Hall v. American Airlines, Inc. , 118 F. App'x 680 ( 2004 )


Menu:
  •                             UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    No. 03-2388
    SARAH FUTCH HALL, d/b/a Travel Specialist, on
    behalf of themselves and all others similarly
    situated; JEANINE FLAUGHER, d/b/a Flowers
    Travel; ASSOCIATION OF RETAIL TRAVEL AGENTS,
    Plaintiffs - Appellants,
    and
    PEOPLES TRAVEL LIMITED; JOHN FLAUGHER, d/b/a
    Flowers Travel; LANEY INTERNATIONAL TRAVEL;
    TRAVEL MANAGEMENT PROFESSIONALS, INCORPORATED,
    d/b/a Travel Is Fun,
    Plaintiffs,
    versus
    AMERICAN   AIRLINES,    INCORPORATED;   DELTA
    AIRLINES, INCORPORATED; NORTHWEST AIRLINES,
    INCORPORATED; CONTINENTAL AIRLINES, INC.;
    MIDWEST   EXPRESS   AIRLINES,   INCORPORATED;
    AIRTRAN HOLDINGS, INCORPORATED; AMERICAN WEST
    AIRLINES, INCORPORATED; FRONTIER AIRLINES,
    INCORPORATED; ALASKA AIR GROUP, INCORPORATED;
    ALASKA AIRLINES, INCORPORATED; HORIZON AIR
    INDUSTRIES, INCORPORATED; SOCIETE AIR FRANCE;
    KLM ROYAL DUTCH AIRLINES,
    Defendants - Appellees,
    and
    UNITED AIRLINES, INCORPORATED; DELTA AIRLINES
    GLOBAL SERVICES, INCORPORATED; U.S. AIRWAYS,
    INCORPORATED; TRANS WORLD AIRLINES; MIDWAY
    AIRLINES   CORPORATION;    AIRTRAN   AIRLINES,
    INCORPORATED; DEUTSCHE LUFTHANSA AG; ALITALIA,
    SPA; AIR CANADA,
    Defendants.
    Appeal from the United States District Court for the Eastern
    District of North Carolina, at Wilmington. W. Earl Britt, Senior
    District Judge. (CA-00-123-BR)
    Argued:   October 27, 2004              Decided:   December 9, 2004
    Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior
    Circuit Judge.
    Affirmed by unpublished per curiam opinion.
    ARGUED: Daniel Rees Shulman, GRAY, PLANT, MOOTY, MOOTY & BENNETT,
    P.A., Minneapolis, Minnesota, for Appellants.     Lee H. Simowitz,
    BAKER & HOSTETLER, L.L.P., Washington, D.C., for Appellees. ON
    BRIEF: Dean C. Eyler, GRAY, PLANT, MOOTY, MOOTY & BENNETT, P.A.,
    Minneapolis, Minnesota; Henry L. Anderson, Jr., A. L. Butler
    Daniel, Bradley A. Coxe, ANDERSON, DANIEL & COXE, Wrightsville
    Beach, North Carolina, for Appellants. Gary J. Rickner, WARD AND
    SMITH, P.A., New Bern, North Carolina; Ronald F. Wick, Eric Berman,
    BAKER & HOSTETLER, L.L.P., Washington, D.C., for Northwest
    Airlines, Inc., KLM Royal Dutch Airlines, Continental Airlines,
    Inc., Delta Air Lines, Inc., American Airlines, Inc., and Societe
    Air France. James V. Dick, Marshall S. Sinick, SQUIRE, SANDERS &
    DEMPSEY, L.L.P., Washington, D.C., for Alaska Air Group, Inc.,
    Alaska Airlines, Inc., and Horizon Air Industries, Inc. Thomas W.
    Rhodes, Edward H. Wasmuth, Jr., SMITH, GAMBRELL & RUSSELL, L.L.P.,
    Atlanta, Georgia, for AirTran Holdings, Inc.      Peter Huston, J.
    Thomas Rosch, LATHAM & WATKINS, L.L.P., San Francisco, California,
    for America West Airlines, Inc.      John D. Shively, Heather T.
    Perkins, FAEGRE & BENSON, L.L.P., Denver, Colorado, for Frontier
    Airlines, Inc. Robert P. Silverberg, SILVERBERG, GOLDMAN & BIKOFF,
    L.L.P., Washington, D.C.; Pressly M. Millen, WOMBLE, CARLYLE,
    SANDRIDGE & RICE, P.L.L.C., Raleigh, North Carolina, for Midwest
    Express Airlines, Inc.
    - 2 -
    - 3 -
    Unpublished opinions are not binding precedent in this circuit.
    See Local Rule 36(c).
    - 4 -
    PER CURIAM:
    This is a nationwide class action lawsuit by travel agents
    (the       Travel   Agents)   against   numerous    foreign   and   domestic
    airlines.1          The   Travel   Agents   claim   the   defendant-airlines
    illegally conspired and executed a scheme to reduce and ultimately
    eliminate travel-agent-base-commissions on the sale of domestic and
    international airline tickets in a concerted effort to boost
    profits of the defendant-airlines and to force them (the Travel
    Agents) out of business, all in violation of § 1 of the Sherman
    Antitrust Act (the Sherman Act), 
    15 U.S.C. § 1
    .            The Travel Agents
    allege the conspiracy began in 1995 and ended by late summer 2002.
    Since the initial filing of this action on June 21, 2000, it
    has been dismissed, on varying grounds, against Alitalia, Delta Air
    Lines Global Services, Inc., Midway, and Lufthansa. The action has
    also been stayed against Air Canada, TWA, United, and US Airways,
    based upon notices of bankruptcy filed by those airlines.
    1
    The defendant-airlines in this action are:       Air Canada;
    Airtran Holdings, Inc. (Airtran); Alaska Air Group, Inc., Alaska
    Airlines, Inc., and Horizon Air Industries, Inc. (collectively
    Alaska); Alitalia, SPA (Alitalia); America West Airlines, Inc.
    (America West); American Airlines (American); Continental Airlines,
    Inc. (Continental); Delta Air Lines (Delta); Delta Air Lines Global
    Services, Inc.; Deutsche Lufthansa AG (Lufthansa); Frontier
    Airlines, Inc. (Frontier); KLM Royal Dutch Airlines (KLM); Midway
    Airlines, Corp. (Midway); Midwest Express Airlines, Inc. (Midwest
    Express); Northwest Airlines, Inc. (Northwest); Societe Air France
    (Air France); Trans World Airlines, Inc. (TWA); United Airlines,
    Inc. (United); and US Airways, Inc. (US Airways).
    - 5 -
    The case proceeded against the remaining defendant-airlines
    (hereinafter collectively the Airlines):             Airtran, Air France,
    Alaska, America West, American, Continental, Delta, Frontier, KLM,
    Midwest Express, and Northwest. After full discovery, the Airlines
    moved for summary judgment pursuant to Federal Rule of Civil
    Procedure 56.   See Fed. R. Civ. P. 56.
    On October 30, 2003, in a lengthy published opinion, the
    district court examined the Travel Agents’ proffered evidence
    against the Airlines and found no triable issue of fact.               Hall v.
    United   Airlines,   Inc.,   
    296 F. Supp. 2d 652
       (E.D.N.C.    2003).
    Accordingly, the district court granted summary judgment in favor
    of the Airlines. Notably, the district court directed the clerk of
    court to enter final judgment in favor of the Airlines pursuant to
    Federal Rule of Civil Procedure 54(b), which allows a district
    court to order the entry of final judgment as to less than all
    parties and all claims in an action when there is no just reason
    for delay.2   See Fed. R. Civ. P. 54(b).        The Travel Agents noted a
    timely appeal of this final judgment.
    We review the grant of summary judgment de novo.            Higgins v.
    E.I. DuPont de Nemours & Co., 
    863 F.2d 1162
    , 1167 (4th Cir. 1988).
    Summary judgment is appropriate “if the pleadings, depositions,
    2
    Here, the district court specifically found there was no just
    reason to delay the entry of final judgment with respect to the
    Airlines to await the conclusion of bankruptcy proceedings against
    Air Canada, TWA, United, and US Airways.
    - 6 -
    answers to interrogatories, and admissions on file, together with
    the affidavits, if any, show that there is no genuine issue as to
    any material fact and that the moving party is entitled to a
    judgment as a matter of law.”   Fed. R. Civ. P. 56(c).   Moreover, in
    assessing the merits of a motion for summary judgment, we view the
    evidence in the light most favorable to the non-moving party, here
    the Travel Agents, and draw all reasonable inferences in the
    non-moving party’s favor.   Anderson v. Liberty Lobby, Inc., 
    477 U.S. 242
    , 255 (1986).
    Section 1 of the Sherman Act provides, in pertinent part, that
    “[e]very contract, combination in the form of trust or otherwise,
    or conspiracy, in restraint of trade or commerce among the several
    States, or with foreign nations, is declared to be illegal.”      
    15 U.S.C. § 1
    .   Therefore, to establish a conspiracy in restraint of
    trade in violation of § 1 of the Sherman Act, as the Travel Agents
    have alleged, “a plaintiff must show: (1) a contract, combination
    or conspiracy; (2) that imposed an unreasonable restraint of
    trade.”   American Chiropractic Assn., Inc. v. Trigon Healthcare,
    Inc., 
    367 F.3d 212
    , 223 (4th Cir. 2004) (internal quotation marks
    omitted). Significantly, purely unilateral action does not violate
    § 1 of the Sherman Act.     Copperweld Corp. v. Independence Tube
    Corp., 
    467 U.S. 752
    , 767-68 (1984).     Rather, concerted activity
    between at least two legally distinct persons or entities is at the
    heart of a § 1 Sherman Act violation. American Chiropractic Assn.,
    - 7 -
    Inc.,   
    367 F.3d at 223
    .     To   elaborate,    “concerted   activity
    susceptible to sanction by section 1 is activity in which multiple
    parties join their resources, rights, or economic power together in
    order to achieve an outcome that, but for the concert, would
    naturally be frustrated by their competing interests (by way of
    profit-maximizing     choices).”        Virginia    Vermiculite,   Ltd.   v.
    Historic Green Springs, Inc., 
    307 F.3d 277
    , 282 (4th Cir. 2002).
    We have carefully reviewed and considered the district court’s
    opinion, the voluminous appellate record, and the parties’ oral and
    written appellate arguments. We agree with the district court that
    the Travel Agents have not proffered sufficient evidence, when
    viewed in the light most favorable to them and when drawing all
    reasonable inferences in their favor, to support a finding of
    concerted activity by the Airlines, which finding is necessary to
    establish a § 1 Sherman Act violation.             Accordingly, we find no
    error in the district court’s decision to grant summary judgment in
    favor of the Airlines, and we affirm entry of final judgment in
    favor of the Airlines on the reasoning of the district court.             See
    Hall, 
    296 F. Supp. 2d at 661-78, 680-81
    .
    AFFIRMED
    - 8 -