NEW YORK -- A
travel agent lawsuit against the airlines over the 2002 commission
cuts survived another challenge when the presiding judge denied an
airline motion that could have prevented the case from becoming a
class-action suit.
The suit, filed
in the U.S. District Court for the Southern District of New York by
Power Travel of Plainview, N.Y., originated as a breach-of-contract
action in 2002 but was held in abeyance for part of 2003 because
the Sarah Hall class-action suit was pending in North
Carolina.
Soon after the
Sarah Hall case was dismissed, Delta moved to strike all references
in the Power complaint to a class of agents on the grounds of res
judicata -- that it would amount to a retrial of a matter already
decided.
Judge Robert
Sweet dismissed the motion, however, saying the airlines waived
their right to res judicata relief because they already had
actively participated in the Power case. That doesnt necessarily
make it a class action, however, because Powers motion for
class-action status is still pending. Judge Sweet is not expected
to rule on it until after the parties file additional legal
briefs.
Unlike other
suits triggered by commission cuts, the Power suit is not an
antitrust case but rests on contract law. It claims the airlines
breached an implied contract of good faith and fair dealing with
ARC agents by eliminating commissions.
Defendant
airlines also include American, Continental, Northwest and
United.
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