IN RE: Air Fare Litigation

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s : . THE JUDICIAL PANEL TEL Co So EEL	. sb d LITE re co oC co
: ~~ MULTIDISTRICT LITIGATION BEES ERE A
| : FE 19 197 ] aT
IN RE ATR FARE LITIGATION ) - DOCKET NO. 58:,.. _ CyClbps ep Meng NM oo
| OPINION AND ORDER aN
BEFORE ALFRED P. MURRAH, CHAIRMAN*, AND JOHN MINOR WISDOM, oo
EDWARD WEINFELD, EDWIN A. ROBSON, WILLIAM H. BECKER, JOSEPH CL [ETE
S. LORD, III*, AND STANLEY A. WEIGEL, JUDGES OF THE PANEL : So Se ~
PER CURIAM
’ In August 1969, the domestic air carriers filed increased . oo
passenger tariffs with the Civil Aeronautics Board. After . Co
holding several meetings with representatives of the airline oo
industry and a public hearing, the Board issued an order }
suspending the tariffs on file pending a more complete -
~ investigation. However, the Board also found that the carriers
had demonstrated a need for some additional revenue and it out- :
lined its own fare formula and announced that it would permit
tariffs implementing its formula to be filed without suspension,
thus assuring almost immediate effectiveness. The carriers . Ce
then withdrew their previous tariffs and filed for new increases
~- based on the Board's model. On September 30, 1969, an applica-
tion for reconsideration of the prior CAB order was denied and
* Judges Murrah and Lord were unable to attend the hearing but Co RE
with the consent of all parties they have participated in this oo Se
decision on the basis of the transcript of the hearing and the
pleadings filed in this matter.

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,
the fares based upon the Board's formula were allowed to
® stand without suspension or investigation. :
| Thirty-two interested Congressmen then filed an action
in the United States Court of Appeals for the District of i
Columbia alleging that the Civil Aeronautics Board, by
excluding the public from ex parte meetings with representa-
N tives of the air carriers and by holding a pro forma public
N hearing, had unlawfully approved the increased fare structure.
on July 9, 1970, the Court of Appeals held that because the
public notice and hearing requirements of Section 102(d) of
the Federal Aviation Act were not observed, the order was
invalid and the tariffs filed by the carriers based on the
Board's order were unlawful. The case was remanded to the
® Board for further proceedings. Moss v. CAB, 430 F.2d 891
(D.C. C.A., 1970).
. The litigation now before us eminates from the Moss Case.
Each of these actions is brought as a class action on behalf
of all or a portion of the passengers on domestic airlines
who paid the increased fare. Each seeks recovery for
the representative party and the class which he seeks to
represent against one or more of the domestic airlines. On
~~ October 22, 1970, we entered an order directing the parties
to show cause why these cases should not be transferred for
coordinated or consolidated pretrial proceedings under 28
U.S.C. §1407. We initially delayed our hearing to await
PY action by the CAB on a petition before it requesting similar

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’ relief. Since the Board has not yet acted and the parties are
® anxious to proceed with the actions now pending in federal
district courts, we felt that further delay was inadvisable and
set this matter for hearing in San Francisco on January 22, 1971.
The statements of counsel who appeared at the hearing and
| the written responses to the show cause order reveal that the
parties generally agree that transfer under Section 1407 is
necessary to avoid potentially conflicting class action claims.
The only parties objecting to transfer did so because they felt
that a transfer might delay their actions and perhaps because
they were concerned that a transfer might reduce their chances
of representing the classes they seek.
Although the parties are in agreement that transfer under
® Section 1407 is appropriate, we must still be satisfied that
the requirement of Section 1407 relating to the existence of
. common questions of fact is met. The parties concede that the
question of whether fare-paying passengers are entitled to a
refund for the allegedly illegal portion of their fares is pri-
marily a question of law but they recognize that Section 1407
does not authorize the transfer of cases which only share common
questions of law. The more typical common questions of fact
) occurring in multidistrict litigation relate to proof of liability
while questions relating to proof of damages generally do not
lend themselves to common discovery and may be left for the
transferor courts following remand. In re San Juan Air Disaster
° Litigation, 316 F. Supp. 981 (JPML 1970).

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| However, it may be that these cases are atypical
C for the common questions of fact, indeed the only
questions of fact relate to damages, particularly with
regard to the makeup, potential overlap and damages to the
classes sought in these actions. We think that where, as here
the class action will be used not only to establish the
defendants' liability to the class but also to establish
the total damage to the class, the existence of conflicting
and overlapping class action claims raises substantial common
questions of fact which justify transfer under Section 1407.
As is so often the case, the real issue among the parties
is not whether these actions should be transferred under
Section 1407 but rather to which district they should be
transferred. The defendants and at least one of the Chicago
® plaintiffs favor the Northern District of Illinois. The
California plaintiffs favor the Northern District of California
oo and the District of Columbia plaintiffs, joined by one of
the Chicago plaintiffs, favor the District of Columbia.
When litigation is truly national in scope, there
may be no one district which clearly stands out as the appro-
priate transferee court. Compare, In pe Butterfield Patent
Litigation, ___ F. Supp. ____ (JPML 1970) with In re
Protection Device Litigation, 295 F. Supp. 39 (JPML 1968).
On balance, we think the Northern District of Illinois
is the best choice. The defendants, some of whom have their
principal offices and bases of operation many miles from
® Chicago, all favor transfer to the Northern District of

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' + Illinois. The fact that the largest of the defendants --
® United Airlines -- has its office and relevant records
within the Northern District of Illinois is also an important
factor. The geographical location of the transferee court is
oo especially relevant when counsel must travel from distant parts
oo of the country. We think that the Northern District of I1lindis
- will be more convenient for counsel, and thus less expensive for
E their clients, than either of the other proffered districts.
Finally, we note that all of the Chicago cases have been
assigned to one judge and in ruling on motions to remand
and other pretrial motions, he has acquired a knowledge
of the issues involved in these cases which is at least
equal to that of the other judges to whom these cases have
been assigned.
® IT IS THEREFORE ORDERED that all of the actions listed
on Schedule A pending in other districts are hereby trans-
ferred to the United States District Court for the Northern
District of Illinois for coordinated or consolidated pre-~
trial proceedings under 28 U.S.C. §1407.
IT IS FURTHER ORDERED that with the written consent of
that Court all cases listed on Schedule A as well as all
related actions filed in or transferred to the Northern
District of Illinois are hereby assigned to Judge Alexander
J. Napoli for coordinated or consolidated pretrial proceedings.
®

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DOCKET NO. 58 SCHEDULE A |
C) NORTHERN DISTRICT OF CALIFORNIA
Air Travelers Association, et al. v. Air Civil Action
West, Inc., et al. No. C-70 1540 SAW
William M. Bennett, et al, v. Air Civil Action
Transport Association of America, No. C-70 1608 saw
et al. :
Keith Roberts, etc. v. American Airlines, Civil Action
et al. No. C-70 2737 SAW
CENTRAL DISTRICT OF CALIFORNIA :
Allen E. Botney v. American Airlines, Civil Action
Inc., et al. No. 70-2405-R
DISTRICT OF COLUMBIA
Michael W. Williams, etc. v. American Civil Action
Airlines, Inc., et al. No. 2162-70
[ NORTHERN DISTRICT OF ILLINOIS
Alan Weidberg, et al. v. American Civil Action
Airlines, Inc., et al. No. 70 C 1879
Wayne A. Benjamin, et al. v. Delta Civil Action
Airlines, Inc., et al. No. 70:C 2004