854 F.3d 606
9th Cir.2017Background
- Plaintiffs filed a putative class action alleging international airlines colluded to fix ticket prices and fuel surcharges on U.S.–Asia routes, invoking §1 of the Sherman Act.
- DOT’s 1999 three-tier Country Category scheme requires different filing obligations: Category C carriers file all fares; Category B file some fares; Category A need not file fares — creating a universe of "unfiled fares.”
- DOT historically prohibited separate fuel surcharges until 2004; after 2004 DOT permitted (but did not clearly require) filing of fuel surcharges and stated it could not "effectively monitor" separate fuel surcharges.
- ANA sold discounted tickets with different price and substantive terms than fares it had filed; travel agents remitted a lower net fare to ANA and kept the remainder as commission.
- The district court held the filed rate doctrine bars claims based on literally-filed fares but denied summary judgment for defendants as to unfiled fares, fuel surcharges, and ANA’s discount fares; interlocutory appeal followed.
- Ninth Circuit majority affirmed denial of summary judgment as to unfiled fares, fuel surcharges, and discount fares, finding genuine factual disputes about whether DOT effectively exercised regulatory authority over those rates; Judge Wallace concurred in part and dissented as to filed fuel surcharges.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether filed rate doctrine bars antitrust claims based on unfiled fares | Wortman: DOT has effectively abdicated oversight of unfiled fares, so doctrine does not bar claims | ANA/others: DOT retained authority; filing regime preserves filed rate protection | Court: Genuine issues of material fact whether DOT exercised authority; denied summary judgment for defendants on unfiled fares |
| Whether filed rate doctrine bars claims based on fuel surcharges | Plaintiffs: DOT cannot effectively monitor/has not effectively regulated surcharges; doctrine inapplicable | Defendants: DOT required filing of surcharges (post-1999/2004) so filed rate doctrine applies to filed surcharges | Court (majority): Genuine fact issues about DOT's practical ability to regulate surcharges; doctrine does not preclude claims on record now; (Wallace dissent: would bar claims for literally-filed surcharges) |
| Whether filed rate doctrine bars claims based on ANA’s discount fares that differ in price and terms from filed tariffs | Plaintiffs: Discount fares are materially different products/terms from filed fares and thus not covered by filed rate doctrine | ANA: Discounted tickets derive from filed tariffs; filed rate doctrine should preclude challenges | Court: Differences in price and substantive terms raise factual question whether discount fares are the same product as filed fares; denied summary judgment for defendants |
| Scope of the filed rate doctrine when agencies use lighter-touch regulation or market-based approaches | Plaintiffs: Doctrine should not automatically apply where agency has not meaningfully authorized or monitored rates | Defendants: Literal filing (or agency rule requiring filing) should trigger the doctrine regardless of practical oversight | Court: Application depends on whether agency has authorized/meaningfully regulated rates; literal filing is not dispositive — look to agency action and ability to regulate |
Key Cases Cited
- Keogh v. Chicago & N. W. Ry. Co., 260 U.S. 156 (Sup. Ct. 1922) (establishing filed rate doctrine: courts may not vary published tariff rates)
- Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U.S. 409 (Sup. Ct. 1986) (reaffirming filed rate doctrine and limiting deviations absent clear congressional intent)
- Maislin Indus., U.S., Inc. v. Primary Steel, Inc., 497 U.S. 116 (Sup. Ct. 1990) (filed-rate principles not displaced by generalized congressional exhortations to increase competition)
- AT&T Corp. v. Central Office Tel., Inc., 524 U.S. 214 (Sup. Ct. 1998) (filed rate doctrine bars challenges when similarly situated customers pay different rates for the same service)
- E. & J. Gallo Winery v. EnCana Corp., 503 F.3d 1027 (9th Cir. 2007) (filed-rate inquiry focuses on whether agency authorized/regulated rates even when literal filing absent)
- Public Util. of Grays Harbor v. IDA-CORP, 379 F.3d 641 (9th Cir. 2004) (agency reporting and oversight factors relevant to filed rate applicability)
- Ting v. AT&T, 319 F.3d 1126 (9th Cir. 2003) (filed rate doctrine inapplicable where FCC forbore and disavowed tariff-based regulation)
- Carlin v. DairyAmerica, Inc., 705 F.3d 856 (9th Cir. 2013) (applied filed rate principles to agency-set minimum prices but declined to bar suit where agency effectively rejected prices and policy considerations counseled against applying the doctrine)