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Ill. SC shoots down class action over airline baggage fee

By Jessica M. Karmasek | Mar 30, 2011


SPRINGFIELD, Ill. (Legal Newsline) - The Illinois Supreme Court ruled last week that a Northbrook woman cannot continue with her lawsuit against American Airlines over a $40 baggage fee.

Plaintiff Andrea Barber purchased a ticket through American Airlines from Chicago to White Plains, N.Y., on Aug. 11, 2008.

Prior to boarding, she checked two suitcases and was charged a $40 checked baggage fee.

Then, after American Airlines cancelled the flight, Barber declined to take another flight and instead requested her ticket be refunded along with the baggage fee.

The airline refunded the ticket, but refused to refund the $40 fee.

According to Barber's complaint, the airline's counter agent advised her it was not its policy "to refund fees paid by ticket holders for transportation of luggage in conjunction with a passenger
flight when that flight is cancelled by the airline and the passenger does not accept another flight."

Four days after her flight was cancelled, Barber filed a class action complaint against American Airlines in Cook County Circuit Court.

After being served, the airline determined that Barber was entitled to a refund of the $40 fee. On Sept. 4, 2008, it contacted her counsel and offered to refund the fee. The airline also said it would consider paying any court costs she had incurred to date.

At that time, Barber's lawyer, Howard C. Goode of Northbrook, Ill., declined the offer and said the case would proceed as a class action.

Weeks later, the airline refunded the $40 fee to Barber's credit card and sent a letter to Goode saying so.

In October 2008, the airline moved to dismiss Barber's complaint on the grounds that her complaint was moot because it had refunded the fee to her.

In March 2009, the circuit court granted the airline's motion and dismissed the complaint on mootness grounds. Barber never filed a motion for class certification.

An appellate court majority later reversed the circuit court's decision and remanded the case, concluding Barber's claim was not moot.

The state's high court sided with the circuit court in its eight-page opinion, filed Thursday.

Justice Charles E. Freeman, who authored the Court's opinion, said it is "undisputed" that at the time the airline tendered the baggage fee refund to Barber that no motion for class certification was pending.

Therefore, her claim was moot and the circuit court "correctly dismissed it," the Court wrote.

The Court also rejected the appellate court's so-called "pick off" exception. That is, allowing a defendant to prevent class action litigation by "picking off" the named plaintiff before there is an opportunity to protect the interests of absent class members by moving for certification.

"However, there is no prohibition against settlements with class members as long as the rights of nonsettling class members are not affected," the Court wrote.

"There is no indication here that defendant's refund to plaintiff affected the rights of others who did not receive similar refunds. Presumably, the remaining class members can either pursue class litigation or bring their claims individually."

Counsel for American Airlines included Michael G. McQuillen, Mark S. Susina, Austin W. Bartlett and Lisa A. Devlin of Adler Murphy & McQuillen, LLP, in Chicago.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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