MEMORANDUM AND ORDER
Plaintiff DPWN Holdings (USA), Inc. (“DHL”) brings this action against United Air Lines, Inc. and United Continental Holdings, Inc. (collectively, “United”), asserting a claim that United was part of a conspiracy to fix the price of air cargo shipments, in violation of § 1 of the Sherman Act, 15 U.S.C. § 1. United moves to dismiss DHL’s amended complaint on the grounds that (a) the claim is time-barred;
BACKGROUND
A. Factual Background
1. The Parties
DHL is a business providing “logistics and freight-forwarding services” both to and from the United States. First Am. Compl. ¶ 14, ECF No. 8. United is an airline that provides shipping services for mail and freight to a variety of shippers. Id. ¶ 16. DHL is a major shipper of air cargo and has contracted with United for air cargo shipping services. Id. ¶¶ 14, 16.
2. The Alleged Conspiracy
Over a period of several years, United conspired with other airlines to fix the prices charged for air cargo shipments. See, e.g., id. ¶ 18. In particular, the conspiracy was focused on fixing surcharges for fuel and security costs that were added to the base rates for shipments. See, e.g., id. ¶¶ 19, 21.
The conspiracy to fix fuel surcharges can be traced back to late 1996 and early 1997, when airlines became concerned about the rising price of aviation fuel. See id. ¶¶ 33-35. At least one airline had attempted to unilaterally impose a fuel surcharge on its air cargo shipments, “but it was unable to maintain that surcharge in the face of price competition from other [airlines].” Id. ¶ 30. The airlines turned to the International Air Transport Association (“IATA”), an industry group of which United was a member, to collectively address the problem of fuel costs. Id. ¶ 27.
United and other IATA members developed a resolution, known as Resolution 116ss, under which member airlines would introduce a fuel surcharge tied to the price of aviation fuel. Id. ¶ 37. Resolution 116ss called for the creation of a Fuel Price Index (“FPI”) to track changes in fuel costs, which would then trigger changes in the fuel surcharge charged by each member airline. Id. ¶¶ 37-38.
With United’s support, IATA adopted Resolution 116ss in April 1997. Id. ¶ 40. Pursuant to the adopted resolution, airlines would begin charging a $0.10 per kilogram surcharge if the FPI exceeded 130 on or after October 1, 1997.
On March 14, 2000 — after United and other airlines had begun charging the fuel surcharge — the DOT rejected I ATMs application for approval of Resolution 116ss. Id. ¶ 53. It concluded that the proposal “appealed] fundamentally flawed and unfair to shippers and other users of cargo air transportation.” Id. (internal quotation marks and citation omitted) (emphasis removed).
Despite the DOT’S disapproval of Resolution 116ss and their awareness of their potential antitrust liability, United and other airlines continued charging the $0.10 fuel surcharge and coordinating their fuel surcharges in accordance with the general terms and principles of Resolution 116ss. Id. ¶¶ 54-56. The airlines also continued to meet and discuss their fuel surcharging policies, see, e.g., ¶¶ 57, 59-61, and raised their fuel surcharges “in a coordinated, largely parallel fashion.” Id. ¶ 58. Despite the purported rationale for the surcharges, i.e., to recover the increased costs of aviation fuel, they were disproportionate to actual fuel costs. See, e.g., id. ¶¶ 5, 20. Indeed, because the surcharges were not tied to the distance shipped, they were not correlated with fuel usage. Id. ¶ 177c.
The airlines did not want to give up the revenue from these fuel surcharges even after their fuel costs decreased in late 2001. See id. ¶ 60. By that time, the FPI had fallen to a level that required suspending the surcharges pursuant to Resolution 116ss. Id. United and Lufthansa Cargo (“Lufthansa”), another airline, ■ began discussions about modifying their fuel surcharge policies. See id. ¶¶ 60-62. United, Lufthansa and a third airline, Scandinavian Airlines System (“SAS”), had already entered into an alliance that had received limited antitrust immunity from the DOT. See id. ¶¶ 31-32. United and Lufthansa, “purporting to ‘tak[e] advantage of [their] anti-trust immunity,’ ” coordinated a new schedule of fuel surcharges tied to the FPL Id. ¶ 62 (citation omitted) (first alteration in original).
Lufthansa, with United’s knowledge, coordinated the implementation of this new methodology with other airlines that were not part of the DOT-approved alliance. Id. ¶ 63. Pursuant to this new methodology, United and other airlines increased their fuel surcharges in a coordinated fashion throughout the period between Spring 2002 and the end of 2006. See id. ¶¶ 64-65, 68, 70, 72-76, 78-82, 85, 90, 92, 94. Essentially, United coordinated its surcharging with Lufthansa, and Lufthansa coordinated it with other airlines. See, e.g., id. ¶¶ 67-70.
On February 14, 2006, law enforcement authorities raided the offices of several of the airlines involved in the conspiracy. Id. ¶ 88. United’s offices were not included in these so-called “dawn raids.” Id. ¶ 26; see also id. ¶ 88. Despite the raids, United and other airlines continued to coordinate their fuel surcharges for several more months. See id. ¶¶ 89-95.
Twenty of the airlines involved in the conspiracy and four of their executives subsequently pleaded guilty and paid criminal fines in connection with the conspiracy. See id. ¶ 152. Lufthansa entered the corporate leniency program offered by the U.S. Department of Justice, which required it to admit its role in the conspiracy. Id. ¶¶ 149-50.
On December 9, 2002, United petitioned for bankruptcy pursuant to Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the Northern District of Illinois.
B. Procedural Background
1. The Multidistrict Proceedings
On February 17, 2006 — -three days after the dawn raids — a putative class action was commenced against United and others asserting antitrust violations arising from alleged price-fixing of air-cargo shipments. DHL was a member of the putative class. Numerous similar cases were filed and, on June 20, 2006, the Judicial Panel on Multidistrict Litigation transferred the cases to this Court for coordinated pre-trial proceedings. See Transfer Order, In re Air Cargo Shipping Servs. Antitrust Litig.,
The class plaintiffs reached a non-monetary settlement with United in late 2006. However, they never sought judicial approval of the settlement, nor did they stipulate to a dismissal of United from the Air Cargo class action. United was effectively dropped from the case on February 8, 2007, when the class plaintiffs filed an amended complaint in which United was not named as a defendant.
2. The Present Action
DHL commenced this action on February 4, 2011. It thereafter filed an amended complaint on June 8, 2011. DHL asserts a single claim: that United violated § 1 of the Sherman Act. It seeks both monetary and injunctive relief.
On September 15, 2011, United moved to dismiss the amended complaint. United’s motion is based on three independent grounds: (1) the claim is barred by the four-year statute of limitations applicable in antitrust actions; (2) the claim was discharged when the bankruptcy court confirmed United’s plan of reorganization; and (3) the allegations in the amended complaint do not state a plausible antitrust claim.
DISCUSSION
A. The Timeliness of the Claim
DHL’s antitrust claim is subject to a four-year statute of limitations. 15 U.S.C. § 15b. The parties agree that the limitations period should be measured from February 14, 2006, the date of the dawn raids. DHL commenced this action on February 4, 2011. United argues that DHL’s claim is time-barred because it was filed nearly five years after the limitations period started running and tolling is not available for the full extent of DHL’s lateness.
“The filing of a class action tolls the statute of limitations ‘as to all asserted members of the class ....’” Crown, Cork & Seal Co. v. Parker,
United was named as a defendant in the Air Cargo class action on February 17, 2006. United concedes that DHL was a member of the putative class and, thus, that the commencement of the class action tolled the limitations period. However, the parties dispute how long this tolling lasted.
DHL contends that the limitations period was tolled until February 8, 2007, when the Air Cargo class plaintiffs filed an amended complaint that did not name United as a defendant. United argues that tolling ended months earlier, when the class plaintiffs’ settlement with United was announced in September 2006, or when the class plaintiffs formally executed their agreement with United in January 2007. If tolling ceased on February 8, 2007, then DHL commenced its case on the last day of the limitations period. But if tolling ceased any earlier, DHL’s claim is time-barred.
I agree with DHL that tolling continued until February 8, 2007, when United was dropped from the Air Cargo class action. Prior to that date, there could be no certainty that the settlement had been consummated. Even after the settlement agreement was executed, there was no formal indication on the Air Cargo docket that United was no longer a part of the case until the February 8, 2007 amended complaint was filed. Absent class members were entitled to rely on the class action to press their claims against United until they had a definitive indication that such claims would not go forward. The first such indication was the omission of United from the amended complaint.
A holding that settlement discussions or even the execution of a settlement agreement end the tolling of claims with respect to a settling defendant would only encourage “a needless multiplicity of actions.” Crown, Cork & Seal,
Furthermore, a holding that the mere execution of a settlement agreement could restart the running of the limitations period would be unfair to absent class members who are unaware of that event. Even a class member that was actively monitoring the docket to ensure its interests were being pursued might be unaware of the settlement until the filing of an order, stipulation, pleading or other document clearly indicating that a defendant had been dropped. United conceded at oral argument that there was no such indication on the docket sheet in the class action until the amended complaint was filed on February 8, 2007. See Tr. of Argument, Dec. 22, 2011, at 12. I conclude that tolling continued until the absent class members could have reasonably determined from a
Since the limitations period was tolled from February 17, 2006, until February 8, 2007, DHL’s claim is timely.
B. Whether DHL’s Claim Was Discharged in United’s Bankruptcy Proceeding
1. The Scope of Discharge Under the Bankruptcy Code
“[T]he confirmation of a [Chapter 11 bankruptcy] plan ... discharges the debt- or from any debt that arose before the date of such confirmation.” 11 U.S.C. § 1141(d)(1)(A). “A ‘debt’ is defined to mean ‘liability on a claim,’ and, in turn, a ‘claim’ is defined to include any ‘right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.’ ” Browning v. MCI, Inc. (In re WorldCom, Inc.),
A debtor that has completed Chapter 11 proceedings may use the bankruptcy court’s confirmation order as an affirmative defense in subsequent lawsuits. If a plaintiff asserts a claim that arose before the confirmation of the debtor’s reorganization plan, the claim will generally be dismissed as having been discharged. See, e.g., Delgado v. Derecktor Shipyards, Inc., No. 08-CV-316 (VLB),
The word “claim” has “the broadest available definition” under the Bankruptcy Code, Fed. Commc’ns Comm’n v. NextWave Pers. Commc’ns Inc.,
The broad discharge of claims afforded by § 1141(d)(1)(A) is justified by the purpose of bankruptcy law to give debtors a “fresh start.” WorldCom,
However, the goal of giving debtors a fresh start may conflict with other important interests. See id. “[A] broad discharge may disadvantage potential claimants, such as tort claimants, whose injuries were allegedly caused by the debtor but
Thus, determining whether a claim arose before the bankruptcy court’s confirmation is not always a straightforward task. The Second Circuit addressed whether claims that were unknown at the time of bankruptcy could be discharged by a confirmation order in Chateaugay. The asserted claim was the right of the Environmental Protection Agency (“EPA”) to seek reimbursement of environmental clean-up costs under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA”), 42 U.S.C. § 9601 et seq. The EPA argued that its right to seek reimbursement could be discharged only to the extent it had already incurred such costs at the time of confirmation.
The Second Circuit disagreed, holding that any clean-up costs incurred in the future as a result of released or threatened releases of hazardous materials that occurred prior to the filing of the bankruptcy petition were dischargeable claims. See Chateaugay,
True, EPA does not yet know the full extent of the hazardous waste removal costs that it may one day incur and seek to impose upon [the debtor], and it does not yet even know the location of all the sites at which such wastes may yet be found. But the location of these sites, the determination of their coverage by CERCLA, and the incurring of response costs by EPA are all steps that may fairly be viewed, in the regulatory context, as rendering EPA’s claim “contingent,” rather than as placing it outside the Code’s definition of “claim.”
Id. (emphasis added); see also Olin Corp. v. Riverwood Int’l Corp. (In re Manville Forest Prods. Corp.),
While Chateaugay provides guidance on the scope of the discharge under § 1141(d), this case is significantly distinct. Although DHL and United had a contractual relationship prior to the confirmation of United’s reorganization plan, the nature of that relationship was not such that DHL
Nevertheless, DHL does not seriously dispute that its antitrust claim, to the extent it is premised on pre-confirmation acts, is within the scope of the discharge provided by § 1141(d)(1). Thus, I need not address Chateaugay’s application to the circumstances in this case. As explained below, however, the conclusion that DHL’s antitrust claim (at least partially) falls within the scope of § 1141(d)(1) does not necessarily mean that DHL’s claim has been discharged.
2. Whether Discharge of DHL’s Claim Comports With Due Process
Any determination of whether a claim has been discharged “cannot be divorced from fundamental principles of due process.” Grossman’s,
Due process requires “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane,
Here, there is no dispute that DHL, a United customer, received actual notice of United’s bankruptcy proceedings, including the key procedural events leading up to the confirmation of United’s reorganization plan and the discharge of all its debts. United argues that due process was thus satisfied, and DHL’s antitrust claims have been discharged. DHL argues that this notice was insufficient, because United fraudulently concealed its participation in the antitrust conspiracy. DHL argues that since United did not notify it of a potential antitrust claim prior to the confirmation, notice of the bankruptcy proceedings was essentially meaningless.
While litigation over due process often turns on the form of notice, e.g., whether notice by publication sufficed, here the issue boils down to what the notice must contain. Is notice of the proceedings alone sufficient, as United argues? Or, as DHL argues, must the notice provide some indication of the nature of the existing claims subject to discharge, at least if the claimant could not otherwise discover the existence of the claims prior to the time of the discharge?
As a general matter, due process requires notice not just that there is a pending case or hearing, but of the nature of the charges or claims that will be adjudicated. See In re Ruffalo,
Applying these general principles in the context of a bankruptcy reorganization, a debtor should not be able to
However, other considerations need to be taken into account. The ability to discharge all claims is essential to an effective reorganization because it allows the debtor to attract fresh capital. See, e.g., Laura B. Bartell, Due Process for the Unknown Future Claim in Bankruptcy—Is This Notice Really Necessary?, 78 Am. Bankr.L.J. 339, 341 (2004). And the inability to obtain a complete discharge would encourage liquidation rather than reorganization, which would eliminate the value of the debtor as a going-concern while still leaving future claimants without the possibility of any recovery. See Ralph R. Mabey & Jamie Andra Gavrin, Constitutional Limitations on the Discharge of Future Claims in Bankruptcy, 44 S.C. L.Rev. 745, 783 (1993); John D. Ayer & Michael L. Bernstein, Bankruptcy in Practice § 13.16, at 289 (4th ed.2007); see also Mark J. Roe, Bankruptcy and Mass Tort, 84 Colum. L.Rev. 846, 901 (1984).
Furthermore, the discharge of less than all claims disadvantages those creditors who do assert their claims in the bankruptcy proceedings. See J. Maxwell Tucker, The Clash of Successor Liability Principles, Reorganization law, and the Just Demand That Relief Be Afforded Unknown and Unknowable Claimants, 12 Bankr.Dev. J. 1, 76 (1995). It allows claimants who assert their claims after the bankruptcy proceedings have ended to potentially recover their claims in full from the reorganized company, while other creditors may have received just pennies on the dollar. And those very same creditors may now be the owners of the reorganized company, so their recovery is further reduced to the extent the reorganized company remains liable for any pre-confirmation claims. See Mabey & Gavrin, supra, at 783 n. 159; see also Ind. State Police Pension Trust v. Chrysler LLC (In re Chrysler LLC),
Thus, the ability to discharge all debts — including claims that may be unknown or undiscoverable at the time of the reorganization — is vital to the purposes of Chapter 11. “A construction of the Due Process Clause which would place impossible or impractical obstacles in the way” of this vital interest “could not be justified.” Mullane,
Given that the ultimate standard for notice is reasonableness, a rule that balances
In one scenario, the debtor may be unaware of, and unable to discover through reasonably diligent efforts, claims against it. Since due process demands only what is reasonable, not what it is impossible or impracticable, debtors are not required to give notice of such claims. They should not-have to engage in inefficient, exhaustive investigations in an attempt to identify and catalog every conceivable claim against them, and then invite claimants to assert them.
In a second scenario, where the claimant knew or should have known of its claim at the time of the bankruptcy proceedings, a lack of notice of the character of the claims also should not violate due process and prevent discharge of the claims. A claimant that receives notice of bankruptcy proceedings has a duty to reasonably investigate what debts it is owed. Cf. Am. Bank & Trust Co. v. Jardine Ins. Servs. Tex., Inc. (In re Barton Indus., Inc.),
I need not determine what notice is required in the preceding scenarios, however, because this case presents a different scenario. Accepting the allegations in the complaint as true, the debtor was well aware of its involvement in a conspiracy to fix surcharges and, thus, of the antitrust claim against it. On the other hand, the claimant was completely unaware of the antitrust conspiracy and could not have learned of its antitrust claim through the exercise of reasonable diligence until after the confirmation of the reorganization plan. Under these circumstances, discharge of the claim satisfies due process only if the debtor notified the claimant not only of the pending bankruptcy proceedings, but also provided sufficient information to apprise the claimant of the nature of the claim to be discharged. See Acevedo,
This rule ensures that claimants receive meaningful notice, without unduly interfer
Contrary to United’s contention, a rule requiring the debtor to provide notice of the claims to be discharged, limited to the circumstances outlined above, would not “wreak havoc” on the bankruptcy system. In order to identify known creditors who must receive actual notice, a debtor already has a responsibility to conduct “a careful search of the debtor’s own records” for “some specific information that reasonably suggests both the claim for which the debtor may be liable and the entity to whom he would be liable.” Arch Wireless,
In light of the foregoing, the cases United relies on—In re Penn Central Transportation Co.,
In sum, where a debtor is aware of certain claims against it due to information uniquely within its purview, due process requires that it notify claimants of the character of those claims prior to any discharge.
Of course, United’s perspective is undoubtedly that it had no obligation to notify DHL of a potential antitrust claim because there is no such claim. If that is true, then United will prevail on the merits and will not be liable just as it would not be liable if DHL’s antitrust claim had been discharged. While United will have to incur the costs of defending itself on the merits, that is true of any defendant with a valid affirmative defense that cannot be established at the pleadings stage.
Moreover, I have assumed for purposes of this motion that DHL could not have discovered its antitrust claim against United through the exercise of reasonable diligence until after the confirmation of United’s reorganization plan. If United is able to demonstrate after discovery that this assumption is wrong, then a different con
3. Whether DHL Must Seek Relief From the Discharge in the Bankruptcy Court
United argues that DHL can challenge the effectiveness of the bankruptcy discharge only in the bankruptcy court that issued the confirmation order. According to United, DHL should have moved in the bankruptcy court either to revoke confirmation of United’s reorganization plan, see 11 U.S.C. § 1144, or for relief from the bankruptcy court’s final judgment, see Fed.R.Civ.P. 60(b); Fed. R. Bankr.P. 9024 — avenues for relief that are, according to United, no longer available.
United is correct that a bankruptcy court’s confirmation order is res judicata and bars relitigation of issues or claims that should have been raised in the bankruptcy proceedings. See Sure-Snap,
This Court has jurisdiction over DHL’s federal antitrust claim against United. Although United has asserted discharge as an affirmative defense, I have concluded that DHL’s claim was not discharged by the confirmation order on due process grounds. Thus, there is no need for DHL to seek relief from the bankruptcy court because the bankruptcy court’s order does not pose an obstacle to its claim.
There may be sound policy reasons in favor of requiring a party seeking to avoid the preclusive effect of a prior judgment to seek relief from the court that issued the judgment. See generally Restatement (Second) of Judgments §§ 78-82 (1982). Bankruptcy courts in particular are in a better position to resolve belatedly asserted claims with an eye to protecting the interests of other creditors and ensuring the continued effectiveness of the reorganization plan. Certainly, there are mechanisms through which DHL could have sought relief in the bankruptcy proceeding, especially since it was arguably on notice of its antitrust claim less than two weeks after the effective date of United’s reorganization.
C. Whether DHL Has Alleged a Plausible Antitrust Claim
1. Standard of Review
To survive a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.”’ Ashcroft v. Iqbal,
In considering a Rule 12(b)(6) motion, a court should first identify any allegations in the complaint that “are no more than conclusions” and therefore “are not entitled to the assumption of truth.” Id. at 1950; see also Hayden v. Paterson,
2. Application
Section 1 of the Sherman Act prohibits any “contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 1. “The crucial question in a Section 1 case is therefore whether the challenged conduct ‘stem[s] from independent decision or from an agreement, tacit or express.’ ” Starr v. Sony BMG Music Entm’t,
In Twombly, the Supreme Court discussed the pleading requirements for a Sherman Act conspiracy claim. See Twombly,
DHL’s amended complaint provides sufficient “context” and “factual enhancement,” Twombly,
United argues that the amended complaint does not plausibly allege its participation in an unlawful conspiracy for three reasons. First, United argues it cannot be held liable for the unlawful acts of other carriers. While there may have been a price-fixing conspiracy in the air cargo industry, United argues that the amended complaint does not adequately allege its participation in that conspiracy. Second, United argues that it cannot have violated the antitrust laws by engaging in conduct for which it was granted antitrust immunity by the DOT pursuant to its statutory authority. Thus, United argues that its communications with Lufthansa and its discussions with other airlines at IATA meetings cannot have been part of an unlawful conspiracy. Third, United argues that the allegations concerning its contact with competitors do not adequately plead its participation in a cartel.
While I agree with many of United’s general legal propositions, I do not believe they mandate dismissal in this case. First, I agree with United that DHL must allege more than just the existence of a cartel — it must allege United’s participation in that cartel. See, e.g., In re Citric Acid Litig.,
Second, I agree with the tautological proposition that United cannot be liable under the antitrust laws for conduct that is immune from the antitrust laws. See LaFlamme v. Société Air France,
The allegations in the amended complaint are that the coordination of fuel surcharges began through IATA. But this does not immunize the subsequent decision by the airlines to coordinate their fuel surcharges. Conduct at “IATA trade association meetings enjoy[s] limited antitrust immunity under federal law so long as the defendants submitted any proposed resolutions and agreements to the DOT for approval and received approval prior to implementation.” LaFlamme,
Similarly, any immunity arising out of United’s alliance with Lufthansa does not extend so far as to allow United to coordinate its pricing with dozens of other airlines. The allegations in the amended complaint are that United coordinated its fuel surcharges with Lufthansa while knowing that Lufthansa was then coordinating those surcharges with other airlines. This is nothing other than a conspiracy involving United and all the other airlines, with Lufthansa acting as an intermediary.
United’s arguments that the various meetings and communications alleged to have taken place do not plausibly establish an antitrust claim are beside the point. DHL has plausibly alleged United’s participation in a conspiracy to fix fuel surcharges. United’s discussions and emails with other airlines relating to pricing policies is, at least, indicative of a conspiracy even if they would not establish a conspiracy on their own. See, e.g., In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig.,
United also emphasizes the fact that, despite extensive scrutiny of surcharging practices by government regulators and private plaintiffs, United has thus far avoided any criminal or civil liability relating to the conspiracy alleged here. While United does not argue that this alone warrants dismissal of the case, it does argue that “DHL’s assertion that it alone perceives illegal conduct that has escaped the attention of the rest of the world is wholly implausible.” Defs. Mem. of Law 8, ECF No. 20-1.
As in Starr, United “cite[s] no case to support the proposition that a civil anti
CONCLUSION
For the reasons stated above, United’s motion to dismiss is denied.
So ordered.
Notes
. The facts are drawn from the well-pleaded allegations of the First Amended Complaint, which are assumed to be true for purposes of this motion.
. Though the complaint also alleges a conspiracy to fix a customs surcharge, see, e.g., First Am. Compl. ¶¶ 19, 21, the parties’ briefs in connection with this motion focus on the fuel surcharge and DHL's counsel confirmed at oral argument that the fuel surcharge is the focus of the case along with a "small claim” relating to the security surcharge. Tr. of Argument, Dec. 22, 2011, at 15; see also id. at 16 ("The customs surcharges and everything else we don't care about.”). DHL also alleges that the conspiracy involved the base rates, but only to the extent that the conspirators agreed not to adjust their base rates in a manner that would offset the surcharges.
.The FPI was set to equal 100 when fuel prices were at their June 1996 levels. First Am. Compl. ¶ 37. Thus, a FPI of 130 indicated that fuel prices were 30% higher than their June 1996 levels.
. Both of the defendants in this action — United Air Lines, Inc. and its corporate parent United Continental Holdings, Inc. — were among the debtors in the bankruptcy case.
. Some have described Chateaugay as adopting a "relationship test,” under which claims arising from pre-petition conduct can be discharged only if the debtor and the claimant had some existing relationship at the time of bankruptcy. See, e.g., Epstein v. Official Comm. of Unsecured Creditors of Estate of Piper Aircraft Corp.,
. In Chateaugay, the EPA's reimbursement claims were included on the debtor’s schedule of liabilities and the EPA had notice and an opportunity to be heard on its claims in the bankruptcy proceedings. See Chateaugay,
. In the case of individual debtors, the Bankruptcy Code expressly prevents the discharge of claims held by creditors who were not given an adequate opportunity to object to the reorganization plan. See 11 U.S.C. § 523(a)(3); Nicholas A. Franke, The Code and the Constitution: Fifth Amendment Limits on the Debtor’s Discharge in Bankruptcy, 17 Pepp. L.Rev. 853, 863 (1990) (”[W]hen the debtor is an individual, section 523(a)(3) of the Bankruptcy Code generally excepts from discharge the claims of creditors who do not receive notice of the case soon enough to file a timely proof of claim.”). Although there is no such provision for cases involving corporate debtors — implying a congressional intent that lack of notice not affect the discharge in such cases — the Code cannot override the constitutional protections of the Due Process Clause.
.While some courts have responded to the seeming unfairness of discharging unknown claims by narrowing the meaning of "claim,” this approach may conflict with the congressional purpose to give the word its broadest possible definition. See NextWave Pers. Commc'ns,
. Although in this instance the content of the notice is required by rule rather than the Constitution, the rules themselves are “are designed to further the due process of law that the Constitution guarantees.” Nelson v. Adams USA, Inc.,
. The "unknown claims" that a debtor is unable to discover through reasonable means can be analogized to “unknown creditors,” i.e., those creditors whose identities cannot “be discovered through ‘reasonably diligent efforts.’ ” Arch Wireless,
.In addition, it is unclear whether Penn Central and decisions relying on it, such as Envirodyne and Bowen, remain good law. More recently, the Third Circuit sitting era banc has taken a more nuanced view of what due process requires, holding that "[w]hether a particular claim has been discharged by a plan of reorganization depends on factors applicable to the particular case.” Jeld-Wen, Inc. v. Van Brunt (In re Grossman's Inc.),
the circumstances of the initial exposure to asbestos, whether and/or when the claimants were aware of their vulnerability to asbestos, whether the notice of the claims bar date came to their attention, whether the claimants were known or unknown creditors, whether the claimants had a colorable claim at the time of the bar date, and other circumstances specific to the parties
Id.
. It is unnecessary to determine with greater specificity what adequate notice would consist of, since it is undisputed in this case that the notice to DHL did not give any indication that it might have an antitrust claim against United.
. Unlike defenses such as sovereign immunity, there is nothing to indicate a congressional intent that the discharge of claims in bankruptcy proceedings would immunize debtors from suit rather than just eliminate their liability. Cf. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,
. Another potential remedy for a party in DHL's situation would be to seek leave to file a late proof of claim. See Fed. R. Bankr.P. 9006(b); see also Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship,
. United notes that the bar date for "administrative claims” was March 3, 2006 — after DHL was on notice of its claims. But United has not explained the significance of this.
. Because I have concluded, at this stage, that DHL’s antitrust claim was not discharged, I need not address DHL’s alternative argument that United remains liable for all damages caused by the antitrust conspiracy due to its continued participation in the conspiracy post-confirmation.
. Contrary to United’s argument, the antitrust claim against it is not premised on United’s mere knowledge of Lufthansa's conspiracy with other airlines. United's active participation in the conspiracy through its agreements with Lufthansa make it a co-conspirator as much as if it were actively dealing with the other coconspirators itself. See, e.g., United States v. Otibu, No. 02-CR-104 (AGS),