DocketNumber： CIVIL ACTION FILE No. 1:09-md-2089-TCB
Judges： Batten
Filed Date： 3/28/2017
Status： Precedential
Modified Date： 11/7/2024
This consolidated antitrust class action comes before the Court on Defendants’ motions for summary judgment [350, 353] and three related motions to exclude expert testimony [625, 631, 632].
1. Factual Background
A. Delta and AirTran
Defendant Delta Air Lines, Inc., one of the world’s largest airlines, is headquartered in Atlanta and has its largest hub at Atlanta’s Hartsfield-Jackson International Airport. Defendant AirTran Airways, Inc.—a subsidiary of Defendant AirTran Holdings, Inc. (collectively with AirTran Airways, “AirTran”)—was an airline that also maintained a hub in Atlanta for many years until 2014, when it ceased operations after having been acquired by Southwest Airlines approximately three years earlier, in 2011.
Although the parties dispute the extent to which each airline was concerned about the other’s activities, there is no dispute that Delta and AirTran were competitors for market share, particularly at their mutual hub in Atlanta. See, e.g., [569] at 68 (Delta’s CEO testifying that AirTran was “part of the [competition] equation” but not conceding that AirTran was Delta’s largest competitor out of Atlanta); [580] at 13 (AirTran’s CEO testifying that Delta was AirTran’s number one competitor in Atlanta).
Delta is known as a “legacy carrier” because it had interstate routes in place at
AirTran, by contrast, was what is known as a “low-cost carrier” (“LCC”). In its most literal sense, the LCC designation is indicative of airlines with business models that minimize costs and allow airlines to charge lower fares, but it is also used more generally as a “catchall name for post-deregulation new entry and, in fact, disguises diverse airlines and heterogeneous strategies.” Eldad Ben-Yosef, The Evolution of the Airline Industry: Technology, Entry, and Market Structure—Three Revolutions, 72 J. Air L. & Com. 305, 317 (2007); see also Erica Wessling, Note, Spirit Airlines, Inc. v. Northwest Airlines, Inc.: A Case for Increased Regulation of the Airline Industry, 6 Wm. & Mary Bus. L. Rev. 711, 724 (2015). Prominent LCCs during the time period in question included Southwest, JetBlue Airways, Allegiant Air, Frontier Airlines, and Spirit Airlines.
B. The Trend Toward Unbundling
For many years, the purchase of an airline ticket generally encompassed all or most of the services associated with air travel. In the early-to-mid-2000s, however, some airlines began to charge separate fees for services and products ancillary to the purchase of a seat, such as meals and snacks, premium beverages, call-center booking, airport ticketing, and curbside check-in.
In 2006 and 2007, low-cost carriers led the way in introducing fees for passengers’ cheeked luggage: Allegiant introduced a $2-per-bag fee in November 2006; Spirit began charging for two or more checked bags in February 2007 and then for a first checked bag in June of that year; Skybus Airlines implemented fees for first, second, and third checked bags in May 2007; and Virgin America began charging for second checked bags in August 2007. In January 2008, even Southwest, which markets itself as the “bags fly free” airline, introduced a fee for a third-checked bag.
Before long, legacy airlines began to follow suit. In February and March 2008, every legacy carrier except Alaska announced the introduction of fees for second-checked bags beginning in May. Delta was the third legacy carrier to do so, announcing on March 18 that it would implement a $25 second-bag fee beginning on May l.
American Airlines then became the first legacy carrier to introduce a first-bag fee, announcing on May 21, 2008 that it would implement a $15 first-bag fee effective June 15. On June 12, US Airways and United both announced that they would impose $15 first-bag fees effective July 9 and August 18, respectively. On July 9, Northwest announced that ,it would begin charging a $15 first-bag fee on August 28,
During this same time frame, Delta’s legacy competitors made public statements indicating that they ■ expected ancillary fees—including but not limited to first-bag fees—to prove profitable. On July 9, 2008, Northwest announced that it expected its fee structure, including its newly announced first-bag fee, to generate between $250 and $300 million in revenue annually. [350-63] at 4; see also [350-64] at 6 (reiterating during a July 23 earnings call that Northwest expected increased baggage, service, and ticket-change fees to “drive between 250 and 300 million in annual revenue improvement”). American stated during its July 16 earnings call that it expected all of its fee increases (including its first-bag fee) “to drive several hundreds of millions of dollars of new revenue” and that its first-bag fee had resulted in no negative operational effects. [350-60] at 7, 19.
On July 22, 2008, both United and US Airways held earnings calls in which they too praised bag fees. [350-61] at 9, 11 (United stating that unbundling had “creat[ed] significant incremental revenue”' and “estimat[ing] that the potential revenue from the new baggage service handling fees will be about $275 million annually in 2009”); [350-62] at 8, 17 (US Airways reporting that implementation of the bag. fee had gone smoothly, that it was not seeing “any difference in market share or bookings between carriers that [had first-bag fees] and carriers that [didn’t],” and that it estimated that 'shifting to “a la carte”- pricing would yield between $400 and $500 million in revenue annually).
On September 5, 2008, when Continental announced its decision to charge for first-checked bags, it stated that it had not seen any gain in market share by holding out. [350-73] at 2. On September 16, the Wall Street Journal reported that “airline fees are here to stay,” explaining that “baggage fees and other charges [were] significantly improving the usually dismal finances of the industry” because passengers were “paying them, if begrudgingly, and [weren’t] shifting in large numbers to the few airlines that don’t charge fees [350-89] at 2. '
C. Delta’s Bag-Fee Discussions During the Summer of 2008
American’s May 21, 2008 first-bag-fee announcement prompted internal discus
Following the June 12, 2008 first-bag-fee announcements by US Airways and United, Delta’s internal bag-fee discussions intensified, although Anderson and Gorman remained opposed to the idea. [556] at 379. On June 16, Delta’s Airport Customer Service (“ACS”) group, which was headed by senior vice president (“SVP”) Gil West, presented a written analysis of the first-bag fee to the Corporate Leadership Team (“CLT”). See [350-54]; [366] at 29.
Delta’s leadership was receptive to ACS’s recommendation, as Anderson and Bastían continued to believe that Delta should not charge a first-bag fee. See [350-58] at 2; [350-59] at 2; [556] at 491; [557] at 308. During a Delta earnings call on July 16, 2008, Kevin Crissey—an airline-industry analyst employed by UBS—asked about Northwest’s recently announced first-bag fee. Bastían responded that Delta had “no plans to implement it at this point” but would “continue to study” the question. [350-67] at 18. On August 1, Anderson delivered a weekly recorded message ■ to employees in which he explained that Delta would increase its second-bag fee but continue to not charge for a first-checked bag. [557] at 333. He explained that Delta had an “agreement” with its customers that with the purchase of a ticket “every customer gets a carry-on brief case or purse, one regulation-sized roller bag and one checked bag weighing no more than 50 pounds.” Id.; [570] at 189. Anderson also explained that Delta’s bag-fee policy made sense both “in 'the fuel environment” and because Delta is primarily in the business of carrying passengers, not cargo. [557] at 333.
By late September 2008, some Delta executives were rethinking the wisdom of a first-bag fee. On September 23, Anderson gave remarks at a CEO forum in which he stated that Delta was “trying to decide whether or not [it] should charge for the first checked bag,” noting that it “could bring [Delta] hundreds of millions in additional revenue next year.” [557-1] at 129. On September 26, Delta CFO Hank Halter identified a $15 first-bag fee as an option to generate additional revenue, potentially as much as $29.7 million during the fourth quarter of 2008 alone. [350-94] at 2, 13. Two days later, Anderson emailed Bastían to suggest that Delta “think about implementing the [first-bag] fee post merger” because there was “Alot [sic] of revenue involved.” [350-97], Bas-tían agreed but noted that Hauenstein was opposed to the fee. Id. Anderson and Bas-tían both agreed that Delta should discuss the merits of the fee “at [the] right time.” Id. The next day, September 29, 2008, Anderson, Bastían, Hauenstein, and other Delta executives attended a quarterly finance meeting at which first-bag fee was discussed. A “key consideration” was the risk that Delta’s LCC competition, including but not limited to AirTran, were promoting the fact that they did not have the fee. [557-1] at 67. An October 10 e-mail from Anderson noted that Delta was “still studying” the first-bag fee. [557-1] at 174.
D. AirTran’s Bag-Fee Discussions and Monitoring of Delta During the Summer of 2008
During the summer of 2008, AirTran was engaged in its own inquiry into the first-bag fee, and Delta was very much a consideration. That June, CEO Robert Fornaro told attendees at a Merrill Lynch transportation conference that AirTran had not instituted a first-bag fee because it would be “pretty uncomfortable” competing in Atlanta with Delta, which was not charging a first-bag fee at that time. [556] at 472; [556-1] at 1511.
When Northwest announced its first-bag fee on July 9, 2008, AirTran was anxiously waiting to see if Delta would follow suit. AirTran’s SVP of customer service, Jack Smith, told his subordinate Greg Sayler that he hoped Delta was “right behind” Northwest. [557] at 197, 211. When senior director of pricing and distribution Matthew Klein sent an e-mail praising the first-bag fee, SVP of marketing and planning Kevin Healy responded: “Cheer louder, the guys with the blue and red tails in ATL [i.e., Delta] need to hear you.” Id. at 194. On July 10, AirTran was preparing to introduce a first-bag fee if Delta did, but it was somewhat concerned about technologi
By mid-July, AirTran was “desperate for revenue” according to Klein, and the first-bag fee had become the airline’s “new number one revenue priority.” [557] at 253-256. Internal projections valued the fee at between $60 and $84 million per year, even if thirty percent of AirTran’s bag-checking customers stopped checking bags in response to the fee. Id. at 258, 260. As AirTran worked to develop the technological capability to implement a first-bag fee, id. at 255-260, it remained very concerned about what Delta planned to do, id. at 314.
On July 12, 2008, Sayler sent an e-mail to Smith stating that while he had no “official” information, his wife Robin, who was employed by Northwest, believed that Delta would introduce a first-bag fee around August 28. [557] at 245; [577] at 52. Smith responded that he hoped that information was accurate,
Another employee who reported to Smith was Scott Fasano, AirTran’s director of customer service standards and a former Delta employee. On July 31, 2008, Fasano sent an e-mail to Smith reporting that Delta and AirTran were “in a standoff’ regarding first-bag fees and Delta was “carefully watching [AirTran] for a move.” [556] at 591. Smith forwarded that information to Fornaro and indicated it came from Fasano’s “internal [Delta] grapevine.” Id. In response, Fornaro stated: “They should hear through the grapevine that we are doing the programming to launch this effort.” Smith assured Fornaro “[i]t will be communicated today.” Id. at 597.
On July 31, 2008, Fasano attempted to send e-mails to two individuals he had worked with while at Delta—Gerry Boeck-haus and Amanda Burman—to inquire about Delta’s first-bag-fee plans. [556] at
On August 4, 2008, Healy sent an e-mail to two AirTran employees—Rocky Wiggins and Ted Hutchins—asking what was known about Delta’s technological capabilities with respect to the first-bag fee. [557] at 345. He also advised that “we don’t need to .maintain confidentiality on the fact that we’re working on this as well.” Id.
The next morning, Fasano sent an email to Healy and Smith “following up on [their] conversation” from the day before. [556] at 610. Fasano explained that he “had a cup of coffee with one of [his] former colleagues who is still embedded in the team amongst the Northwest crew.” Fasano’s colleague—who remained unnamed but was described by Fasano as being “very. connected on the high level operational and planning side” of Delta’s operations—/had informed Fasano that Delta’s functionality was in place to go live with, a first-bag fee, but Delta “want[ed AirTran] to jump first.” [556] at 610. Healy reprimanded Fasano , and • “made it very clear” that the conversations reflected in his e-mail “can’t happen.” [353-90] at 187; [358-81] at 161-62.
E. October 2008: Defendants’ Final Decisions Are Made
On October 15, 2008, before either Defendant had decided to impose a first-bag fee, Delta held its third-quarter earnings call, during which it stated that “a la carte pricing is where we need to go as an industry’ and the impending merger with Northwest'would give Delta “another opportunity to look again with respect to where the fee-based revenues align.” [350-99] at 18.
, In the meantime, Delta continued, to study the first-bag fee internally. Revenue management, with some input from other departments such, as ACS, prepared a “value proposition” analysis of the first-
On October 23, 2008, AirTran held its third-quarter earnings call. The prepared remarks did not mention first-bag fees, but the first question, which came from Kevin Crissey, did: “First check bag fee, you don’t have one, do you? And will you?” Fornaro responded:
Kevin, good question. Let me tell you what we’ve done on the first bag fee. We have the programming in place to initiate a first bag fee. And at this point, we have elected not to do it, primarily because our largest competitor in Atlanta where we have 60% of our flights hasn’t done it. And I think, we .don’t think we want to be in a position to be out there alone with a competitor who we compete on, has two-thirds of our nonstop flights and probably 80 to 90% of our revenue is not doing the same thing. So I’m not saying we won’t do it. But at this point, I think we prefer to be a follower in a situation rather than a leader right now.
[353-16] at 7. Crissey followed up by asking, “But if they were, you’d consider it? It’s not a matter of practice?” Fornaro responded: “We would strongly consider it, yes,” Id.
Delta executives soon learned of Forna-ro’s statements and immediately questioned the wisdom of them.
One week later, on November 5, 2008, Delta issued a press release—titled “Delta Aligns Policies and Fees to Offer Consistency for Customers Traveling on Delta- and Northwest-Operated Flights”—in which it announced that for travel beginning on December 5, domestic passengers would be charged “$15 for the first checked bag and $25 for the second checked bag ..., consistent with Northwest’s existing policies.” [350-127] at 3.
Anderson testified that Fornaro’s October 23 comments “didn’t have any bearing on [the CLT’s] decision to put in place a first bag fee.” [350-2] at 94; see also [350— 20] at 68 (Anderson testifying that “Air-Tran’s match really wasn’t relevant to the decision”). Bastían similarly testified that Fornaro’s statement had “[n]o impact whatsoever” on his stance; his concern was Delta’s survival and that he “thought the need was for Delta to take care of itself and not worry about what a relatively small carrier was going to do.” [350-23] at 77, 85. AirTran was not relevant to Gorman’s opinion on the first-bag fee either. [350-29] at 44; [350-30] at 60. Grim-mett, West, and Eric Phillips (one of the authors of the value proposition analysis) did not recall the chance of AirTran matching being brought up at the CLT meeting, [350-31] at 214; [350-44] at 185; [350-38] at 306-07. Hauenstein testified that Delta would have made the decision to impose a first-bag fee without regard to what AirTran did. [350-32] at 127.
Delta’s November 5, 2008 press release was circulated within AirTran shortly after it was published. When Healy was asked by another AirTran employee whether Air-Tran should “take the plunge right away or ... test whether this provides any advantage in ATL?,” Healy responded that he was “[n]ot sure yet .... ” [350-128]. Healy then sent an e-mail to Klein and other AirTran employees saying that he did not believe AirTran had a choice about imposing a first-bag fee, and the question to him was whether AirTran should charge a “discounted]” fee of $5, $7, or $10. [350-129]. Klein responded that he was “working on the new valuation” but believed $15 was the way to go, and Healy instructed him that his valuation should “make some estimate for the value of not implementing the first bag fee,” such as share shift and good will. Id. At 11:06 p.m. on November 5, Klein e-mailed Fornaro, AirTran’s CFO Arne Haak, Healy, and others and attached a spreadsheet describing the “staggering potential for 1st bag revenue.” [353-21]. A November 6 e-mail from Haak
On the morning of Friday, November 7, 2008, AirTran executives “discuss[ed] the merits of whether [AirTran] should implement or not implement” a first-bag fee. [353-93] at 206; [353-25]. Smith recalled that some people were “certainly ... in favor of not charging first-bag fees, saying that it would give [AirTran] a competitive advantage.” [353-104] at 129. He, however, “was of the opinion that we should do first-bag fees,” and he was “pretty disgusted at the end of the call because we had the people who were responsible for generating revenue saying, [‘] Gee, I don’t know if we really want to do this. We may lose customers.[’]” Id. at 130. Shortly after that meeting, AirTran’s senior director of corporate finance Jason Bewley circulated an update to the first-bag-fee analysis that Klein had circulated late on November 5. Bewley’s analysis “mirrorfed]” Klein’s and estimated “approximately $100MM of revenue in 2009” from imposing a first-bag fee. [353-26],
AirTran’s executives decided to “let it sit over the weekend,” and the final decision to impose a first-bag fee was made on the morning of November 10, 2008. [353-83] at 85-86. On November 12, AirTran issued a press release announcing that it too would impose a $15 first-bag fee on December 5. [556-1] at 23.
These lawsuits were subsequently filed alleging that Defendants’ simultaneous imposition of a $15 first-bag fee was the result of unlawful collusion in violation of § 1 of the Sherman Act. Defendants have moved for summary judgment.
II. Daubert Motions
As noted above, the parties have filed several motions to exclude expert testimony that must be resolved before the Court turns to the merits of Defendants’ motions for summary judgment.
A. Legal Standard
Federal Rule of Evidence 702 governs the admissibility of expert testimony and provides that an expert “may testify in the form of an opinion or otherwise” if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
The Supreme Court construed and expounded upon Rule 702’s requirements in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 594-95, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Kumho Tire Co. v. Carmichael, 526 U.S. 137, 145, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), emphasizing that “the inquiry envisioned by Rule 702 is ... a flexible one.” Daubert, 509 U.S. at 594, 113 S.Ct. 2786.
In this circuit, Daubert motions are governed by a three-pronged test:
Expert testimony may be admitted into evidence if: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the*1358 application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.
City of Tuscaloosa v. Harcros Chems., Inc., 158 F.3d 548, 562 (11th Cir. 1998) (footnote omitted). “The party offering the expert has the burden of satisfying each of these three elements by a preponderance of the evidence.” Rink v. Cheminova, Inc., 400 F.3d 1286, 1292 (11th Cir. 2005).
When a Daubert motion challenges the reliability or helpfulness of an expert opinion, the Court must be wary of excluding it “based on skepticism as to believability,” for credibility or believability is “an assessment to be made by the jury” alone. Bullock v. Volkswagen Grp. of Am., Inc., 107 F.Supp.3d 1305, 1309 (M.D. Ga. 2015); see also Tyson Foods, Inc. v. Bouaphakeo, — U.S. —, 136 S.Ct. 1036, 1049, 194 L.Ed.2d 124 (2016) (“Once a district court finds evidence to be admissible, its persuasiveness is, in general, a matter for the jury.”); Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1341 (11th Cir. 2003) (Daubert “is not intended to supplant the adversary system or the role of the jury,” and a court should not “make ultimate conclusions as to the persuasiveness of the proffered evidence.”). Doubts regarding the credibility of or weight that should be given to otherwise reliable and relevant testimony are best addressed through “[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof.” Daubert, 509 U.S. at 596, 113 S.Ct. 2786.
B. Defendants’ Motion to Exclude Hal Singer’s Merits Testimony [625]
Defendants have jointly moved to exclude certain opinions of Hal Singer, Plaintiffs’ expert economist, regarding the merits of Plaintiffs’ claims.
1. Ultimate Legal Issue
Defendants first argue that Singer has impermissibly opined about the ultimate legal issue in this case, namely, whether Defendants colluded to impose a first-bag fee. However persuasive this argument might be with respect to Singer’s initial reports and testimony—in which he expressly opined about the existence of “collusion” or a “conspiracy”
Courts in this circuit and others regularly admit expert testimony that certain conduct or evidence is “consistent with a finding that Defendants engaged in a conspiracy to fix prices.” In re Polypropylene Carpet Antitrust Litig., 93 F.Supp.2d 1348, 1355 (N.D. Ga. 2000); Harcros, 158 F.3d at 565 (holding that expert testimony is admissible so long as it “constitute^] one piece of the puzzle that the plaintiffs endeavor to assemble before the jury”); see also In re Urethane Antitrust Litig., 152 F.Supp.3d 357, 359-61 (D.N.J. 2016) (admitting expert economic testimony that certain evidence was “not consistent with the existence of a price-fixing conspiracy”); In re Processed Egg Prods. Antitrust Litig., 81 F.Supp.3d 412, 424 (E.D. Pa. 2015) (“An economic expert may permissibly testify as to whether certain conduct is consistent with collusion or an entity or individual’s self-interest ....”); U.S. Info. Sys., Inc. v. IBEW Local Union No. 3, 313 F.Supp.2d 213, 240 (S.D.N.Y. 2004) (“Economists often explain whether conduct is indicative of collusion.”).
2. Singer’s Definition of Collusion
Defendants next urge that even if an expert may, as a general principle, testify that certain conduct is consistent with conspiracy, Singer’s opinions remain inadmissible because his definition of collusion is at odds with the Eleventh Circuit’s definition. Specifically, Defendants accuse Singer of defining collusion in an overly broad manner that would encompass situations the Eleventh Circuit has defined as “conscious parallelism.” If true, this would indeed mandate exclusion of Singer’s testimony. Williamson Oil Co. v. Philip Morris USA, 346 F.3d 1287, 1323 (11th Cir. 2003) (affirming exclusion of expert testimony where expert “defined ‘collusion’ to include conscious parallelism,” i.e., he failed to “differentiate between legal and illegal pricing behavior, and instead simply grouped both of these phenomena under the umbrella of illegal, collusive price fixing”).
When isolated and taken out of context, the deposition testimony quoted by Defendants might support their position. However, when the entirety of Singer’s opinions is considered in context, it is apparent that he properly distinguishes between unlawful collusion and lawful conscious parallelism. See generally E.I. Dupont de Nemours & Co. v. Kolon Indus., Inc., No. 3:09-cv-58, 2011 WL 13079484, at *1 (E.D. Va. June 15, 2011) (denying motion to exclude
Singer defines collusion as “a type of coordinated interaction whereby ostensibly independent firms act jointly only as a result of a prior assurance between firms.” [399-4] at ¶ 19 (emphasis added). He never purported to define collusion solely by reference to whether a communication “had a material effect” on a competitor’s decision, as Defendants suggest. [625-1] at 8 (quoting [626-5] at 1089). According to Singer, such a showing is necessary—but not by itself sufficient—to support a finding of collusion:
[I]f the fact finder here concludes that ... AirTran’s overtures had no bearing on Delta’s decision making, then I would gladly admit that consumers are no worse off as a result of the communication .... I do think that ... to generate economic harm ... a critical inquiry is whether or not the communication had a material effect on Delta’s decision making.
[626-5] at 1089.
Throughout his reports and his deposition testimony, Singer properly .contrasts unlawful collusion with other types of “coordinated interaction,” much of which he concedes is not “illegal under the antitrust laws” and is “generally considered benign when each firm acts independently.” [399-4] at ¶ 19. He also testified that “the facts and the evidence in this case, when analyzed under the proper economic lens, is more consistent with plaintiff's allegations of a conspiracy than it is with the alternative hypothesis of unilateral conduct or ... conscious parallelism.” [626-6] at 115-16 (emphasis added); see also id. at 118-19 (explaining the difference between collusion and conscious parallelism).
When viewed in the appropriate context, Singer’s testimony and opinions properly account for the well recognized distinction between conscious parallelism and unlawful collusion. Thus, the Court will deny this aspect of Defendants’ motion to exclude as well.
3. Singer’s Game-Theory Analysis
Singer’s opinions regarding collusion employ an economic modeling tool known as game theory, and specifically, a permutation thereof known as the prisoner’s dilemma. The prisoner’s dilemma model purports to depict the payoffs to two “players” of various strategies in a “game” played with each other in order to predict the strategy that each player will pursue and provides insight, from an economic perspective, into the effects of those choices on individual and collective welfare.
Singer relies on the prisoner’s dilemma “to test whether Delta and AirTran, as rational, profit-maximizing firms, would have chosen to adopt first bag fees unilaterally (that is, absent the alleged conspiracy).” According to him, “[t]he results of [his] analysis show that neither Delta nor AirTran would have rationally adopted a first bag fee independently.” [556-1] at 1572. Defendants, however, assert that the output of Singer’s game-theory analysis is rendered unreliable by virtue of the inputs Singer relied on.
“When facts are in dispute, experts sometimes reach different conclusions based on competing versions of the facts.” Fed. R. Evid. 702 advisory committee’s note to 2000 amendments. The critical inquiry at this stage of the analysis is whether Singer’s testimony and opinions have “a reasonable factual basis.” United States v. 0.161 Acres of Land, 837 F.2d 1036, 1040 (11th Cir. 1988) (noting that an expert’s opinion is admissible “provided that he states the assumptions on which his opinions are based,” even if those assumptions omit certain evidence). In other words, the facts relied upon by an expert “must find some support ... in the record” and “must be supported by more than subjective belief and unsupported speculation,” but “mere weaknesses in the factual basis of an expert witness’ opinion bear on the weight of the evidence rather than on its admissibility.” McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800-01 (6th Cir. 2000) (internal punctuation omitted); accord Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996) (expert testimony should be excluded where “it is based on assumptions that are so unrealistic and contradictory as to suggest bad faith or to be in essence an apples and oranges comparison,” but “other contentions that the assumptions are unfounded go to the weight, not the admissibility, of the testimony”) (internal punctuation omitted).
Courts have excluded expert testimony founded upon facts that find no support in the record. See, e.g., Holiday Wholesale Grocery Co. v. Philip Morris, Inc., 231 F.Supp.2d 1253, 1288 (N.D. Ga. 2002) (where an expert premised his opinions “to a major degree” on what he admitted to be a “mistaken” understanding of the evidence, that opinion was inadmissible), aff'd sub nom Williamson Oil, 346 F.3d at 1323. But so long as the expert relies upon record evidence and identifies the facts on which he relies, “it is for opposing counsel to inquire into the expert’s factual basis,” and “[i]mportantly, the jury is instructed that it is completely free to accept or reject an expert’s testimony, and, to evaluate the weight given such testimony in light of the reasons the expert supplies for his opinion.” 0.161 Acres of Land, 837 F.2d at 1040-41.
Singer’s game-theory analysis satisfies these criteria. His reports and testimony set out in detail the record evidence on which he bases his opinions. When there is additional or conflicting evidence in the record, Singer addresses it head-on in his reports, which at times does include his
In conclusion, Singer’s opinions satisfy the requirements of Rule 702 and Daubert, and Defendants’ arguments to the contrary merely highlight issues that go to the weight that a fact-finder should give Singer’s opinions. Defendants’ motion to exclude Singer’s testimony will therefore be denied.
C. Plaintiffs’ Motion to Exclude Dennis Carlton’s Testimony [631]
Plaintiffs have' filed a motion to exclude each of the three opinions offered by Dennis Carlton, Delta’s’expert economist. The Court will address each in turn.
1. Antitrust Policy
Carlton first opines that even if Delta did rely on AirTran’s public. statement in deciding to impose a first-bag fee, there are “good economic reasons why Delta should not be held liable for acting upon, publicly-available information to maximize its profits.” [631-2] at ¶ 5. Specifically, Carlton explains that “[a] pro-competitive antitrust policy should allow companies, to act upon public information” in order to vindicate “the goals of antitrust policy,” avoid “uncertainty for companies,” and ultimately increase consumer welfare. Id. The Court agrees with Plaintiffs that this opinion is not admissible.
It is well settled that an expert may not “merely tell the jury what result to reach.” Montgomery v. Aetna Cas. & Sur. Co., 898 F.2d 1537, 1541 (11th Cir. 1990). Thus, while an expert may testify about whether certain conduct is or is not indicative of collusion, an expert may not testify that certain conduct did or did not violate the law, In re Titanium Dioxide Antitrust Litig., No. RDB-10-0318, 2013 WL 1855980, at *4 (D. Md. May 1, 2013).
[E]xpert testimony that usurps either the role of the trial judge in instructing the- jury as to the applicable law or the role of the jury in applying that law to the facts before it by definition does not aid the jury in making a decision; rather, it undertakes to tell the'jury what result to reach, and thus attempts to substitute the expert’s judgment for the jury’s.
Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir. 2005) (internal punctuation and citation omitted).
Carlton’s. first opinion runs afoul of these bedrock principles because he plainly expresses an opinion about what conduct the antitrust laws should and should not punish. Such testimony accomplishes nothing more than telling the jury what result to reach and supplanting the Court’s instructions about the law. Moreover, .insofar as Carlton opines about antitrust law in aspirational terms, his opinion potentially
2. Inevitability of Delta’s Bag-Fee Decision
Second, Carlton opines that given the trend in the industry toward charging first-bag fees in 2008, “Delta very likely would have implemented the first-bag fee even in the absence of information about AirTran’s willingness to implement a first-bag fee.” [631-2] at ¶ 5. Plaintiffs contend that this opinion is unreliable and does not fit the facts of this case, but the Court concludes that the arguments raised by Plaintiffs—much like the arguments raised by Defendants with respect to Singer— relate to the weight that Carlton’s second opinion should be given and not its admissibility.
Carlton discusses in his report several reasons for his opinion, including that “airlines have tended to adopt similar pricing models unless they can differentiate themselves with a different model.” [631-2] at ¶22. He,explains that although Southwest was able to differentiate itself as the “bags fly free” airline, “Delta believed that it could not successfully reposition itself as a no fee/low fee carrier, so it was more likely to keep a pricing model that was similar to other legacy carriers.” Id. (footnotes omitted) (citing the DOJ deposition of Delta’s president Ed Bastían). Additionally, the legacy carriers that had imposed first-bag fees had left them in place, suggesting to Delta—at least according to Carlton—that the fees were profitable. Id. at ¶ 23.
Carlton’s opinion is distinguishable from the expert opinion at issue in Cameron v. Peach County, No. 5:02-cv-41-1 (CAR), 2004 WL 5520003, at *5 (M.D. Ga. June 28, 2004), on which Plaintiffs rely. There, an expert opined about risks posed by a landfill site, but the court found that the opinion consisted of “blanket generalizations,” was premised on unsupported assumptions, and failed to account for the county’s efforts to mitigate or prevent the danger posed by the landfill. In the case at hand, by contrast, Carlton has not drawn such blanket generalizations. His reasoning, though not'impervious to cross-examination, is outlined and relies on no logical fallacies or speculative leaps of faith. Plaintiffs disagree with his conclusion, but they have pointed to nothing that warrants exclusion of this opinion. The Court will therefore deny the motion to exclude Carlton’s second opinion.
3. Delta’s Business Justifications
Finally, Carlton is of the opinion that “Delta had economically rational business justifications for implementing the first-bag fee when it did.” [631-2] at ¶ 5. Specifically, he explains that following the consummation of the Delta-Northwest merger, “it would be uneconomic to maintain separate ... fee structures ....” Id, at ¶ 25. And for the same reasons supporting his second opinion, Carlton opines that it made sense for the post-merger combined airiine to retain the first-bag fee that Northwest had already implemented. Id. at ¶ 26.
Plaintiffs assert that this opinion is inconsistent with empirical evidence showing that AirTran and. Southwest main
In sum, the Court is persuaded by Plaintiffs’ arguments concerning Carlton’s first opinion—regarding what antitrust law should or should not prohibit—and will grant the Daubert motion as to that opinion. The motion will be denied in all other respects.
D. Plaintiffs’ Motion to Exclude Andrew Dick’s Testimony [632]
The final evidentiary motion before the Court is Plaintiffs’ motion to exclude three opinions offered by Andrew Dick, Air-Tran’s expert economist.
1. Economic Theory’s Definition of Collusion
The first opinion with which Plaintiffs take issue is Dick’s testimony regarding the manner in which economic theory defines collusion. In his deposition and his expert report, Dick opines that “the economic plausibility of [Plaintiffs’ allegations” must be evaluated with respect to economic theory’s definition of collusion, which he explains consists of “three pillars”:
One is the mutual exchange of assurances leading to an agreement or its equivalent; second is that there has to be a means to detect deviations or cheating from that ... agreement; and the third is that there has to be credible threats of punishment for deviations or cheating from the ... agreement.
[593] at 21; [632-3] at 12. For Dick to conclude that Defendants colluded in this case, he would have to see “evidence to indicate that there’s a likelihood that each of those criteria—high likelihood] that each of those criteria is met.” [593] at 22. He has seen no such evidence, id. and therefore opines in his rebuttal report that “the absence of credible mechanisms to monitor and punish defections from the alleged agreement” causes “Plaintiffs’ theory of collusion [to] fail[] as a matter of economics,” [632-4] at 2.
The Court agrees with Plaintiffs that this opinion is inadmissible, at least when it is framed in terms of preconditions to a finding of collusion. Experts may not testify as to governing legal standards or legal implications of conduct; “the court must be the jury’s only source of law.” Montgomery, 898 F.2d at 1541; see also Burkhart v. WMATA, 112 F.3d 1207, 1213 (D.C. Cir. 1997) (“Each courtroom comes equipped with a ‘legal expert,’ called a judge, and it is his or her province alone to instruct the jury on the relevant legal standards.”). However, as noted above, an expert economist may testify that certain
The Court disagrees with Plaintiffs, however, to the extent they suggest that Dick’s testimony is inadmissible because it contains internal inconsistencies. In response to a question asking him to assume that Defendants exchanged explicit mutual assurances, Dick testified that he would find collusion occurred. But that is not because mutual assurances alone are sufficient, as Plaintiffs contend, but because in an economist’s view, there is a reasonable expectation that such explicit mutual assurances contain built-in means of detecting and punishing defections. [593] at 21-24. The Court does not find Dick’s testimony in this regard inconsistent; to the extent any incongruity exists, it is more appropriately addressed on cross-examination than in a Daubert motion.
2. Effect of AirTran’s Public Statements
In Dick’s report, he analyzes and tests Singer’s prisoner’s dilemma model in light of the “cheap talk” framework in economic literature, which views one company’s non-binding forward-looking statements as insufficient to influence a competitor’s strategic choices and facilitate reaching an agreement unless those statements are both self-signaling and self-committing. See [632-3] at ¶¶ 116-121. Disagreeing with Singer’s conclusions, Dick opines that under this paradigm “Delta would ... rationally ignore AirTran’s [October 23, 2008 earnings call] announcement as being unreliable.” Id. at ¶ 120.
Plaintiffs reject Dick’s reliance on the “cheap talk” paradigm, which some economists—including Delta’s expert Dennis Carlton—have rejected. But other economists embrace the technique. See [632-3] at ¶¶ 115-16 & accompanying footnote citations. To pass muster under Daubert and Rule 702, an expert’s methods must be reliable, but they need not be universal. See In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994) (“The eviden-tiary requirement of reliability is lower than the merits standard of correctness .... The grounds for the expert’s opinion merely have to be good, they do not have to be perfect.”); Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F.Supp.2d 295, 332 (D. Vt. 2007) (“Daubert requires general, not universal acceptance; even substantial criticism as to one theory or procedure will not be enough to find that the theory/procedure is not generally accepted.”) (internal punctuation omitted); United States v. Monteiro, 407 F.Supp.2d 351, 366 (D. Mass. 2006) (“Daubert and Kumho Tire do not make the perfect the enemy of the reliable; an expert need not use the best method of evaluation, only a reliable one.”). The “cheap talk” paradigm is not without its critics, but the Court is not persuaded that it is so unfounded as to render Dick’s opinion unreliable.
Plaintiffs also take issue with Dick’s application of the cheap-talk paradigm to
3. Disputed Factual Issues
Finally, Plaintiffs seek 't'o prevent Dick from offering five opinions that Plaintiffs characterize as disputed factual issues unrelated to his economic expertise. Again, the Court disagrees.
The Court’s decision above that Dick’s methods are reliable renders moot Plaintiffs’ argument that some, of the factual assertions in his report, are not supported by “any reliable economic test” and.ignore portions of the record. [632-1] at 16, Other factual assertions Plaintiffs point to in Dick’s report—for example, his reference to the need to harmonize a fee structure for Delta and Northwest in view of their impending merger—are nothing more than Dick’s explanation of the factual foundations on which his opinions rest. As discussed above, an expert’s opinion is admissible if the facts upon which it is premised “find some support ... in the record,” even where the opposing party contends that those assumptions are contradicted by other evidence. McLean, 224 F.3d at 800-01.
In still other instances, Dick relies on testimony and other evidence from this case to apply or explain the general economic principles discussed in his report. For example, after explaining how unbun-dling can stimulate passenger demand, Dick relies on Healy’s deposition testimony to illustrate how, in his opinion, AirTran’s introduction of a first-bag fee might have facilitated the air line’s route expansion. [632-3] at ¶ 138, Elsewhere, he relies on Fornaro’s deposition testimony as an example comporting with the concept of the “signal-to-noise” ratio. Id. at ¶ 42 & n.33. As Plaintiffs pointed out in defense of Singer’s expert report, it is permissible for an expert “to review the factual record and formulate a hypothesis that can then be tested using economic theory.” Processed Egg Prods., 81 F.Supp.3d at 424. Indeed, Singer’s amended merits report takes a similar approach: after giving his opinion that Defendants’ actions were inconsistent with unilateral conduct, he “demonstrate^] how this analysis is supported and corroborated by direct evidence.” [556-1] at 1565.
Just as. the Court declined to exclude Singer’s opinions because he relied on facts that Defendants dispute, it declines to exclude Dick’s opinions.because he relies on facts that Plaintiffs dispute. None of the expert witnesses in this case has relied on facts that are so lacking in evi-dentiary support that it renders the ensuing opinions unreliable.
For these reasons, the Court will disregard Dick’s legal conclusion that Plaintiffs’ theory fails under, economic theory’s definition- of collusion, but it will deny the
III. Defendants’ Motions for Summary Judgment
A. Summary Judgment in the Context of § 1 Price-Fixing Claims
Summary judgment is appropriate only when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed, R. Civ. P. 56(a). There is a “genuine” dispute as to a material fact if “the evidence is such that a reasonable jury could return a verdict for the nonmov-ing party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When analyzing a motion for summary judgment, the Court must “view all the evidence and all factual inferences reasonably drawn from the evidence in the light most favorable to the nonmoving party.” Stewart v. Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1285 (11th Cir. 1997); Williamson Oil, 346 F.3d at 1298.
These general principles are well settled and apply with as much force to this antitrust case as any other type of lawsuit. In re Chocolate Confectionary Antitrust Litig., 801 F.3d 383, 396 (3d Cir. 2015) (“[T]he summary judgment standard in antitrust cases is generally no different from the standard in other cases.”); see also Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 468, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992) (noting that there is no “special burden on plaintiffs facing summary judgment in antitrust cases”). However, “antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); see also Holiday Wholesale, 231 F.Supp.2d at 1269 (“[T]he inferences that can be drawn on summary judgment are limited in the antitrust context.”).
This inferential limitation is grounded in the unique nature of the law of antitrust conspiracy.... [A] Sherman Act conspiracy differs sharply from the more typical concept of conspiracy found in other contexts. Under the criminal drug laws, for example, both the underlying act and the conspiracy are illegal—that is, the laws make it an offense for anyone to violate, as well as conspire to violate, the federal drug statutes. In contrast, under the Sherman Act, it is the conspiracy alone that is prohibited; the underlying independent conduct is not necessarily unlawful and, indeed, may be precompetitive and of a nature that the antitrust laws would want to foster....
Coleman v. Cannon Oil Co., 849 F.Supp. 1458, 1465 (M.D. Ala. 1993) (internal citation omitted).
Along those lines, the Eleventh Circuit has highlighted the “important” distinction “between collusive price fixing, i.e., a ‘meeting of the minds’ to collusively control prices, which is prohibited under the Sherman and Clayton Acts, and ‘conscious parallelism,’ which is not.” Williamson Oil, 346 F.3d at 1298-99 (footnote omitted); see also id. at 1291 (describing conscious parallelism as “a perfectly legal phenomenon commonly associated with oligopolistic industries”). Conscious parallelism refers to synchronous pricing and related behaviors that “are the product of a rational, independent calculus by each member of [an] oligopoly,” even when they result in the setting of prices “at a profit-maximizing, supracompetitive level” and are based on the recognition of the oligopolists’
But it is often difficult to discern when lawful coordination crosses the line and becomes unlawful collusion. “Over time, courts have become attuned to the economic costs associated with using circumstantial evidence to distinguish between altogether lawful, independent, consciously parallel decision-making within an oligopoly on the one hand, and illegal, collusive price fixing on the other.” Id. at 1300. “In order to ensure that only potentially meritorious claims survive summary judgment, the Supreme Court has required that inferences of a price fixing conspiracy drawn from circumstantial evidence be reasonable.” Id.
To survive summary judgment, therefore, § 1 plaintiffs must do more than come forward with “evidence of conduct that is consistent with both legitimate competition and an illegal conspiracy.” Thompson Everett, Inc. v. Nat’l Cable Advert., L.P., 57 F.3d 1317, 1323 (4th Cir. 1995); accord Williamson Oil, 346 F.3d at 1300 (“Evidence that does not support the existence of a price fixing conspiracy any more strongly than it supports conscious parallelism is insufficient to survive a defendant’s summary judgment motion.”). They “must present evidence ‘that tends to exclude the possibility’ that the alleged conspirators acted independently.” Matsushita, 475 U.S. at 588, 106 S.Ct. 1348 (quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984)). Put differently, plaintiffs “must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action or collusive action that could not have harmed [them].” Id.
Applying this standard requires the Court to employ a three-step approach to summary judgment in the price-fixing context:
First, the court must determine whether the plaintiff has established a pattern of parallel behavior. Second, it must decide whether the plaintiff has demonstrated the existence of one or more plus factors that tends to exclude the possibility that the alleged conspirators acted independently. The existence of such a plus factor generates an inference of illegal price fixing. Third, if the first two steps are satisfied, the defendants may rebut the inference of collusion by presenting evidence establishing that no reasonable factfinder could conclude that they entered into a price fixing conspiracy.
Williamson Oil, 346 F.3d at 1301 (internal citation omitted).
“[I]t unquestionably is the duty of the district court to evaluate the evidence proffered by the plaintiffs not to ascertain its credibility, but instead to determine whether that evidence, if credited, ‘tends to’ establish a conspiracy more than it indicates conscious parallelism.” Id. (emphasis added). Plaintiffs need not affirmatively exclude the possibility of conscious parallelism, nor must the existence of a conspiracy be the sole inference that a reasonable juror could draw. Id. at 1302. They must simply present some evidence that tends to exclude the possibility of conscious parallelism or that tends to establish a price-fixing conspiracy; “nothing more, nothing less.” Id.
Matsushita teaches that the determination of whether underlying circumstantial conduct is sufficient to support an inference of a Sherman Act violation, and thus to fall within the prohibitive reach of the Act, is a legal issue for the*1369 court. Of course, if the underlying conduct is sufficient to support such an inference, it is still up to the jury to make the inference.
Coleman, 849 F.Supp. at 1465.
In making this inquiry, the Court should not “tightly compartmental-iz[e] the various factual components and wipe the slate clean after scrutiny of each” because “[t]he character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole.” Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 699, 82 S.Ct. 1404, 8 L.Ed.2d 777 (1962). A “trap to be avoided in evaluating evidence of an antitrust conspiracy for purposes of ruling on the defendants’ motion for summary judgment is to suppose that if no single item of evidence presented by the plaintiff points unequivocally to conspiracy, the evidence as a whole cannot defeat summary judgment.” In re High Fructose Com Syrup Antitrust Litig., 295 F.3d 651, 655 (7th Cir. 2002). It is only “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party” that “there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348 (emphasis added).
With these standards in mind, the Court now turns to the merits of Defendants’ motions for summary judgment.
B. Implied Preclusion
The Court begins its analysis by briefly revisiting an argument it has previously rejected. Shortly after these cases were consolidated, both Defendants moved to dismiss Plaintiffs’ claims. Among the grounds raised by AirTran was that the federal securities laws precluded any antitrust claim arising from statements made on quarterly earnings calls. See [72-1] at 33. The Court rejected that argument, noting that “at [that] early stage of the case, Defendants ha[d] failed to demonstrate that implied preclusion applie[d]” and that “[n]otably, Defendants ha[d] not cited any cases in which the securities laws precluded an antitrust challenge to collusion reached through public disclosures.” In re Delta/AirTran Baggage Fee Antitrust Litig., 733 F.Supp.2d 1348, 1364 & n.12 (N.D. Ga. 2010).
Defendants renew their implied-preclusion argument in their motions for summary judgment, but that argument fares no better today than it did seven years ago. Implied preclusion remains disfavored and applies only when antitrust and securities laws are “clearly incompatible.” Credit Suisse Sec. (USA) LLC v. Billing, 551 U.S. 264, 271, 275, 127 S.Ct. 2383, 168 L.Ed.2d 145 (2007); see also Hinds County v. Wachovia Bank N.A., 700 F.Supp.2d 378, 406 (S.D.N.Y. 2010) (“The Supreme Court in Billing[, 551 U.S. at 271, 127 S.Ct. 2383,] was careful to caution that competing statutory schemes should be reconciled where possible, ‘rather than holding one completely ousted.’ ”). Whether the securities laws and the antitrust laws are so repugnant that the former can be said to preclude the latter is determined by four factors:
*1370 (1) whether the challenged practices lie squarely within an- area of financial market activity that the securities laws seek to regulate; (2) the existence of regulatory authority under the securities laws to supervise the activities in question; (3) ongoing SEC regulation; and (4) a resulting risk that the securities laws and antitrust laws, if both applicable, would conflict.
Delta/AirTran Baggage Fee, 733 F.Supp.2d at 1364 (citing Billing, 561 U.S. at 285, 127 S.Ct. 2383).
The Court is unpersuaded that its initial assessment of the four Billing factors warrants reconsideration. Only rarely have the securities laws been held to impliedly preclude application of the antitrust laws, and never in a case in which a conspiracy otherwise unrelated to securities was merely alleged to have been effected through earnings calls. Cf. Billing, 551 U.S. at 285, 127 S.Ct. 2383 (applying preclusion to antitrust lawsuit brought against securities underwriters that marketed and distributed securities); Elec. Trading Grp., LLC v. Banc of Am. Sec. LLC, 588 F.3d 128 (2d Cir. 2009) (applying preclusion to antitrust lawsuit alleging that securities brokers conspired to fix the prices of certain securities).
Defendants cité to no caselaw, and the Court has located none, that would support immunizing Defendants from antitrust liability based on anything said on an earnings call. Indeed, in the years since Air-Tran first raised this argument, other courts have come to recognize that earnings calls can be vehicles for public signaling. See, e.g., In re Domestic Airline Travel Antitrust Litig., 221 F.Supp.3d 46, 61-62, Misc. No. 15-1404 (CKK), 2016 WL 6426366, at *8 (D.D.C. Oct. 28, 2016) (denying motion to dismiss § 1 claim premised on “statements made by Defendants’ executives during earnings calls, industry summits, industry conferences, and investment conferences”). The Court therefore again rejects Defendants’ implied-preclu-sioh arguments,
C. Existence of an Agreement to Restrain Trade
The existence of an agreement to restrain trade is “a threshold requirement of every antitrust conspiracy claim” under the- Sherman Act, Harcros, 158 F.3d at 569. In the absence of any direct evidence of collusion, Plaintiffs here attempt to establish the existence of an agreement by showing a pattern of parallel behavior by Defendants and the existence of “plus’ factors” that tend to exclude the pbssibility of independent action. Williamson Oil, 346 F.3d at 1301.
The first inquiry is quickly resolved in' Plaintiffs’ favor, as the undisputed record evidence plainly shows that Defendants engaged in a pattern of parallel conduct when they simultaneously imposed first-bag fees of $15 effective on December 5, 2008. True, Plaintiffs rely on' only a single pricing decision, but that is not fatal to- their claim. See In re Travel Agency Comm’n Antitrust Litig., 898 F.Supp, 685, 687 (D. Minn. 1995) (denying summary judgment in a § 1 case arising from .the defendants’ one-time revision of a commission structure).
Similarly, the fact that Defendants’ once-párallel pricing diverged after six months does not defeat the requisite finding of synchronous action.
It is well settled that a pattern of parallel behavior, standing alone, is insufficient to withstand a motion for summary judgment in a § 1 case. Rather, parallel conduct gives rise to an inference of conspiracy only in combination with “‘plus factors’ that ‘tend to exclude the possibility that the defendants merely were engaged in lawful conscious parallelism.’ ” Holiday Wholesale, 231 F.Supp.2d at 1274 (quoting Harcros, 158 F.3d at 572); see also Williamson Oil, 346 F.3d at 1301 (“[P]rice fixing plaintiffs must demonstrate the existence of ‘plus factors’ that remove their evidence from the realm of equipoise and render that evidence more probative of conspiracy than of conscious parallelism.”).
There is no finite list of potential plus factors. “Although our caselaw has identified some specific plus factors, ... any showing ... that ‘tends to exclude the possibility of independent action’ can qualify as a ‘plus factor.’ ” Williamson Oil, 346 F.3d at 1301 (quoting Harcros, 158 F.3d at 571 n.35). But “[m]erely labeling something a ‘plus factor’ does not make it so .... ” Holiday Wholesale, 231 F.Supp.2d at 1272. “A ‘plus factor’ ... needs to have some substance in. order to tilt the balance ...., and a weak ‘plus factor’ is not sufficient to withstand a motion for summary judgment because the ‘plus factor’ analysis is really a surrogate for looking at a case in its entirety.” Id.
In this case, Plaintiffs identify six plus factors that they contend support their claim and preclude summary judgment in favor of Defendants: “(1) an invitation to collude; (2) collusive communications followed closely by a parallel price increase; (3) evidence that collusive communications affected Delta’s [first-bag-fee] decision; (4) actions against unilateral economic self-interest; (5) pretextual explanations for changed business practices; and (6) motive and intent to conspire.” [554] at 51-52. The Court will address each in turn.
1. Invitation to Collude
Plaintiffs first contend that a plus factor exists by virtue of Fornaro’s statements on AirTran’s October 23, 2008 earnings call, which they: characterize as an invitation to Delta to engage in collusion.
“The term ‘invitation to collude’ describes an improper communication from a firm to an actual or potential competitor that the firm is ready and willing to coordinate on price or output or other important terms of competition.” In re Fortiline, LLC a N.C. Ltd. Liab. Co., File No. 151-0000, 2016 WL 4379041, at *11 (F.T.C. Aug. 9, 2016). The quintessential invitation to collude was discussed in United States v. American Airlines, Inc., 743 F.2d 1114, 1116 (5th Cir. 1984), in which the president of an airline called the president of a competitor and said: “I have a suggestion for you. Raise your ... fares twenty percent. I’ll raise mine the next morning.... You’ll make more money and I will too.”
But Defendants correctly point out that many of the cases discussing invitations to collude—including In re Forbiline and American Airlines—involved claims under § 5 of the Federal Trade Commission (“FTC”) Act or analogous laws prohibiting even unilateral unfair methods of competition. See, e.g., Liu v. Amerco, 677 F.3d 489 (1st Cir. 2012) (discussing invitation to collude in the context of a claim under a Massachusetts statute that, like § 5 of the FTC Act, prohibits unfair methods of competition and reaches even unsuccessful solicitations to conspire); see also Susan S. DeSanti & Ernest A. Nagata, Competitor Communications: Facilitating Practices or Invitations to Collude? an Application of Theories to Proposed Horízontal Agreements Submitted for Antitrust Review, 63 Antitrust L.J. 93, 93 (1994) (describing invitations to collude as potential violations of § 5 of the FTC Act or, “[ujnder more limited circumstances,” § 2 of the Sherman Act, but making no mention of § 1). Defendants dispute that a mere “invitation” can properly be viewed as a plus factor under § 1 of the Sherman Act, which unlike § 5 of the FTC Act prohibits “contract[s]” and “conspiracies]” in restraint of trade. See generally N.C. Bd. of Dental Examiners v. FTC, 717 F.3d 359, 371 (4th Cir. 2013) (noting that § 1 applies only to “concerted action” and “unilateral conduct is excluded from its purview”).
Even assuming that an invitation to collude may constitute a plus factor in some cases, however, it is not a plus factor here. The Eleventh Circuit has stated in no uncertain terms that evidence may be characterized as a plus factor in a given case only if it “tends to exclude the possibility of independent action.” Harcros, 158 F.3d at 571 n.35; Williamson Oil, 346 F.3d at 1301. Thus, courts have refused to construe corporate communications as invitations to collude where the communications contain “the type of information companies legitimately convey to their shareholders,” instead restricting such findings to cases involving “far more detailed communications with no public purpose.” Holiday Wholesale, 231 F.Supp.2d at 1276.
In Gainesville Utilities, 573 F.2d at 300-01, for example, the former Fifth Circuit found that the “continuous exchange of correspondence between high executives of’ two competitors “border[ed] on a blatant agreement to divide the market” and gave rise to an “irresistible” inference that the correspondence “contemplated and in
Significant, though not dispositive, is the fact that “invitations to collude” in the context of antitrust conspiracy claims have almost universally been private communications, not public disclosures like the Air-Tran comments at issue in this case. The Court does not suggest that public remarks by a company could never give rise to liability under § 1 of the Sherman Act, because “‘the form of the exchange— whether ... through private exchange ... or through public announcements of price changes—should not be determinative of its legality.’ ” In re Coordinated Pretrial Proceedings in Petroleum Prods. Antitrust Litig., 906 F.2d 432, 447 (9th Cir. 1990) (quoting RICHARD POSNER, ANTITRUST LAW: AN ECONOMIC PERSPECTIVE 146 (1976)). But courts must “be careful not to permit inferences of antitrust conspiracy when to do so would create a significant irrational dislocation in the market or would result in significant anticompetitive effects.” Petroleum Prods., 906 F.2d at 440 (citing Monsanto, 465 U.S. at 763-64, 104 S.Ct. 1464). That instruction cannot be squared with Plaintiffs’ allegations of an invitation to collude.
Fornaro’s statement was made publicly on a quarterly earnings call with AirTran’s analysts and investors. It concerned a topic that was of interest to the airline industry at the time, as evidenced by both the widespread adoption of bag fees by airlines during the first three quarters of 2008 and the fact that bag fees and ancillary fees were discussed on several airlines’ earnings calls in 2008.
Plaintiffs speculate that AirTran planted the bag-fee question for its third-quarter earnings call, but even if that would alter the Court’s analysis of this plus factor, it is unsupported by the evidence. Kevin Cris-sey—the UBS analyst who posed the question to AirTran—declared under penalty of perjury that the question was not planted and that he asked it because of his own interest in bag fees. [434-16] at 17-19. This declaration testimony is uncontradict-ed,
“The public announcement of a pricing decision cannot be twisted into an invitation or signal to conspire; it is instead an economic reality to which all other competitors must react.” Hall v. United Air Lines, Inc., 296 F.Supp.2d 652, 670 n.23 (E.D.N.C. 2003) (granting summary judgment on § 1 claims and finding that "the defendants’ statements in trade press articles and interviews were not plus factors supporting an inference of conspiracy), aff'd sub nom. Hall v. Am. Airlines, Inc., 118 Fed.Appx. 680 (4th Cir. 2004).
Plaintiffs’ invitation-to-collude argument, at least under the circumstances of this case, would take unilateral action by a company (i.e., Delta) and deem it collusive merely because it was preceded in time by another unilateral action by a competitor (i,e., AirTran). But one company’s public statements cannot “immobilize[ ]” a competitor and preclude it from subsequently taking otherwise lawful actions. United States v. Standard Oil Co., 316 F.2d 884, 896 (7th Cir. 1963).
Two additional facts make the inference Plaintiffs would draw particularly untenable. First, the conduct at issue—the imposition of a first-bag fee in the fall of 2008— was not unprecedented but rather Defendants’ conformity to, a decision made by many of their competitors in the preceding months. Those competitors, in turn, had uniformly reported that they had experienced little if any share shift and operational problems from bag fees. Second, the evidence shows that AirTran was not firmly committed to a first-bag fee at the time it extended the would-be invitation to Delta. Between November 5 and 7, AirTran executives circulated quantitative analyses of the first-bag fee and conferred with each other about the decision whether to impose one. The final decision was not made until November 10, more than two weeks after the October 23 earnings call. It is therefore far from clear that AirTran was “ready and willing to coordinate” activity on October 23. In re Fortiline, 2016 WL 4379041, at *11.
In Williamson Oil, 346 F.3d at 1307, the Eleventh Circuit rejected the argument that forward-looking pricing statements such as “we have no wish to escalate [the price war, b]ut we shall be ready to. respond tactically where necessary” constituted improper signals. The statements that Plaintiffs would construe as an invitation to collude in this case are, at best, on par with the “signals” in Williamson Oil. The Court therefore finds that an invitation to collude is not a plus factor because the evidence Plaintiffs point to is “no more indicative of collusion than it is of lawful, rational pricing behavior.” Id.
2. Collusive Communications Followed Closely by Parallel Price Increases
Plaintiffs next assert that a conspiracy to fix prices can be inferred from what they describe as an “overwhelming
The first such communication Plaintiffs rely on is Fornaro’s June 18, 2008 statement at the investor conference that “AirTran had not instituted a first bag fee because AirTran would be uncomfortable competing in Atlanta with Delta, which was not charging a first bag fee.” But Plaintiffs concede that this statement “did not elicit any reaction by Delta.” [554] at 7. “[C]ommunieations between competitors do not permit an inference of an agreement to fix prices unless those communications rise to the level of an agreement, tacit or otherwise.” In re Baby Food Antitrust Litig., 166 F.3d 112, 126 (3d Cir. 1999) (internal punctuation omitted) (holding that the district court. properly discounted evidence about allegedly collusive communications where, among other things, the defendant receiving those communications “generally did not act on any information obtained through” them).
Plaintiffs next rely on Fasano’s communications and attempted communications with Delta during July and August 2008. But this too is unavailing. Fasano’s e-mails to Boeckhaus and Burman were never received because Boeckhaus and Burman had already left Delta’s employ, so they clearly do not tend to establish a conspiracy between Defendants. As for the rest of Fasano’s communications discussed above, “[e]vidence of sporadic exchanges of shop talk among [employees] who lack pricing authority is insufficient to survive summary judgment. Furthermore, to survive summary judgment, there must be evidence that the exchanges of information had an impact on pricing decisions.” Baby Food, 166 F.3d at 125. Fasano’s communications show, at most, the AirTran was anxious about competing with Delta and wanted to know, perhaps desperately so, what Delta was going to do on a first-bag fee. This is not inconsistent with, and thus does not tend to exclude the possibility of, conscious parallelism, as “[c]ompetitors in concentrated markets watch each other like hawks.” Text Messaging, 782 F.3d at 875.
The other communications Plaintiffs point to are equally unavailing as plus
The communications on which Plaintiffs rely are perfectly consistent with conscious parallelism by members of an oligopoly. Plaintiffs rely on hindsight to paint them as collusive in light of Defendants’ parallel pricing—which occurred many months later than some of the communications at issue—but a reasonable factfinder could not so find. These communications do not tend to exclude the possibility of independent action.
3. Evidence that Exchanges of Information Affected Delta’s First-Bag-Fee Decision
Plaintiffs also argue that a plus factor exists in this case because the evidence shows that exchanges of information between Defendants affected Delta’s first-bag-fee decision. There is no question that the mere “exchange of price data and other information among competitors does not invariably have anticompetitive effects” and therefore does “not constitute a per se violation of the Sherman Act.” United States v. U.S. Gypsum Co., 438 U.S. 422, 441 n.16, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); see also Amey, Inc. v. Gulf Abstract & Title, Inc., 758 F.2d 1486, 1505 (11th Cir. 1985) (“Absent an agreement to fix prices, there is nothing unlawful about competitors meeting and exchanging price information or discussing problems common in their industry, or even exchanging information as to the cost of their product.”). However, there are circumstances under which the exchange of such information followed by a parallel price increase can give rise to an inference of a conspiratorial agreement to fix prices. See, e.g., In re Flat Glass Antitrust Litig., 385 F.3d 350, 369 (3d Cir. 2004); In re SRAM Antitrust Litig., No. 07-md-1819 CW, 2010 WL 5138859, at *6-7 (N.D. Cal. Dec. 10, 2010).
In SRAM, 2010 WL 5138859, at *6, an employee who was indisputably “involved in setting prices” (even though he personally lacked “ultimate pricing authority”) “relayed regular reports about competitors’ pricing and production directly to pricing authorities ... as well as to other [of the defendant’s] personnel, who appear to have played roles in setting prices .... ” “He exchanged information with other high level managers from competitor firms, and exercised direct influence over the prices that buyers paid” for the products at issue. Id. Thus, the court concluded that there was sufficient evidence from which a jury could infer the existence of a conspiratorial price-fixing agreement.
Both SRAM and Flat Glass found their facts factually distinguishable from those in Baby Food, 166 F.3d at 124-26, in which the Third Circuit affirmed the grant of summary judgment to the defendants where “the evidence did not support an inference of a conspiracy to fix prices but portrayed nothing more than intense efforts on the part of three large and strong competing companies ... to ascertain ‘what their competitors would be doing with regard to pricing, promotions, and products.’” (quoting the district court’s opinion). The documents that the competitors had exchanged—primarily between lower level employees—reflected “competitive information concerning the discontinuance of products or changes in product ingredients or in packaging,” and thus the exchange of that information “was consistent with independent action and not grounds for assuming ‘some shadowy conspiracy.’ ” Id. at 125.
As explained by the Flat Glass court, 385 F.3d at 369, “[t]he In re Baby Food plaintiffs simply could not correlate information exchanges with specific collusive behavior,” instead making “the more amorphous claim that the exchanges of information ‘impacted the market as a whole.’” The SRAM court, 2010 WL 5138859 at *7, further elaborated that “[tjhere was no indication” in Baby Food that the employee who had obtained a competitor’s pricing information “communicated the information directly to pricing authorities at the firm, or participated in any discussions to decide what prices would be set.”
The Court concludes that the facts of this case are more analogous to Baby Food than Flat Glass, SRAM, or other cases in which the exchange of pricing information was found to support an inference of conspiracy. The information exchanges Plaintiffs point to might reflect “intense efforts” to monitor competitors’ activity, even pricing activity, but they do not tend to exclude the possibility of unilateral action by oligopolists. “Gathering competitors’ price information can be consistent with independent competitor behavior,” particularly within the airline industry, which at all relevant times has been so concentrated and highly competitive that “it makes common sense to obtain as much information as possible of the pricing policies ... of one’s competitors.” Baby Food, 166 F.3d at 126; see also Text Messaging, 782 F.3d at 875 (“Competitors in concentrated markets watch each other like hawks.”).
Plaintiffs place much stock in the fact that Delta’s value proposition analysis was revised after AirTran’s third-quarter earnings call, and they characterize Delta’s decision to impose a first-bag fee as an “abrupt shift from the past.” [554] at 61
.Furthermore, even giving-full credit to Plaintiffs’ characterization of the value proposition document as reflecting Delta’s views on the issue, the fact that Delta “analyzed possible competitor responses” is “a strong indicator that there was no actual agreement among the airlines, as it shows that [Delta was] uncertain of [its] rivals’ potential reaction.” Hall, 296 F.Supp.2d at 671. This is all the more true where the analysis was driven not by clandestine internal exchanges but by the public statements of a competitor. See Williamson Oil, 346 F.3d at 1305 (“[I]n competitive markets, particularly oligopolies, companies monitor each other’s communications with the market in order to make their own strategic decisions.”). Those public statements, moreover, were viewed by Delta employees as “inappropriate,” “[un]wise,” “odd,” and otherwise problematic specifically because of Defendants’ antitrust obligations, see supra n. 14, making the inference that Delta would have accepted any such invitation less plausible. And Delta’s employees testified uniformly that AirTran’s comments were simply not discussed as a factor at Delta’s October 27, 2008 CLT meeting. Thus, it is far less clear in this case than in Flat Glass that any information exchanges actually affected Delta’s decision to impose a first-bag fee in a way > that is at all inconsistent with conscious parallelism within an oligopolistic'market.
4. Actions Against Unilateral Economic Self-interest
‘ “One prominent ‘plus factor,’ to which antitrust plaintiffs often take recourse, is a showing that the defendants’ behavior would not be reasonable or explicable (i.e., not in their legitimate economic self-interest) if they were not conspiring to fix prices or otherwise restrain trade .... ” Harcros, 158 F.3d at 571; see also Williamson Oil, 346 F.3d at 1310 (“It is firmly established that actions that are contrary to an actor’s economic interest constitute a plus factor that is sufficient to satisfy a price fixing plaintiffs burden in opposing a summary judgment motion.”).
But the concept of ‘action against .self interest’ is an ambiguous, one and one of .its meanings could merely constitute a restatement of interdependence, For example, refusing to raise or lower prices .unless rivals do the same could be against a firm’s self interest but it would constitute mere interdependence....
Therefore, to satisfy the requirements of a conspiracy, the action-that is against self interest must go beyond mere interdependence., [P]arallel price fixing which would be so unusual that in the absence of advanced agreement no reasonable firm would engage ... could be sufficient to establish a conspiracy.
Coleman, 849 F.Supp. at 1467 (emphasis added).
In the fall of 2008, the airline industry faced nearly unprecedented circumstances. “[T]he economy was collapsing, and [Delta was] seeing a tremendous amount of reductions in terms of bookings.” [366] at 59; see also [559] at 39-40 (Healy testifying that AirTran similarly projected a decreased demand in the fall and winter of 2008). At Delta, these industry-wide issues were compounded by concerns about funding Delta’s pension. [366] at 72. By this same time period, every other legacy carrier except Alaska had introduced first-bag fees and reported them to be profitable and to have resulted in no significant share-shift. On September 16, the Wall Street Journal reported that “airline fees are here to stay,” explaining that “baggage fees and other charges [were] significantly improving the usually dismal finances of the industry” because passengers were “paying them, if begrudgingly, and [weren’t] shifting in large numbers to the few airlines that don’t charge fees ...” [350-89] at 2. As early as June 2008, one article noting the divide in the airline industry over first-bag fees posited that Delta and Northwest might have been holding off in light of their need to obtain regulatory approval for their pending merger: “‘They don’t want to swat the hornets’ nest,’ [aviation consultant Robert] Mann says.” [556] at 472.
As Plaintiffs point out, there were differing opinions within Delta about whether to impose a first-bag fee, and some employees worried about adding or increasing fees during a period of softening demand. [366] at 63; [556] at 694; [363] at 91-92. And Plaintiffs’ expert posits that from an economic perspective, there were valid justifications to refrain from introducing these fees, including that fuel costs were falling. But “evidence of a price increase disconnected from changes in cost or demand only raises the question” of what motivated the price increase, it does not answer that question. Chocolate Confec-tionary, 801 F.3d at 400.
The overwhelming evidence before the Court reflects Defendants’ subjective beliefs that there were valid reasons to impose a first-bag fee, including Defendants’ need for revenue during an economic downturn. The Court declines to infer the existence of a conspiratorial agreement merely because the wisdom of Defendants’ decisions might not be impervious to questioning. See H.L. Moore Drug Exchange v. Eli Lilly & Co., 662 F.2d 935, 941 (2d Cir. 1981) (“[T]he mere fact that a business reason advanced by a. defendant ... is undermined does not, by itself, justify the
5.Pretextual Explanations for Changed Business Practices
Plaintiffs next attempt to conjure a plus factor from what they characterize as Defendants” pretextual explanations for imposing first-bag fees. See generally Chocolate Confectionary, 801 F.3d at 410-11 (citing case law for the proposition that “pretextual explanations for disputed conduct would disprove the likelihood of independent action”) (internal punctuation omitted). “Although pretextual reasons have some probative value, ... they are insufficient to create a genuine issue of material fact without other evidence pointing to a price-fixing agreement.” Miles Distribs., Inc. v. Specialty Constr. Brands, Inc., 476 F.3d 442, 452 (7th Cir. 2007). Too, the “pretextual” reasons Plaintiffs rely on are not inconsistent or false. Rather, Plaintiffs point to evidence showing only the business reality that a business must contend with a multitude of factors when making any significant decision. Such evidence does not tend to exclude the possibility of independent action by Defendants and is thus not a plus factor.
6.Motive and Intent to Conspire
The final plus factor on which Plaintiffs rely is Defendants’ motive and intent to conspire. See [554] at 31-32. But the Eleventh Circuit has repeatedly held that “the mere opportunity to conspire among antitrust defendants does not, standing alone, permit the inference of conspiracy.” Williamson Oil, 346 F.3d at 1319 (quoting Todorov v. DCH Healthcare Auth., 921 F.2d 1438, 1456 (11th Cir. 1991)); Seagood Trading, 924 F.2d at 1574 (same); see also Holiday Wholesale, 231 F.Supp.2d at 1306 (“As an initial matter, the court notes that the characterization of motive as a ‘plus factor’ is questionable.”). And the Eleventh Circuit is not alone, as other courts have similarly recognized that “common motive does not suggest an agreement” and is not indicative of anything beyond interdependence. In re Musical Instruments & Equip. Antitrust Litig., 798 F.3d 1186, 1194 (9th Cir. 2015).
However, the Court need not decide whether motive could ever be a plus factor because in this case, Plaintiffs’ reliance on this would-be plus factor is little more than a rehashing of their prior arguments. See [554] at 31-32 (arguing that Defendants were motivated to conspire because they “both understood that it was contrary to their economic interests] to unilaterally impose a [first-bag fee] before the other”). In the absence of any other evidence from which an agreement to fix prices could reasonably be inferred, there is no basis to infer such an agreement from the mere motive or intent to conspire. Such evidence, even if it existed here, “could not be said by a reasonable factfinder to tend to exclude the possibility of independent behavior.” Williamson Oil, 346 F.3d at 1302.
7.Cumulative Effect of Plus Factors
Even when viewed in the light most favorable to Plaintiffs, the evidence in this case simply does not permit a reasonable factfinder to infer the existence of a conspiracy, as it does not “ ‘tend[ ] to exclude the possibility’ that the alleged conspirators acted independently.” Matsushita, 475
“In other words, in this case the whole of the manufacturers’ actions is no greater than the sum of its parts.” Williamson Oil, 346 F.3d at 1310. “[T]he record taken as a whole could not lead a rational trier of fact to find” that Defendants engaged in a conspiracy to fix prices rather than lawful conscious parallelism. Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. Accordingly, “there is no ‘genuine issue for trial,’ ” and Defendants are entitled to summary judgment. Id.
IV. Conclusion
For the foregoing reasons, Defendants’ motion to exclude Singer’s testimony [625] is denied; Plaintiffs’ motion to exclude Carlton’s testimony [631] is granted as to Carlton’s first opinion but otherwise denied; Plaintiffs’ motion to exclude Dick’s testimony [632] is granted as to his opinion regarding the definition of collusion from an economics perspective but otherwise denied; Delta’s motion for summary judgment [350] is granted; and AirTran’s motion for summary judgment [353] is granted.
In light of this holding, Delta’s motion for summary judgment as to the claim asserted by Plaintiff Henryk Jachimowicz [219] and Delta’s motion to exclude the opinions and testimony of Bruce Pixley [433] are denied as moot.
IT IS SO ORDERED this 28th day of March, 2017.
. The Court's July 12, 2016 order granting Plaintiffs’ motion for class certification [665] is presently on appeal to the Eleventh Circuit pursuant to Rule 23(f) of the Federal Rules of Civil Procedure, but such an appeal "does not stay proceedings in the district court unless the district judge or the court of appeals so orders.” Fed. R. Civ. P. 23(f). The Eleventh Circuit did not so order, and on October 19, 2016 this Court—consistent with the parties’ wishes—declined to stay the case.
. Throughout this Order, citations to deposition testimony and to the parties’ briefs are to the page numbers that appear on the transcript or brief itself. All other record cites refer to the page of the PDF document filed on the Court’s electronic docket, not to the page numbers (if any) reflected on the documents being cited.
. Alaska Airlines is also a legacy carrier, but it flies only regional routes.
. "Unbundling'' is somewhat of a loaded term in the context of this litigation. The Court adopts Defendants' nomenclature only for ease of reference. It makes no finding and expresses no opinion about whether Defendants and other airlines introduced new fees or simply began to separately itemize charges that had previously been "bundled” into ticket prices.
.Fees for second checked bags were announced by United on February 4, 2008, effective May 5; announced by US Airways on February 26, effective May 5; announced by Northwest on March 28, effective May 5; announced by Continental on April 4, effective May 5; and announced by American on April 28, effective May 12. Alaska, which as noted above is a regional legacy carrier, announced and implemented its second bag fee on July 1, 2008, later than its non-regional counterparts.
. Following AirTran's announcement, other LCCs that had yet to introduce a second-bag fee—including JetBlue, Frontier, and Republic Airlines—announced in April and May 2008 that they would do so beginning in June.
. On April 14, 2008, approximately four months before Northwest announced that it would implement a first-bag fee, Delta and Northwest had announced that they would ’ merge, forming a combined carrier that would be called Delta and of which Anderson would be CEO. [350-55] at 2. '
. The CLT is a group of Delta’s most senior executives—including, during the time period in question, Anderson, Bastían, Gorman, and Hauenstein—who serve as an advisory group to the CEO.
. It turned out not to be, as Delta did not announce until November 5 that it would be imposing a first-bag fee effective December 5.
. Smith later testified that he did not recall what, if anything, he did with that information and that he did “not always” do what he told Fornaro he would. [556-1] at 1050, 1056; see also [577] at 67 (answering, in response to whether he typically followed through with things he tells his boss he will do: "Normally, but not always with Mr. Fornaro. Sometimes mandates are sent out that I don’t act on.”).
.For AirTran’s second-quarter 2008 earnings call held in July 2008, Fornaro had not included first-bag fees in his prepared remarks but had considered how he would answer a question about first-bag fees from analysts. [361-2] at 216; [560] at 91-92. “At that point, it was a variation of, you know, we’re working on the technology, and we haven’t made a decision. You know that changed to we have the technology, and we haven’t made a decision.” [361-2] at 216-217. However, as just noted, that question was not asked on the second-quarter earnings call.
. Burman had been involved in Delta’s first-bag-fee analysis. [357] at 67. Boeckhaus’s responsibilities included baggage handling, so Fasano believed that/he would be in a position to know about Delta's bag-fee policies. [582] at Í3Ó-31. ' .
. Neither Rossano nor Ringler was involved in or had knowledge of the process leading to Delta's decision to impose a first-bag fee. [350-40] at 64; [3.50—4,1], at 91. Rossano did participate in weeldy “baggage calls,” but the undisputed evidence' is that those meetings focused on "operational performance” and bag fees were never discussed. [584] at 148-51; [350-41] at 25, 40,-91. •
.Healy did relay to Wiggins and Hutchins that he had "heard ... that [Delta is] ready and can go anytime.” [557] at 350.
. Gorman found Fornaro’s comments "inappropriate” in light of Defendants’ antitrust training and compliance and explained that Delta was left in "almost disbelief that he made such a comment.” [588] at 31. Hauen-stein similarly described the statement as “[un]wise” given "antitrust compliance” and prohibitions on discussing future pricing. [567] at 122. Bastían “found it kind of odd ... that AirTran would even talk about that topic on the call ... [b]ecause we know not to talk about pricing matters in a public call.” [366] at 49. Gail Grimmett in revenue management described the conversations as "could you believe ... that he made a pricing comment on a call.” [565] at 200.
. Delta disputes that the value proposition reflects the "views" of Delta, as Plaintiffs contend it does. Rather, Delta asserts that the value proposition was an "advocacy piece” prepared by revenue management, which opposed a first-bag fee both' before and after October 23, 2008.
. Bastían testified that he came into the October 27 CLT meeting inclined to adopt the first-bag fee but that he "wanted to hear the discussion and the debate” before firmly committing. [350-22] at 45.
. In the same press release, Delta announced it was eliminating certain fuel surcharges, reducing phone-reservation charges, eliminating its curbside check-in fee, and reducing its second-bag fee from $50 to $25.
. None of the Daubert motions presently at issue questions the experts' qualifications, and the Court finds that each expert is qualified by his knowledge, skill, experience, training, and education to testify competently to the matters contained in his report.
. Defendants previously moved [399] to exclude the opinions offered by Singer in support of Plaintiffs' motion for class certification, but those opinions are not at issue in the instant motion.
.See, e.g., [269-4] at ¶ 2 ("Defendants ’ engaged in collusion to jointly impose first bag fees.”); id. at ¶ 33 ("Delta’s and AirTran’s decisions to adopt first bag fees were the result of collusion.”); [269-8] at ¶ 1 ("Delta and AirTran engaged in an anticompetitive conspiracy to charge a first bag fee .... ”); [626-4] at 882 (Singer testifying that "Defendants in my opinion have conspired to raise bag fees”).
. See, e.g., [556-1] at 1562 (“Defendants' actions are more consistent with a conspiracy to jointly impose first bag fees than with unilateral conduct.”); id. at 1565 (concluding that "Defendants’ actions were inconsistent with unilateral conduct”); id. at 1575 (opining that certain evidence confirms that Defendants' decisions to adopt first-bag fees “were more consistent with conspiracy than unilateral conduct); id. at 1688 (replacing a prior reference to "an anticompetitive conspiracy to charge a first bag fee” with a reference to actions that "are more consistent with conspiracy than unilateral conduct”).
. In fact, Defendants’ own experts have submitted their opinions that Defendants’ conduct was more consistent with unilateral activity than collusion. See, e.g., [632-3] at ¶ 16 (Andrew Dick opining that Defendants' conduct was “consistent with economic theories and principles identifying unilateral conduct”).
. Insofar as Plaintiffs dispute the applicability of those criteria, they are free to cross-examine Dick about them, but the Court de-dines to predude his testimony as to their relevance from an economic perspective.
. In their briefs, the parties disputed whether a heightened summary-judgment standard might apply in this case. See, e.g., [632-1] at 7; [643] at 9. At the hearing held on the pending motions for summary judgment, however, Defendants conceded that no such heightened standard applies, and even absent that concession, the Court would not find any heightened standard appropriate. Rather, the Court applies general summary-judgment principles subject only to the inferential limitations that apply in all antitrust-conspiracy cases.
. Delta increased its first-bag fee in July 2009 and then again in January 2010. AirTran
. The Eleventh Circuit has adopted as binding precedent all Fifth Circuit decisions issued before October 1, 1981. Bonmrv. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
. See [350-99] at 18 (Delta’s third-quarter earnings call transcript); [350-103] at 32 (Jet-Blue’s third-quarter earnings call transcript); [350-103] at 47-48 (US Airways’ third-quarter earnings call transcript). The question was also asked during second-quarter earnings calls for airlines that had already introduced it at that point. See, e.g., [350-60] at 19 (American Airlines’ second-quarter earnings call transcript).
. Plaintiffs' cursory assertion that the question Crissey posed was "incongruent with his level of sophistication and more consistent with planted questions,” [554] at n.55, is insufficient to contradict Crissey’s declaration
, At the outset, AirTran suggests that a communication may be credited as a plus factor only if three criteria are satisfied, see [604] at 17-18, but the Court disagrees. Whether a communication constitutes a plus factor is an inquiry not susceptible to determination by any rigid test. In re Text Messaging Antitrust Litig., 782 F.3d 867, 878 (7th Cir. 2015), on which AirTran relies, did not treat any particular factors as dispositive; it merely suggested that the evidence before it would have been more persuasive if those factors were present. And Plaintiffs correctly point out that the causation requirement AirTran would impose improperly puts the cart before the horse in the context of a motion for summary judgment in a § 1 conspiracy claim. However, the other considerations identified by AirTran— the parties to the conversation, the detail of its contents, and its timing vis-á-vis the challenged action—are certainly among those relevant to whether a communication constitutes a plus factor.
. Indeed, Jack Smith confirmed that AirTran was "always looking to see what the grapevine is ... on what other competitors [were] doing," even though such information usually came in the form of “gossip, chatter, and rumors” that were of unreliable accuracy. [360] at 69-70.
. Nine of Plaintiffs’ exhibits—Exhibits 444, 446-452, and 454—were timely provided to the Court for filing in connection with Plaintiffs’ opposition to Defendants’ motions for summary judgment but inadvertently omitted from the docket. These documents have been provided to the Clerk's office today for filing to ensure that the record is complete, and nothing about their belated entries on the docket should suggest that they were not available for the Court’s review in connection with the pending motions.