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
"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
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
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'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
"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,"
In his ruling, Britt said the case was circumstantial, adding
that the "plaintiffs have made no showing that the joint defendants
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
"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
"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
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
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
To contact reporters Michael Milligan, Nadine Godwin or
Andrew Compart, send e-mail to [email protected], [email protected]
or [email protected].