ravel agents have been living with
airline commission caps and commission cuts for eight years. Like
it or not, it is widely accepted that these cuts are here to stay.
We have also been living with variations of a conspiracy theory,
which holds that the airlines secretly agreed among themselves to
cap, cut and eliminate commissions in what amounts to an illegal
conspiracy to fix prices and/or monopolize the sale of air
travel.
The conspiracy theory may be here to stay as well, despite the
best efforts of U.S. District Court Judge W. Earl Britt to shoot it
down.
And shoot he did. It's not often that a federal judge dismisses
a case and describes the plaintiffs' arguments with terms like
ridiculous, ludicrous and sheer speculation, but this judge did
that and more.
A polite summary of his 42-page ruling might say that Sarah
Hall's legal team failed to make a threshold case that would
warrant going to trial. A slightly more candid summary would note
that the judge found it difficult to disguise his disdain for some
of the arguments placed before him.
Nobody pretends to have direct evidence of a conspiracy. There
are no eyewitness accounts or transcripts of secret meetings or
phone calls. As Sarah Hall herself observes in our news pages
today, the airlines aren't stupid enough to knowingly engage in a
price-fixing conspiracy and leave a paper trail.
So the theory has to stand or fall on circumstantial evidence.
In the view of this judge, the circumstantial evidence doesn't come
close to meeting the legal standard.
The plaintiffs plan to appeal. The judge may have erred. He may
have overlooked evidence or misapplied the law or precedents. So
the conspiracy theory will live on a while longer.
It is beyond question that many travel agents suffered economic
injury from the airline commission cuts of the last few years. Good
people with good intentions may believe deeply that this harm was
caused by illegal conduct, but it seems to us increasingly unlikely
that they will ever prevail in court.
At what point should they give up on the conspiracy theory and
move on?
At what point do the lawsuits become a quixotic quest for the
unattainable?
At what point do the lawsuits become a liability for the
plaintiffs and for the trade's image?
We believe these are questions that demand answers, but in the
peculiar psychology of class-action law there can be thousands of
passive plaintiffs who don't feel the need to answer them.
After all, the lawyers do most of the work. In this case, most
agents can sit on the sidelines and mind their businesses. There
might be a few dollars in it if there's a verdict or a settlement
someday, so what's the harm of letting the lawyers argue the
case?
There may be no harm at all, but if this mind-set is the only
thing keeping the conspiracy theory alive, we'd ask the question:
Is that reason enough to continue?