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Statute of limitations for DB Schenker lawsuit?

NEW YORK: The seven airlines being sued by DB Schenker in the U.S. for alleged cargo price-fixing have filed motions to dismiss the lawsuit on grounds that include the company is "forum shopping" to get the most damages.

The logistics subsidiary of Deutsche Bahn is currently suing Air France, KLM, Martinair, Cargolux, Qantas, SAS and All Nippon Airways in New York; and Lufthansa, British Airways, Singapore Airlines, Swiss International Airlines, Cargolux, SAS, Air Canada, Cathay Pacific, Japan Airlines and LAN Airlines in Cologne.

Qantas 747In its court filing Schenker AG v. Societe Air France, et al in the Eastern District of New York, the company is claiming damages and accumulated interest that could top US$1.1 billion from the airlines it says operated a "global price-fixing cartel" between 1999 and 2006.

According to Megan Morley, an associate in the U.S. law firm of McDermott Will & Emery LLP, All Nippon Airways and Cargolux have asked the court to dismiss the action on the grounds of forum non conveniens. Morley says these defendants argue that because DB Schenker is a foreign corporation it is merely choosing the U.S. for its court case to obtain triple damages. The airlines add that Germany is the more appropriate forum for the suit because DB Schenker is ultimately owned by the German state and many of the witnesses and documents are in Europe.

Morley says Qantas has filed a separate motion to dismiss the lawsuit on the basis that DB Schenker filed its claim beyond a four-year statute of limitations. Qantas argues that if the logistics company had performed the requisite due diligence, it would have been aware of its claims on February 15, 2006, the day after which it was reported that the U.S. Department of Justice raided the airlines.

"Even considering that the statute of limitations was tolled until May 2011 when Schenker opted out of the middle-district class action against the airlines, Qantas contends that Schenker had to file its complaint before June 1, 2014, which the plaintiff failed to do," explains Morley.

The DB Schenker lawsuit is just the latest in a series of claims of anti-competitive behavior in the air cargo industry. Since 2006 airlines have paid billions of U.S. dollars in fines to competition agencies throughout the world and nearly a billion more in settlements to direct purchaser plaintiffs in a multi-district litigation in U.S. federal court.

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