VBR Tours, LLC v. National Railroad Passenger Corp. et al
MEMORANDUM Opinion and Order. Signed by the Honorable Robert M. Dow, Jr on 9/15/2016. Mailed notice (lf, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
VBR TOURS, LLC,
NATIONAL RAILROAD PASSENGER
CORP. and YANKEE LEISURE
Case No. 14-cv-804
Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff VBR Tours, LLC (“VBR”) brings suit against Defendants National Railroad
Passenger Corp. (“Amtrak”) and Yankee Leisure Group, Inc. (“Yankee”) (collectively,
“Defendants”) for alleged violations of Sections 1 and 2 of the Sherman Act and the Illinois
Antitrust Act. On January 15, 2015, the Court granted Defendants’ motion to dismiss VBR’s
complaint for failure to state a claim. See . On September 28, 2015, the Court denied
VBR’s motion for reconsider of the Court’s dismissal order, but granted VBR until October 26,
2015 to file a motion for leave to file an amended complaint, if VBR believed that it could
overcome the deficiencies identified in the Court’s orders. See . On October 26, 2015, VBR
filed a motion for leave to file an amended complaint. See  (motion); [64-1] (proposed
amended complaint). Defendants oppose VBR’s motion on the basis that amendment would be
futile. See , , . For the reasons explained below, the Court denies VBR’s motion
 for leave to file an amended complaint. The Court will allow VBR one more opportunity to
consider whether it believes that it can cure the deficiencies identified above (and in the Court’s
prior opinions) through the filing of an amended complaint. If VBR wishes to file another
motion for leave to file an amended complaint, it should file the motion, along with a copy of the
proposed amended complaint, by 10/14/2016. This case is set for further status hearing on
10/20/2016 at 9:00 a.m. If VBR does not wish to seek leave to replead, it may so advise the
Courtroom Deputy, in which case the Court will enter a final judgment under FRCP 58 and
strike the October 20 status hearing.
VBR’s original complaint  is outlined in detail in the Court’s January 15, 2015 order,
knowledge of which is assumed here. See . In its prior order, the Court concluded that
VBR’s claims for violation of §§ 1 and 2 of the Sherman Act and the Illinois Antitrust Act must
be dismissed because Plaintiff failed to allege an antitrust injury based on predatory pricing. The
Court explained that VBR did not allege that Amtrak is pricing its tickets below cost or that
Amtrak has a reasonable prospect or dangerous probability of recouping its alleged investment in
below-cost prices.  at 9. The Court also pointed out that VBR did not provide any examples
of potential competitors who tried and failed to enter the market or existing competitors who left
the market. Id. The Court concluded that VBR failed to allege an antitrust injury, because it did
not allege that Defendants’ anticompetitive acts reduced output or raised prices to consumers.
 at 10.
VBR moved for reconsideration. On reconsideration, the Court reaffirmed its prior
decision and also concluded that VBR failed to make plausible allegations of anticompetitive
conduct under any of four “refusal to deal” theories: (a) predatory pricing; (b) denial of access to
an essential facility; (c) Aspen Skiing; or (d) exclusive dealing. See .
For purposes of this order, the Court assumes that all well-pled allegations in Plaintiff’s proposed
First Amended Complaint [64-1] are true. This order cites to the redline of the First Amended Complaint,
which Yankee attached to its motion to dismiss, see [72-1], because the redline makes it easier to identify
which allegations VBR has added to the original complaint.
VBR now seeks leave to file an amended complaint for attempted monopolization in
violation of § 2 of the Sherman Act and the Illinois Antitrust Act (Counts I and IV, respectively)
and conspiracy to monopolize in violation of § 2 of the Sherman Act and the Illinois Antitrust
Act (Counts II and V, respectively). VBR also alleges a claim for violation of § 1 of the
Sherman Act, but only for the purposes of preserving the claim for appeal. See [72-1] at 36.
A motion for leave to file an amended complaint should “freely” be granted “where
justice so requires.” Fed. R. Civ. P. 15(a)(2). “This liberal policy of granting amendments is
based in part on the belief that decisions on the merits should be made whenever possible, absent
countervailing considerations.” Olech v. Vill. of Willowbrook, 138 F. Supp. 2d 1036, 1040 (N.D.
Ill. 2000) (citation omitted). Leave to amend should be given “‘[i]n the absence of any apparent
or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant,
repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of the allowance of the amendment, [or] futility of amendment.’” Barry
Aviation, Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 687 (7th Cir. 2004)
(quoting Foman v. Davis, 371 U.S. 178 (1962)). Ultimately, “‘[t]he decision to grant or deny a
motion to file an amended pleading is a matter purely within the sound discretion of the district
court.’” Soltys v. Costello, 520 F.3d 737, 743 (7th Cir. 2008) (quoting Brunt v. Serv. Employees
Int’l Union, 284 F.3d 715, 720 (7th Cir. 2002)).
The filing of an amended complaint is futile if it would not withstand a motion to
dismiss. Gandhi v. Sitara Capital Mgmt., LLC, 721 F.3d 865, 869 (7th Cir. 2013). To survive a
Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing “a
short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ.
P. 8(a)(2), such that the defendant is given “fair notice of what the * * * claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be
sufficient to raise the possibility of relief above the “speculative level.” E.E.O.C. v. Concentra
Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). “A
pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause
of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 555). However, “[s]pecific facts are not necessary; the statement need only give the defendant
fair notice of what the * * * claim is and the grounds upon which it rests.” Erickson v. Pardus,
551 U.S. 89, 93 (2007) (citing Twombly, 550 U.S. at 555) (ellipsis in original). Dismissal for
failure to state a claim under Rule 12(b)(6) is proper “when the allegations in a complaint,
however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558. The
Court reads the complaint and assesses its plausibility as a whole. See Atkins v. City of Chicago,
631 F.3d 823, 832 (7th Cir. 2011).
Plaintiff’s attempted monopolization/refusal to deal claim (Count I) and conspiracy to
monopolize claim (Count II) are both brought pursuant to § 2 of the Sherman Act. Count I is
brought against Amtrak only, and Count II is brought against both Amtrak and Yankee.
To succeed on its attempted monopolization claim against Amtrak, Plaintiff must show
“(1) specific intent to achieve monopoly power, (2) predatory or anticompetitive conduct
directed to accomplishing this unlawful purpose, and . . . , (3) a dangerous probability that the
attempt to monopolize will be successful.” Indiana Grocery, Inc. v. Super Valu Stores, Inc., 864
F.2d 1409, 1413 (7th Cir. 1989); see also Thompson’s Gas & Elec. Serv., Inc. v. BP Am. Inc.,
691 F. Supp. 2d 860, 867 (N.D. Ill. 2010). To succeed on its conspiracy to monopolize claim
against Amtrak and Yankee, VBR “must prove 1) the existence of a combination or conspiracy,
2) overt acts in furtherance of the conspiracy, 3) an effect upon a substantial amount of interstate
commerce[,] and 4) the existence of specific intent to monopolize.” Great Escape, Inc. v. Union
City Body Co., 791 F.2d 532, 540–41 (7th Cir. 1986); see also Hackman v. Dickerson Realtors,
Inc., 746 F. Supp. 2d 962, 967 (N.D. Ill. 2010). Under these standards, both of VBR’s Sherman
Act claims must be supported by plausible allegations of anticompetitive conduct. In addition,
both claims must be supported by plausible allegations of an antitrust injury.
“As a general rule, businesses are free to choose the parties with whom they will deal, as
well as the prices, terms, and conditions of that dealing.”
Pac. Bell Tel. Co. v. Linkline
Commc’ns, Inc., 555 U.S. 438, 448 (2009). The Supreme Court and the Seventh Circuit have
recognized several limited exceptions to this rule, four of which are discussed by the parties in
First, the Supreme Court has held that “firms may not charge ‘predatory’ prices—belowcost prices that drive rivals out of the market and allow the monopolist to raise its prices later and
recoup its losses.” Pacific Bell Telephone Co. v. Linkline Communications, Inc., 555 U.S. 438,
448 (2009). When a “claim alleges predatory pricing under § 2 of the Sherman Act,” there are
“two prerequisites to recovery.” Brooke Grp. Ltd. v. Brown & Williamson Tobacco Corp., 509
U.S. 209, 222 (1993). “First, a plaintiff seeking to establish competitive injury resulting from a
rival’s low prices must prove that the prices complained of are below an appropriate measure of
its rival’s costs.” Id. Second, the plaintiff must demonstrate that “that the competitor had . . . a
dangerous probability of recouping its investment in below-cost prices.” Id. at 224; see also
Linkline, 555 U.S. at 448 (“we have ruled that firms may not charge ‘predatory’ prices—belowcost prices that drive rivals out of the market and allow the monopolist to raise its prices later and
recoup its losses”). The rationale for these requirements is that, “[f]or the investment to be
rational,” the competitor “must have a reasonable expectation of recovering, in the form of later
monopoly profits, more than the losses suffered.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 588–89 (1986).
In other words, “predatory-pricing plaintiffs” must
demonstrate that “there is a likelihood that the predatory scheme alleged would cause a rise in
prices above a competitive level that would be sufficient to compensate for the amounts
expended on the predation, including the time value of the money invested in it.” Weyerhaeuser
Co. v. Ross-Simmons Hardwood Lumber Co., 549 U.S. 312, 319-20 (2007).
In its proposed amended complaint, VBR alleges that the price Amtrak charges Yankee
for tickets is “predatory” because “[e]very dollar that Amtrak steers Yankee’s way causes
Amtrak to fall further below Congress’ profitability mandate and increases its costs of providing
the service that it is congressionally-mandated to provide.” [72-1] at 12; see also id. at 24, 30.
VBR also alleges that, by providing Yankee with a 19% commission, Amtrak “provides tickets
to Yankee at a price further below its cost than it does to any other tour operator in the rail tour
operator market.” [72-1] at 30. VBR does not allege that the prices that Yankee charges are
VBR further alleges that there is a dangerous probability of Amtrak “recouping the loss it
is taking on the predatory price at which it is selling tickets to Yankee through at least three
avenues.” [72-1] at 30. According to VBR, Amtrak will be able to expand its brand to the
exclusion of other tour operators, which will allow Amtrak to: (1) make “increased sales in the
price-regulated railway leisure ticket market”; (2) “increase its passenger ridership figures,”
which will in turn allow Amtrak to “receive more federal funding and subsidies from the federal
government”; and (3) cancel its contract with Yankee, “take over operation of its Amtrak
Vacations brand itself” and thereby “expand its monopoly . . . into the unregulated rail tour
operator market.” [72-1] at 30-31.
The Court concludes that these additional allegations are insufficient to state a predatory
pricing claim under Section 2 of the Sherman Act. VBR’s allegations concerning Amtrak’s costs
are perfunctory at best, because they are based solely on the fact that Amtrak has operated at a
loss over the years. But the Court need not decide whether VBR has adequately alleged that
Amtrak is pricing its tickets to Yankee below its costs, because VBR has not plausibly alleged
that Amtrak will be able to recoup the loss it is allegedly taking by pricing its tickets so low.
VBR’s first and third theories—that Amtrak will recoup its losses by selling more
railway tickets through Yankee or by cutting out Yankee and taking over Amtrak Vacations
itself—are not plausible. Amtrak could not recoup its losses by selling more railway tickets to
Yankee or more vacation packages directly to customers unless Amtrak substantially increased
its prices—either its wholesale prices to Yankee or its package rates to customers—to well above
its costs. If Amtrak were to raise those prices for long enough to recover the billions of dollars
that VBR alleges Amtrak has lost (see [72-1] at 8), this would allow other players in the market
to compete by combining Amtrak tickets purchased at retail price with the other components of a
travel package. In short, the alleged predatory pricing scheme would not plausibly allow Amtrak
“recoupment of losses during a sufficiently long period of monopoly pricing.” Ashkanazy v. I.
Rokeach & Sons, Inc., 757 F. Supp. 1527, 1538 (N.D. Ill. 1991); see also Brook Grp., 509 U.S. at
225-26 (explaining that predators “must obtain enough market power to set higher than
competitive prices, and then must sustain those prices long enough to earn in excess profits what
they earlier gave up in below-cost prices”).
VBR’s second theory of recoupment is not plausible, either. The proposed amended
complaint gives no suggestion as to how Amtrak’s sale of tickets to Yankee at below cost will
allow it to “increase its passenger ridership figures,” which according to VBR would allow
Amtrak to receive more federal funding. [72-1] at 30-31. This conclusory allegation is also
inconsistent with VBR’s allegations that the price of Amtrak tour packages has gone up and that
the number of available tours (output) has gone down as a result of Defendants’ alleged conduct.
For these reasons, the Court concludes that VBR has not alleged a Sherman Act § 2 claim based
on predatory pricing.
Denial of Access to an Essential Facility
The Seventh Circuit has held that “[a] refusal to deal in the context of an essential facility
violates section 2 [of the Sherman Act] because control of an essential facility can extend
monopoly power from one stage of production to another, and from one market into another.”
Fishman v. Estate of Wirtz, 807 F.2d 520, 539 (7th Cir. 1986) (quotation marks and citation
omitted). The Supreme Court has not expressly recognized or repudiated this essential facilities
doctrine. See Verizon Commc’ns Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 411
(2004). It made clear in 2004, however, that “the indispensable requirement for invoking the
doctrine is the unavailability of access to the ‘essential facilities.’”
Id. (emphasis added).
“Where access exists”—as it did in Trinko by virtue of the Telecommunications Act of 1996—
”the doctrine serves no purpose.” Id. (holding that “Verizon’s alleged insufficient assistance in
the provision of service to rivals is not a recognized antitrust claim under this Court’s existing
refusal-to-deal precedents,” where access to facilities was available pursuant to the
Telecommunications Act of 1996); see also United Asset Coverage, Inc. v. Avaya Inc., 409 F.
Supp. 2d 1008, 1049 (N.D. Ill. 2006) (“[T]he absolute refusal to deal that the essential facilities
doctrine appears to contemplate is not present here.”).
With this limitation in mind, Seventh Circuit “case law sets forth four elements necessary
to establish liability under the essential facilities doctrine: (1) control of the essential facility by a
monopolist; (2) a competitor’s inability practically or reasonably to duplicate the essential
facility; (3) the denial of the use of the facility to a competitor; and (4) the feasibility of
providing the facility.” MCI Commc’ns Corp. v. Am. Tel. & Tel. Co., 708 F.2d 1081, 1132–33
(7th Cir. 1983).
In this case, the third element is dispositive. In its proposed First Amended Complaint,
VBR alleges on information and belief that Yankee has been receiving a 19% commission from
Amtrak since 2010. See [72-1] at 16, ¶¶ 50-51. VBR further alleges that, in November 2013,
Amtrak cut the commissions it paid to all travel and tour agents—except Yankee, Vacations.com
and the American Automobile Association (“AAA”)—from 8% to zero. According to VBR,
“Amtrak’s decision to continue paying a 19% commission to Yankee as its exclusive national
tour operator, while eliminating the direct payment of commission to Yankee’s competitors, has
made the terms by which VBR and other tour operators can access railway leisure tickets so
unreasonable that it is the functional equivalent of refusing to deal with them.” [72-1] at 29
(emphasis added). VBR further alleges that, as a result of Amtrak’s pricing, “VBR and other
tour operators’ exit from the tour operator market is imminent” and, “upon information and
belief, one tour operator already has completely left the market.” [72-1] at 30.
The parties dispute whether these allegations are sufficient to support a Sherman Act
claim based on Amtrak’s denial of use a facility (the tickets) to tour operators other than Yankee.
VBR points to Fishman for the proposition that “[a]greeing to deal on unreasonable terms”—
here, refusing to pay direct commission to VBR and other tour operators other than Yankee—“is
merely a type of refusal to deal.” 807 F.2d at 541. In Fishman, the Seventh Circuit upheld a
verdict for plaintiffs Illinois Basketball, Inc. (“IBI”) and Marvin Fishman on their claim that
defendants Arthur Wirtz and the Chicago Stadium Corporation (“CSC”) violated Section 1 of the
Sherman Act by agreeing with defendant Chicago Professional Sports Corporation (“CPSC”) to
withhold access to the Chicago Stadium from IBI. CPSC argued that it did not deny IBI access
to the Chicago Stadium, because it offered IBI a lease subject to a number of extremely onerous
terms, including a ten-year guarantee. Id. at 541. The Seventh Circuit, while noting that
“[a]greeing to deal on unreasonable terms is merely a type of refusal to deal,” also determined
that there was “sufficient evidence in the defendants’ correspondence . . . to support the
conclusion that the [defendants] agreed to withhold the Chicago Stadium from the plaintiffs and
grant a lease only to” CPSC. Id. In this case, by contrast, VBR acknowledges that Amtrak has
not withheld tickets from tour operators other than Yankee. Nor has Yankee withheld Amtrak
tickets from other tour operators; instead, Yankee has agreed to pay other tour operators a
commission when they resell Amtrak tickets.
The Court concludes that, taken as a whole, the proposed Amended Complaint does not
plausibly allege that Amtrak’s arrangement with Yankee constitutes the functional equivalent of
a refusal to sell tickets to VBR and other tour operators who wish to bundle the tickets to sell in
Amtrak tour packages. Amtrak has no legal duty to provide tickets to tour operators at a
wholesale rate, nor does the Sherman Act require Amtrak to provide tickets to all tour operators
at exactly the same rates. As the proposed Amended Complaint acknowledges, Amtrak sought
to have one tour operator provide sales and support services on behalf of Amtrak’s travel
services, in exchange for a commission. While Yankee questions whether Amtrak got the best
deal for these services and whether Yankee is complying with all of its duties under the contract,
the bottom line is that Amtrak still makes its tickets available to VBR and other tour operators in
a number of ways—at retail, through Yankee (with the tour operator receiving an 8-10%
commission), and through Vacations.com (with the tour operator receiving a 10-12%
VBR also argues that Amtrak should be held to an elevated standard because it is a priceregulated monopolist trying to project its monopoly into another market to capture more surplus.
See [72-1] at 6-8, 27-28; see also Olympia Equip. Leasing Co. v. W. Union Tel. Co., 797 F.2d
370, 374 (7th Cir. 1986).
However, while VBR alleges that Congress regulates and has
oversight of Amtrak, it does allege any facts suggesting that Amtrak’s prices are set by law. The
exception for price-regulated monopolists is intended to prevent a monopolist whose prices are
set by law (for instance, a phone company whose local rates are capped by public utility
regulation) from extending its monopoly to, essentially, circumvent the law to capture
undeserved profits in another market. That theory is not applicable here.
In Aspen Skiing, the Supreme Court created a limited refusal-to-deal exception located
“at or near the outer boundary of § 2 liability.” Trinko, 540 U.S. at 399 (citing Aspen Skiing Co.
v. Aspen Highlands Skiing Corp., 472 U.S. 585, 608 (1985)). Upon review of the proposed
amended complaint, the Court concludes that VBR has not adequately addressed the pleading
deficiencies that the Court previously identified in VBR’s Aspen Skiing theory. See  at 1317. Unlike the plaintiff in Aspen Skiing, VBR is still able to buy tickets from Amtrak at retail
price. VBR is also able to purchase tickets through Yankee or Vacations.com and receive a
commission. Moreover, by attaching Yankee and Amtrak’s contract to the complaint, VBR has
pled valid business reasons for the contract, including that Yankee provides services such as
developing and operating Amtrak Vacations. Thus, VBR has not plausibly alleged that Amtrak’s
contract with Yankee is “irrational but for its tendency to harm competition.” Novell, Inc. v.
Microsoft Corp., 731 F.3d 1064, 1076 (10th Cir. 2013); see also 3B Phillip E. Areeda & Herbert
Hovenkamp, ANTITRUST LAW ¶ 772, at 223 (3d ed. 2008) (the refusal must be “irrational” but
for its anticompetitive tendencies).
Exclusive dealings violate the Sherman Act “only when they foreclose competition in a
substantial share of the line of commerce at issue.” Republic Tobacco Co. v. N. Atl. Trading Co.,
381 F.3d 717, 736 (7th Cir. 2004). The Court concludes that VBR’s exclusive dealing theory is
deficient for the same reason previously identified: Amtrak is not dealing exclusively with
Yankee. See  at 23-26. Amtrak makes its tickets available to all tour operators directly at
retail price. Amtrak tickets are also available indirectly through Yankee and Vacations.com,
with the tour operator receiving a commission. In addition, Amtrak has not increased its surplus
by hiring Yankee and paying it in the form of an exclusive commission. Amtrak could have
accomplished the same effect by acquiring a tour operator or creating its own in-house tour
operator. See E & L Consulting, Ltd. v. Doman Indus. Ltd., 472 F.3d 23, 29-30 (2d Cir. 2006).
To state an antitrust claim under the Sherman Act, a private plaintiff must allege “injury
of the type the antitrust laws were intended to prevent and that flows from that which makes
defendants’ acts unlawful.” Atl. Richfield Co. v. USA Petroleum Co., 495 U.S. 328, 334 (1990)
(quotation marks omitted). A plaintiff must show that its losses come from anticompetitive acts
that (1) “raise prices to consumers”; or (2) “reduce output.” Stamatakis Indus., Inc. v. King, 965
F.2d 469, 471 (7th Cir. 1992). The Court considers these two types of antitrust injury in turn.
In its proposed First Amended Complaint, VBR alleges that, as a result of Amtrak and
Yankee’s achieving monopoly power, “tour operators like VBR are no longer able to lower their
prices, resulting in Yankee being able to set monopolist prices that are higher than what they
would be in a fully competitive market.” [72-1] at 34. The Court concludes that this is not a
plausible theory of antitrust injury. If Yankee is (as VBR alleges) paying too-low a wholesale
price for Amtrak’s tickets, and Yankee is also increasing the prices of its package deals, then this
must mean that Yankee is pricing the other components of its packages too high—in which case
VBR and other tour operators should be able to compete by buying tickets at retail and
combining them with the other components of the packages.
VBR also attempts to plead a “reduced output” theory of antitrust injury. VBR alleges
that, as a result of Amtrak and Yankee achieving monopoly power, “Amtrak Vacations has
decreased by over two-thirds its escorted tour offerings,” which constitutes decreased output in
the market.” [72-1] at 34. VBR further alleges that Amtrak and Yankee’s monopolization of the
tour operator market will continue to harm competition by forcing all other competitors out of
the market. [72-1] at 35. According to VBR, it “currently offers consumers dozens of escorted
tours,” but at some point will be “forced to depart the rail tour market due to Amtrak’s
anticompetitive conduct.” [72-1] at 35. This departure of “VBR and other tour operators” from
the tour market is allegedly “imminent,” [72-1] at 30, and one tour operator, RMA Travel and
Tours, has already been “forced to close its retail office and is no longer selling any Amtrak tours
due at least in part to Amtrak’s exclusionary conduct,” [72-1] at 32.
Given the Court’s conclusion that VBR fails to allege any anticompetitive conduct, the
Court finds it unnecessary to decide whether VBR has plausibly alleged an antitrust injury based
on reduced output. Nonetheless, the Court has serious doubts about the sufficiency of VBR’s
pleadings. While VBR alleges that Yankee has substantially cut the number of guided tours it
offers, and that one tour operator is no longer selling Amtrak tours, this tells the Court nothing
about the effect that Amtrak’s conduct has had, to date, on the overall market for Amtrak tours.
And while VBR concludes that its and other tour operators’ departure from the market is
“imminent,” this allegation appears to be inconsistent with VBR’s allegations that Yankee has
received a 19% commission from Amtrak since 2010, yet six years later VBR is still offering a
dozen escorted tours. See [72-1] at 16, ¶¶ 50-51; 31, ¶ 128.
Claims for Violation of the Illinois Antitrust Act and § 1 of the Sherman Act
Illinois law directs courts to “use the construction of the federal law by the federal courts
as a guide in construing” the Illinois Antitrust Act “when the wording [of the Act] is identical or
similar to that of federal antitrust law.” 740 ILCS 10/11. Thus, Illinois Antitrust Act claims
“will stand or fall” with federal Sherman Act claims based on the same underlying facts and
legal theories. Int’l Equip. Trading, Ltd. v. AB Sciex LLC, 2013 WL 4599903, at *3 (N.D. Ill.
Aug. 29, 2013). The Court concludes that VBR’s claims for violation of the Illinois Antitrust
Act (Counts IV and V) must be dismissed for the same reasons as the Sherman Act § 2 claims,
because all of the claims are based on the same underlying facts and legal theories.
Finally, the Court concludes that VBR’s claim for violation of § 1 of the Sherman Act
must be dismissed because that claim does not contain any substantive allegations and has been
included in the proposed First Amended Complaint “[f]or purposes of preserving appeal only.”
[72-1] at 36.
For these reasons, the Court denies VBR’s motion  for leave to file an amended
complaint. The Court will allow VBR one more opportunity to consider whether it believes that
it can cure the deficiencies identified above (and in the Court’s prior opinions) through the filing
of an amended complaint. If VBR wishes to file another motion for leave to file an amended
complaint, it should file the motion, along with a copy of the proposed amended complaint, by
10/14/2016. This case is set for further status hearing on 10/20/2016 at 9:00 a.m. If VBR does
not wish to seek leave to replead, it may so advise the Courtroom Deputy, in which case the
Court enter a final judgment under FRCP 58 and strike the October 20 status hearing.
Dated: September 15, 2016
Robert M. Dow, Jr.
United States District Judge
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