John Caceres D/B/A Caceres Agency v. International Air Transport Association

422 F.2d 141, 13 Fed. R. Serv. 2d 679, 1970 U.S. App. LEXIS 11227, 1970 Trade Cas. (CCH) 73,036
CourtCourt of Appeals for the Second Circuit
DecidedJanuary 13, 1970
Docket265-271, Dockets 33433-33439
StatusPublished
Cited by47 cases

This text of 422 F.2d 141 (John Caceres D/B/A Caceres Agency v. International Air Transport Association) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
John Caceres D/B/A Caceres Agency v. International Air Transport Association, 422 F.2d 141, 13 Fed. R. Serv. 2d 679, 1970 U.S. App. LEXIS 11227, 1970 Trade Cas. (CCH) 73,036 (2d Cir. 1970).

Opinions

FEINBERG, Circuit Judge:

Plaintiffs, seven travel agents, brought an antitrust action on their own behalf and as representatives of a class of travel agents against major international air carriers and their association, International Air Transport Association (IATA). Plaintiffs appeal from an order entered by the United States District Court for the Southern District of New York, Walter R. Mansfield, J., determining that their action is not maintainable as a class action. 46 F.R.D. 89 (S.D.N.Y.1969). We have concluded that the order appealed from is not a final decision under 28 U.S.C. § 1291 and accordingly dismiss the appeal.

Since we do not reach the merits of plaintiffs’ antitrust claims, we will describe the underlying action only briefly. Its gravamen is that plaintiffs and other members of the alleged class have all been prevented from acting as ticket sales agents for defendant airlines by [142]*142defendants’ agreement that none of them will pay commissions to a travel agent not on IATA’s approved list. While such an alleged group boycott has obvious antitrust implications, plaintiffs concede that 49 U.S.C. § 1384 renders defendants “immune” if their action is taken in accordance with procedures approved by the Civil Aeronautics Board (CAB).1 Cf. McManus v. Lake Central Airlines, Inc., 327 F.2d 212 (2d Cir.), cert. denied, 377 U.S. 943, 84 S.Ct. 1350, 12 L.Ed.2d 307 (1964). The fundamental issue in plaintiffs’ action, however, is whether such CAB direction has been followed. Plaintiffs claim that it has not, because defendants did not properly notify plaintiffs of the reasons why they were not approved as IATA agents.2 Defendants argued to Judge Mansfield that the notices varied from one plaintiff to another; since the question of due notice had to be considered separately as to each plaintiff — and as to each member of the alleged class — class action treatment was inappropriate. Based upon this and other reasons defendants moved for a determination that the suit was not maintainable as a class action. Judge Mansfield agreed with defendants’ principal argument that the adequacy of IATA’s notice of disapproval would vary in the case of each complaining travel agent. Moreover, the judge felt that there were no strong reasons for class action treatment and that, on the contrary, use of that device might create “unfortunate * * * confusion * * * [and] inefficiencies” at trial. 46 F.R.D. at 95. Therefore, he was unable to find, as required by Fed.R.Civ.P. 23(b) (3), “that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Accordingly, he held that the action could not be maintained as a class action and the allegations of the complaint purporting to create a class action were to be deemed stricken. This appeal followed.

Although both sides argue the merits of Judge Mansfield’s order, the first question before us is not whether that order was correct, but whether it is appealable. Plaintiffs’ notice of appeal was filed in February of this year and the record was docketed in March, but defendants did not raise the issue of nonappealability until filing their brief on the merits in November. In reply, appellants complain that defendants did not choose to move to dismiss earlier before substantial appellate costs had been incurred.3 We must deal with a question so squarely raised; indeed, we would have to do so even if no one called it to our attention and we noticed it ourselves. See Alart Associates v. Aptaker, 402 F.2d 779 (2d Cir. 1968).

Three recent cases in this court, all decided after the 1966 amendments to Rule 23, deal with the issue of appealability of an order dismissing the class action aspects of a complaint but not in form affecting the individual action. In Eisen v. Carlisle & Jacquelin, 370 F.2d 119 (2 Cir. 1966), cert. denied, 386 U.S. 1035, 87 S.Ct. 1487, 18 L.Ed.2d 598 (1967), we denied a motion to dismiss an appeal from such an order. In doing so, we relied on Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. [143]*143Ct. 1221, 93 L.Ed. 1528 (1949), and Roberts v. United States District Court, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326 (1950). Because the claim of Morton Eisen amounted to only $70, we felt that “the effect of the district court’s order [dismissing the class action], if not reviewed, is the death knell of the action.” 4 Id., 370 F.2d at 121. We distinguished an earlier decision, Lipsett v. United States, 359 F.2d 956 (2d Cir. 1966), because, among other reasons, the action there would continue even if the class allegations were eliminated.

The problem of appealability of such an order was next considered — albeit only in passing — in Green v. Wolf Corp., 406 F.2d 291 (2d Cir. 1968), cert. denied, 395 U.S. 977, 89 S.Ct. 2131, 23 L.Ed.2d 766 (1969). Citing Eisen, we noted that

the order striking the class action aspects of the complaint is appealable at this time, since if a class action is not permitted the litigation will very likely terminate without reaching the merits * * * Green obviously does not intend to press what will probably be an enormously complex and expensive action to recover less than $1,000.

Id., 406 F.2d at 295 n. 6.

However, in City of New York v. International Pipe & Ceramics Corp., 410 F.2d 295 (2d Cir. 1969), the trend toward appealability halted. That case also involved an order determining that a suit should not be treated as a class action. We held that order nonappealable, distinguishing Eisen on the ground that plaintiff (New York City) and various intervenors had “adequate resources to continue the action and with substantial amounts at stake will undoubtedly carry on.” Id., 410 F.2d at 299. For the broad proposition that — absent the “death knell” rationale relied on in Eisen — orders striking class suit allegations are not appealable, we relied on two pre-Eisen cases: Lipsett v. United States, supra, and All American Airways v. Elderd, 209 F.2d 247 (2d Cir. 1954).

Judge Hays dissented in International Pipe on two grounds. 410 F.2d at 300-301.

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422 F.2d 141, 13 Fed. R. Serv. 2d 679, 1970 U.S. App. LEXIS 11227, 1970 Trade Cas. (CCH) 73,036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-caceres-dba-caceres-agency-v-international-air-transport-ca2-1970.