American Airlines Inc v. Travelport Limited et al

Filing 77

MOTION to Dismiss Plaintiff American Airlines, Inc.'s First Amended Complaint filed by Orbitz Worldwide, LLC with Brief/Memorandum in Support. (Attachments: #1 Brief in Support) (Yates, Christopher)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
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AMERICAN AIRLINES, INC.,
a Delaware corporation,
Plaintiff,
vs.
SABRE, INC., a Delaware corporation;
SABRE HOLDINGS CORPORATION, a
Delaware corporation and SABRE
TRAVEL INTERNATIONAL LTD., a
foreign corporation, d/b/a SABRE TRAVEL
NETWORK;
TRAVELPORT LIMITED, a foreign
corporation, and TRAVELPORT, LP,
a Delaware limited partnership, d/b/a
TRAVELPORT;
and
ORBITZ WORLDWIDE, LLC, a Delaware
limited liability company, d/b/a ORBITZ,
Defendants.

Civil Action No. 4:11-cv-00244-Y

DEFENDANT ORBITZ WORLDWIDE, LLC’S
MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
Defendant Orbitz Worldwide, LLC (“Orbitz”) respectfully moves to dismiss plaintiff
American Airlines, Inc.’s (“American”) Third and Fourth Claims for Relief (the only claims
asserted against Orbitz) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. As
pleaded, American’s First Amended Complaint fails to state a claim upon which relief can be
granted as to Orbitz. In support of this motion, Orbitz files its Brief in Support of its Motion to
Dismiss, an Appendix and a Proposed Order.

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This motion is made on the grounds that American’s First Amended Complaint fails to
state a claim against Orbitz as a matter of law because: (1) the Subscriber Services Agreement,
an alleged unlawful exclusive dealing agreement which forms the basis of American’s claims
against Orbitz, is not alleged to—and does not—foreclose a “substantial share” of any pleaded
market, and American’s Sherman Act claims against Orbitz thus fail as a matter of law. See
Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320 (1961); Jefferson Parish Hosp. Dist. No.
2 v. Hyde, 466 U.S. 2 (1984); Apani Southwest, Inc. v. Coca-Cola Enterprises, Inc., 300 F.3d
620 (5th Cir. 2002); Star Tobacco, Inc. v. Darilek, 298 F. Supp. 2d 436 (E.D. Tex. 2003). (2)
Orbitz was a wholly owned subsidiary of defendant Travelport, the other party to the Subscriber
Services Agreement, when that agreement was executed, and has remained an affiliate of
Travelport at all times since then, and is therefore legally incapable of conspiring with Travelport
for purposes of the antitrust laws. See Copperweld Corp. v. Independence Tube Corp., 467 U.S.
752 (1984). And, (3) the remaining allegations in the First Amended Complaint fail to
adequately plead Orbitz’s involvement or participation in any conspiracy to monopolize any
pleaded market, as required by the Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007).
For these reasons and those stated in its supporting Brief and Appendix, as well as in any
Reply Brief and at oral argument, if any, Orbitz respectfully requests that the Court dismiss with
prejudice the First Amended Complaint’s Third and Fourth Claims for Relief against it for
failure to state a claim upon which relief can be granted.

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DATED:

June 15, 2011

Respectfully submitted,
s/ Christopher S. Yates
Christopher S. Yates (admitted Pro Hac Vice)
California State Bar No. 161273
Email: [e-mail]
Daniel M. Wall (admitted Pro Hac Vice)
California State Bar No. 102580
Email: [e-mail]
LATHAM & WATKINS LLP
505 Montgomery Street, Suite 2000
San Francisco, CA 94111-6538
Telephone: [phone]
Facsimile: [phone]
and
John J. Little
Texas State Bar No. 12424230
Email: [e-mail]
Stephen G. Gleboff
Texas State Bar No. 08024500
Email: [e-mail]
Megan K. Dredla
Texas State Bar No. 24050530
Email: [e-mail]
LITTLE PEDERSEN FANKHAUSER LLP
901 Main Street, Suite 4110
Dallas, TX 75202-3714
Telephone: [phone]
Facsimile: [phone]
ATTORNEYS FOR DEFENDANT
ORBITZ WORLDWIDE, LLC

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CERTIFICATE OF SERVICE
On June 15, 2011, I electronically submitted the foregoing document with the clerk of the
court for the U.S. District Court, Northern District of Texas, Fort Worth Division, using the
electronic case filing system of the court. The electronic case filing system sent a “Notice of
Electronic Filing” to the attorneys of record who have consented in writing to accept this Notice
as service of this document by electronic means.

s/ Christopher S. Yates
Christopher S. Yates
SF\859884

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