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EU Flight Delay Rule Can Be Enforced In US, 7th Circ.

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Law360, Chicago (April 17, 2014,  3:17 PM ET) — Two Delta Air Lines Inc. passengers urged the Seventh Circuit on Thursday to revive their proposed class action seeking compensation for flight delays under a European Union regulation, arguing that nothing in EU law bars them from suing in a U.S. court. The EU statute — which requires airlines to provide set compensation to passengers for delays and cancellations — contains no language limiting claims to the courts of EU member states, Joseph Henry Bates of Carney Bates & Pulliam PLLC, an attorney for the plaintiffs, said during oral arguments in Chicago.
“The analysis begins and ends with whether or not there is an express prohibition in the statute,” he told the appeals panel.
An Illinois federal judge rejected this very argument when he tossed the case in October, finding that the regulation, EU 261, doesn’t create a private right of action that can be enforced outside the EU.
But Bates argued Thursday that the district court erred by mixing up the regulation’s administrative enforcement provisions, which are confined to the EU, and judicial enforcement provisions, which are not.
Pushing back against the plaintiffs’ argument, Circuit Judge Diane S. Sykes questioned whether the they had a cognizable claim under U.S. law, saying there was no “analogue” for the regulation in the U.S.
“There’s no hook in American law for this claim,” she said.
Gabor Balassa of Kirkland & Ellis LLP, an attorney for Delta, disputed the plaintiffs’ contention that the regulation is silent on foreign enforcement, pointing to a provision stating that passengers may “seek legal redress from courts under procedures of national law.”
He said that “national law” is a “term of art” in the EU that specifically refers to the union’s member states.
“It doesn’t generically mean courts of any sovereign — it means courts of the member states,” he said.
The judges also questioned Balassa about whether the plaintiffs’ class claims could be brought in various EU countries. He responded that the EU is generally “hostile to U.S.-style class actions.”
The panel took that matter under advisement after oral arguments concluded.
Plaintiffs Gennadiy Volodarskiy and Oxana Volodarskaya brought the suit in February 2011, after they and their two children had their flight from London Heathrow Airport to Chicago O’Hare International Airport delayed for more than eight hours and they did not receive compensation, according to court filings.
The appeal will likely have an impact beyond Delta’s case, as the plaintiffs’ attorneys have filed at least four similar actions against other airlines: Iberia Lineas Aereas de Espana SA, Deutsche Lufthansa AG, Continental Airlines Inc. and United Airlines Inc.
Those four carriers filed an amicus brief in the instant appeal, backing up many of the arguments made by Delta on Thursday.
Circuit Judges Diane S. Sykes, Daniel A. Manion and John D. Tinder sat on the panel for the Seventh Circuit.
The plaintiffs are represented by Joseph H. Bates III of Carney Bates & Pulliam PLLC, Vladimir M. Gorokhovsky of Gorokhovsky Law Office LLC, and Daniel O. Herrera and Jennifer W. Sprengel of Cafferty Clobes Meriwether & Sprengel LLP.
Delta is represented by Gabor Balassa, Mark R. Filip and Martin L. Roth of Kirkland & Ellis LLP.
The case is Volodarskiy et al. v. Delta Air Lines Inc., case number 13-3521, in the U.S. Court of Appeals for the Seventh Circuit.
–Additional reporting by Kira Lerner and Michael Lipkin. Editing by Katherine Rautenberg.

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