Court holds that no implied ACAA private right of action exists

Wright v. American Airlines, Inc. (E.D. Mo. Mar. 3, 2008).  The plaintiff filed suit for herself and her minor son against American, alleging that her son was injured because he was denied accommodations for his disability, osteogenesis imperfecta, also known as “Brittle Bone Disease,” while traveling on American’s flights.  She alleged a cause of action under the federal Air Carrier Access Act, 49 U.S.C. § 41705, which prohibits airlines from discriminating against disabled persons, as well as various state law causes of action.  According to the plaintiff, DOT had determined that American had violated the ACAA with respect to its treatment of her son by failing to provide timely lift assistance and accurate information as to the aircraft’s accessibility.

American moved to dismiss the ACAA count on the grounds that an individual has no private right of action to enforce the ACAA.  The ACAA does not expressly provide a private right of action.  American contended that the ACAA’s comprehensive administrative enforcement scheme, which gives DOT the power to force compliance with the ACAA, to revoke an airline’s carrier certificate and to impose fines, indicates that Congress did not implicitly intend to provide individuals with a private right of action to enforce the ACAA.

The court agreed with American.  Although the Eighth Circuit had concluded in a 1989 case that an implied private right of action to enforce the ACAA did exist, the Supreme Court had adopted a new test in Alexander v. Sandoval, a 2001 case, that restricted the circumstances under which a court may determine that a implied private right of action exists under a federal statute.  Siding with other post-Sandoval cases, the court held that the ACAA does not provide a private right of action, reasoning that the statute’s extensive administrative enforcement scheme suggested that Congress “intended to preclude alternative means of enforcing the statute.”  Accordingly, the court dismissed the ACAA count.

Court rules on summary judgment motions in charter flights class action

In re Nigeria Charter Flights Contract Litigation (E.D.N.Y. Oct. 25, 2007).  In 2002, World Airways, Inc. and Ritetime Aviation and Travel Services, Inc. entered into a charter aircraft services agreement under which World agreed to supply Ritetime with round-trip flights between points in the U.S. and Lagos, Nigeria.  The charter flights began but, by the end of 2003, Ritetime owed World over $2 million, leading World to discontinue its U.S.-Nigeria operations.  World’s action stranded hundreds of passengers who had traveled on outbound flights and left others who had bought tickets for 2004 unable to travel at all.

After the passengers sued World, Ritetime and its CEO in courts throughout the U.S., the federal cases were consolidated in the Eastern District of New York, which certified a class of plaintiffs in 2006.  The plaintiffs alleged that World is liable under the Montreal Convention for its failure to transport them, and they also alleged state law claims for breach of contract, negligence and fraud.

World moved for summary judgment, contending that (i) the Montreal Convention preempts the plaintiffs’ state law claims, (ii) even if the plaintiffs’ state law contract claims are not preempted, they should be dismissed because there is no privity of contract between World and the plaintiffs, and (iii) even if the Convention does not preempt the plaintiffs’ negligence and fraud claims, the federal Airline Deregulation Act preempts those claims.  The plaintiffs filed a cross-motion for summary judgment.

The court granted World’s motion as to the plaintiffs’ delay claims under the Convention but denied it as to their breach of contract and tort claims.  The court also denied the plaintiffs’ cross-motion.  The court’s specific rulings are as follows.

Montreal Convention preemption.  Delay in international air transportation is governed by Article 19 of the Convention, and whenever the Convention applies, it preempts all state law claims for matters that fall within the scope of its application.  Article 22(1) limits an airline’s liability for a passenger’s delay claim to 4,150 Special Drawing Rights, or about $6,750.  The Convention does not govern nonperformance of a contract of carriage.  The court held that the Convention did not preempt the plaintiffs’ state law claims, ruling that their claims were for nonperformance, not for delay.  The court reasoned that World had “simply refused to transport” the plaintiffs, without offering them alternate transportation, “rather than merely delaying them.”  Of course, this ruling meant that the plaintiffs could not maintain their delay claims under the Convention, and the court granted World’s motion with respect to such claims.

Privity/agency.  The court held that while the tickets themselves did not establish contracts between the plaintiffs and World, factual issues prevented it from granting summary judgment to either side on the issue of World’s liability for Ritetime’s conduct.  The court ruled that the evidence presented was insufficient for it to decide whether the plaintiffs had bought their tickets directly from World; the plaintiffs presented evidence that they had done so, while World presented contradictory evidence.  Similarly, the court held that the existence of disputed facts prevented it from determining whether, as the plaintiffs alleged, Ritetime was World’s agent under theories of actual or apparent authority or that World had ratified Ritetime’s ticket sales.

ADA preemption.  The court rejected World’s contention that the federal Airline Deregulation Act preempted the plaintiffs’ fraud and negligence claims.  The ADA preempts certain state tort (and other) claims “related to a price, route, or service” of an airline.  However, some New York federal courts will refuse to rule that a tort claim is preempted where an airline has engaged in “outrageous” conduct that went “beyond the scope of normal aircraft operations.”  The court held that the ADA did not preempt the tort claims in this case because World’s refusal to transport the plaintiffs constituted “outrageous” conduct.

Court declines to dismiss complaint in passenger heart attack case

Watts v. American Airlines, Inc. (S.D. Ind. Oct. 10, 2007).  During a flight from Japan to Chicago in 2005, the passenger had a heart attack and died in a lavatory.  He was discovered by cleaning personnel after the aircraft had landed.

The plaintiff, the passenger’s wife, filed a lawsuit against American.  The airline moved to dismiss the complaint on the grounds that the plaintiff had failed to state a claim under the Montreal Convention, which applied to the transportation at issue and thus provided the plaintiff’s exclusive remedy.

Article 17(1) of the Convention governs an airline’s liability for a passenger’s death or bodily injury; it provides as follows:  “The carrier is liable for damage sustained in case of death or bodily injury of a passenger upon condition only that the accident which caused the death or injury took place on board the aircraft or in the course of any of the operations of embarking or disembarking.”  The U.S. Supreme Court has defined an “accident” as “an unexpected or unusual event or happening that is external to the passenger, and not to the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.”  In its motion, American contended that no “accident” had occurred because the passenger’s heart attack was caused by his own internal condition that was not related to the operation of the aircraft.

The court disagreed.  Taking the plaintiff’s allegations as true, the court reasoned that “American Airlines’ unusual or unexpected failure to recognize and/or respond to [the passenger’s] heart attack, and its failure to conform to industry custom and practices by responding to his medical emergency, could constitute a link in the chain of the events causing the ill-fated ‘accident’ on board [the flight].”  Accordingly, the court denied American’s motion to dismiss.

Second Circuit grounds New York’s airline passenger “Bill of Rights”

Air Transport Association of America, Inc. v. Andrew Cuomo (2d Cir. (N.Y.) Mar. 25, 2008).  New York’s airline passenger “Bill of Rights” required that airlines provide passengers with food, water, electricity and working restrooms during ground delays over three hours.  The Second Circuit held that 49 U.S.C. § 41713(b)(1), the preemption provision of the Airline Deregulation Act of 1978 (“the ADA”), preempted the Bill of Rights, which had gone into effect on January 1, 2008.  Accordingly, the appeals court reversed the December 20, 2007 decision of the trial court upholding the Bill of Rights.

The ADA’s preemption provision prohibits a state from enacting or enforcing “a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.”  The Second Circuit joined the majority of circuit courts in construing the term “service” broadly, as encompassing “matters such as boarding procedures, baggage handling, and food and drink – matters incidental to and distinct from the actual transportation of passengers.”  The court held that the minority circuit court view construing “service” narrowly is inconsistent with the U.S. Supreme Court’s pro-preemption decision in Rowe v. New Hampshire Motor Transport Association, which – in a stroke of very bad timing for Bill of Rights proponents – was issued just two weeks before the oral argument in the Second Circuit case.  In Rowe, the Supreme Court broadly construed a similarly-worded federal preemption statute regarding motor carriers.

In the Bill of Rights case, the trial court had held that “the provision of fresh air, water, food and lavatory access to passengers trapped for hours on a motionless plane is a health and safety issue” that has no bearing on the “service” provided by airlines.  Consistent with its broad construction of the term “service,” the Second Circuit rejected the trial court’s distinction, holding that “onboard amenities, regardless of whether they are luxuries or necessities, still relate to airline service and fall within the express terms of the preemption provision.”

The Second Circuit also reasoned (quoting Rowe) that state statutes like the Bill of Rights could lead to a “patchwork of state service-determining laws, rules, and regulations” that would be inconsistent with Congress’ intent to leave service-related matters “to the competitive marketplace.”  The appeals court concluded its opinion by stating that even though the goals of the Bill of Rights “are laudable,” and that “the circumstances motivating its enactment deplorable,” only the federal government has the authority to enact a law concerning ground delays.

New York’s only recourse is to petition the U.S. Supreme Court to hear the case, but the court is unlikely to accept another preemption case so soon after Rowe.  It will be interesting to see the effect of the Second Circuit’s decision on the ground delay bills now pending in Arizona, California, Florida, Indiana, Michigan, New Jersey, Pennsylvania, Rhode Island and Washington.  If state ground delay legislation is enacted and upheld by other circuit courts (such as the passenger-friendly Ninth Circuit, which includes California), then the preemption issue might ultimately find its way back to the Supreme Court.

Court decisions highlight need to clarify important Agent Reporting Agreement provision

Westways World Travel, Inc. v. AMR Corp., American Airlines, Inc. et al. (9th Cir. (Cal.) Jan. 22, 2008).  Despite consisting of over 70 pages, ARC’s Agent Reporting Agreement contains very few provisions that give airlines specific rights against ARC-accredited travel agents.  Most of the airline-protective provisions are in ARA Section VII, which is entitled “Agent’s Authority, General Rights and Obligations.”  For airlines, subsection H of Section VII is a critically important provision; it states in part as follows:  “The Agent shall comply with all instructions of the carrier, and shall make no representation not previously authorized by the carrier.”  Unfortunately for the airlines, Section VII.H has been held to be “ambiguous” by the Ninth Circuit in the Westways case, as well as by a California federal district court in 2006 in a separate case.

In 1999, Westways World Travel and another ARC-accredited travel agent sued American Airlines (and ARC and other entities) in a California federal district court, alleging that the defendants had engaged in an unlawful scheme to charge the agents, through debit memos, for ticketing violations for hidden city, back-to-back and point-beyond tickets.  The agents claimed that, through this scheme, the defendants had violated the federal Racketeer Influenced and Corrupt Organizations Act and breached the ARA.

In 2003, the court certified the case as a class action, but the court later granted the defendants’ motion for decertification.

In 2004, ARC was dismissed from the case pursuant to a settlement in which ARC, while denying any liability, agreed (i) not to participate in the enforcement of contested airline debit memos seeking payment from agents for hidden city, back-to-back or point-beyond tickets, (ii) to issue a statement to agents informing them of ARC’s agreement not to participate in such enforcement, and (iii) not to terminate the accreditation of any agent that refuses to pay a contested debit memo seeking payment for hidden city, back-to-back or point-beyond tickets.

In 2004, American and the other remaining defendants moved for summary judgment.  American contended that because it had the right under the ARA to issue debit memos to recover its losses arising from agents’ violation of the airline’s instructions prohibiting hidden city, back-to-back and point-beyond ticketing, its conduct in issuing such debit memos could not be considered extortion or any other predicate act needed to show a RICO violation or a breach of the ARA.

In a detailed written opinion issued in 2005, the district court ruled for the defendants.  First, it held the ARA gave American the right to issue debit memos to recover damages for agents’ failure to comply with the airline’s “instructions” within the meaning of ARA Section VII.H.  Second, it held that American, through its conditions of carriage and tariff, had given “instructions” within the meaning of Section VII.H prohibiting agents from issuing hidden city, back-to-back and point-beyond tickets, even though the conditions of carriage and tariff had been issued for passengers, not agents.  The court interpreted the Section VII.H phrase that “the Agent shall comply with all instructions of the carrier” to mean that agents were required to follow all carrier instructions, even if such instructions had been specifically issued to other parties, not to agents.  Finally, the court held that because American had the right under the ARA to issue the debit memos in question, its conduct in doing so could not constitute a RICO predicate act or a breach of the ARA.

The agents appealed, and the Ninth Circuit issued a split decision in January 2008.  The appeals court agreed that the agents’ RICO claims were deficient, reasoning that American could not be liable under that statute by simply demanding payment for amounts that the airline believed it was owed under its interpretation of the ARA.

But the Ninth Circuit disagreed with the trial court’s ruling on the agents’ breach of contract claim.  The appeals court held that the Section VII.H phrase “the Agent shall comply with all instructions of the carrier” could, in its opinion, be understood two ways:  to require that agents need only comply with “instructions” issued specifically to them, and not also with instructions issued to passengers and other parties, or, in the alternative, to require that agents comply with all instructions issued to agents, passengers and all other parties.  In addition, the court refused to overturn the trial court’s decertification of the case as a class action.  The court remanded the case for further proceedings.

The other case in which the court held Section VII.H of ARA to be ambiguous was Continental Airlines, Inc. v. Mundo Travel Corporation.  In that case, Continental had sued an ARC-accredited agent in a California federal district court, alleging that the agent had violated the ARA by issuing point-beyond tickets in violation of the “instructions” prohibiting such ticketing in the airline’s own “Booking and Ticketing Policy.”

The agent in Mundo moved to dismiss on the grounds that the airline’s claims were barred by Section I.C of the ARA, which provides that the ARA “does not, for example, address fares charged by the carrier; that is a matter between a carrier and the Agent.”  Continental responded that Section VII.H had required that the agent comply with the “instructions” against point-beyond ticketing set forth in the Booking and Ticketing Policy.  In a 2006 decision, the court denied the agent’s motion, noting that “the ARA is ambiguous” because the two ARA provisions conflicted, leaving it unclear whether the agent had been required to comply with the Booking and Ticketing Policy.  Mundo was settled a few months after the court’s decision, so there was never a definitive ruling on the enforceability of Section VII.H in that case.

Perhaps it is time for an airline to submit a proposal to ARC’s president, for referral to ARC’s board of directors or stockholders, seeking to clarify Section VII.H so airlines would stand a better chance of enforcing this important provision in court cases.  Maintaining the text of a provision that may be read multiple ways, and may conflict with other ARA provisions, only serves to keep airlines and agents in a position where their respective rights and obligations are unclear.  Unless the provision is clarified, it will be up to the courts to figure out what the provision means and its role with respect to other ARA provisions.  Aren’t the parties to a contract supposed to be the ones to do that?

Montreal Convention inapplicable where injured passenger unable to prove that airline regarded multi-airline carriage as “single operation”

Kruger v. United Air Lines, Inc. (N.D. Cal. Nov. 1, 2007).  While waiting on a jetway to board a flight from San Francisco to Seattle, the passenger was inadvertently struck on the head by a backpack swung by another boarding passenger.  The passenger was able to board but became “dazed and nauseated” during the flight due to the incident.

The passenger’s complaint against United alleged that the Montreal Convention governed her claims and also that the airline was liable under various state common law tort causes of action, including negligence, negligent training and supervision of employees and negligent infliction of emotional distress.

United moved to dismiss the complaint on the grounds that the passenger’s state common law claims were preempted by the Montreal Convention.  In its motion, United expressed doubt that the Montreal Convention governed the case, as the incident appeared to have occurred in connection with a domestic flight, but United correctly stated that the court had to accept the passenger’s allegation that the Convention governed as true for purposes of the motion.  As previously reported, the court held that the Convention preempted the passenger’s state common law tort causes of action but that she had stated sufficient facts to plead a cause of action under Article 17 of the Convention by alleging “bodily injury” (the in-flight nausea) that had been caused by an “accident” (the backpack incident) during the course of embarking.

United then moved for summary judgment, arguing that the Montreal Convention did not apply because the jetway incident had occurred in connection with a domestic flight, not an international flight.  Prior to the flight at issue, the passenger had traveled on a United flight from Los Angeles to San Francisco and, before that, on a Qantas flight from Australia to Los Angeles.  Since more than one airline was involved in the transportation, for the flight at issue to constitute “international carriage” governed by the Montreal Convention, it had to be part of “one undivided carriage” under Article 1(3).  Under Article 1(3), a series of flights is considered “one undivided carriage” only “if it has been regarded by the parties as a single operation.”

The court held that the passenger had failed to produce sufficient objective evidence that United had regarded her flights “as a single operation.”  In support of its conclusion, the court noted that the United and Qantas tickets “were not issued by the same travel agent or made as part of a package,” that “they were reserved and paid for separately,” that “the two airlines did not have code sharing agreements and were not partners in the same worldwide alliance,” that “there were no communications between the airlines to coordinate the flights,” and that “the facts of one airline’s itinerary or ticketing was not reflected on the other airline’s itinerary or ticket.”  Accordingly, the court granted United’s motion for summary judgment.

Note:  The court’s summary judgment ruling did not end the case.  The court allowed the passenger to refile her state common law tort causes of actions against United – the very ones that the court had earlier held were preempted by the Montreal Convention – and she did so.

Airline held liable to passenger for travel agent negligence

Rottman v. El Al Israel Airlines (N.Y. City Civil Ct. Jan. 14, 2008).  The parties in this case reprised a battle that has been fought in many passenger cases over the years:  whether a travel agent was acting as an agent of an airline or as an independent contractor when the travel agent sold the passenger a ticket.  In this case, the passenger prevailed.

The passenger had bought tickets from a travel agent for travel between Baltimore and Tel Aviv.  The passenger was to take a flight from BWI to JFK on a domestic airline and then from JFK to Tel Aviv on El Al.  However, the BWI-JFK ticket issued by the travel agent did not allow the passenger sufficient time to comply with El Al’s rule requiring that passengers check in at least three hours before departure.  As a result, El Al deemed the passenger a “no show,” causing the passenger to forfeit his seat on the flight.  The passenger bought a one-way ticket on a different airline and traveled to Tel Aviv three days later.

The passenger sued El Al for breaching the parties’ contract by refusing to transport him and for the travel agent’s negligence in issuing a ticket that made it impossible for the passenger to comply with the advance check-in rule.  The court held that the airline did not breach the contract because the passenger did not attempt to check in until less than an hour before the flight’s departure, thus violating the check-in rule and allowing the airline to deny him transportation on the flight.

As to the negligence claim, the airline claimed that it was not liable because the travel agent was the airline’s independent contractor, not its agent.  The court disagreed.  Citing two 30-plus year-old cases and the Restatement of Agency, the court held that the travel agent was acting as the airline’s agent when it sold the tickets to the passenger and, thus, that the airline was responsible for the travel agent’s error.  The court awarded the passenger a judgment in the amount of the one-way ticket that the passenger had bought.

Note:  The court’s opinion does not contain any indication that the court, in deciding whether an agency relationship existed between El Al and the travel agent, considered the degree of control that the airline actually had over the travel agent.  As the Ninth Circuit correctly held in Harby v. Saadeh and Kuwait Airways, an agency relationship between an airline and a travel agent only exists where the passenger has met the burden of proving that the airline had agreed to allow the travel agent to act on its behalf and subject to its control.  In Harby, the court held that Kuwait Airways was not liable for a travel agent’s negligence in failing to warn the passenger about the airline’s infrequent flight schedule because the passenger had failed to meet his burden of proving that the airline actually controlled such agent, thus leading the court to conclude that the agent had simply acted as a broker, i.e., an independent contractor.

In Rottman, the court concluded that El Al and the travel agent stood in an agency relationship simply because, in the court’s view, all airlines and travel agents that issue tickets for them do so.  In support of its conclusion, the court in Rottman cited the following sentence from the Restatement of Agency:  “Analogizing them to insurance agents, travel agents have been characterized as the agents of airlines and other service providers for whom they issue tickets to customers.”  But, later in the same paragraph, the Restatement of Agency also states:  “In other situations, courts have analogized a travel agent to an insurance broker or, reasoning differently, have characterized a travel agent as the customer’s agent.”  As Harby and the Restatement indicate, an agency relationship does not always exist between an airline and a travel agent that sells tickets for that airline.

Airline obtains reversal of passenger jury verdict in refusal to transport case

Cerqueira v. American Airlines, Inc. (1st Cir. (Mass.) Jan. 10, 2008).  As previously reported, in December 2003, American Airlines removed three passengers, a man of Portuguese national origin and two Israelis seated nearby, from an aircraft at the departure gate in Boston for questioning by state police officers.  After the questioning, the airline declined to rebook them on another flight to Ft. Lauderdale.

The passenger of Portuguese national origin filed a lawsuit against the airline.  He alleged that airline personnel removed him from the aircraft and then refused to provide him service solely because of his perceived national origin, in violation of Title VI of the Civil Rights Act and a Massachusetts antidiscrimination statute.  The airline alleged that the passengers had been removed for questioning and then refused service solely due to security concerns based on their alleged unusual behavior before and during the boarding process.

After a six-day trial, the jury returned a verdict in favor of the passenger, assessing compensatory damages of $130,000 and punitive damages of $270,000.  After the trial court denied American’s motions for a JNOV and a new trial, American appealed.

Only two months after the appeal was argued, the First Circuit issued an opinion reversing the trial court’s judgment and remanding the case to the district court with instructions to enter judgment for American.  The First Circuit’s opinion centered on 49 U.S.C. § 44902, entitled “Refusal to transport passengers and property,” which provides in section (b) as follows:  “Permissive Refusal. – Subject to regulations of the Under Secretary, an air carrier, intrastate air carrier, or foreign air carrier may refuse to transport a passenger or property the carrier decides is, or might be, inimical to safety.”

American had requested that the trial judge give a series of jury instructions regarding section 44902(b), including the well-established standard for liability that the jury must return a verdict for the airline unless its actions with respect to the passenger were “arbitrary or capricious.”  The judge refused to give the requested instructions.  The First Circuit held that the omitted instructions “were essential to the case” and the trial court had erred by refusing to give them.

The First Circuit also held that the instructions that were given were erroneous.  The most serious error was that the trial judge had instructed the jury that American had the burden of proving that its reasons for removing the passenger were legitimate.  The appeals court held that, in a section 44902(b) case, it is the passenger who has the burden of proof, and the passenger must prove that the airline’s conduct was arbitrary or capricious.

Update:  On February 29, 2008, the First Circuit denied the passenger’s petition for rehearing en banc.  Two judges dissented from the denial of the petition.

Court partially grants airline motion to dismiss injured passenger’s complaint

Levy v. Continental Airlines, Inc. (E.D. Pa. Oct. 1, 2007).  During a flight from Houston to Philadelphia, the passenger was injured when a large ceramic bowl fell from a broken or improperly closed overhead compartment and struck her head.  The passenger filed a lawsuit against the airline, alleging that it had negligently violated duties of care established by Pennsylvania statutory and common law and by federal regulations.

Continental moved to dismiss on the grounds that the passenger’s state law claims were preempted by the Federal Aviation Act and that the federal regulations she cited were not applicable to the case.  The court granted part, and denied part, of the motion.  The court agreed that the Federal Aviation Act preempted the state laws pled by the passenger because the Act completely preempts state standards of care in the field of aviation safety.

As to the passenger’s claims based on federal regulations, the court held that the complaint contained sufficient factual allegations to state a cause of action for violation of the standards established in 14 C.F.R. §§ 121.589 and 125.589, which deal with carriage of cargo in the passenger cabin and crewmember training.  But the court dismissed the passenger’s claims based on 14 C.F.R. §§ 25.787 and 25.853, which establish aircraft design and manufacturing standards of care, because the airline only operated the aircraft and had nothing to do with its design or manufacture.

Travel agents come up short in commission cap antitrust case against airlines

In re Travel Agent Commission Antitrust Litigation (N.D. Ohio Oct. 29, 2007).  The travel agent plaintiffs alleged in this case that the airline defendants had violated Section 1 of the Sherman Act (15 U.S.C. § 1) by conspiring to cap or eliminate travel agent commissions at certain times during the period from 1995 to 2002.  The airlines moved to dismiss on the grounds that the agents had failed to meet the requirement set forth by the U.S. Supreme Court (in Bell Atlantic Corp. v. Twombly, a 2007 case) that, to state a Section 1 claim, a plaintiff must plead facts suggesting that the defendants had engaged in “parallel conduct” and that they had entered into a conspiracy prior to such conduct.

The court granted the airlines’ motions.  As to the smaller airlines, the court held that the agents had failed to allege facts suggesting that the airlines had engaged in parallel conduct regarding commissions; the smaller airlines had “either failed to implement the caps entirely or implemented the caps after the larger airlines.”

As to the larger airlines, the court held that the agents had failed to allege facts indicating that the airlines had conspired with each other.  The agents tried to satisfy their pleading obligations by alleging that airline executives had had opportunities to conspire at trade shows and while playing golf, and by making other circumstantial allegations, but the court held that these allegations fell short of suggesting that the airlines had in fact agreed to cap or eliminate commissions.