Air NZ settles price-fixing case for $51m

Deputy Editor - Business·NZ Herald·

9 May, 2016 05:00 PM3 mins to read

The airline said it settled rather than take the risk of a potentially "very material" commercial liability by continuing to defend its position. Photo / Mark Mitchell

Air New Zealand has opted to settle a long-running United States price-fixing case for $51 million in the latest of a series of cargo cartel actions it has been fighting around the world.

The airline said it settled rather than take the risk of a potentially "very material" commercial liability by continuing to defend its position.

Its share price, down by nearly $1 since the end of January, fell 6c more to close at $2.30 yesterday.

One analyst said while the payout had been a possibility for a long time, yesterday's news may have taken some investors by surprise.

The airline said it decided to settle to mitigate an unacceptable risk created by the US class action system which created enormous pressure to settle such matters commercially.

"There was no credible evidence that any Air New Zealand employee participated in any conspiracy, but the potential for an unexpected verdict was not an acceptable commercial risk for the airline," said John Blair, Air NZ's general counsel.

The case dates back to 2006, when a civil compensation claim was filed on behalf of several freight forwarders naming a significant number of global airlines, including Air NZ, for alleged conspiracy involving air cargo fuel and security surcharges between 2000 and 2006.

In 2011 Air NZ, having successfully defended its position with the US Department of Justice, was released from its criminal investigation.

But after 10 years of arguing the validity of the civil compensation lawsuit in US courts, Air NZ elected to pursue settlement with the plaintiffs. The settlement, which is still subject to court approval, was reached through mediation efforts and agreed last Friday.

Despite settlement, Air NZ has not admitted to being part of the alleged conspiracy, the airline told the NZX.

It would not comment any further on the case yesterday but told the NZX that under US law, every participant in a conspiracy is liable for the harm caused by the entire conspiracy regardless of the extent of their participation. When a conspiracy involves "anti-trust" (anti-competitive) conduct, the entire damages are trebled. The settlement amount of US$35 million represents 2.8 per cent of the US$1.223 billion paid in settlements by 28 airlines.

Air NZ is one of the last airlines to settle and one of the few airlines involved in the action to have been investigated by the US Department of Justice and not later prosecuted.

Air NZ paid $8 million in a fine and costs in 2013 to settle a long-running case brought in New Zealand by the Commerce Commission over cargo price fixing.

The airline also lost a cargo price-fixing case that could cost it millions of dollars in penalties in Australia in March. It has applied to appeal the Australian Competition and Consumer Commission (ACCC) ruling.

Harbour Asset Management's Shane Solly said the airline's share price had been under pressure because of growing competition, but the announcement was a "bit of a kick" and wouldn't have helped sentiment.