American Airlines Inc v. Travelport Limited et al

Filing 226

RESPONSE filed by American Airlines Inc re: #222 (Document Restricted) Sealed Opposed Motion for Leave to File Surreply in Opposition to American Airlines, inc.'s Motion for Reconsideration (Sealed pursuant to order dated 6/9/2011)(Document Restricted) Sealed Opposed Motion for Leave to File Surreply in Opposition to American Airlines, inc.'s Motion for Reconsideration (Sealed pursuant to order dated 6/9/2011) (Garcia, Yolanda)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
American Airlines, Inc., a Delaware
corporation,
Plaintiff,
vs.
Travelport Limited, et al.
Defendants.

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Civil Action No.: 4:11-cv-244-Y

AMERICAN'S BRIEF IN OPPOSITION TO TRAVELPORT'S
MOTION FOR LEAVE TO FILE SURREPLY
American opposes Travelport's Motion for Leave to File Surreply in Opposition to
American Airlines, Inc.'s Motion For Reconsideration [Doc. #222]. The questions at issue in
American's Motion for Reconsideration have been fully briefed by both sides. Allowing
Travelport to continue the argument unilaterally will prejudice American and will add no value
to the proceedings.
"The purpose for having a motion, response, and reply is to give the movant the final
opportunity to be heard, and to rebut the nonmovants' response, thereby persuading the court that
the movant is entitled to the relief requested by the motion.” Murray v. TXU Corp., 2005 WL
1313412 at *4 (N.D.Tex. 2005) (internal quotation marks omitted). "A sur-reply is appropriate
by the non-movant only when the movant raises new legal theories or attempts to present new
evidence at the reply stage." Id. The questions at issue in American's Motion for
Reconsideration—whether the Court should reconsider its dismissal with prejudice of
American's vertical Section 1 claims and state-law claims—were fully briefed in American's
motion, Travelport's response in opposition, and American's reply. In fact, Travelport's surreply
AMERICAN'S BRIEF IN OPPOSITION TO TRAVELPORT'S
MOTION FOR LEAVE TO FILE SURREPLY

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does not even purport to address these issues. Instead, Travelport seeks to argue—in a manner
that gives American no opportunity to respond—about the sufficiency of the Third Amended
Complaint that American intends to seek leave to file if its Motion for Reconsideration is
granted.
American did not "raise[] new legal theories” or “present[] new evidence" on the issues
germane to reconsideration when it attached a copy of the proposed Third Amended Complaint
to its reply brief. American attached a copy of the proposed Complaint to its Reply to rebut
Travelport's assertion that American's "failure" to append a draft Complaint was an admission
that it would not be able to amend its Complaint. See Travelport Opp. at 1, 7. Nor did American
"deliberately withhold" its proposed Third Amended Complaint to prevent Travelport from
addressing it. American was unable to file its proposed amended Complaint earlier because of
Travelport's and Sabre's own intransigence in producing their contracts with travel agencies.1
Moreover, appending the proposed Third Amended Complaint did not convert
American's Motion for Reconsideration into a motion for leave to amend, thereby inviting
Travelport to launch an unrebuttable attack on the merits of the proposed Complaint. If the
Court grants the narrow relief sought in the Motion for Reconsideration, Travelport's arguments
could properly be considered when American seeks leave to file a Third Amended Complaint.2

1

Neither Travelport nor Sabre has produced all of the contracts that American has sought through
discovery, but virtually every one of the contracts that they have produced, which cover a sizable majority
of American's total bookings made through travel agents, includes the exclusionary provisions that
American's proposed Complaint would challenge.

2

Certain of Travelport's arguments are inappropriate on a motion on the pleadings. For example,
Travelport makes reference to recent agreements between American and certain travel agencies—such as
American Express's agreement to "pilot test" a direct connect—to argue that its agreements are not
exclusionary. See Proposed Surreply at 2 n.3. Arguments based on facts outside the pleadings are clearly
inappropriate at this stage of proceedings. Underwood v. Hunter, 604 F.2d 367, 369 (5th Cir. 1979).

AMERICAN'S BRIEF IN OPPOSITION TO TRAVELPORT'S
MOTION FOR LEAVE TO FILE SURREPLY

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American will be prejudiced if Travelport is allowed to use a surreply to raise arguments
on the merits to which American will have no way to respond—arguments that, in any event,
would be more appropriate on a motion for summary judgment than a motion to dismiss. First,
Travelport argues that, because a few of the largest travel agencies with which it has contracts
also contract with Sabre, American's allegations that Travelport's travel agency contracts prevent
American from moving bookings off of Travelport are "illogical[]." Proposed Surreply at 2.
This argument simply ignores the Complaint, which explains that "although some travel agencies
subscribe to more than one GDS, most rely on a single GDS in any particular location or for any
given corporate customer." SAC¶ 42. Even an agency that subscribes to two GDSs cannot
easily move any individual customer from one to the other. And even if agencies had the
technical ability to move customers, the GDSs' contracts impose crushing financial penalties on
agencies that seek to do so. SAC ¶¶ 44, 72-73. Travelport's argument is merely a backhanded
attempt to relitigate the issue of market definition—an issue the Court already decided in
American's favor.
Travelport similarly ignores the Complaint's allegations and the Court's ruling on market
definition when it argues that the proposed Third Amended Complaint does not allege that
Travelport's contracts foreclose access to a substantial share of the market because Travelport's
contracts cover less than 30% of the broader market for the provision of airline booking services
through travel agents. See Proposed Surreply at 3. By Travelport's own admission, however, the
proposed Third Amended Complaint alleges that Travelport's illegal agreements foreclose
American from access to at least 60% of the Travelport submarket, which the Court already held
was properly pleaded.

AMERICAN'S BRIEF IN OPPOSITION TO TRAVELPORT'S
MOTION FOR LEAVE TO FILE SURREPLY

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Travelport should not be permitted to prejudice American and waste the Court's time by
ignoring its rulings and advancing frivolous arguments. Accordingly, Travelport's request for
leave to file this surreply should be denied.

DATED: February 9, 2012
Respectfully submitted,
s/ Yolanda C. Garcia
Yolanda C. Garcia
R. Paul Yetter
State Bar No. 22154200
[e-mail]
Anna Rotman
State Bar No. 24046761
[e-mail]
YETTER COLEMAN LLP
909 Fannin, Suite 3600
Houston, Texas 77010
713.632.8000
713.632.8002 (fax)
Yolanda Cornejo Garcia
State Bar No. 24012457
[e-mail]
Michelle Hartmann
State Bar No. 24032401
[e-mail]
WEIL, GOTSHAL & MANGES LLP
200 Crescent Court, Suite 300
Dallas, Texas 75201-6950
214.746.7700
214.746.7777 (fax)

AMERICAN'S BRIEF IN OPPOSITION TO TRAVELPORT'S
MOTION FOR LEAVE TO FILE SURREPLY

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Bill F. Bogle
State Bar No. 02561000
[e-mail]
Roland K. Johnson
State Bar No. 00000084
[e-mail]
HARRIS, FINLEY & BOGLE, P.C.
777 Main Street, Suite 3600
Fort Worth, Texas 76102
817.870.8700
817.332.6121 (fax)
Attorneys for Plaintiff American Airlines, Inc.
Of Counsel to Plaintiff:
Richard A. Rothman
[e-mail]
James W. Quinn
[e-mail]
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, New York 10153
212.310.8426
212.310.8285 (fax)
M.J. Moltenbrey
[e-mail]
DEWEY & LEBOEUF LLP
1101 New York Avenue, N.W.
Washington, D.C. 20005
202.346.8738
202.346.8102 (fax)
CERTIFICATE OF SERVICE
I hereby certify that all counsel of record who are deemed to have consented to electronic service
are being served with a copy of the foregoing document via the Court’s CM/ECF system
pursuant to the Court’s Local Rule 5.1(d) this 9th day of February 2012.

s/ Robert S. Velevis
Robert S. Velevis

AMERICAN'S BRIEF IN OPPOSITION TO TRAVELPORT'S
MOTION FOR LEAVE TO FILE SURREPLY

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