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O’Melveny’s Simmons Quoted on State Air Cargo Antitrust Claims Case in Law360

October 12, 2012

O’Melveny & Myers LLP Washington, DC partner Ian Simmons was quoted in the October 12, 2012, Law360 article “State Air Cargo Antitrust Claims Preempted, 2nd Circ. Says.” The article reported on the recent Second Circuit decision in In re: Air Cargo Shipping Services Antitrust Litigation, upholding the dismissal of indirect purchaser claims from multidistrict litigation over an alleged air cargo cartel.

Simmons, a member of O’Melveny’s Antitrust and Competition Practice who represented Asiana Airlines in the matter, noted that  the Second Circuit is only the second appeals court in the nation to consider the "very novel" question of whether that preemption clause covers both domestic and foreign airlines.

Simmons told Law360, "The decision is of considerable doctrinal significance because the Second Circuit follows the result we achieved in the Ninth Circuit … that the statutory definition of air carrier does not control ...  the FAA's use of that term in the preemption provision. It's pretty conventional to think that typically you have a statutory definition and the statutory definition controls."

According to the article,  although the decision marks the end of the indirect purchaser claims in the air cargo MDL, assuming there is no further appeal, the federal antitrust claims in the case continue in district court. Simmons noted that the parties are currently briefing the court on the plaintiffs' bid for class certification.

The case is In re: Air Cargo Shipping Services Antitrust Litigation, case number 11-5464, in the US Court of Appeals for the Second Circuit.