At the end of 2014 Deutsche Bahn’s logistics subsidiary, Schenker Logistics, announced that it would seek damages of around $2.5 billion from air cargo carriers found guilty of operating a global price-fixing cartel. However, some of the airlines named in the lawsuit have now filed motions to dismiss the action, citing that the statute of limitations applies, that the time allowed has expired, and that the lawsuit is not for the jurisdiction of the US Court as Schenker was merely ‘forum shopping’.
Several air cargo carriers were found guilty of conspiring to fix fuel and security surcharges between 1999 until 2006. Schenker filed a complaint against Air France, KLM, Martinair, Cargolux, Qantas, SAS and All Nippon Airways. As these companies coordinated surcharge pricing for shipments to, from and within the US, Schenker said the airlines violated US antitrust laws.
A number of the US air cargo carriers are making settlement agreements with individual claimants and class action plaintiffs to avoid protracted civil lawsuits. Schenker said it had agreed settlements with some carriers, but had opted out of the agreements with the named defendants.
Now however, All Nippon Airways and Cargolux have asked the district court to dismiss the action under forum non conveniens – a common law doctrine whereby courts may refuse to take jurisdiction over matters where there is a more appropriate forum available to the parties involved – under the Second Circuit’s precedent in ‘Capital Currency Exchange NV vs. National Westminster Bank PLC’.
The defendants are arguing that Schenker is a foreign corporation that only chose the US for its treble damages, whereas Germany is a better alternative forum, especially considering that Schenker is owned by the German government, and many witnesses are located in Europe.
Schenker filed a lawsuit in Germany in December 2013, alleging that defendants Deutsche Lufthansa, British Airways, Singapore Airlines, Swiss Airlines, Cargolux, SAS, Air Canada, Cathay Pacific, Japan Airlines, LAN Airlines and Qantas were involved in the same conspiracy affecting airfreight shipments worldwide.
Air France filed a motion to dismiss the case in the US at the end of last year, instead suggesting that it should be heard in Amsterdam. However, Schenker asked this request to be denied. Meanwhile, Qantas has now also filed a motion to dismiss the lawsuit, citing that Schenker had filed its claims after the Clayton Act’s four-year statute of limitations had expired. The company is arguing that Schenker should have been aware of its claims back in 2006, but failed to file a complaint before June 1st 2014.
The case in Cologne
According to German media, Robert Bosch, Kuehne + Nagel, and Panalpina are also joining the antitrust lawsuit against the cargo airlines, with the possibility that even more could join soon.
With the additional parties, the damage claim in Germany is now at €2bn, with an additional €900m for interest payments.
