Posted October 8, 2008
Dear Regular CIFFA Member; (Note this message was emailed to members August 18, 2008)
Many of our Members have received material or letters from US based lawyers inviting them to join class action lawsuits, instigated as a result of a series of guilty pleas by air carriers involved in activities contravening anti trust legislation, and the class action lawsuits filed and settlements negotiated. Last week CIFFA received information on the Canadian Air Cargo Shipping Class Actions, the cover letter of which is attached here.
Before making a decision to participate in the class action lawsuits or not, Members might seek answers to the following questions:
1. Am I, as an intermediary, legally entitled to participate in a class action? If the answer is yes, the next question should be: In which, if any, circumstances am I able to retain for myself any monies awarded to me?
2. Could I be the target of a counter claim from my customer(s) who, having somehow been made aware of my award, maintain that part or all of the monies in question be handed back to them (the customer(s)? Whether cargo moved prepaid or collect, the shipper or the consignee will have ultimately paid the freight charges – not the forwarder who has merely acted as an agent for the airline. As a possible consequence, a forwarder who successfully sued a carrier could well have counter claims lodged against him by his customers who, after all, in effect paid the real price of airline price fixing. Very messy.
CIFFA’s advice to a Member who is considering participation in one of these class action lawsuits — or if your customer seeks your assistance in taking a similar action — as ever, is to speak to your own legal counsel first.
Having said that, some CIFFA members are considering joining in these class action lawsuits and to do so there is the requirement for details of freight volumes and charges for specific periods of time, origin/destinations per airline. CIFFA has asked the CASS Canada Manager to make available all airline data and reports to any CIFFA Member who requests same in support of a class action suit, promptly and free of charge. CASS Canada has advised that ‘ many months of CASS billing information are stored online which your members could access if required. … aggregated statistical data and reports relating to forwarder / carrier activity [are available] at an additional cost. The data available would cover the items you suggest with the exception of the gross weight … CASS data from the carriers requires chargeable weight only … CASS data does not break down ‘other charges’ amounts and thus could not reveal information on fuel surcharges. CASS captures “other charges due carrier” which covers some fifty-three different types of handling services, fees, surcharges, taxes, etc. associated with the carriage’ in the aggregate.
Our thanks go to Bill Gottlieb, CIFFA Director for sharing his thoughts and to John O’Connell of the British International Freight Association (BIFA) who shared with us the work BFIA has done with its Members on this issue.
Canadian International Freight Forwarders Association (CIFFA)