Northern District of Illinois Severely Limits Passenger Class Action Delay Claim

The U.S. District Court for the Northern District of Illinois recently limited plaintiff’s passenger delay class action in Shabotinsky v. Deutsche Lufthansa AG.1

Plaintiff alleged that he was delayed flying from Chicago to Tel Aviv when Lufthansa rescheduled a connecting flight from Germany to his final destination to depart three hours later than originally scheduled. Plaintiff initially brought claims based on (1) the Montreal Convention, (2) European Union Regulation (EC) No. 261/2004 (“EU 261”), and (3) general contract arguments.  Thereafter, he withdrew his EU 261 claim because he was unable to provide any contractual basis for such claim as required by Seventh Circuit precedent.2

Lufthansa moved to dismiss the remaining claims on the grounds that they were not covered by the Montreal Convention, that the airline’s Conditions of Carriage permitted pre-departure schedule changes, and that plaintiff had failed to allege compensable damages. Lufthansa also moved to dismiss class action claims on the grounds that general class claims for flight delays cannot meet the requirements of Fed. R. Civ. P. 23.

Although the district court found that plaintiff’s individual delay claim was cognizable under the Montreal Convention, it agreed that any recovery must be limited to out-of-pocket expenses at the airport, such as food and refreshments. Under Article 19 of the Convention, passengers cannot recover noneconomic damages such as “general damages,” “inconvenience” claims, and “physical exhaustion,” as originally claimed by plaintiff.  The court went on to dismiss plaintiff’s contract claims based on Articles 19 and 22(6).  Both claims were based on plaintiff’s erroneous argument that Article 22(6) creates a right to attorney’s fees when a passenger serves the air carrier with a formal “Notice of Claim” or demand for settlement prior to suit.  In fact, as the court noted, Article 22(6) merely provides that the limits on damages under the Convention do not prevent courts from awarding fees and costs (where recoverable under applicable local law) to a prevailing party if the amount of damages awarded is less than any settlement amount previously offered by the air carrier.

The district court then addressed plaintiff’s class claims. Plaintiff sought to represent two classes of passengers: (1) all passengers on plaintiff’s delayed flight from Frankfurt, Germany to Tel Aviv, Israel; and (2) all passengers delayed on all international Lufthansa flights since August 2014.  As to the first class of passengers, the potential class was limited to all American passengers traveling on both flights from Chicago to Israel.  Notably, the court was “skeptical” whether such a group would be “numerically sufficient to constitute a class” under Fed. R. Civ. P. 23 and ordered counsel to file a motion to certify the class within ninety days.

As to the proposed second class, the district court adopted the ruling of a formerly joined case, Pumputiena v. Deutsche Lufthansa,3 finding that a general class of delayed passengers travelling with the same air carrier over a period of time simply was not maintainable.  As the Pumputiena court explained, although a class of passengers can theoretically be certified on a flight-by-flight basis, a more general class is not certifiable because it requires examination of hundreds or even thousands of different flights.  The decisions in Shabotinsky and Pumputiena are consistent with other recent rulings in the Northern District of Illinois and the Southern District of New York regarding the lack of viability under the Federal Rules of broad class claims across multiple flights.

Case No. 1:16-cv-4865, Dkt No. 66 (March 27, 2017).

2 Volodarskiy v. Delta Airlines, Inc., 784 F.3d 349, 357 (7th Cir. 2015); Baumeister v. Deutsche Lufthansa, AG, 811 F. 3d 963, 965-6 (7th Cir. 2016).

3 2017 WL 66823 (ND Ill. January 6, 2017).