and therefore the rule is that all of the allegations should have been given to the to accepted as true and all the inference is that way the complaint itself is on page four eighty five to refer to that the situation here is i think it is important to note as was noted in the complaint what the particular industry is and what it addition as we have alleged is that there were very there was very high trade barriers and therefore no one could go into the market because they couldn't cover the cost of capital therefore was basically a close market with these four major airlines what the evidence was is that they had we had two times that we discovered most of it because it was the complaint but they uniformly on march of thirty and march thirty two thousand and sixteen and april one announced this drastic change in their rules with regard to so called multi city and the result of that was that you were in court there were increased prices for those trips anywhere up to as much as seven hundred percent goes the the actual prices was not uniform days each airline did it differently the results of the outcome the price result was different saying right in the different areas that's right yeah well here greta the same formula well yeah well let me let me make sure i understand what what's happening here in the in order to get from phoenix where arizona where i live to new york i could buy a ticket straight through from phoenix to new york or under the old regime i could i could buy a ticket to houston and then another ticket to atlanta and then a ticket to new york and it would cost me less yes sure and this action that  you're challenging did said you can't do that anymore correct you're on and the and as we allege the reason is that in some of those segments they were competing against the really real competitors which were the so called low cost carriers and test of and as stated by the american representative that that they didn't want anyone to take advantage of that and so basically the passengers were subsidizing their competition against the low cost carriers the evidence as is that the first one to make this announcement and we found out later so let's start with that and that as as that on on march twelve one in more indicative motion because that that evidence was not before the court on the original rulings is that correct that's correct or on it we didn't know about it well i mean so when you say we started with it so you are now arguing not that the court was an error in denying your original relief but you starting with issue number two the core was error in not allowing you to proceed know you're not the first case even without the media ok well i think we are so good with even without the meeting what the court did was against all precedent it took each and every separate act and analyzed each act and finding that in itself it did not state a claim and so as a result the court simply ignored the continental or decision which has been a foundational case for many many years or in the language of  justice white where he said that you can't wipe the slate clean after the scrutiny of each and that's exactly what the judge dead in both instances your honor and so what we have as forget the meeting at the moment on on march thirtieth the united comes out with an announcement that it's going to change this drastic actions make this drastic change and it says and i would direct the court's attention to because we quote it page nine of our brief united comes out on its own before american am before united i mean before delta and says quote multiple decisions about a half a month earlier that's not to say that they made them by agreement or comes or conspiracy half a month early but simply your own complaints said that those decisions by the airlines to eliminate that multiple link pricing was made about two months two weeks earlier so a statement that the area airlines have done this is simply a matter of a historic statement not a statement of agreement necessarily look at first of all your honor that allegation so there's nothing wrong with with reviewing a motion consistent with your own allegations your inference that you're drawing your honour's exactly the opposite of what the of what the allegation was and meant and what it actually meant was clear that they had tested correct but they never made agreement and nobody was bound by and they finally met well i want to bring in that evidence they finally met on march thirtieth the very day they met and they discussed this we know what they discussed the very day they met and discussed this that's when our that's when united announces that now they're changing the rule because multiple multiple u s carriers recently decided to do that and american says one day later april two days later able the first april fools that american comes out and says recently american airlines along with other u s carriers yeah well mr alioto you've argued a lot more work and i trust cases than i've decided i think but we have the law and to over simplify it is that when when companies decide to do something at the same time it happens at the same time that's not good enough to show an agreement or a conspiracy there has to be more than that so why are you with me i am or  now so here just just over simplified terms the agreement that you have alleged that is beyond the companies doing this just deciding they're going to do it is what what is the what is the evidence you pleaded that they got together and said we're all going to do this at the same time it is very important that they got together for the purpose of changing the rule so that you could not by segments from the city travel but the law is that it is not enough that they just happen to do it at the same time there's no way that they could just happen to do it because it's very extensive procedure and if one of them uses it only if they don't get the agreement of everyone if only one of them uses the not opens up a fabulous opportunity for anyone else to compete and to increase their market share but not necessarily with the others don't come along  relatively painless economic position back back backtrack the only way that the only way that they could increase these prices as they did your honor was to make sure that everybody was in on it they would not be able to do it otherwise and just to understand when they made that rule the rule is with the company a t p c p c o that's the company that organizes the rule they own it they own it and they sit on the board of directors and i will say this also when the whole issue of so called plus factor was ever that word never came about it was because of this court in c t o fire equipment company and in that case one of the executives had a meeting and he denied that he discussed anything at that meeting and the court this court said nonetheless that was a plus factor and allowed a conviction  twamley we all cite for the need to be specific actually was and then addressed case and it specifically said allegations bear allegations of conspiracy aren't enough and so  we've got to do more than that and what the supreme court on with the district court case here said i thought was applying to him when said look you just got to allege facts that you've not done actually the court was relying on summary judgment cases rather than f but on trial only your honor it says it is it feasible and in that case there were nothing but conclusionary statements that said ok there was a combination of conspiracy we're saying they had a meeting they had this date on this time and this what they said they were going to do no going back next day they did but you go back to that meeting the dinner for then i don't that that language i actually didn't think was very helpful to you because that was simply a meeting at the request of a nother airline now one of these four that you claim conspired together and it was simply to admit to technically trying to develop under  a technical way of allowing each airline to express its own rules as to how to apply vector sector pricing you were and if it please your honor you are interpret it in favor of the defendant no i was reading the actual language of the agenda the agenda itself says we have to meet and then it says we meet and they did me and they discussed it and then the next not the next day that day united sent out say the others are going to do it and they went out and they made their announcement that next day and it's specifically about fares and space simply for this and it allowed them to increase prices almost immediately and what was really interesting is that united in its announcement actually don't draws a diagram where it shows you that you're going to be paying a lot more in addition if the travel agents which we represent or the passengers either one if the travel agents don't go along with it if the travel agents try to buy as they used to segment by segment to get the lowest take at if they do that they are in jeopardy of losing their connection with that airline and in addition the airline said it w debt now which means you're going to pay the difference so you might as well do it might as well go along as far as the passengers go any passenger who tried to do it they announce that they would not necessarily get their bags on time they would have to pay two hundred dollars for changing any any change for each one of the segments and that they would and that they wouldn't get connections ordinarily that otherwise would be a provided by the same one you want to reserve pardon me i  do yes your thank you may please the court dan wall i represent american airlines i'm speaking on behalf of all of the police today i think the most useful thing i can do for this court is is by beginning with a little more specificity about what the conduct is just for i agree with you happened and what didn't so what i want to address that first the most specific description of the conduct issue is found at paragraph sixty two of the first amid a complaint which is it to fifty one into fifty two and that refers to an alleged agreement by the airlines to quote prevent air travelers from being able to combine the least expensive nonrefundable one way fares i start with that because there's two important things about that this case started with an allegation that this was about a conspiracy among the airlines a t p co was alleged to have aided and abetted that in some rather mysterious ways but this began with a preliminary injunction motion in which we had  presentation we had a two hour argument and the entire focus of that is on was there evidence of an agreement among airlines to restrict the combined ability of these particularly low nonrefundable one way fares and it was in that context that we had the argument about what the travel agent memos mean and whether there were plus factors and and whether the airlines had unilateral reasons to do this on their own and  forth what ensued thereafter was the first amended complaint it's an interesting posture because the operative complaint comes after the plane or injunction motion when there has been a bit it's not discovery literally but there is a bit of factual exchange in learning about what's going on and once again at that point the obligation whether you look at paragraph one or paragraph sixty two that i mentioned earlier is that it is a conspiracy by court's decision in musical instruments which are applying the fleeting standard into particular context of any trust conspiracy claim were for decades prior to tuam plea because this was all originally developed in the context of summary judgment decisions the supreme court had laid down this fundamental antitrust policy about not allowing certain inferences of conspiracy from parallel conduct unless there was some strong  suggestion of conspiracy in this court in the musical instruments case goes into great detail on the economic foundations of that and and why we put plaintiffs through a through a somewhat challenging path in order to create the proper inference at that time judge chosen he decides that the complaint has been adequately been pleaded and she grants the motion to dismiss now then after the notice of appeal is has already been filed the plaintiffs say that they they find this this information about these various meetings that have been going on at a t p co and mind you they found it on the web and they try to spend that as the smoking gun evidence of a conspiracy now to change so call the structure of what they're now saying are a p teco rules not an agreement among the airlines but  and in some way but what rule is there any evidence in the motion for that indicative ruling or even any allegation that an a t p co rule is what is causing the airlines to restrict combined ability can't ten is simply part of a taxonomy that that a t p co uses for how carriers file their their own rules about all sorts of different things that affect air fares that you and i buy and the airlines had filed their own amended cat ten rules that were that were the issue here not anything that a t p co  will as you noted that he you know one can read the the evidence that is put in support of the motion for indicative ruling that's not out of bounds it's not it's not violating ru route rule twelve and it was in fact plainest demise that judge chesney read that that evidence because what one sees throughout that is a process a continuous process it's not something that just happens in the middle and sixteen it's something that's been ongoing for years it's ongoing now it will go on into the future of constantly evolving the a t p coast system so that airlines have more tools and more ways to establish their own fares and fare restrictions in fact the the agenda is that we want this meeting in order to specify and maintain combination restrictions for each carriers fares and what you see and i believe at least it was characterized by the district court that it goes on to say that this is for the purpose of automated data rather than hard code which changes would allow carriers to control fair combinations based on their individual business needs precisely what he's saying it was a it was a technical meeting to say business cares you you can decide what you want to do about  these these destination fairs but we're going to have a technical meeting how you whatever your plans individually or how you can express them right in the reason this happen because the carriers have got to use this computer system  to fashion their fares so they can be efficiently distributed to the global distribution systems in the travel agents and everyone that writes are our tickets and so there's a continuous process that is probably most evident in the two documents that are in the x excerpts of record page sixty nine and one forty nine which are these large product services alignment agendas which are pages and pages and pages of proposals of a similar kind of can you build the functionality to do this can you build the functionality to do that because i an airline and not just one of these three airlines this is started by a g n airlines of all things that wants to to be able to make time sensitive restrictions of combined ability of fares starting in athens and so they make the request and then a t p co has a technical discussion and makes technical changes to things like user interfaces and coding protocols and then the airlines do whatever they want and i think what's significant here is if as judge chesney does one distinguish between what we call open jaws and circle trips for four of computer logic but we don't see ever is any indication of any normative discussion of what a rule should be in particular no discussion of restricting the combined ability of a particular class of of low cost fares there's nothing in any of this that has anything to do with that the only evidence or allegation that they had of that was that they took these after the fact travel agent memos and they tried to to liken them in some way to the essentially the admission of  coordinated action the judge also had before him in this be in our supermarkets vs visa case where somebody with a c e o visa came out and said yeah we all got a room and worked it out well that's not what was said here what they said is that we've made changes in response to what changes that other airlines made and that is the classic pattern of follow the leader behavior that one sees in all of these conscious parallelism cases many of which ironically like judge posner's decision in text messaging cite the airline industry as the in this instance literal it's a textbook example of an industry in which you can't make anything of that pattern because it is it is classic situation i'm driving through silicon valley and i and all of the gas stations have the same price because when one guy comes out and says i'm lowering it and so the other people do it all happens at the same time it doesn't mean that they all got together in a in a meeting and said we're going to change the price right ok but here you have something a little bit more than just a ha we're going to change this price for this for this this particular route you have a rather complex as i understand  attempt everybody tries to plead their case within the line in the twamley decision about complex and historically unprecedented changes that have no apparent purpose other than to coordinate industry behavior and  so to hear but this professional there's nothing complex about this all all the airlines did in in sequence was was to say that as to those low cost fares which create the greatest disparity between the airlines chosen fare from phoenix to new york and this potential combination fare that that arises by operation of these rules  local low cost fares so it was three similar companies that was were facing the same issue that the that the interaction between their decision to compete aggressively with low cost carriers and their combined ability rules were were creating these crazy dislocations between their intended fare for a particular route and what could be they all at the same time decided we're going to get rid of these low cost the ability to take advantage of these low cost fares we're going to keep all the other kinds of nations possible and we're going to have the same kind of baggage regulations and well i don't and i'm going to do with you check bags and international flights where the low cost carrier issue had a risen earlier in time and then when it when it happened here the allegation is that the airlines did it here as well now under the law under the court's jurisprudence one can say alright i can believe that that is possible to reconcile with conspiracy but that gets you nowhere because what you have to do is go down that that that series of steps that we see in a case like musical instruments where we look for the plus factors that take it out of the possibility of conspiracy to those things that may cause reasonably believe that this is not consistent  with with unilateral follow the leader dynamics and their biggest argument below was the after the fact travel agent memos which prove nothing because that's simply reporting on a common experience and the later argument based upon the pekoe evidence under the the motion for indicative of ruling just falls apart by reading the documents so you still are left in this position where you don't have that something more you simply have you know plausibility is not just a buzzword here in in the antitrust cases involving collusion claims it means that the allegations have survived parallelism analysis dictated by twamley and musical instruments that is exactly what judge chesney applied faithfully she did it first in a preliminary injunction motion then in two rounds of of motions on their website easily available they brought that up to a judge has the judge has the rule on page three of the transcript in her order that that it was persuasive that the plaintiffs could not find it and and we discovered it totally by accident when you call it a meeting it was people were in a room together these were just many many people not to say through your minds but a large number of people on a website there correct on the telephone by the way if i might say that it's price fixing is ok on the international market that's what they're talking about and so when they say we just wanted to do what they're doing internationally that's illegal and they can't do it so i mean that's their statement what is the judgement here we're talking about rule twelve we're asking whether or not if these facts are true that they had the meetings they agreed on this they knew it was a price issue they knew it was a fair issue council just admitted it and they went ahead and did it anyway and they did it combination at the same time for sure so that nobody could back out in thirty seconds because your time is up but how do you distinguish musical and the majority opinion in  i believe that in that case they were saying that if there's a fit if there's a sense of balance if there's a balance but here there's no balance is just one way they're only doing one thing they're increasing the rates and they're doing it together and if they don't do it thank you me to both counsel for their excellent and impassioned argument