Nearly a decade has passed since travelers sued Delta Air Lines and AirTran, alleging that the carriers colluded in creating their fees for checked bags. In that time, the AirTran has vanished and Delta had to pay millions of dollars in sanctions for being a stubborn defendant. Now, less than a year after the court finally granted class-action status in the case, it has been dismissed.

Back in 2008, American Airlines became the first major U.S. carrier to charge baggage fees for checked luggage. At the time, the CEO of Atlanta-based AirTran publicly stated that his airline could follow suit, but that it would wait to see what Atlanta’s other big airline, Delta, did first.

Delta was the last of the major national airlines to jump on the baggage-fee bandwagon, but when it did, AirTran followed. In fact, both carriers began charging these fees on the same day: Dec. 5, 2008.

A slew of class actions ensued from all over the country. They were eventually consolidated into one multi-district litigation before a federal judge in Atlanta.

Then began the long slog of trying to get information from Delta. Overwritten email servers, lost (and then miraculously found) backup tapes, 60,000 pages of documents that were delayed for years… a series of what a court-appointed special master referred to as “colossal blunders” on Delta’s part, resulting in multiple sanctions against the airline totaling around $7.5 million.

This is where we put the sanctions in perspective by pointing out that Delta made $659 million from baggage fees in just the first eight months of 2016 (and $5.9 billion since 2008).

Getting back to the lawsuit, the judge in this case says it comes down to whether Delta and AirTran’s effectively simultaneous decisions to collect baggage fees is a matter of illegal collusion or is it lawful “conscious parallelism”?

In other words, is there evidence that the airlines conspired together to start charging these fees, or could these actions be the product of a “rational, independent calculus” by two airlines vying for market share in an industry with limited competition?

To survive a dismissal, the plaintiff would need to “simply present some evidence that tends to exclude the possibility of conscious parallelism or that tends to establish a price-fixing conspiracy,” explains the judge.

That said, the court found that the plaintiffs had not presented sufficient proof to allow the case to continue.

“Even when viewed in the light most favorable to Plaintiffs, the evidence in this case simply does not permit a reasonable factfinder to infer the existence of a conspiracy,” concludes the court, “as it does not tend to exclude the possibility that the alleged conspirators acted independently.”

Lest you think this lawsuit — which is getting near old enough to have “the talk” with its parents — is over, a lawyer for the plaintiffs tells the Atlanta Journal Constitution that his clients will appeal.

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