The issue of whether delay claims brought under Article 19 of the Montreal Convention can be certified for class action treatment under the Federal Rules of Civil Procedure has gained attention from federal courts in recent years, as putative class actions are being filed against airlines with greater frequency.1 The U.S. District Court for the Northern District of Illinois weighed in on this issue in Dochak v. LOT Polish Airlines2 and concluded that the putative class claims for Article 19 delay damages were inherently individual in nature and, thus, the plaintiffs could not satisfy all Rule 23 class certification requirements.
In Dochak, the plaintiffs consisted of a group of eight individuals, each of whom claimed economic damages after experiencing a delay or cancellation on different international flights operated by the defendant airline.3 Electing to assert their claims in a putative class action, the plaintiffs sought to recover delay damages under Article 19 of the Montreal Convention4 on behalf of themselves and all other LOT passengers who similarly experienced a delay or cancellation of a LOT flight. LOT initially moved to strike the class claims during the pleading stage of the litigation, but the court ruled that it was premature to challenge the class claims prior to discovery. After discovery ended, LOT filed a motion to dismiss the class claims under Rule 23(c)(1)(A), arguing that there was no evidence from which the plaintiffs could satisfy Rule 23’s class certification requirements of commonality, typicality, adequacy of representation, and predominance. The court granted LOT’s motion and ruled that class certification of Montreal Convention claims arising from multiple flight delays and cancellations was not appropriate.
Focusing on the “reasonable measures” defense to liability for delay damages provided by Article 19 of the Montreal Convention,5 the court found that litigating each putative class member’s Article 19 claim would require the court to make individualized liability determinations unique to each passenger. The court noted that “each putative plaintiff’s claim centers on two individualized and unique inquiries: (1) the nature of the affected plaintiff’s delay and whether LOT took reasonable measures to avoid it; and (2) whether LOT took reasonable steps to mitigate economic loss as to each delayed passenger.” Due to these individualized issues and the fact that the proposed class consisted of potentially “thousands of passengers from hundreds of different flights, where each flight was canceled for a different reason and each passenger was potentially treated differently by LOT as a result of the delay,” the court found that plaintiffs could not satisfy the commonality, typicality, and predominance requirements. As a separate basis for dismissing the plaintiffs’ putative class claims, the court ruled that class counsel could not adequately represent the interests of the putative class based on his conduct in the litigation and his history of disciplinary matters.
Although this decision did not address whether the same class certification deficiencies would apply to a proposed class of passengers whose Article 19 delay claims arise from a single flight delay or cancellation, the decision provides strong support for why Montreal Convention claims are inappropriate for class action treatment. Indeed, the court’s emphasis on the “individualized and unique” nature of these claims illustrates the inherent conflict between the manner in which Montreal Convention claims are intended to be resolved and the purpose of class action litigation.
In addition to granting LOT’s motion to dismiss the class claims, the decision also granted LOT’s motion to dismiss the plaintiffs’ claims for attorneys’ fees. The court ruled that Article 22(6) of the Montreal Convention expressly states that the availability of attorneys’ fees is governed by local law. Accordingly, applying the “American Rule,” which requires that “[e]ach litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise,” the court ruled that the plaintiffs were not entitled to attorneys’ fees.
In spite of these favorable rulings, the Dochak action remains pending as to the plaintiffs’ individual Article 19 delay claims. In considering whether the amount of each plaintiff’s provable economic damages could be capped according to the evidence produced in discovery, the court ruled that triable issues of fact relating to the amount of delay damages available to the individual plaintiffs remain. Nevertheless, dismissal of the class claims represents a substantial success for the airline and significantly narrows the scope of the case.
1 See, e.g., Shabotinsky v. Deutsche Lufthansa AG, No. 16 C 4865, 2017 WL 1134475 (N.D. Ill. Mar. 27, 2017); Pumputiena v. Deutsche Lufthansa AG, No. 16 C 4868, 2017 WL 66823 (N.D. Ill. Jan. 6, 2017); Rambarran v. Dynamic Airways, LLC, No. 14-CV-10138, 2015 WL 4523222 (S.D.N.Y. July 27, 2015).
2 No. 15 C 4344, Memorandum Opinion and Order [D.E. 155] (N.D. Ill. May 31, 2017).
3 Plaintiffs initially consisted of a group of fifteen individuals. However, prior to LOT filing its motion to dismiss the class claims, the court dismissed the individual claims of seven of the originally named plaintiffs.
4 The plaintiffs’ putative class action complaint also sought damages pursuant to European Union Regulation (EC) No 261/2004 (“EU 261”). The court dismissed the plaintiffs’ EU 261 claims pursuant to the Seventh Circuit’s decisions in Volodarskiy v. Delta Airlines, Inc., 784 F.3d 349 (7th Cir. 2015) and Baumeister v. Deutsche Lufthansa AG, 811 F.3d 963 (7th Cir. 2016).
5 Article 19 states: “the carrier shall not be liable for damage occasioned by delay if it proves that it and its servants and agents took all measures that could reasonably be required to avoid the damage or that it was impossible for it or them to take such measures.”