22-901

In re AMR Corp.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. 

CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS 

PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 

32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE 

FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION 

“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A 

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, 

held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 20th day of March, two thousand twenty-three.

PRESENT:

DENNY CHIN,

RICHARD J. SULLIVAN,

MYRNA PÉREZ,

Circuit Judges.

_________________________________________________________

IN RE: AMR CORPORATION,

Debtor.

_________________________________________________________

CAROLYN FJORD, KATHERINE R. ARCELL, KEITH 

DEAN BRADT, JUDY BRAY, JOSE M. BRITO, JAN 

MARIE BROWN, ROBERT D. CONWAY, JUDY 

CRANDALL, ROSEMARY D’AUGUSTA, BRENDA K.

DAVIS, PAMELA FAUST, DON FREELAND, DONALD 

V. FRY, GABRIEL GARAVANIAN, HARRY 

GARAVANIAN, YVONNE JOCELYN GARDNER, LEE M.

GENTRY, VALARIE ANN JOLLY, GAIL S. KOSACH,

MICHAEL C. MALANEY, LEN MARAZZO, LISA 
2

MCCARTHY, PATRICIA ANN MEEUWSEN, L. WEST 

OEHMIG, JR., CYNTHIA PROSTERMAN, DEBORAH M.

PULFER, DANA L. ROBINSON, ROBERT A.

ROSENTHAL, BILL RUBINSOHN, SONDRA K.

RUSSELL, SYLVIA N. SPARKS, JUNE STANSBURY,

CLYDE D. STENSRUD, WAYNE TALEFF, GARY 

TALEWSKY, ANNETTE M. TIPPETTS, DIANA LYNN 

ULTICAN, J. MICHAEL WALKER, PAMELA S. WARD,

CHRISTINE O. WHALEN,

Appellants,

v. No. 22-901

AMR CORPORATION,

Debtor-Appellee,

AMERICAN AIRLINES GROUP INC.,

Appellee.

_________________________________________________________

For Appellants: JOSEPH M. ALIOTO, SR., Alioto Law Firm, 

San Francisco, CA (Tatiana V. Wallace,

Alioto Law Firm, San Francisco, CA; 

Theresa D. Moore, Law Offices of 

Theresa D. Moore, PC, San Francisco, 

CA; Christopher Nedeau, Nedeau Law 

Firm, San Francisco, CA; Lawrence G. 

Papale, Law Offices of Lawrence G. 

Papale, St. Helena, CA, on the brief).

For Debtor-Appellee and Appellee: DANIEL WALL (Sadik Huseny, Aaron 

Chiu, Brittany N. Lovejoy, Robin L. 

Gushman, on the brief), Latham & 

Watkins LLP, San Francisco, CA.
3

Appeal from an order of the United States District Court for the Southern

District of New York (Katherine Polk Failla, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

AFFIRMED.

Plaintiffs – a group of consumers and travel agents who challenged the 2013 

merger of American Airlines and US Airways on antitrust grounds – appeal from 

the district court’s affirmance of the orders of the bankruptcy court (Sean H. Lane, 

Bankruptcy Judge) (1) denying after a bench trial Plaintiffs’ claims for injunctive 

relief under Sections 7 and 16 of the Clayton Act, 15 U.S.C. §§ 18, 26; and 

(2) denying Plaintiffs’ motions for leave to amend their complaint to add a 

damages claim and jury demand pursuant to Section 4 of the Clayton Act, id. § 15. 

We assume the parties’ familiarity with the underlying facts, procedural history, 

and issues on appeal.

“We exercise plenary review over a district court’s affirmance of a 

bankruptcy court’s decision, reviewing de novo the bankruptcy court’s 

conclusions of law, and reviewing its findings of fact for clear error.” In re Lehman 

Bros. Inc., 808 F.3d 942, 946 (2d Cir. 2015) (internal quotation marks omitted). 
4

Furthermore, we generally review the denial of leave to file an amended complaint 

for abuse of discretion, but where the determination is based upon a legal 

interpretation, de novo review is appropriate. See Mortimer v. Off Shore Servs., Ltd. 

v. Federal Republic of Germany, 615 F.3d 97, 114 (2d Cir. 2010); see also Anderson News, 

L.L.C. v. Am. Media, Inc., 680 F.3d 162, 185–86 (2d Cir. 2012).

I. Legal Framework for Section 7 Claim

On appeal, Plaintiffs primarily contend that, in determining whether the 

airline merger violated Section 7 of the Clayton Act, the bankruptcy court legally 

erred by applying a burden-shifting framework that treated Plaintiffs’ assertion of 

post-merger market share as prima-facie evidence of a Section 7 violation but 

permitted Defendants to produce other evidence to show that the merger would 

not in fact have anticompetitive effects. According to Plaintiffs, the bankruptcy 

court was instead obliged by Supreme Court precedent from the 1960s to treat

post-merger market share as virtually conclusive of a Section 7 violation. For 

substantially the same reasons contained in the district court’s thorough and wellreasoned opinion, we reject Plaintiffs’ view of the relevant case law and conclude 

that the bankruptcy court properly analyzed (and dismissed) Plaintiffs’ claim

predicated on a Section 7 violation. 
5

A merger between two companies violates Section 7 if “in any line of 

commerce or in any activity affecting commerce in any section of the country, the 

effect of such [merger] may be substantially to lessen competition, or to tend to 

create a monopoly.” 15 U.S.C. § 18. To be sure, when interpreting this provision 

in the 1960s, the Supreme Court seemed to accept post-merger market share as 

essentially irrebuttable proof of market power, and thus of a Section 7 

violation – even while noting in passing the need to consider all relevant evidence

to evaluate likely competitive effects. See, e.g., Brown Shoe Co. v. United States, 370 

U.S. 294, 338–46 (1962); United States v. Phila. Nat’l Bank, 374 U.S. 321, 362–72 (1963);

United States v. Von’s Grocery Co., 384 U.S. 270, 275–79 (1966). But in the 1970s, the 

Supreme Court began to apply a more nuanced and text-based interpretation of 

Section 7, refusing to blindly equate a substantial increase in market share with a 

likely substantial decrease in competition and instead requiring more careful 

consideration of a Section 7 defendant’s rebuttal evidence. In United States v. 

General Dynamics Corp., the Court affirmed a district court’s determination that 

Section 7 defendants had successfully rebutted the government’s prima-facie case

by demonstrating unique economic circumstances that undermined the predictive 

value of the government’s industry-concentration and market-share statistics. 
6

415 U.S. 486, 497–504 (1974). In so doing, the Court specifically reiterated that 

“statistics concerning market share and concentration, while of great significance, 

[are] not conclusive indicators of anticompetitive effects.” Id. at 498 (discussing 

Brown Shoe); see also United States v. Marine Bancorporation, Inc., 418 U.S. 602, 631 

(1974); United States v. Citizens & S. Nat'l Bank, 422 U.S. 86, 120–22 (1975).

Since then, numerous circuits have followed the Supreme Court’s lead and 

adopted burden-shifting frameworks similar to the one employed by the 

bankruptcy court here. For example, the D.C. Circuit has held that, after a 

plaintiff has shown “that a transaction will lead to undue concentration in the 

market for a particular product in a particular geographic area,” defendants must 

be permitted to proffer rebuttal evidence to either “discredit[] the data underlying 

the initial presumption” or “affirmatively show[] why a given transaction is 

unlikely to substantially lessen competition,” whereupon “the burden of 

producing additional evidence of anticompetitive effect shifts” back to the plaintiff 

“and merges with the ultimate burden of persuasion.” United States v. Baker 

Hughes Inc., 908 F.2d 981, 982–83, 991 (D.C. Cir. 1990) (Thomas, J., joined by 

Ginsburg, J.); see also id. at 984–85, 989–92 (“The Supreme Court has adopted a 

totality-of-the-circumstances approach to the statute, weighing a variety of factors 
7

to determine the effects of particular transactions on competition.”). Indeed, the 

D.C. Circuit is hardly unique in reading Supreme Court case law as requiring such 

an approach. See, e.g., Steves & Sons, Inc. v. JELD-WEN, Inc., 988 F.3d 690, 703–04 

(4th Cir. 2021); FTC v. Penn State Hershey Med. Ctr., 838 F.3d 327, 337 (3d Cir. 2016); 

Saint Alphonsus Med. Ctr.-Nampa Inc. v. St. Luke’s Health Sys., Ltd., 778 F.3d 775, 783 

(9th Cir. 2015); ProMedica Health Sys., Inc. v. FTC, 749 F.3d 559, 568–72 (6th Cir. 

2014); Chi. Bridge & Iron Co. v. FTC, 534 F.3d 410, 423–26 (5th Cir. 2008); FTC v. 

Univ. Health, Inc., 938 F.2d 1206, 1218–19 (11th Cir. 1991); Kaiser Aluminum & Chem. 

Corp. v. FTC, 652 F.2d 1324, 1333–40 (7th Cir. 1981).1

In this Circuit, even before Baker Hughes, we have rejected Plaintiffs’ rigid 

interpretation of Section 7 in favor of a more nuanced burden-shifting framework

that allows defendants to rebut the contention that increased market share 

necessarily reflects “lessen[ed] competition.” 15 U.S.C. § 18. In Broadway 

1 Plaintiffs rely almost exclusively on the Seventh Circuit’s decision in Hospital Corp. of America v. 

FTC to argue that the Supreme Court cases from the 1960s have not been overruled or 

undermined. 807 F.2d 1381 (7th Cir. 1986). But while Hospital Corp. of America acknowledged

that “it can be argued that [General Dynamics and Citizens & Southern National Bank] themselves 

carve only limited exceptions to the broad holding of some of the merger decisions of the 1960s,”

id. at 1385–86, it ultimately concluded that “doubt [has been cast] on the continued vitality of such 

cases as Brown Shoe and Von’s,” since “the Supreme Court . . . has said repeatedly that the 

economic concept of competition, rather than any desire to preserve rivals as such, is the lodestar 

that shall guide the contemporary application of antitrust laws, not excluding the Clayton Act.” 

Id. at 1386.
8

Delivery Corp. v. United Parcel Service of America – involving the very lawyers 

representing Plaintiffs here – we explained that “[i]n more recent decisions in the 

merger context, the [Supreme] Court has reaffirmed its unwillingness to base 

market[-]power determinations simply on market[-]share data, preferring to treat 

market share as strong, perhaps presumptive, evidence of the presence or absence 

of market power, subject to bolstering or rebuttal by other evidence.” 651 F.2d 

122, 128 (2d Cir. 1981) (discussing General Dynamics, Marine Bancorporation, and 

Citizens & Southern National Bank); see also Fruehauf Corp. v. FTC, 603 F.2d 345, 352–

53 (2d Cir. 1979). Similarly, in United States v. Waste Management, Inc., we 

faithfully applied the logic in Supreme Court cases such as Philadelphia National 

Bank and General Dynamics to hold that a Section 7 defendant had successfully 

rebutted the government’s prima-facie case by showing that the barriers to entry 

in the relevant market were low, thereby limiting the likelihood of 

supracompetitive pricing in the future. 743 F.2d 976, 981–84 (2d Cir. 1984); see 

also, e.g., R.C. Bigelow, Inc. v. Unilever N.V., 867 F.2d 102, 107–08 (2d Cir. 1989). In 

any event, even if we disagreed with these Second Circuit cases’ interpretation of 

Supreme Court doctrine (which we do not), absent intervening Supreme Court 
9

precedent, we as a panel are bound to follow them. See Lotes Co. v. Hon Hai 

Precision Indus. Co., 753 F.3d 395, 405 (2d Cir. 2014).

In short, given the robust case law in both our Circuit and our sister 

circuits – caselaw that is completely consistent with the last word from the 

Supreme Court – we cannot say that the bankruptcy court committed legal error 

merely by considering Defendants’ rebuttal evidence showing why the market-share 

data in fact gave an inaccurate account of the merger’s probable effects on 

competition. And because Plaintiffs mount no other meaningful challenges, legal 

or factual, to the bankruptcy court’s burden-shifting analysis, we affirm the 

bankruptcy court’s Section 7 determination.2 Simply put, assertions of enhanced 

market share and increased concentration “cannot guarantee litigation victories.” 

Baker Hughes, 908 F.2d at 992.

2 Plaintiffs also criticize the bankruptcy court for citing the Department of Justice’s Horizontal 

Merger Guidelines. See Dep’t of Just. & Fed. Trade Comm’n, Horizontal Merger Guidelines 

(Aug. 19, 2010). But the bankruptcy court specifically noted that the Guidelines were not 

binding and that it was consulting them only as a “helpful tool,” Supp. App’x at 193 n.23 (internal 

quotation marks omitted) – as courts have repeatedly deemed appropriate. See, e.g., United 

States v. Anthem, Inc., 855 F.3d 345, 349 (D.C. Cir. 2017); United States v. Apple, Inc., 791 F.3d 290, 

328 n.21 (2d Cir. 2015); United States v. Kinder, 64 F.3d 757, 771 & n.22 (2d Cir. 1995) (Leval, J., 

dissenting).
10

II. Motion to Add Section 4 Claim

Like the district court, we also conclude that the bankruptcy court did not 

abuse its discretion when it denied Plaintiffs’ January 2019 motion for leave to 

amend the operative complaint to add a claim for treble damages pursuant to 

Section 4 of the Clayton Act and a corresponding demand for a jury trial. 

Although Federal Rule of Civil Procedure 15(a)(2) provides that “[t]he court 

should freely give leave [to amend the complaint] when justice so requires,” Fed. 

R. Civ. P. 15(a)(2); see also Fed. R. Bankr. P. 7015, the bankruptcy court “has 

discretion to deny leave for good reason, including futility, bad faith, undue delay, 

or undue prejudice to the opposing party,” McCarthy v. Dun & Bradstreet Corp., 482 

F.3d 184, 200 (2d Cir. 2007); see also Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 

88 (2d Cir. 1998).

Applying these principles, the bankruptcy court denied Plaintiffs’ January 

2019 motion, finding both that Plaintiffs unduly delayed the filing of that motion

and that Defendants would be unduly prejudiced if the court granted that motion. 

As Plaintiffs’ motion was made about two years after the close of discovery, five 

months after the district court’s summary judgment ruling, and just two months

before trial, we cannot say that the bankruptcy court’s determination was an abuse 
11

of discretion. See, e.g., Zahra v. Town of Southold, 48 F.3d 674, 686 (2d Cir. 1995) 

(affirming denial of motion to amend filed two-and-a-half years after the filing of 

an action and three months before trial); Brown v. Fisher, 486 F. App’x 959, 960 (2d 

Cir. 2012) (affirming denial of motion to amend filed a year after discovery closed 

and eight months after summary-judgment motions were filed); State Farm Ins. 

Cos. v. Kop-Coat, Inc., 183 F. App’x 36, 38 (2d Cir. 2006) (affirming denial of motion 

to amend filed almost one year after the close of discovery and five months after 

the district court’s summary-judgment ruling). 

Plaintiffs’ arguments to the contrary are unavailing. As to undue 

prejudice, Plaintiffs contend that the bankruptcy court erred by failing to weigh 

the prejudice they would suffer by being deprived their Seventh Amendment right 

to try a claim for damages pursuant to Section 4 before a jury. See Plaintiffs Br. at 

22–26 (citing Beacon Theatres v. Westover, 359 U.S. 500 (1959); Parklane Hosiery Co. v. 

Shore, 439 U.S. 322 (1979)). Plaintiffs, however, seem to misunderstand that,

under Rule 15, courts have the “discretion to deny leave” on the basis of “undue 

prejudice to the opposing party,” McCarthy, 482 F.3d at 200 (emphasis added); accord 

Foman v. Davis, 371 U.S. 178, 182 (1962), regardless of whether a motion seeks to 

add a claim that would permit a jury trial, see Perkins v. Spivey, 911 F.2d 22, 34 
12

(8th Cir. 1990); Earlie v. Jacobs, 745 F.2d 342, 345 (5th Cir. 1984); cf. Italian Star Line 

v. U.S. Shipping Bd. Emergency Fleet Corp., 53 F.2d 359, 360 (2d Cir. 1931) (“There is 

no violation of the right to trial by jury in dismissing a complaint for failure to 

establish a cause of action.”). As to undue delay, Plaintiffs suggest that the timing 

of their 2019 motion was appropriate because the bankruptcy court denied earlier 

motions for leave to amend, before purportedly reversing course on the relevant 

legal issue in its summary-judgment decision. But even if we assume that the 

summary-judgment decision provided a new basis on which to amend the 

complaint, the bankruptcy court was justified in finding that Plaintiffs’ five-month 

delay between the summary-judgment decision and the motion to amend was in 

and of itself unreasonable.3 

3 To the extent that Plaintiffs also challenge the bankruptcy court’s earlier denials of their motions

to amend, we decline to consider those challenges, as Plaintiffs have presented no developed 

argument on appeal for why the earlier denials – which rested on distinct legal grounds – were 

in error. See Gross v. Rell, 585 F.3d 72, 95 (2d Cir. 2009). Additionally, we do not consider

Plaintiffs’ assertions made in passing that the bankruptcy court erred (1) by defining the relevant 

geographic market in terms of city pairs for Plaintiffs’ Section 7 claim and (2) by granting 

summary judgment to Defendants on Plaintiffs’ claim that a severance payment violated Section 

2(c) of the Robinson-Patman Act, 15 U.S.C. § 13(c). Plaintiffs doubly forfeited those assertions 

by failing to present developed legal arguments both to the district court, see In re Klein Sleep 

Prods., Inc., 78 F.3d 18, 29 (2d Cir. 1996), and to us, see Gross, 585 F.3d at 95.
13

* * *

We have considered Plaintiffs’ remaining arguments and find them to be 

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court