American Airlines Inc v. Travelport Limited et al

Filing 86

Brief/Memorandum in Support filed by Travelport Limited, Travelport, LP re #85 MOTION to Dismiss Plaintiff's First Amended Complaint for Failure to State a Claim Upon Which Relief Can Be Granted (Friedman, Walker)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION AMERICAN AIRLINES, INC., 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 ) ) ) ) ) ) ) ) ) ) MEMORANDUM IN SUPPORT OF TRAVELPORT’S RULE 12(b)(6) MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT TABLE OF CONTENTS Page INTRODUCTION ............................................................................................................. 1 ARGUMENT..................................................................................................................... 4 I. AA FAILS TO ALLEGE FACTS ESTABLISHING TRAVELPORT’S DOMINANCE OF THE U.S. GDS MARKET ..................................................... 5 II. AA FAILS TO ALLEGE FACTS ESTABLISHING A SINGLE-BRAND MARKET............................................................................................................... 8 1. 2. The Amended Complaint Does Not Allege Facts Fitting Within the Kodak Exception...................................................................................... 10 3. Bargaining Leverage Allegations Do Not Justify A Single-Brand Market ...................................................................................................... 12 4. III. The Travelport-Only Market Is Implausible.............................................. 8 Parroting Outdated Marketplace Descriptions Cannot Justify a Single-Brand Monopolization Case in 2011............................................ 14 THE COURT LACKS SUBJECT MATTER JURISDICTION OVER THE ALLEGED SWITZERLAND, UK, AND BELGIUM MARKETS ........... 15 1. 2. IV. Foreign Travel Agency Service Is Not U.S. Import Commerce.............. 15 Foreign Travel Agency Services Do Not Have a Direct and Substantial U.S. Effect............................................................................. 16 AA’S FAILURE TO ALLEGE FACTS ESTABLISHING EXCLUSIONARY CONDUCT ALSO WARRANTS DISMISSAL ................. 16 1. 2. The Alleged “Retaliatory” Foreign Pricing Is Irrelevant and Outside the Scope of U.S. Antitrust Law................................................. 18 3. The Contractual MFN Allegations Are Time Barred .............................. 20 4. V. The Allegations that Travelport Foreclosed Travel Agents or Software Developers Are Deficient ......................................................... 17 Allegations Regarding “Applications Developers” Do Not State a Cognizable Antitrust Claim ..................................................................... 22 AA HAS FAILED TO ALLEGE AN ILLEGAL CONSPIRACY...................... 22 1. 2. VI. Under Common Control, Travelport and Orbitz Are Incapable of an Illegal Conspiracy ............................................................................... 22 The Conspiracy Allegations Concerning “Unnamed Industry Participants” Fail the Twombly Standard................................................. 23 THE AIRLINE DEREGULATION ACT PREEMPTS THE TORTIOUS INTERFERENCE CLAIMS................................................................................ 24 -i- TABLE OF AUTHORITIES Page(s) CASES Apani Southwest, Inc. v. Coca-Cola Enter., Inc., 300 F.3d 620 (5th Cir. 2002) .......................................................................................11 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)...........................................................................................5, 22, 23 Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494 (3rd Cir. 1998) .......................................................................................13 Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203 (5th Cir. 1969) .........................................................................................7 Collins v. Morgan Stanley Dean Witter, 224 F.3d 496 (5th Cir. 2000) .......................................................................................20 Continental Orthopedic Appliances, Inc. v. Health Insur. of Greater New York, Inc., 994 F. Supp. 133 (E.D. N.Y. 1998) .......................................................................11, 13 Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984).....................................................................................................22 Den Norske Stats Oljeselskap AS v. Heeremac Vof, 241 F.3d 420 (5th Cir. 2001) .......................................................................................16 Digital Equip. Corp. v. Uniq Digital Techs., Inc., 73 F.3d 756 (7th Cir. 1996) .....................................................................................7, 10 Dimmitt Agri Indus., Inc. v. CPC Int’l Inc., 679 F.2d 516 (5th Cir. 1982) .........................................................................................6 Donald B. Rice Tire Co. v. Michelin Tire Corp., 483 F. Supp. 750 (D. Md. 1980) ....................................................................................7 Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451 (1992)............................................................................................. passim Enochs v. Lampasas Cnty., 2011 U.S. App. LEXIS 9974 (5th Cir. 2011) ..............................................................23 Exxon Corp. v. Berwick Bay Real Estate Partners, 748 F.2d 937 (5th Cir. 1984) .........................................................................................6 -ii- Flegel v. Christian Hosp., Northeast-Northwest, 4 F.3d 682 (8th Cir. 1993) .............................................................................................7 Forsyth v. Humana, Inc., 114 F.3d 1467 (9th Cir. 1997) .....................................................................................13 Frequent Flyer Depot, Inc. v. American Airlines, Inc., 281 S.W.3d 215 (Tex. App. 2009)…………………………………..…………….…25 Frontier Airlines, Inc. v. United Airlines, 758 F. Supp. 1399 (D. Col. 1989)................................................................................24 Futurevision Cable Sys. of Wiggins, Inc. v. Multivision Cable TV Corp., 789 F. Supp. 760 (S.D. Miss. 1992)...............................................................................7 Galileo Int’l v. Ryanair, 2002 U.S. Dist. LEXIS 3317 (N.D. Ill. 2002) .............................................................25 Globespanvirata v. Texas Instruments, 2006 U.S. Dist. LEXIS 8860 (D.N.J. 2006) ..................................................................7 Grantham v. Avondale, Indus., 964 F.2d 471 (5th Cir. 1992) .......................................................................................25 Hodges v. Delta Airlines, Inc., 44 F.3d 334 (5th Cir. 1995) .........................................................................................24 Imperial Point Colonnades Condominium, Inc. v. Mangurian, 549 F.2d 1029 (5th Cir. 1977) .....................................................................................21 In re Southeastern Milk Antitrust Litig., 555 F. Supp. 2d 934 (E.D. Tenn. 2008).......................................................................23 Insignia Systems, Inc. v. News Corp., 2005 U.S. Dist. LEXIS 42851 (D. Minn. 2005) ..........................................................18 Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2 (1984) (O’Connor, J., concurring) .............................................................17 Lee v. Life Ins. Co. of North America, 23 F.3d 14 (1st Cir. 1994)............................................................................................11 Lyn-Lea Travel Corp. v. American Airlines, Inc., 1997 U.S. Dist. LEXIS 21119 (N.D. Tex. 1997).........................................................24 Manassas Travel, Inc. v. Worldspan, L.P., 2008 U.S. Dist. LEXIS 35217 (D. Utah 2008) ............................................................25 -iii- Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)...............................................................................................23, 24 North Texas Producers Ass’n v. Young, 308 F.2d 235 (5th Cir. 1962) .........................................................................................6 Nw. Power Prods., Inc. v. Omark Indus., Inc. 576 F.2d 83 (5th Cir. 1978) ...........................................................................................7 Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580 (5th Cir. 1992) .......................................................................................23 PSI Repair Servs., Inc. v. Honeywell, Inc., 104 F.3d 811 (6th Cir. 1997) .......................................................................................10 PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d 412 (5th Cir. 2010) ............................................................................... passim Rick-Mik Enters. Inc. v. Equilon Enters., LLC, 532 F.3d 963 (9th Cir. 2008) ...................................................................................8, 18 Rockbit Indus. U.S.A., Inc. v. Baker Hughes, Inc., 802 F. Supp. 1544 (S.D. Tex. 1991) ........................................................................7, 18 Rohlfing v. Manor Care, 172 F.R.D. 330 (N.D. Ill. 1997)...................................................................................11 Rx.com v. Medco Health Solutions, Inc., 2009 U.S. App. LEXIS 8469 (5th Cir. 2009) ..............................................................20 Sabre Inc. v. Northwest Airlines, Civil Action No. 4:04-CV-612-Y (N.D. Tex. 2005)............................................2, 3, 14 Tampa Electric. Co. v. Nashville Coal Co., 365 U.S. 320 (1961)...............................................................................................17, 18 Turicentro S.A. v. American Airlines, Inc., 303 F.3d 293 (3rd Cir. 2002) ...........................................................................15, 16, 19 Verizon Communs., Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398 (2004).....................................................................................................21 STATUTES Airline Deregulation Act, 49 U.S.C. § 41713(b)(1) ................................................5, 23, 25 Foreign Trade Antitrust Improvements Act, 15 U.S.C. § 6a .............................................15 -iv- OTHER AUTHORITIES Areeda & Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 533 (3d ed. 2007)...........................................................................8 Hovenkamp, Janis & Lemley, An Analysis of Antitrust Principles Applied to Intellectual Property Law § 21.04 (2002 and 2006 Supp.) ..........................................11 -v- INTRODUCTION American Airlines, Inc.’s (“AA’s”) First Amended Complaint (the “Amended Complaint” or “Am. Compl.”) fails to address, much less repair, multiple fatal defects in AA’s original complaint. Despite two attempts, AA still does not state a plausible antitrust claim against Travelport Limited and Travelport, LP (collectively, “Travelport”). This result is not surprising, because AA’s lawsuit is not a legitimate antitrust action, but an unabashed effort to secure a more favorable position vis-à-vis Travelport before contracts between the parties expire this summer. Am. Compl. at ¶ 15. Preliminary contract negotiations have stalled, and AA has made good on its threat to file a lawsuit such as this one if Travelport did not yield on certain commercial terms. Now that AA’s negotiations with Sabre over contract renewals have stalled, AA has added Sabre as a defendant and asserted virtually identical claims against it. Thus, if anything, AA’s newly amended complaint only makes it more apparent that this is not a genuine antitrust action brought by consumers suffering from excessive, artificial price increases, but an opportunistic lawsuit brought by a large and powerful company seeking to enhance its already substantial commercial bargaining leverage. AA’s power was recently demonstrated when it withdrew ticketing authority for AA tickets from Orbitz.com late last year after negotiations concerning AA’s single-carrier (or socalled “direct connect”) offering failed. This bullying by AA has caused substantial harm to Orbitz with Orbitz losing more than half its market capitalization shortly after AA withdrew Orbitz’s ability to display AA content. AA also demonstrated its power during the prior round of negotiations with Travelport when AA threatened to withdraw AA content from Travelport’s global distribution system (“GDS”) unless Travelport provided AA with significant discounts. -1- Travelport had little choice but to provide these discounts despite the fact that GDS burdens have skyrocketed as more consumers search and compare fares using the neutral GDS channel. Aside from the disruption in recent negotiations, nothing new or different in the marketplace gives rise to AA’s antitrust claims. In fact, AA reaches far back in time in its attempt to portray today’s marketplace as one needing court intervention. Tellingly, AA relies entirely on outdated marketplace descriptions from a time when the airlines themselves owned and operated the GDSs under comprehensive federal regulation. AA’s market definition, on which its entire Amended Complaint rests, comes from a 1996 regulatory filing. Id. at ¶ 43. At that time, leading online travel agencies such as Orbitz and Priceline did not exist. Nor did Google or Kayak, both of which primarily drive traffic to airline websites and not through the GDSs. Southwest—today the nation’s largest domestic airline—was then a small carrier that had just started an online booking site. AA even highlights a federal court decision from the 1980s, preceding the commercial advent of the internet, to describe marketplace dynamics in the GDS industry. Id. at ¶ 99. If AA’s effort to dress up a commercial dispute in antitrust garb sounds familiar, it is. Airlines have occasionally sought to secure a negotiating advantage with GDSs by making monopolization claims. In 2004, Northwest Airlines filed a suit making similar allegations against Sabre, one of Travelport’s competitors. Northwest’s case was transferred to this District and before Your Honor, where a motion to dismiss was fully briefed with Sabre pointing out many of the flaws in Northwest’s allegations.1 Remarkably, it appears that AA’s 2011 Amended Complaint has lifted allegations about the state of the travel services industry from Northwest’s 2004 Complaint, while passing them 1 See Sabre Inc. v. Northwest Airlines, Civil Action No. 4:04-CV-612-Y (N.D. Tex. Jan. 13, 2005) (Dkt. Nos. 65, 82, 105). -2- off as reflecting current marketplace conditions.2 In turn, Northwest’s seven-year-old Complaint relied on pronouncements from the period of comprehensive federal regulation, going back to 1996 and even earlier. In short, the Amended Complaint describes a world that no longer exists. The federal government long ago deregulated the industry, and not a single one of AA’s cited sources describes the industry post-deregulation. Over half of airline ticket sales in the United States are now made directly from airlines rather than through a GDS. The largest domestic airline, Southwest, primarily built its business through single-carrier distribution and without significant GDS use (something that AA suggests would be impossible to achieve). Yet AA’s Amended Complaint is devoid of facts reflecting these or other modern business realities. AA seeks instead to advance costly antitrust litigation without plausible, specific factual allegations describing how the industry now operates. Stripped of its antitrust pretext, AA’s real complaint is that the marketplace has not embraced AA’s unproven and inefficient single-carrier technology and that the neutral GDS channel remains highly valued by many airlines and travel agencies. Travelport offers proven, cost-effective distribution services for AA and many other airlines, and competes intensely with other GDS offerings on price, quality, and content to encourage both airlines and travel agents to continue using its services. Travelport also vigorously competes with other distribution channels that now account for a majority of air ticket distribution in the United States. Contrived market definitions cannot mask these contemporary business realities. 2 Compare AA’s Amended Complaint with App. at 4-34 (attaching Northwest’s First Amended Complaint, Sabre Inc. v. Northwest Airlines, Civil Action No. 4:04-CV-612-Y (N.D. Tex. Jan. 13, 2005) (Dkt. No. 66, at APP. 009-39) (Appendix to Sabre’s Motion to Dismiss) (hereafter, “Northwest Compl.”)). -3- AA’s Amended Complaint should be dismissed in full for failure to allege facts establishing a plausible market in which Travelport dominates. This failure infects each antitrust claim asserted against Travelport (Counts 2-4). AA first tries a GDS-only product market, consisting of GDS services for all U.S. travel agents. Even this narrowly drawn market, which ignores single-carrier distribution, does not work. Travelport’s alleged share of this GDS-only market in the U.S. is just 34%. Id. As a matter of law, that is not nearly enough to state a claim of monopolization. Searching for a higher Travelport market share, AA travels outside the United States and lands in Europe, alleging monopolization of markets in Switzerland, the UK, and Belgium. Id. But U.S. courts lack subject matter jurisdiction to adjudicate claims that Travelport has illegally monopolized these European markets. This leaves AA to propose, and ultimately depend upon, a market where Travelport is a monopolist by definition: Travelport services for travel agents who have decided to use Travelport. This “single-brand” market conveniently excludes, for example, travel agents who chose to use one of Travelport’s competitors. Of course, virtually every company would be a monopolist in markets defined so as to exclude sales of products by competitors. Given the potential for opportunistic litigation, however, courts will not allow plaintiffs to plead a singlebrand product market except in the rarest of circumstances. A well developed body of law, including Supreme Court and Fifth Circuit law, delineates the limited circumstances in which plaintiffs can open the door to expensive monopolization litigation using a single-brand product market. The alleged product market consisting of Travelport services for travel agents using Travelport does not fit this exception. -4- AA’s inability to allege a plausible market dominated by Travelport compels dismissal of the antitrust claims (Counts 2-4). Separately and independently, these claims must also be dismissed because this court lacks subject matter jurisdiction over the alleged Switzerland, UK, and Belgium markets, AA has failed to allege facts establishing exclusionary conduct, and AA has failed to allege an illegal conspiracy. Finally, AA’s state law claims (Counts 5-6) must be dismissed because they are preempted by the Airline Deregulation Act, 49 U.S.C. § 41713(b)(1). ARGUMENT The Supreme Court has stressed the necessity of requiring plausible, non-conclusory allegations sufficient to establish each element of an antitrust complaint. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). “[L]abels and conclusions” do not suffice. Id. at 555. Such scrutiny is required at the motion to dismiss stage because antitrust cases are usually extremely expensive, putting considerable pressure on companies to settle cases with questionable or dubious merit. See Twombly, 550 U.S. at 546. In this case, there is little doubt that AA would seek (and is already seeking) costly and far-reaching discovery—perhaps from all over the globe—about a host of contractual relationships and a course of conduct over a period of many years. Applying Twombly, courts are not tolerant of antitrust complaints that contain conclusory or implausible market definitions. See, e.g., PSKS, Inc. v. Leegin Creative Leather Prods., Inc., 615 F.3d 412, 417-18 (5th Cir. 2010) (granting motion to dismiss without leave to amend for failure to allege plausible relevant market). Where antitrust claims rest upon implausible or insufficiently alleged relevant markets, they must be dismissed. -5- I. AA Fails to Allege Facts Establishing Travelport’s Dominance of the U.S. GDS Market AA alleges a product market consisting of GDS distribution of airfare and other travel information to U.S. travel agents. Am. Compl. at ¶ 117. In this alleged product market, sales by airlines through their websites, call centers, and ticket counters—now larger than all travel agency sales in the United States—do not count. But the Court need not address the plausibility of this restrictive travel agency product market because, even in this alleged market, Travelport’s absence of monopoly power is obvious. Travelport’s alleged market share in this market is only 34%. Id. at ¶ 120 (“Travelport accounted for 34%” of “all [airline] bookings made by U.S.based travel agencies in 2010”); id. at ¶ 3 (alleging that Travelport has “over 30%”). As the Fifth Circuit has explained, liability under Sherman Act § 2 is “an impossibility as a matter of law” when the defendant has a low market share. Dimmitt Agri Indus., Inc. v. CPC Int’l Inc., 679 F.2d 516, 529 (5th Cir. 1982). Market shares significantly below 50% will not support liability under Sherman Act § 2. See id. at 528 (Plaintiff “cannot cite us to any case in which monopolization was found . . . despite undisputed proof of market shares significantly below 50 percent.”). In fact, "monopolization is rarely found when the defendant’s share of the relevant market is below 70%.” Exxon Corp. v. Berwick Bay Real Estate Partners, 748 F.2d 937, 940 (5th Cir. 1984). This requirement to establish that the defendant holds monopoly power applies equally to a claim of conspiracy to monopolize (Count 3). See North Texas Producers Ass’n v. Young, 308 F.2d 235, 240 (5th Cir. 1962). Thus, the claim that Travelport has achieved an illegal monopoly in the alleged travel agents market with a 34% U.S. share should be dismissed on the pleadings. The Southern District of Texas dismissed on the pleadings a monopolization claim based on the defendant’s alleged 35% market share because “as a matter of law, this allegation is insufficient to support a -6- claim of monopolization in this circuit.” Rockbit Indus. U.S.A., Inc. v. Baker Hughes, Inc., 802 F. Supp. 1544, 1551 (S.D. Tex. 1991); see also Cliff Food Stores, Inc. v. Kroger, Inc., 417 F.2d 203, 206-208 (5th Cir. 1969) (dismissing complaint for failure to plead monopoly power); Globespanvirata v. Texas Instruments, 2006 U.S. Dist. LEXIS 8860, at *11 (D.N.J. 2006) (dismissing complaint for failure to allege monopoly share). Likewise, a “market power screen” applies to Sherman Act § 1 rule of reason claims (Count 4). Leegin, 615 F.3d at 418 n.5 (“‘[S]ubstantial market power is an indispensable ingredient of every claim under the Rule of Reason.’”) (quoting Digital Equip. Corp. v. Uniq Digital Techs., Inc., 73 F.3d 756, 761 (7th Cir. 1996)). This “market power” screen prevents Section 1 claims from going forward where, as in this case, market power allegations are insufficient to raise genuine concerns about exclusionary conduct harming consumers. The allegation that Travelport holds a 34% share of the U.S. travel agents market does not meet the “market power screen.” See Nw. Power Prods., Inc. v. Omark Indus., Inc. 576 F.2d 83, 90-91 (5th Cir. 1978) (defendant lacked market power when it had a 25% share and competed with at least one larger competitor); Flegel v. Christian Hosp., Northeast-Northwest, 4 F.3d 682, 689 (8th Cir. 1993) (plaintiff must show a “dominant market share” to satisfy the market power screen); Donald B. Rice Tire Co. v. Michelin Tire Corp., 483 F. Supp. 750, 761 (D. Md. 1980) (defendant did not have requisite market power when it had 20 to 25% share and there were larger producers). Thus, AA’s claim that Travelport violated Sherman Act § 1 should also be dismissed on the pleadings for failure to allege market power. See Leegin, 615 F.3d at 418-19 (to allege a rule of reason claim, “a plaintiff must plausibly allege the defendant’s market power”); Futurevision Cable Sys. of Wiggins, Inc. v. Multivision Cable TV Corp., 789 F. Supp. 760, 768-69 (S.D. Miss. 1992) (granting 12(b)(6) dismissal of rule of reason claim because of -7- failure to allege market share sufficient to establish market power); Rick-Mik Enters. Inc. v. Equilon Enters., LLC, 532 F.3d 963, 972 (9th Cir. 2008) (granting 12(b)(6) dismissal of rule of reason claim because plaintiff alleged only that defendant was “number one in the industry”). II. AA Fails to Allege Facts Establishing a Single-Brand Market 1. The Travelport-Only Market Is Implausible AA’s solution to these problems–particularly the inability to allege monopoly power or substantial market power in an all U.S. travel agency market–is to contrive what it deems a “relevant product submarket” in which Travelport’s share is 100%: “Travelport provides 100% of the bookings for a large number of corporate customers whose travel agents subscribe to one of Travelport’s GDSs.” Am. Compl. at ¶ 4. This is the “submarket” consisting of Travelport services to travel agencies using Travelport. Calling this a “submarket” does not excuse AA from market definition pleading standards. See Leegin, 615 F.3d at 418. A leading antitrust treatise has expressly warned against AA’s tactic of couching “an overly narrow market designation that exaggerates the defendant’s power” by using the “confus[ing]” submarket nomenclature. Areeda & Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application ¶ 533 (3d ed. 2007). With this product submarket, AA can state with confidence that entry is difficult, given that, by definition, AA’s submarket excludes sales to travel agents that chose Travelport’s competitors over Travelport. Just as AA omitted single-carrier distribution, which constitutes the majority of U.S. ticket sales, from the “all travel agents” product market, AA omits these sales from the submarket consisting of just Travelport subscribing travel agencies. Am. Compl. at ¶ 119. AA also disregards Sabre and other competing GDSs based on the conclusory allegation that “other providers of airline booking services do not serve as a competitive check” on Travelport services for Travelport travel agents. Id.; see also id. at ¶ 41 (“GDSs are not -8- substitutes for one another”); id. at ¶ 47 (“Travelport [is] not subject to competitive discipline from other providers of booking services to travel agents”). By conveniently ignoring marketplace realities, AA has managed to define a gerrymandered product market in which no one but Travelport ever has or ever could compete. Regurgitating antitrust buzz words cannot render AA’s antitrust allegations any more viable. Of course, every company is a monopolist in a product market comprised exclusively of its own sales of its own products to its current customers, and which excludes sales to customers that choose to buy from the company’s competitors. The Court should reject AA’s contrived and outcome-determinative Travelport-only product market. AA’s proposed single-brand submarket is flawed for other reasons as well. In particular, both AA’s “submarket” and the broader market (where Travelport is concededly not a monopolist) focus on the provision of services to travel agents. See, e.g., id. at ¶ 119 (“The provision of airline booking services to Travelport subscribers [i.e., travel agents] is a relevant product submarket.”). But AA does not allege any harm at all to travel agents; rather it appears to assert that travel agents are overcompensated by Travelport and other GDSs. Id. at ¶ 65. This is internally contradictory. Any allegation that Travelport has monopoly power over travel agents is contradicted by AA’s allegation that travel agents are able to secure high compensation from Travelport. If Travelport really had monopoly power over travel agents, it would not be forced to pay them too much. In other portions of the Amended Complaint, AA seems to suggest that Travelport has monopoly power in a different—but even narrower—market altogether: the market for AA’s access to travel agents that subscribe to Travelport. Id. at ¶ 10. Such allegations would apparently pertain to a different market, in which each GDS would have monopoly power over -9- each airline that uses travel agents to distribute tickets. This even more restrictive single-brand market similarly fails the Kodak test outlined below. 2. The Amended Complaint Does Not Allege Facts Fitting Within the Kodak Exception A well developed body of law governs the limited exception for pleading single-brand markets. Antitrust markets are defined based on reasonable interchangeability of products or services. “In rare circumstances, a single brand of a product or service can constitute a relevant market for antitrust purposes.” Leegin, 615 F.3d at 418 (affirming dismissal of single-brand market on pleadings); see also Eastman Kodak Co. v. Image Technical Servs., Inc., 504 U.S. 451, 482 (1992) (noting that in exceptional instances a single-brand may constitute a product market). The limited exception potentially arises where a rivalry exists for the sale of follow-on products (such as repair parts, service, or supplies) to consumers who may be “locked in” to a particular brand after initial purchase. Examples may be ink for use in H-P printers or maintenance services for Whirlpool washers. In these situations, the potential single-brand product market is not based on the initial products purchased like H-P printers or Whirlpool washers but rather the follow-on products sold to consumers who in some situations could be “locked in” to the single brand or single manufacturer after the initial purchase. In these cases, courts have held that the Kodak exception is limited to situations in which defendants prevented customers from evaluating total life cycle costs at the time of initial purchase (e.g., costs of the H-P printer and replacement ink) and exploited customers with an unexpected change in practice after customers were locked in to a single brand for the follow-on products. See, e.g, PSI Repair Servs., Inc. v. Honeywell, Inc., 104 F.3d 811, 820 (6th Cir. 1997) (“[T]he change in policy in Kodak was the crucial factor in the Court’s decision.”); see also Digital Equip. Corp. v. Uniq Digital Techs., Inc., 73 F.3d 756, 763 (7th Cir. 1996) (Kodak’s -10- change in policy regarding replacement parts and services was dispositive); Lee v. Life Ins. Co. of North America, 23 F.3d 14, 20 (1st Cir. 1994) (allegation that customers were ignorant of “lock in” at time of initial purchase is critical to meet Kodak exception).3 The plaintiff asserting a single-brand market within the Kodak exception must establish that the defendant failed to make adequate disclosures at the time of initial purchase, thereby preventing consumers from effective comparison shopping. This failure may leave consumers “locked in” when purchasing follow-on parts, maintenance, or supplies. AA has not alleged any product market in which there is competition for follow-on products or services to airlines or travel agents who would face “lock in” following initial purchase or initial contract. It alleges that the relevant product market is the Travelport GDS, not any follow-on products or services. Courts reject on the pleadings such single-brand markets as outside the Kodak exception. In Leegin, for example, the Fifth Circuit affirmed dismissal of a single-brand market, emphasizing that the Kodak exception “is limited to situations in which consumers are ‘locked in’ to a specific brand by the nature of the product.” 615 F.3d at 418; see also Continental Orthopedic Appliances, Inc. v. Health Insur. of Greater New York, Inc., 994 F. Supp. 133, 141 (E.D.N.Y. 1998) (granting motion on pleadings to dismiss single-brand health insurer market); Rohlfing v. Manor Care, 172 F.R.D. 330, 346 (N.D. Ill. 1997) (dismissing single-brand market on pleadings because no alleged facts showing Kodak-type lock in); Apani Southwest, Inc. v. Coca-Cola Enter., Inc., 300 F.3d 620, 633 (5th Cir. 2002) (affirming 12(b)(6) dismissal for failure to plead plausible market when plaintiff defined market around sales to a single customer). This Court should do the same. 3 See also Hovenkamp, Janis & Lemley, IP and Antitrust: An Analysis of Antitrust Principles Applied to Intellectual Property Law § 21.04 (2002 and 2006 Supp.) (“It should…be clear that Kodak-style ‘lock-in’ occurs when the primary market decision and the ‘aftermarket’ decision are made at different times.”). -11- AA does not allege that Travelport failed to disclose its key business practices at the time of an initial contract, resulting in unfair consumer lock in. Nor does AA allege some unexpected shift in business practice during the life of the contract. These allegations are essential for the Kodak exception and their absence compels dismissal of this Amended Complaint dependent on a single-brand market. 3. Bargaining Leverage Allegations Do Not Justify A Single-Brand Market Instead of facts needed to meet the Kodak exception, the Amended Complaint is filled with run-of-the-mill commercial bargaining power allegations. The allegations that underlie the Travelport-only single-brand market are (1) that Travelport provides access to “a large number” or “critical group” of travel agents, Am. Compl. at ¶¶ 1, 4, 10, 41; (2) that AA and other airlines must distribute through Travelport to avoid losing a “significant” number of ticket sales, id. at ¶ 41-42; and (3) as a result, AA and other airlines have “little ability” not to use Travelport or “no choice” except to distribute through Travelport. Id. at ¶¶ 41, 119. Stripped to its core, the Amended Complaint states that Travelport is a valuable distributor and that losing Travelport as a distributor may cause a supplier to lose significant business. This in turn gives Travelport some degree of bargaining leverage. Travelport concedes that its distribution services are valuable and does not question why AA and many other airlines use Travelport to distribute tickets. But it is commonplace in our economy for manufacturers or suppliers to depend upon valued distributors to reach key customers. Take supermarkets as distributors. The makers of Cheerios, Corn Flakes, or Lucky Charms could say that each supermarket chain provides access to “a large number” or “critical group” of customers, that each cereal brand participates in each supermarket chain so as to avoid losing “significant” sales, and that the cereal makers have “little ability” to stop distributing through the particular supermarket chain. This in turn gives the supermarket some degree of -12- leverage when negotiating terms of sale with the cereal maker. Nike or Adidas might say the same things about the leading sporting good retailers. However, these commonplace bargaining power conditions would not support a Kroger product market or Dick’s Sporting Goods product market. Not surprisingly, courts have rejected single-brand markets based on commonplace bargaining power conditions. For example, hospitals and pharmacy chains have alleged that each health insurer (such as Blue Cross, Aetna, or Cigna) provides exclusive access to a unique and critical group of patients, that the hospital or pharmacy needs to participate in the health insurer’s network to avoid losing significant business, and the health insurer has enormous negotiating leverage as a result. None of these arguments has sustained a market limited to the services of a single health insurer. Thus, a retail pharmacy chain could not sustain a single-brand health insurer market (giving the health insurer “100% of this market regardless”) despite alleging that the health insurer had “leverage acquired by virtue of its ability to provide . . . access to thousands of potential pharmacy customers,” that the insurer’s “subscribers constituted a significant portion of [the pharmacy chain’s] customer base,” and that “participating pharmacies do not drop out of the . . . network.” Brokerage Concepts, Inc. v. U.S. Healthcare, Inc., 140 F.3d 494, 510, 514 (3rd Cir. 1998). This does not “fall within Kodak’s concept of lock in.” Id. at 515; see also Continental Orthopedic, 994 F. Supp. at 141 (rejecting single-brand health insurer market); Forsyth v. Humana, Inc., 114 F.3d 1467, 1476 (9th Cir. 1997) (“We reject the plaintiffs’ attempt to limit the relevant market to acute care hospitals used by Humana insureds” where there is no failure to disclose under the Kodak exception). -13- AA’s allegations support only the conclusion that this is a commercial dispute between two large companies with varying degrees of bargaining leverage. AA’s assertions should not be confused with factual allegations sufficient to show that the defendant maintains a monopolistic market share (i.e., well over 50%) in a relevant product market that is defined by product characteristics and consumer demand in the industry. 4. Parroting Outdated Marketplace Descriptions Cannot Justify a Single-Brand Monopolization Case in 2011 To justify a single-brand market, AA relies on anemic allegations of simple bargaining leverage, coupled with quotes from regulatory filings that predate the deregulation of the GDS industry. AA even quotes a district court decision from the 1980s. Am. Compl. at ¶ 99. Remarkably, it also appears that AA has attempted to pass off as evidence of current market conditions allegations it lifted from a Northwest Airlines Complaint filed in 2004. For example, AA’s allegations about how travel agents are the “dominant channel for selling airline tickets,” appear to be pulled from observations made nearly a decade ago–an extremely long period in the context of a dynamic high technology business.4 The outdated materials quoted throughout the Amended Complaint are business generations away from the current environment where more than half of U.S. ticket sales are made directly by airlines. 4 Compare, e.g., AA Am. Compl. ¶ 41 with Northwest Compl. ¶ 21 (“Travel agents continue to be the dominant channel for distribution of air transportation services, and travel agents continue to rely almost entirely on a single GDS.”); AA Am. Compl. ¶ 39 with Northwest Compl. ¶ 19 (“Those payments are tied to productivity commitments by travel agencies, i.e., commitments to use the GDS service for a specified volume of bookings, coupled with financial penalties or disincentives if those commitments are not reached.”); AA Am. Compl. ¶ 42 with Northwest Compl. ¶ 20 (“In theory, an airline could exert countervailing leverage against GDSs, like defendants, by withholding its participation in a particular GDS since, over time, the GDS’s services would become less valuable to consumers and thus to travel agents.”). -14- III. The Court Lacks Subject Matter Jurisdiction Over the Alleged Switzerland, UK, and Belgium Markets AA’s quest for an antitrust market where Travelport has a monopolistic share has spanned the globe. It appears that AA tracked Travelport’s alleged share by country around the world and selected three relatively high share countries as geographic markets. The highest is Switzerland, as “Travelport accounted for 55% of all bookings made in Switzerland.” Id. at ¶ 120. Thus, AA is apparently asking this Court to determine under U.S. antitrust law whether Travelport has monopolized markets, including single-brand markets, in individual European nations. Under the Foreign Trade Antitrust Improvements Act (“FTAIA”), a plaintiff relying on foreign conduct must allege facts showing that (1) the foreign conduct amounts to U.S. “import commerce” or (2) the foreign conduct has “a direct, substantial, and reasonably foreseeable” effect on U.S. consumers. 15 U.S.C. § 6a. Neither condition is present here. 1. Foreign Travel Agency Service Is Not U.S. Import Commerce The subject matter jurisdiction of U.S. antitrust law may extend to foreign conduct that constitutes import commerce. For example, U.S. antitrust law may cover a price fixing agreement formed in Germany between two German manufacturers to raise the price of goods those firms import into the United States. That concerns “import commerce” even though the conduct occurred abroad. In the seminal industry case, AA itself successfully argued that the business of foreign travel agencies is not import commerce under the FTAIA. See Turicentro S.A. v. American Airlines, Inc., 303 F.3d 293, 303 (3rd Cir. 2002). The court ruled that U.S. airlines do not “import” foreign travel agency services for purpose of selling tickets in the United States. Id. The court also rejected the argument that a foreign travel agency’s use of a GDS based in the -15- United States and the agency’s receipt of commissions paid by a U.S. GDS transforms these services into import commerce. Id. at 304. 2. Foreign Travel Agency Services Do Not Have a Direct and Substantial U.S. Effect Alternatively, a plaintiff must allege facts showing that a defendant’s foreign “conduct has ‘a direct, substantial, and reasonably foreseeable’ anticompetitive effect on U.S. commerce, and that the conduct ‘gives rise’ to a Sherman Act claim.” Id. (quoting FTAIA); Den Norske Stats Oljeselskap AS v. Heeremac Vof, 241 F.3d 420, 427 (5th Cir. 2001) (plaintiff failed to show that effect on U.S. commerce in any way “gives rise” to its antitrust claim). The “geographic effect of the defendants’ [foreign] conduct” must be on the competitive process within the United States and it must be direct and substantial. Turicentro, 303 F.3d at 304. AA’s Amended Complaint does not allege that Travelport’s conduct in Switzerland, the UK, or Belgium has a direct and substantial anticompetitive effect within the United States. Rather, the Amended Complaint does just the opposite: it alleges effects in separate and distinct parts of Europe. The allegation that Travelport monopolized geographic markets within Europe is far outside the subject matter jurisdiction of the United States antitrust laws. IV. AA’s Failure to Allege Facts Establishing Exclusionary Conduct Also Warrants Dismissal Another essential element of a monopolization claim under Sherman Act § 2 (Counts 2 and 3) is exclusionary conduct that has produced or is maintaining the illegal monopoly. Likewise, a rule of reason claim under Sherman Act § 1 (Count 4) requires proof that the defendant enjoying substantial market power engaged in exclusionary or anticompetitive acts. -16- 1. The Allegations that Travelport Foreclosed Travel Agents or Software Developers Are Deficient Even if a 34% share of the alleged U.S. GDS market somehow amounted to monopoly or market power, AA still needs to allege facts establishing that the suppliers or customers allegedly foreclosed constitutes a “substantial share of the relevant market.” Tampa Electric. Co. v. Nashville Coal Co., 365 U.S. 320, 328-29 (1961); see also Jefferson Parish Hosp. Dist. No. 2 v. Hyde, 466 U.S. 2, 45 (1984) (O’Connor, J., concurring) (“Exclusive dealing is an unreasonable restraint of trade only when a significant fraction of buyers or sellers are frozen out of a market by the exclusive deal.”). AA alleges that Travelport, acting as a monopolist, used multi-year contracts to foreclose access to travel agencies. Am. Compl. at ¶¶ 63-68. It also alleges that Travelport foreclosed access to software developers. Id. at ¶¶ 74-87. Tampa Electric’s “substantial share” requirement is intended to ensure that any foreclosure by a company with monopoly power is in fact likely to have the effect of handcuffing competitors, thereby harming consumers. Control over an insubstantial portion of the supplier or customer base does not establish an antitrust violation. How much of the alleged travel agency market do Travelport’s multi-year contracts cover? According to AA, it reaches “a large number of corporate customers,” agencies representing “a significant number of ticket sales,” or agencies representing “a discrete, but critical, group of travelers.” Id. at ¶¶ 1, 4, 10, 41. The Amended Complaint provides no information about whether this “large number” is 5% or 95% of the relevant travel agents market. As to the software developers Travelport supposedly walled off from AA, the Amended Complaint alleges virtually nothing. Id. at ¶¶ 37, 74, 76, 84-87. As far as the Amended Complaint reads, this could be 5 of 5, 5 of 50, or 1 of 100 software developers. There are simply no facts alleged that would allow any assessment of the impact on competition. -17- This is an Amended Complaint in which the alleged monopolist, maintaining either a 34% market share or a fixed 100% share, allegedly exercised its monopoly power by blocking access to customers (travel agents) and unrelated third-parties (software developers) whose relative size and competitive significance is anybody’s guess. AA’s failure to plead any facts showing foreclosure of a substantial share of the travel agents or software developers as required by Tampa Electric is grounds for Rule 12(b)(6) dismissal. See, e.g., Rick-Mik, 532 F.3d at 972 (“The complaint alleges nothing about, for example, what percentage of gasoline franchises are [defendant’s]. There are no factual allegations regarding the amount of power or control that [defendant] has over prospective franchises.”); Rockbit, 802 F. Supp. at 1550 (granting 12(b)(6) motion because plaintiff “failed to allege any facts which would indicate the degree of commerce that may have been foreclosed”); Insignia Systems, Inc. v. News Corp., 2005 U.S. Dist. LEXIS 42851, at ** 10-11 (D. Minn. 2005) (“[A]bsent some indication of the percentage of the local, regional, or national markets that the . . . outlets allegedly under exclusive contract constitute, it is impossible to evaluate the percentage of the market with which . . . competitors are prevented from doing business”). 2. The Alleged “Retaliatory” Foreign Pricing Is Irrelevant and Outside the Scope of U.S. Antitrust Law AA alleges a series of commercial disputes between it and Orbitz Worldwide, LLC (“Orbitz”), Travelport, and third-party Sabre Inc. (“Sabre”) without connecting them to any viable antitrust theory. Many of these allegations have nothing to do with Travelport at all. The ones that do involve “retaliatory” actions occur “outside the United States.” Am. Compl. at ¶ 96. One of the main exclusionary acts highlighted in the Amended Complaint is foreign pricing: “Travelport doubled American’s booking fees for reservations made outside the United States, and subsequently intentionally misrepresented American’s fares in a manner that made -18- them appear more expensive than they actually were to consumers outside the United States.” Id. at ¶ 12. Over and over again the Amended Complaint points to this price increase “to consumers outside the United States.” Id. at ¶ 96 (“doubling the booking fees charged American for bookings made by travel agents outside the United States”); id. at ¶¶ 97-98 (Travelport added a “premium to American’s fares” in response to American’s “recovery fee . . . for Travelport subscribers who booked American flights from outside the United States”); id. at ¶ 127 (“Travelport was able to double American’s booking fees in certain regions”); id. at ¶ 147 (“Doubling the fees . . . made through Travelport’s GDS”). AA’s foreign pricing allegations not only fall outside the subject matter jurisdiction of U.S. antitrust law, but they also conflict with AA’s market definition allegations. See Turicentro, 303 F.3d at 303. AA has not alleged a world market where pricing decisions in one country necessarily have a ripple effect in others. Rather it has alleged distinct national markets based on local conditions. Id. at ¶ 120 (“Because most travelers purchase airline tickets from travel agents located where they work or reside, the provision of airline booking services in one country is not a substitute for the provision of such services in another country.”). Raising the price outside the United States cannot equate to price increases or anticompetitive effects on consumers in the U.S. market, particularly where the price competition as alleged occurs in distinct national markets. AA’s reliance on contradictory, foreign pricing allegations underscores the absence from its Amended Complaint of any factual allegation of increased prices in the United States. Foreign pricing allegations provide no support for the claim that Travelport has monopolized the U.S. market. As AA has enjoyed very significant price cuts under the contracts at issue in this case, it is unable to and has not alleged any U.S. price increases by Travelport. -19- 3. The Contractual MFN Allegations Are Time Barred In its contract with AA, Travelport seeks assurance that it is getting the most current, accurate, and complete airfare content available. That assurance is critical to Travelport’s competitiveness because travel agencies depend on full and transparent content to comparison shop and obtain the best price for travelers. To achieve this business objective, Travelport’s contract with AA contains a “content parity” or, as AA calls it, a “most-favored nation” (“MFN”) clause. Id. at ¶¶ 51-52. AA’s Amended Complaint identifies the Travelport contract, quotes the content parity clause, and alleges that this clause improperly restricts AA’s ability to offer a la carte content. Id. at ¶¶ 51, 54. AA challenges the content parity clause in its contract with Travelport as exclusionary, quoting old regulatory filings referring to these types of contract clauses. Id. at ¶¶ 59-60. Not only are such clauses pro-competitive, but they are beyond the applicable statute of limitations. AA executed the Travelport contract containing the content parity clause in 2006. See App. at 35.5 AA has sat on its hands since 2006 and now seeks treble damages incurred by AA as a result of the content parity clause that it negotiated at arm’s length and that resulted in it receiving deep price discounts. This violates the four-year statute of limitations governing Sherman Act claims. Under the “continuing conspiracy” exception to the four-year time bar, a plaintiff relying on an outdated event must show fresh, specific, and identifiable anticompetitive acts occurring within the limitations period. For example, the Fifth Circuit in Rx.com dismissed an antitrust claim as time barred when the refusal to deal occurred more than four years ago and the plaintiff failed to show that “[d]efendants reiterated their refusals.” Rx.com v. Medco Health Solutions, 5 This Court may take judicial notice of contracts referenced in the Amended Complaint. Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th Cir. 2000). -20- Inc., 2009 U.S. App. LEXIS 8469, at **8-9 (5th Cir. 2009); see also Imperial Point Colonnades Condominium, Inc. v. Mangurian, 549 F.2d 1029, 1035 (5th Cir. 1977) (“[A] cause of action will not lie for damages that occur within the four years preceding suit, if those damages result solely from acts committed by the defendant outside the four-year period.”). Having experienced an unsuccessful commercial negotiation thus far in 2011, AA seems willing to dig through its files in an effort to come up with anything that might possibly advance an antitrust lawsuit. However, AA’s MFN allegations are not based on any new fact or event that happened within the limitations period. All AA is saying is that the contract clause it agreed to in 2006 is anticompetitive and has been since AA signed the contract in 2006. AA has not alleged a continuing conspiracy with any fresh, new, or different acts. 4. Allegations Regarding “Applications Developers” Do Not State a Cognizable Antitrust Claim AA expresses outrage that Travelport has restricted access to its proprietary applications programming interfaces to “authorized” applications developers, Am. Compl. at ¶¶ 74-81, as if any company in Travelport’s position would just open its gates to every outside software developer. AA’s attempt to characterize this activity as an antitrust violation defies both the law and common sense. It is well established that a private company has the right to choose with whom it does business and no duty to aid competitors, Verizon Communs., Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 408, 411 (2004), much less a duty to open its proprietary applications to any company who wishes to access them. Devoid of any plausible allegation that Travelport lacks a valid business justification for exercising control over its proprietary technology, AA’s Amended Complaint fails to state a claim for an unlawful refusal to deal. See id. at 409-10. -21- V. AA Has Failed to Allege an Illegal Conspiracy For the reasons stated above, the conspiracy to monopolize claim (Count 3) should be dismissed for failure to allege a plausible market. The Court may dismiss this claim for the independent reason that AA has not alleged an illegal agreement or conspiracy. 1. Under Common Control, Travelport and Orbitz Are Incapable of an Illegal Conspiracy The conspiracy alleged here is implausible because it is, in essence, a conspiracy of one. Travelport and Orbitz are controlled by the same majority owner, The Blackstone Group. Since the Supreme Court’s opinion in Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 777 (1984), plaintiffs have been unable to plead this type of a bath tub conspiracy. See Orbitz Br. in Supp. of its Mot. to Dismiss Plaintiff’s First Am. Compl. [Doc. No. 77-1] at pp. 16-19. (providing analysis of case law). 2. The Conspiracy Allegations Concerning “Unnamed Industry Participants” Fail the Twombly Standard AA charges Travelport with entering into an illegal conspiracy, in violation of federal antitrust law, with “unnamed industry participants.” Am. Compl. at ¶ 135. It may be that AA cannot identify “unnamed industry participants” because this is the rankest form of speculation and innuendo lacking any grounding in fact. In any event, AA cannot force Travelport to incur huge legal fees and lost management time to defend an antitrust case on this flimsy conspiracy theory. The conclusory allegation that Travelport entered into a conspiracy with “unnamed industry participants” causing massive consumer harm throughout the United States and Europe is insufficient to state a claim. The dismissed complaint in Twombly “furnishe[d] no clue as to which of the four ILECs (much less which of their employees) supposedly agreed, or when and where the illicit agreement took place.” 550 U.S. at 563 n. 8. The lower courts have interpreted -22- the Twombly decision as requiring plaintiffs charging conspiracy to assert the “when and where” facts. See, e.g., In re Southeastern Milk Antitrust Litig., 555 F. Supp. 2d 934, 942 (E.D. Tenn. 2008) (“To allege an agreement between antitrust-conspirators, the complaint must allege facts such as a specific time, place, or person involved in the alleged conspiracies to give a defendant seeking to respond to allegations of a conspiracy an idea of where to begin.”). The Court should demand more than a bare-bones allegation where even the identity of the conspirators is a mystery. VI. The Airline Deregulation Act Preempts the Tortious Interference Claims Because AA fails to state a federal claim, the Court should dismiss AA’s state law claims under the doctrine of pendent jurisdiction. 28 U.S.C. § 1367(c) "Our general rule is to dismiss state claims when the federal claims to which they are pendent are dismissed." Enochs v. Lampasas County, 2011 U.S. App. LEXIS 9974, at *11 (5th Cir. 2011) (quoting Parker & Parsley Petroleum Co. v. Dresser Indus., 972 F.2d 580, 585 (5th Cir. 1992). Even if the Court chooses to retain jurisdiction, AA’s state law claims must be dismissed because they are preempted by federal law. AA alleges that Travelport tortiously interfered with AA’s existing or prospective contractual relations to provide airfare distribution services to travel agencies (Counts 5 and 6). Am. Compl. at ¶¶ 144-47, 153-55. AA alleges that Travelport’s interference with AA’s own air distribution services violates the Texas Deceptive Trade Practices Act and creates tort liability under Texas law. Id. at ¶ 147(d),(f). The Airline Deregulation Act (“ADA”) establishes that a court may not “enforce a [state] law . . . related to a price, route, or service of an air carrier.” 49 U.S.C. § 41713(b)(1). The U.S. Supreme Court has found that these words–particularly “related to”–“express a broad preemptive purpose.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992) (barring -23- enforcement of state laws relating to airfare advertising). This preemption clause covers enforcement of state common law or business tort claims and is not limited to state laws directed expressly at airline pricing, routes, or services. Id. at 386. Interpreting this federal law, the Fifth Circuit drew a distinction between claims for physical injury from claims related to “the business of transportation as well as the schedules” or “‘the economic factors that go into the provision of the . . . passenger’s fare, including flight frequency and timing.’” Hodges v. Delta Airlines, Inc., 44 F.3d 334, 337 (5th Cir. 1995) (quoting Civil Aviation Board). In the Fifth Circuit case, Mrs. Hodges suffered injury when a fellow passenger opened an overhead compartment and dislodged a case of rum. Id. at 335. The Airline Deregulation Act did not preempt her negligence claim for physical injury. Id. at 338. Applying Hodges, this Court held that the Airline Deregulation Act preempts state law claims focusing on GDS services as they relate to pricing, routes, or service under the Act: “Here, plaintiff’s complaints arising out of the SABRE CRS are clearly based on the defendants’ reservation practices and therefore have a connection with defendants’ ‘services.’” Lyn-Lea Travel Corp. v. American Airlines, Inc., 1997 U.S. Dist. LEXIS 21119, at *21 (N.D. Tex. 1997), aff'd, 139 F.3d 899 (5th Cir. 1998), vacated on other grounds, 283 F.3d 282 (5th Cir. 2002) (dismissing business tort claims based on dispute over actions designed to make travel agent switch from Worldspan’s GDS to Sabre’s GDS). Other courts have ruled that the Airline Deregulation Act preempts claims under state law relating to GDS or airfare booking services. See, e.g., Frontier Airlines, Inc. v. United Airlines, 758 F. Supp. 1399, 1402 (D. Col. 1989) (claim under state unfair competition law that airline improperly marketed GDS services is preempted). -24- AA in other litigation has advocated that the preemption clause is limited to state law claims brought against AA or other carriers. Such a reading would rewrite the statute to provide that a court may not “enforce a [state] law… in a lawsuit in which an airline is named as a defendant. . . related to a price, route, or service of an air carrier.” 49 U.S.C. § 41713(b)(1) (rewritten language emphasized). The outcome of such a non-existent statute is that AA could litigate state business tort suits “related to a price, route, or service of an air carrier” as a plaintiff but remain free to invoke the preemption clause as a shield should AA be sued under state law over the same subject matter. There is no support in the governing Supreme Court precedent or other federal cases for this statutory rewrite, which also directly conflicts with federal cases applying ADA preemption to claims brought against independently owned GDSs. See, e.g., Galileo Int’l v. Ryanair, 2002 U.S. Dist. LEXIS 3317, at *14 (N.D. Ill. 2002) (independently owned GDS services are “services” under the Act and thus a claim under state law for overcharges for bookings is preempted); Manassas Travel, Inc. v. Worldspan, L.P., 2008 U.S. Dist. LEXIS 35217, at *6 (D. Utah 2008) (applying ADA preemption to claims against independently owned GDS in dispute over travel agency payments). AA has in the past relied on a Texas state court case involving a dispute between AA and a broker of frequent flyer credits. See Frequent Flyer Depot, Inc. v. American Airlines, Inc., 281 S.W.3d 215 (Tex. App. 2009). Even if that case could be interpreted to support AA’s proposed double-standard, it is “beyond cavil that [a federal court] is not bound by a state court’s interpretation of federal law.” Grantham v. Avondale, Indus., 964 F.2d 471, 473-74 (5th Cir. 1992) (holding that district court erred in following state interpretation of federal preemption law). Dated: June 27, 2011 Respectfully submitted, /s/ Michael L. Weiner____ Michael L. Weiner -25- michael.weiner@dechert.com DECHERT LLP 1095 Avenue of the Americas New York, New York 10036-6797 212.698.3608 212.698.3599(Fax) Mike Cowie mike.cowie@dechert.com Craig Falls craig.falls@dechert.com DECHERT LLP 1775 I Street, NW Washington, D.C. 20006-2401 202.261.3300 202.261.3333 (Fax) ATTORNEYS FOR DEFENDANTS TRAVELPORT LIMITED and TRAVELPORT, LP Of Counsel to Travelport Defendants: /s/ Walker C. Friedman Walker C. Friedman State Bar No. 07472500 wcf@fsclaw.com Christian D. Tucker State Bar No. 00795690 tucker@fsclaw.com FRIEDMAN, SUDER & COOKE, P.C. Tindall Square Warehouse No. 1 604 East 4th Street, Suite 200 Fort Worth, Texas 76102 817.334.0400 817.334.0401 (Fax) John T. Schriver JTSchriver@duanemorris.com Paul E. Chronis pechronis@duanemorris.com DUANE MORRIS LLP Suite 3700 190 South LaSalle Street Chicago, Illinois 60603-3433 -26- 312.499.6700 312.499.6701 (Fax) -27- CERTIFICATE OF SERVICE I hereby certify that on the 27th day of June, 2011, I electronically filed 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/ Walker C. Friedman Walker C. Friedman

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