Agent Issues Hall lawyers: It ain't over yet ... By Michael Milligan / November 13, 2003 Share 1 -- RALEIGH, N.C. -- Lawyers representing travel agent Sarah Hall have already begun the process of appealing a district court ruling that abruptly dismissed her class-action suit against the airlines. The decision in the nearly 4-year-old lawsuit, which was set to go to trial on Feb. 2, stunned Hall, her attorneys and many in the industry."We were surprised and disappointed because I don't think [the judge] followed the law," Hall's attorney Daniel Shulman told Travel Weekly. "This is a miscarriage of justice."Wilmington, N.C., travel agent Sarah Hall, who initiated the suit in December 1999, said the ruling was "hard to swallow.""We had [laid out a case indicating] the airlines had orchestrated this shakedown," Hall said. "Everyone wants to see an agreement, where [the airlines] all agree and sign a paper. But no big company is stupid enough to do that. All we wanted to do was get to a jury verdict. I would have been able to accept it better."ARTA president John Hawks also expressed disbelief at the ruling. Two ARTA members were co-plaintiffs in the case."We were totally shocked," Hawks said, adding that he believes Hall should fight on. "We are very supportive of going ahead with the appeal."Hawks said he has seen the plaintiff's evidence and the information collected "is as close as you can get to direct evidence" that the major airlines colluded.But it didn't convince U.S. District Court Judge W. Earl Britt.Britt's ruling came in response to airline motions for summary judgment. While such a ruling to dismiss is not unusual, Britt's action was viewed as particularly perplexing because it came just a few weeks after the judge, who certified the class action in September 2002, approved a settlement with one of the defendants, Lufthansa. (See story below).Attorney Jeffrey Miller said he was "surprised" by the timing."A judge can rule on a motion for summary judgment at any time, including the day of trial. The judge obviously allowed a lot of discovery to take place and allowed the settlement with Lufthansa," Miller said.In his ruling, Britt said the case was circumstantial, adding that the "plaintiffs have made no showing that the joint defendants actually conspired."Roger Fones, a Justice Department antitrust official, said, "The decision itself strikes me as pretty mainstream."During a panel discussion at a legal seminar, Fones, who is the chief of the transportation section in the department's antitrust division, said every concentrated industry has the opportunity to collude."What the courts are looking for," he said, "is whether there is evidence you did it."But Shulman strongly disagreed with the way Britt treated the evidence."We had the evidence that [the airlines] were talking about agent commissions in documents that we showed him," he said. "He has to read that evidence in the light most favorable to us, and he didn't do that. In fact, he ignored it."Shulman said the appeal began last week with the filing of a notice of appeal with the U.S. Court of Appeals for the Fourth Circuit in Richmond, Va.At a later date, the court will establish a schedule for the plaintiffs and defendants to file briefs. Later, a three-judge panel will hear oral arguments, followed by a ruling."Some appeals are fast, like six months. Others take several years," Shulman said. "I don't know how long this will take."It could be an uphill battle. Miller, whose practice is based in Maryland, said the Fourth Circuit U.S. Court of Appeals is "the most conservative circuit in the country."Aside from that, Miller said, "generally it is very hard to overturn a motion from a judgment in any case. The circuit court will give deference to ... the district judge in this case. You will really have to show he did something improper or wrong based on the law to have it overturned. The burden is really on the travel agents."New York-based travel attorney Arthur Schiff agreed that it will be hard to win on appeal, partly because Britt cited numerous cases from the Fourth Circuit and because, Schiff said, no smoking gun is evident.But he also believes that the judge took "a restrictive view of this evidence. ... Possibly, a different judge would have ... reached different conclusions."Airline reaction was muted. Delta said, "We've said all along we didn't think there was much to the case. After reviewing the evidence of the case, [the judge] concluded what we said all along ... . We are confident it will be upheld on appeal."American said, "After giving the plaintiffs every opportunity to prove their allegations, the court thoroughly reviewed the evidence and properly rejected Hall's meritless claims."Nadine Godwin and Andrew Compart contributed to this report.To contact reporters Michael Milligan, Nadine Godwin or Andrew Compart, send e-mail to firstname.lastname@example.org, email@example.com or firstname.lastname@example.org.