court of Appeals will uphold the district courts’ rulings.  Currently, appeals of three of the district courts’ rulings are pending before the Court of Appeals.  The first-filed appeal was in the Volodarskiy v. Delta case.  The briefing was completed in March 2014 and oral arguments heard in April 2014. The Seventh Circuit has stayed the briefing in the other EU 261 appeals pending a decision in Volodarskiy.

1 Condon & Forsyth’s previous Client Bulletins and Newsletters on the topic of EU 261 are available at:

2 No. 12 C 7040, Order [Dkt No. 46] (N.D. Ill. June 18, 2014) (Tharp, J.).

3 A seventh class action lawsuit was filed against British Airways Plc, but the plaintiffs did not allege a cause of action for violation of EU 261; rather, they asserted a single cause of action for breach contract and sought to enforce the terms of British Airways’ conditions of carriage, which they alleged incorporated EU 261.  The breach of contract cause of action was dismissed because it was preempted by the Airline Deregulation Act.

4 Giannopoulos v. Iberia, Líneas Aéreas de España, S.A., No. 11 C 775 (N.D. Ill. filed Feb. 3, 2011); Volodarskiy v. Delta Air Lines, Inc., No. 11 C 782 (N.D. Ill. filed on Feb. 3, 2011); Gurevich v. Alitalia, No. 11 C 1890 (N.D. Ill. filed Mar. 18, 2011); Lozano v. Continental Airlines, Inc., No, 11 C 8258 (N.D. Ill. filed Nov. 18, 2011).

5 2013 WL 5408652 (N.D. Ill. Sept. 26, 2013).

6 2013 WL 5645776 (N.D. Ill. Oct. 16, 2013).

7 The third decision was issued by Judge Thomas Durkin in Giannopoulos v. Iberia, Líneas Aéreas de España, S.A., No. 11 C 775, 2014 WL 551603 (N.D. Ill. Feb. 12, 2014). Judge Durkin’s decision is discussed in Condon & Forsyth’s February 21, 2014 Client Bulletin.

8 Polinovsky v. Deutsche Lufthansa, AG, 2014 WL 958666 (N.D. Ill. Mar. 12, 2014); Gurevich v. Compagnia Aereas Italiana, No. 11 C 1890, Opinion and Order [Dkt No. 104] (N.D. Ill. Mar. 18, 2014) (Coleman, J.).