Changing the Way Airline Reservations are made.

Timothy O'Neil-Dunne of T2Impact Management 

Consulting http://www.t2impact.com/index.php and VaultPAD Accelerator 

for Travel Entrepreneurs http://www.vaultpad.com/ the purpose of my 

comments to that I hope you will allow me to explain how the airlines are 

going to change the way reservations are made through improving the 

sophistication of the supply of airline products to intermediaries, content 

partners and ultimately the passenger her/himself. I am providing the 

comments to the application. I have an interest to seeing the advancement 

of the capability for airline product distribution. 

There is a lot of confusion and commotion concerning the IATA initiative on 

new distribution capability – formally known as NDC and its formal 

structure Resolution 787.

Rather than try to explain it all – let me cut to the chase on the important 

parts of the debate. I regret that this is necessarily rather long. First I will 

discuss the facts of NDC. What it does and how it was derived. Later I will 

look at the protagonists and why there is a fight at all and the likely 

outcome. Then I hope to conclude with what the DoT should do in my 

opinion with regard to this application.

Let's be clear what it is about and why its important to the world of Airline 

products from all stakeholders. NDC addresses a long held problem that the 

messaging protocols are out of date with the forms of electronic commerce 

that power our lives today. 

Almost everything we do has an electronic component in it. Most of which 

we never see because it occurs in the supply chain systems in the Business 

infrastructure. How we get our food fresh in the supermarket, how our 

iPhones are delivered, how our express packages arrive – all of this is 

managed electronically. Ecommerce has been the change in our world that 

most consumers never see. Should they care? No – we just want fresh food, 

an iPhone from the Apple store and Fedex to show up on time.
In the 1950s and 1960s the world was a much simpler place. There was no 

e-commerce. It just did not exist. The standard form of business to business 

data transmissions occurred with Telex (also known as Teletype). Telex 

content (purely human readable text) was as simple as the character set on 

an old typewriter. No, pictures, no funky characters such as @ signs, no 

complex data messages for example! This was a somewhat secure one way 

messaging system. It ensured that a message went from A to B. That's 

it. Everything we did then was driven by paper. The airlines needed to 

communicate internally and externally with one another and other 

stakeholders in the chain such as Airports, Over time the same messaging 

systems were expanded so that messages could pass to external 

partners, Caterers, Ground handling companies etc. The messages became 

more complex as the information needs grew. Structures of the passenger 

information necessarily also grew. In the 1970s and 1980s the need to 

connect travel agents independently of the airlines meant that the closed 

world of the airlines opened up to third parties. At the time I worked for 

PARS and its successor company Worldspan. I was instrumental in breaking 

open the closed worlds and enabling interactions first by pure 

communications protocols – and then with data. I designed the system that 

enabled large scale interaction between business trading partners such as 

Tour Operators and Airlines via the GDSs. This led to the design of the way 

that Expedia first worked. I designed based on the then CLEARLY obsolete 

systems then extant. These networks and data systems expanded 

enormously with the advent of the PC. Along came the internet in the 

1990s and the opportunities for expanded business relationships grew and 

grew. However the messaging protocols did not expand. They evolved into 

the systems that exist today which are still largely unchanged from the 

1950s. IATA publishes a book every year called the AIRIMP 

manual. http://www.iata.org/publications/Pages/AIRIMP.aspx This book 

lays out the standards. The procedures and rules for making a reservation 

are contained in another book from IATA, called the Reservations Services 

Manual. http://www.iata.org/publications/Pages/rsm.aspx Both will put 

you to sleep. Essentially what these books do is to describe the ways in 

which the airlines can communicate with one another and with third 

parties in the making and processing of a passenger reservation.

Sadly the structure of these message sets and processes/procedures has 
resulted in a rigid set of methodologies. Airlines through separate pathways 

send fares usually via ATPCO to one place for filing, schedules via OAG and 

Innovata is another. Then the actual state of whether the seat is there 

(called Availability) is sent to the GDS amongst other places. Any airline has 

therefore the somewhat ludicrous problem that they have certified 

MULTIPLE companies to determine a guaranteed price. Except they use 

different mechanisms. Thus the price on the web, the price of online and 

offline agencies and the price from the call centre can be different 100% of 

the time. YET GUARNATEED AS ACCURATE AND THE LOWEST PRICE. Mix in 

the problems of latency and differing capabilities and voila you have clearly 

different prices for what seems to be a standard product. Is the consumer 

confused and full of mistrust. Yup you bet. So it is a complete myth that 

there is fair and easy shopping and price comparison. I defy ANYONE in the 

industry or outside to state that the system isn’t completely fair and open. 

It is not comprehensive (only some airlines participate in some systems. NO 

AIRLINES PARTICIPATE IN ALL SYSTEMS EQUALLY. 

Clearly in today's world many things have changed from the way business 

was conducted in the 1960s. Electronic commerce is vastly different. The 

written page is no longer the medium for communication of information. 

Personalization and choice drives an enhanced consumer experience as it 

should do. The airlines on their own websites have managed to build new 

systems that enable advanced capability and a far greater degree of choice 

than you can get from an online travel site. Amazon and other pioneers of 

consumer product ecommerce have created new ways to do business. 

Walmart et al, UPS and FEDEX have revolutionized the supply chain of 

physical things. Complex logistics today are a marvel – getting an iPhone 5 

from a factory run by Foxcomm in China to your door engraved with your 

name in just a few days after logging into the Apple.com website is 

amazing. We take all of that for granted. The concept of the electronic 

shopping cart has changed how we buy our "things" online. Mobile 

shopping is even more wondrous.

The frustration of the supply side of the airline product (yes that means the 

airlines) means they have had enough. They need to better communicate 

their differentiated products and services to a far more sophisticated and 

personalized world. Consumers believe that the airline product is simple. Its 
a seat, it comes with a price. SURELY SOMEONE KNOWS THE LOWEST PRICE 

I CAN BUY THE TICKET FOR THAT SEAT? Actually its not that simple. And the 

airlines don't want it to be simple. It is complex in ways that cannot be 

imagined. We must never forget that the mission of an airline is to get the 

maximum value for that seat before the perishable inventory disappears. 

Filling the airplane and getting the highest amount of money for the seats 

on it – is obviously very complex. Not only this but the nature of the 

relationship between the brand of the airline and the consumer enables the 

interaction of the two for all sorts of commercial and non-commercial 

dialogue. For example selling more products not just from the airline but 

from business partners and doing things like building loyalty to that brand. 

Necessarily there is a lot of complexity in that. That the airlines want to 

obfuscate the true price you pay is NOT A CRIME. Presenting the 

information in a misleading fashion should be and IS against the law. No 

where in there does it say that the regulator (the DoT) has any business 

ensuring that comparison shopping is a requirement. 

Today's current systems as defined by the AIRIMP manual are inadequate 

for selling unbundled, rebounded and ancillary airline and non- airline 

products. The PNR (Passenger Name Record) is entirely an inadequate way 

to express the value of a customer to the airline.

NDC is designed to change that. The first part of the change is the IATA 

resolution 787 which seeks to change the infrastructure of the 

communications protocols from the old Telex/Teletype way to the more 

standard (not just airlines) and sophisticated data communication 

structures of XML. And yes – its not difficult to read the resolution and you 

can find it here http://www.iata.org/whatwedo/stb/Documents/resolution787.pdf. This is a relatively short at 11 pages. It is of course contained in 

the docket as well.

NDC is happening now. Around the world there are many teams working on 

pilot programs to launch NDC to the consumer. The standard for NDC was 

an open competition and eventually a data schema – developed originally 

for the Open Axis Group http://www.openaxisgroup.org/ by 

Farelogix http://www.farelogix.com/ was adopted by the airlines. The 

competition pitted The Open Travel Alliance new schema (OTA 
2.0) http://www.opentravel.org/ against the successful team. Both are 

relevant. In my view they will co-exist and find a way for harmonization.

Who does this affect?

Every developer needs to know this is going on. They should keep abreast 

of the evolving nature of the standards are they move forward. I would also 

suggest contacting your airline business partner and seeing how you can 

get involved in some of the pilot projects that are going in in different parts 

of the world. Two of our VaultPAD companies are actively involved in this. 

LUTE Technologies http://www.lute-tec.com/ Providing Direct Connect 

solutions for airlines and large scale intermediaries; and Air Black Box 

Company connecting Full Service and Low Cost Carriers for airports and 

other communities worldwide. http://www.airblackbox.com/

Every commercial organization in Travel needs to keep an eye on this 

because even if you are not involved in the selling of airline products – if 

you are in travel – airlines drive behavior. Whether you are a supplier such 

as an airline – Full Service or Low Cost – you should be involved. 

Intermediaries need to get on board because this is going to change your 

world.

Now let me turn to the reasons for conflict and why everyone seems to get 

into a tizzy about the issues.

Worldwide today there are 4 VERY LARGE companies called GDSs Global 

Distribution Systems: they are – Amadeus 

http://www.amadeus.com/amadeus/amadeus.html (the largest) Travelsky 

(China only) http://www.travelsky.com/ , Sabrehttp://www.sabre.com/ (in 

Partnership with Abacus http://www.abacus.com.sg/ for Asia) and 

Travelport http://www.travelport.com/ (Owner of 3 GDSs, Apollo, Galileo 

and Worldspan) - global revenues for these 4 companies are estimated by 

T2Impact at US$16-18 billion. Now they offer different businesses - the 

Intermediary travel business – ie the systems that connect Travel Agencies 

with the Supply Chain Systems is what I am referring to here. Approx. 50% 

of the world's airline reservations pass through the GDS parts of their 

business. But this is declining as a category as the market place 

as distribution of the products fragment. Note that LCCs who generally do 
not participate at all or only participate at a lower level are commanding 

greater and greater market share. Full Service Carriers are expanding their 

reach into more channels increasingly with differentiated product. In doing 

so are moving away from their traditional dependence on the GDS channel 

Their ability to sell more variants of their product set is possible through 

their own and the new so called "Direct Connect" intermediary channels. As 

a share globally the GDS companies are seeing erosion to the newer 

channels. As you can imagine they clearly don't want to see share fall away. 

But the GDS companies – for whatever reason – did not adopt and 

embrace the full extent of the Internet revolution. It does not matter if the 

airlines or GDSs were at fault for not keeping pace with the changes in 

commerce. The fact is that they didn't. Evolution is no longer an option –

transformation and revolution are an absolute necessity – to support the 

needs of a sophisticated consumer who wants choice and transparency.

IATA commissioned a study to review the future market for airline product 

distribution. I highly recommend this learned piece from Henry Harteveldt 

(along with a little help from this 

author). http://www.iata.org/whatwedo/stb/ndc/Pages/index.aspx

I suggest watching the video and then downloading the actual report. It 

lays out the coming scenarios over the next 5 years for the distribution of 

airline products.

That the airlines and GDSs have different business goals is self evident. In 

some cases they can reach an accommodation. In Asia – this does occur 

with Abacus and Travelsky. In other parts of the world – let's just call it 

contentious. Airlines want – greater flexibility to differentiate their 

products and they want a far lower cost of distribution. Travel Agents –

whose revenues from airlines have disappeared need some form of 

compensation. There is an unnatural act in distribution that airlines pay 

GDSs – GDSs take a significant chunk of that revenue and pass it onto the 

travel agents in the form of incentive fees. Airlines hate that. Travel Agents 

need it. GDSs love the model because it puts them squarely in the centre of 

the world. But it is not sustainable. The GDSs have fought like crazy to 

ensure that not only is there a technology restraint to protect their 

business model – but also commercial constraints through highly restrictive 

contracts both upstream (PCA or participating Carrier Agreements) with Full 
Content restrictions, and downstream with Travel Agent Subscriber 

Agreements. Individually they are highly restrictive. Taken together – they 

are a guaranteed form of protectionism. I have had the ability to look at 

both sets of contracts and I can tell you that the interaction of the two 

results in a restrained marketplace with heavy restrictions placed on 

Airlines and Travel Agencies who of course should be free as trading 

partners to engage in whatever relationship they like. 

The battle for domination of airline product distribution has come to a 

head. Sabre and Travelport (individually) fought battles with American 

Airlines and while the cases were both settled out of court – there is a clear 

winner. AA will receive multiple payments from both Sabre and Travelport. 

While the out of court settlement terms are officially under lock and key – a 

mysterious payment of $280 million appeared in AA's revenues in Q4 2012 

and announcements of payments have been made by both GDSs to AA. 

More importantly the most restrictive parts of the contracts between the 

airlines and the GDSs have now been broken. The fact that the GDS (as 

market places – defined in the AA vs Sabre lawsuit) has restrained the 

ability of the trading partners within the marketplace through first ancient 

technology and then through highly restrictive use agreements is – quite 

simply and unnatural act. The fact that the legality of it was challenged in 

court and an out of court settlement was reached should demonstrate that

something was wrong. I urge the learned people reading this to review my 

appendix which is the Judge (in the trial of AA vs Sabre) instructions before 

the start of the hearing. It leads to some very clear conclusions.

In my view this has resulted in a new era of openness is now coming upon 

us. And not a moment too soon.

Just this week (April 2013) Travelport announced their new merchandising 

platform. http://travelport.mediaroom.com/index.php?s=43&item=934 At 

the recent CAPA forum Airlines in Transition in 

Dublin http://centreforaviation.com/events/airlines-in-transition-2013/ 

Travelport went to great pains to explain to the audience of airline CEOs 

and senior industry leaders – that Airlines could now distribute any content 

via the platform to Agents (who in turn need to have the new Universal 

Desktop or Universal API and not the traditional green screen) their way. 
Already – in various forms American Airlines and Air Canada have 

announced their intention to use the platform. easyJet is already using a 

modified version without the traditional ATPCo fares to distribute some of 

its product via Travelport. The dam holding back the waters of change is 

clearly crumbling. Other airlines are lining up for this. Today Farelogix and 

technology service providers such as VaultPAD's LUTE http://www.lutetec.com/ is providing and printing a gazillion tickets of airlines who want 

this form of distribution.

But don't think the war is over. That IATA has filed in this docket to get NDC 

approved has unleashed an opportunity for the traditionalists to direct 

their ire and a lot of miscommunication into the conversation. This might 

seem odd for a communications protocol to have to go through regulatory 

approval. Frankly there is a significant amount of confusion abounding 

here. The issue of consumer choice has crept into the debate and become a 

critical part of the debate. BUT IT IS NOT RELEVANT.

Let me deal with the battle clear and head on.

Airlines want to obfuscate the price of the ticket. They need to do this in 

order to generate profits enough. The battle cry of the airlines these days is 

ROCI – or Return on Capital Investment. They also want differentiation and 

the ability to speak directly to the consumer. Just as other consumer 

products and services. Just a few years back the cry from the airlines was 

anything but a loss! The Travel Agents want a simplistic product to sell and 

for them to get a revenue model that compensates them for their services. 

The consumer wants a trustworthy place that allows online or offline to be 

able to search and shop and COMPARE easily and FAST. The GDSs want to 

preserve that nice revenue flow. Clearly there is no solution here that 

meets everybody's needs.

In looking at the way out from here – Regulators are wrestling with the 

problem of do they intervene of not. In my view the regulators have no 

place getting involved. This is a changing business model situation. There 

will be winners and losers. No one has the right to be in business unless 

they have a product that consumers want and are prepared to pay for at a 

rate that the two parties can agree on. Regulators are there to ensure a 
fairness in the market, these days that means a hands off approach. The 

regulators have no need to protect the consumer as in my view more than 

adequate existing protection schemes already exist. If the regulators 

believe that the current protections are not enough – then they have to 

look into the mirror because there has been a great deal of attention paid 

to ensure that the consumer is protected. I absolutely support that the 

regulators must ensure consumer protection. That does not mean that 

shopping and price comparison is a god given right. 

The argument of restriction on freedom of choice is spurious at best. 

Marketplaces (with very few exceptions) do not have to support cross 

company product shopping comparison. Is there a regulation on the 

comparison of products in Amazon? Does a supermarket have to show the 

different prices in a shopping display for all prices of say washing powder? 

Absolutely the supplier and the retailer must publish legal, and full pricing. 

That any seller – direct or indirect – has the right to offer their good or 

services their way is a basic right of capitalism. Can someone emerge who 

can figure out the market price of an airline ticket and provide that as a 

service to the consumer and make money from it? Sure. There are a whole 

number of them. From the large scale meta search companies like 

Skyscanner and Kayak http://www.kayak.com/ to the personalized trip 

management system of Pintrips http://pintrips.com/ (another VaultPAD 

company please use a Chrome Browser) In Asia this includes Wego, 

http://www.wego.com.sg/ Skyscanner http://www.skyscanner.com.sg/ and 

Adioso http://adioso.com/ there are good places to go. However consumer 

trust in the current batch of systems is low and will continue to be so – not 

least of the reasons is the complexity of the product. For a bit of fun read 

my article in Tnooz on the subject 

http://www.tnooz.com/2011/11/15/news/why-air-results-are-aspredictable-as-european-finance-ministers-or-marriage-vows-of-kimkardashian/ 

Let me be absolutely clear – defining a solution that would force airlines to 

participate in a commercial marketplace would set a precedent that would 

reverberate throughout the entire American way of life. Can we imagine a 

supermarket having to display a list of ALL the products available for sale 

(whether they sold it or not) and whether it was AVAILABLE TODAY in that 
store clearly to every consumer? That would be patently ludicrous. 

Conclusion

We are moving to a far more dynamic and personalized choice in the 

search, sale and delivery of airline products. This is a good thing. Getting 

there is painful and there will be casualties as we transform from a 

predetermined fixed price market restrained by legacy technologies and 

inhibited by anachronistic contracts to a truly dynamic personalized 

offering of a wide variety of choice. Let's be clear and open. The 

commercial practices and structures designed in the 1950s and 1960s have 

no place in today's world. As consumers we demand choice. As sellers, we 

have a responsibility to meet the needs and demands of our customers -

FAIRLY. If we fail – whether intermediary or direct – to provide what the 

market needs, then we will be punished ultimately and forced from the 

market unless and until we do. Removing the unnatural barriers to a free 

market whether they are technological, regulatory, commercial or historic 

is good for everyone. That is the basis of a free society. 

NDC and Resolution 787 are a natural progression. I respectfully submit 

that the DoT should either dismiss the application as non-relevant. The DoT 

has a responsibility to ensure the health of the airline industry, ensure fair 

competition takes place and that the needs of the country are accounted 

for. If there must be a decision by the DoT then it should be to not interfere 

with the processes of the market change. 

I believe that the DoT would be ill advised to consider anything that would 

inhibit the changing nature of the distribution of airline products. There are 

good processes already in place to ensure that the consumer is not abused. 

Sincerely and Respectfully

Timothy O’Neil-Dunne, Managing Partner T2Impact LLC. 
IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

AMERICAN AIRLINES, INC. §

§

VS. § CIVIL ACTION NO. 4:11-CV-244-Y

§

TRAVELPORT LIMITED, et al. §

SEALED ORDER DENYING MOTIONS TO DISMISS

Before the Court is the Partial Motion to Dismiss (doc. 163)

filed by defendants Sabre Inc., Sabre Holdings Corporation, and

Sabre Travel International Limited (collectively, “Sabre”), along

with Sabre’s Supplement to Its Motion to Dismiss (doc. 283). Also

before the Court are the Motion to Dismiss (doc. 169) and

Supplemental Motion to Dismiss (doc. 287) filed by defendants

Travelport Limited and Travelport, LP (collectively, “Travelport”),

and the Motion to Dismiss (doc. 165) filed by defendant Orbitz

Worldwide, LLC (“Orbitz”). After review, the Court will deny the

motions. 

I. Background

This is an antitrust case that plaintiff American Airlines,

Inc. (“American”), filed against Travelport, Orbitz, and Sabre. 

American is a large domestic and international airline. Orbitz

operates an online travel agency. And Travelport and Sabre each

Case 4:11-cv-00244-Y Document 380 Filed 08/07/12 Page 1 of 23 PageID 10626
operate global distribution systems (“GDSes”).1 

In its first amended complaint (doc. 70), American asserted

claims against the defendants under sections 1 and 2 of the Sherman

Antitrust Act as well as under state law. In that complaint,

American alleged in essence that Sabre and Travelport had each

unlawfully wielded monopoly power in the market for the

distribution of airline fare, flight, and availability information

and the provision of booking services to travel agents (“the

Market”), as well as in the submarkets consisting of Sabre and

Travelport customers, respectively. In addition, American alleged

that Sabre and Travelport, along with Orbitz and other unnamed

industry participants, had engaged in an industry-wide conspiracy

to preserve the GDSes’ monopoly power.

All defendants responded by moving for dismissal of the first

amended complaint under Federal Rule of Civil Procedure 12(b)(6). 

After reviewing the motions, the Court determined that American had

stated claims against Sabre for monopolization of the Market and

the Sabre submarket and a claim against Travelport for

monopolization of the Travelport submarket. The Court, however,

dismissed all other claims--some with prejudice--and granted

American leave to file a second amended complaint. Pursuant to

 1 GDSes distribute airline fare, flight, and availability information to

travel agents, enabling those travel agents to make reservations and issue

tickets to travelers. (Pl.’s Second Am. Compl. 2, ¶ 2.) Airlines provide their

information to GDSes and pay each GDS a booking fee for every reservation that

is made through the GDS. (Id. at 3, ¶¶ 6-7.)

2

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that order, American filed its second amended complaint (doc. 159).

American also filed a motion for reconsideration challenging

certain aspects of the Court’s dismissal order. The Court rejected

the majority of the arguments made in that motion, but granted

reconsideration on American’s argument that it should be permitted

to assert section 1 claims based on its own contracts with Sabre

and Travelport. Rather than grant American leave to file an

entirely new complaint, however, the Court granted American leave

to file a supplement to its second amended complaint. American

thereafter filed its supplement (doc. 265), and Sabre and

Travelport filed supplemental motions to dismiss.

In the second amended complaint and supplement, American reurges its position that Sabre, Travelport, and Orbitz have engaged

in an industry-wide conspiracy to preserve the GDSes’ market power. 

According to American, the defendants have conspired to preserve

the GDS model2

 and to exclude American’s “AA Direct Connect” from

the Market and submarkets. AA Direct Connect is a method of

providing airline information and booking services directly to

travel agents without having to go through GDSes. 

Based on these allegations, American asserts the following

claims in its second amended complaint: (1) monopolization by Sabre

of the Market and the Sabre submarket in violation of section 2 of

 2 The GDS model is explained in detail in the Court’s November 21, 2011

Order Regarding Motions to Dismiss and Motion for Leave (doc. 244).

3

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the Sherman Act; (2) monopolization by Travelport of the Travelport

submarket in violation of section 2; (3) conspiracy by Sabre,

Travelport, Orbitz, and “other unnamed co-conspirators” to

monopolize the Market and submarkets in violation of section 2; (4)

agreement between Sabre and Travelport to unreasonably restrain

interstate commerce in violation of section 1 of the Sherman Act;

(5) group boycott by Sabre, Travelport, and “numerous travel

agencies” in violation of section 1; (6) agreement between

Travelport and Orbitz to allocate customers in violation of section

1; and (7) unreasonable restraint of competition by Sabre and

Travelport via their contracts with American in violation of

section 1. The defendants now collectively seek dismissal under

Rule 12(b)(6) of counts 3-7.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) authorizes the

dismissal of a complaint that fails “to state a claim upon which

relief can be granted.” Fed. R. Civ. P. 12(b)(6). This rule must

be interpreted in conjunction with Rule 8(a), which sets forth the

requirements for pleading a claim for relief in federal court. See

Fed. R. Civ. P. 8(a). Rule 8(a) calls for “a short and plain

statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2); see Swierkiewicz v. Sorema N.A.,

534 U.S. 506, 508 (2002) (holding that Rule 8(a)’s simplified

4

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pleading standard applies to most civil actions). The Court must

accept as true all well-pleaded, non-conclusory allegations in the

complaint and liberally construe the complaint in favor of the

plaintiff. Kaiser Aluminum & Chem. Sales, Inc. v. Avondale

Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982). 

The plaintiff must, however, plead specific facts, not mere

conclusory allegations, to avoid dismissal. Guidry v. Bank of

LaPlace, 954 F.2d 278, 281 (5th Cir. 1992). Indeed, the plaintiff

must plead “enough facts to state a claim to relief that is

plausible on its face,” and his “[f]actual allegations must be

enough to raise a right to relief above the speculative level, on

the assumption that all the allegations in the complaint are true

(even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 547, 555 (2007) (citations omitted). The Court need not

credit bare conclusory allegations or “a formulaic recitation of

the elements of a cause of action.” Id. at 555. Rather, “[a]

claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 129 S. Ct. 1937, 1949 (2009). 

“Generally, a court ruling on a motion to dismiss may rely on

only the complaint and its proper attachments. A court is

permitted, however, to rely on documents incorporated into the

complaint by reference, and matters of which a court may take

5

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judicial notice.” Dorsey v. Portfolio Equities, Inc., 540 F.3d

333, 338 (5th Cir. 2008) (citations omitted) (internal quotation

marks omitted). “A written document that is attached to a

complaint as an exhibit is considered part of the complaint and may

be considered in a 12(b)(6) dismissal proceeding.” Ferrer v.

Chevron Corp., 484 F.3d 776, (5th Cir. 2007) (footnote omitted). 

In addition, a “court may consider documents attached to a motion

to dismiss that ‘are referred to in the plaintiff’s complaint and

are central to the plaintiff’s claim.’” Sullivan v. Leor Energy,

LLC, 600 F.3d 542, 546 (5th Cir. 2010) (quoting Scanlan v. Tex. A&M

Univ., 343 F.3d 533, 536 (5th Cir. 2003)).

III. Analysis

A. Count Three: Conspiracy to Monopolize in Violation of

Section 2

“Section 2 of the Sherman Antitrust Act provides a cause of

action against ‘single firms that monopolize or attempt to

monopolize, as well as conspiracies and combinations to

monopolize.’” Stewart Glass & Mirror, Inc. v. U.S. Auto Glass

Disc. Ctrs., Inc., 200 F.3d 307, 315 (5th Cir. 2000) (quoting

Spectrum Sports, Inc. v. McQuillan, 506 U.S. 447, 454 (1993)).3 To

 3 Section 2 of the Sherman Act reads, in relevant part, as follows:

Every person who shall monopolize, or attempt to monopolize, or

combine or conspire with any other person or persons, to monopolize

any part of the trade or commerce among the several States, or with

foreign nations, shall be deemed guilty of a felony . . . .

6

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state a claim for conspiracy to monopolize, a plaintiff must plead

facts showing “(1) the existence of specific intent to monopolize;

(2) the existence of a combination or conspiracy to achieve that

end; (3) overt acts in furtherance of the combination or

conspiracy; and (4) an effect upon a substantial amount of

interstate commerce.” Id. at 316 (quoting N. Miss. Commc’ns, Inc.

v. Jones, 792 F.2d 1330, 1335 (5th Cir. 1986)) (internal quotation

marks omitted).

After reviewing the second amended complaint and drawing all

reasonable inferences in favor of American, the Court concludes

that American has stated a plausible section 2 conspiracy-tomonopolize claim.4

 First, American identifies the specific intent

to monopolize allegedly shared by Sabre, Travelport, and Orbitz. 

American alleges that Sabre, Travelport, Orbitz, and certain

unnamed industry participants conspired “to punish and retaliate

against American for its direct connect initiative, with the

specific intent of preserving Sabre’s and Travelport’s monopolies

in the [Market] and submarkets.” (Pl.’s Second Am. Compl. 52, ¶

177.) American contends that AA Direct Connect poses a threat to

the GDS model and that, consequently, the defendants and certain

15 U.S.C.A. § 2 (West 2012).

 4 It would take a treatise to respond to all of the arguments raised by

the parties in their motion-to-dismiss briefing. Therefore, the Court will 

explicitly address only those arguments (a) that are germane to the disposition

of the instant motions and (b) that are not indirectly addressed by the Court’s

analysis.

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other industry participants share an interest in excluding AA

Direct Connect from the Market and submarkets. According to

American, the GDSes benefit directly from the GDS model because it

allows them to enjoy monopoly power, while travel agencies such as

Orbitz benefit indirectly from the model because they share in the

booking fees that the GDSes charge to airlines. These allegations,

taken as true, support a reasonable inference that GDSes and travel

agencies alike share an interest in preserving the status quo of

the GDS model and defeating efforts such as AA Direct Connect that

challenge the long-term viability of the GDS model. The

allegations further support an inference that Sabre, Travelport,

and Orbitz have specifically intended to act in accordance with

that shared interest.

Second, American has adequately pleaded the existence of a

conspiracy. More precisely, American has alleged facts sufficient

to support a reasonable inference that Sabre, Travelport, Orbitz,

and other industry participants engaged in a combination or

conspiracy to preserve the GDS model and exclude AA Direct Connect

from the Market and submarkets. American alleges that the

defendants, joined by various travel agencies, “agreed with one

another not to implement American’s direct connect technology,

agreed to bias their displays to disfavor American’s flights,

agreed to boycott American flights for their own corporate sales,

and agreed to encourage their corporate customers to ‘book away’

from American and shift sales to other airlines.” (Second Am.

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Compl. 6, ¶ 14.) American alleges further that this conspiracy was

“orchestrated by Sabre and Travelport, with assistance from large

travel agencies such as Orbitz and Expedia, and trade associations

such as the Business Travel Coalition and the American Society of

Travel Agents.” (Id. 7, ¶ 15.)

Third, American has alleged facts from which it may reasonably

be inferred that overt acts were taken in furtherance of the

alleged conspiracy. For example, the defendants, American alleges,

“coordinated their actions through telephone and email

communications, and face-to-face meetings among their senior

executives, board members, and employees.” (Id.) American also

alleges that in November 2010 “a senior executive at Sabre reported

to colleagues on a conversation he had with a Travelport

representative” and mentioned “a roadmap for AA plan.” (Id. at 36,

¶ 115.). In addition, American alleges that “an Orbitz employee

sent an email to employees at Sabre, Expedia, BTC, and ASTA asking

them to ‘stand together’ with Orbitz against American.” (Id. ¶

116.) Further, as a final example, American alleges that “[i]n

mid-2010, the GDSs were meeting with travel agencies to ‘discuss

AA’ or to ‘share views and action plan’ on AA Direct Connect.” 

(Id. at 39, ¶ 126.) These allegations are sufficient to support an

inference that the defendants took actions in furtherance of the

alleged conspiracy.

Fourth, American has alleged facts showing that the alleged

conspiracy has had a substantial effect on commerce. The second

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amended complaint alleges that Sabre controls the largest GDS in

the Market, accounting for more than 60% of all airline ticket

sales made by U.S.-based travel agencies, and that Travelport

controls three GDSes--Galileo, Apollo, and Worldspan--which

collectively account for over 30% of all airline ticket sales made

by U.S.-based travel agencies. (Id. at 2, ¶ 3; 11, ¶ 26.) 

Furthermore, American alleges that the majority of airlines’

passenger revenues are generated by ticket sales through travel

agencies. (Id. at 12, ¶ 33.) According to American, approximately

51% of American’s passenger revenue is generated by sales through

brick-and-mortar travel agencies, and approximately 10-15% is

generated by sales through online agencies. (Id.) Given these

allegations, it is reasonable to infer that a substantial amount of

commerce is affected by the alleged conspiracy.

In their motions to dismiss, the defendants collectively

contend that American’s conspiracy allegations are merely

conclusory and are insufficiently pleaded. Admittedly, American’s

conspiracy allegations are rather sweeping. But anchoring

American’s broad conspiracy allegations are facts that, taken as

true and construed in American’s favor, support a reasonable

inference of an industry-wide conspiracy between Sabre, Travelport,

Orbitz, and other travel agencies and trade associations. 

Moreover, whereas American’s first amended complaint lacked any

allegations linking Sabre’s and Travelport’s activities, the second

amended complaint contains several such allegations of horizontal

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agreement. Thus, American, rather than alleging several discrete

vertical conspiracies (as it did in its first amended complaint),

has alleged facts that plausibly support a reasonable inference

that a broad, industry-wide conspiracy to exclude American from the

Market and submarkets exists.

To illustrate, consider American’s allegation that “Sabre and

Travelport have a policy and practice of using contractual and

technical methods to prevent non-GDS distribution providers from

interoperating with their platforms” while “they permit

interoperation with each other.” (Id. at 30, ¶ 93.) This

allegation corroborates American’s position that Sabre and

Travelport have been working together to exclude non-GDS

technologies from the Market and the submarkets. 

Travelport argues that it is illogical to infer that

Travelport and Sabre are engaged in a common conspiracy in the

Market, particularly one that preserves Sabre’s market position,

because they are competitors. But in the economic landscape

painted by American’s complaint, Travelport has a concrete monopoly

in the Travelport submarket and a tight grip on 30% of the Market,

each of which is jeopardized if the GDS model crumbles. In view of

this, it is not illogical to infer that Travelport is willing to

work to maintain the GDS model simply because it benefits Sabre.

Consider also American’s allegation that Sabre, Orbitz, and

Amadeus, the fifth GDS in the Market, engaged in “regular

communication with each other about the threat that American’s

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activities posed to the GDS model, how each of the GDSs would

approach negotiations with American (and other airlines)[,] and how

they would neutralize the threat that AA Direct Connect posed to

the GDS model and its monopoly profits.” (Id. at 32, ¶ 99.) 

Describing an example of such collaboration, American alleges that

“in September 2010, a senior executive at Sabre and a member of

Travelport’s board of directors discussed their strategies for

negotiating with American, including the Travelport director’s

belief that American’s direct connect initiative would not get any

traction.” (Id.) These allegations help solidify American’s

assertion that Sabre and Travelport have aligned themselves in

their respective negotiations with American.

Moreover, American alleges that the conspiracy to monopolize

“between, Sabre, Travelport, and numerous travel agencies was

conducted at the highest levels by some of the most senior

executives at these firms and they recognized that their

communications crossed the line of legitimate competition on the

merits.” (Id. at 34, ¶ 107.) To illustrate, American alleges that

“one senior executive at a leading travel agency wrote to one of

Sabre’s most senior executives, ‘the circle needs to be very small

and very tight.’” (Id.) Furthermore, alleges American, “another

travel agency expressed concerns about discussing American’s direct

connect initiative in writing, and suggested using a code name”

while Sabre “ordered its employees not to use words such as ‘bias’

in their e-mails and to communicate verbally, rather than in

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writing, with senior executives when possible.” (Id.) While none

of these allegations is, on its own, enough to support an inference

of a conspiracy, when considered together and in context, and

construed in favor of American, they are sufficient to support a

conspiracy-to-monopolize claim under section 2.

B. Count Four: Unreasonable Restraint on Interstate Commerce

by Sabre and Travelport in Violation of Section 1

“To establish a § 1 violation, a plaintiff must prove that:

(1) the defendants engaged in a conspiracy, (2) that restrained

trade, (3) in the relevant market.” Golden Bridge Tech., Inc. v.

Motorola, Inc., 547 F.3d 266, 271 (5th Cir. 2008) (citing Apani

Sw., Inc. v. Coca-Cola Enters., Inc., 300 F.3d 620, 627 (5th Cir.

2002)).5 In addition, “antitrust plaintiffs must prove they have

suffered an injury stemming from the complained-of anti-competitive

behavior.” Stewart, 200 F.3d at 312 (citing Matsushita Elec.

Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986)).

“Once a plaintiff establishes that a conspiracy occurred,

whether it violates § 1 is determined by the application of either

the per se rule or the rule of reason.” Golden Bridge, 547 F.3d at

271 (citing Spectators’ Commc’n Network, Inc. v. Colonial Country

Club, 253 F.3d 215, 222-23 (5th Cir. 2001)). Should “the court

determine[] that the defendant’s conduct ‘would always or almost

5 Section 1 states, “[e]very contract, combination in the form of trust

or otherwise, or conspiracy, in restraint of trade or commerce among the several

States, or with foreign nations, is declared to be illegal.” 15 U.S.C.A. § 1. 

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always tend to restrict competition and decrease output,’ the

restraint is per se illegal and no further inquiry occurs.” Id.

(quoting Leegin Creative Leather Prods. v. PSKS, Inc., 551 U.S.

877, 886 (2007)). But “if the conduct is not deemed per se

unreasonable, the plaintiff will also have to prove that the

conduct unreasonably restrains trade in light of actual market

forces under the rule of reason.” Id. (citing Leegin, 551 U.S. at

886). Most cases will require analysis under the rule of reason. 

See N. Tex. Specialty Physicians v. F.T.C., 528 F.3d 346, 360 (5th

Cir. 2008) (noting that the Supreme Court “has analyzed most

restraints under the so-called rule of reason” (footnote omitted)

(internal quotation marks omitted)).

American alleges that “Sabre and Travelport have conspired and

agreed with one another not to compete with one another on certain

terms on which they provide airline booking services to American.” 

(Second Am. Compl. 53, ¶ 180.) In particular, alleges American,

Sabre and Travelport have agreed that “they would not implement AA

Direct Connect” and that they would “coordinate their negotiations

with American.” (Id.)

As discussed above, American has alleged facts sufficient to

support a reasonable inference that Sabre and Travelport have been

working together to exclude AA Direct Connect from the Market and

submarkets. More to the point here, American has alleged facts

from which it may be inferred that Sabre and Travelport have agreed

not to compete for American’s business, but instead to align

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themselves together in their negotiations with American. For

example, American alleges that a Sabre employee stated: “We don’t

want to take advantage of it with Travelport agencies. We want AA

to LOSE the book/passenger. We need to support Tport in their

tough actions.” (Id. at 39, ¶ 125.) The defendants may dispute

that this was ever said or that the speaker intended the comment to

mean what American contends it means. But at the Rule 12(b)(6)

stage, the Court must treat American’s allegations as true and draw

all reasonable inferences in American’s favor--even if those

inferences are not the most reasonable.6 See Kaiser Aluminum, 677

F.2d at 1050.

Because a horizontal agreement between competitors not to

compete “would always or almost always tend to restrict competition

and decrease output,” Sabre and Travelport’s alleged agreement

amounts to a restraint that is per-se unlawful. Leegin, 551 U.S.

at 886; see also Jayco Sys., Inc. v. Savin Bus. Mach. Corp., 777

F.2d 306, 317 (5th Cir. 1985) (“Horizontal agreements affect inter

 6 Throughout its briefing, Travelport highlights purported discrepancies

between American’s allegations and the actual documents from which the

allegations are derived. While the Court is permitted to consider certain

documents described in American’s second amended complaint, and even though the

Court is not bound to treat as true any allegations that contradict such

documents, the Court declines to engage in significant document review at the

pleading stage. In other words, the Court will not undertake to check the

accuracy of the allegations in American’s fifty-five-page second amended

complaint and four-page supplement by comparing each of those allegations to the

document from which it is derived. Such an evidence-based process is more

appropriately conducted at the summary-judgment stage. At the Rule 12(b)(6)

stage, the Court will treat American’s allegations as true and will only refuse

to give them effect if they are directly contradicted by a document obviously

central to American’s second amended complaint. See Kaiser Aluminum, 677 F.2d

at 1050; Sullivan, 600 F.3d at 546.

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brand competition, and because interbrand competition is the

primary concern of antitrust law, they are generally illegal per

se.” (citation omitted) (internal quotation marks omitted));

Transource Int’l, 725 F.2d at 280 (“[A]greements not to compete

among potential competitors are also illegal per se.” (citing Otter

Tail Power Co. v. United States, 410 U.S. 366, 377 (1973))). But

even if analyzed under the rule of reason, the alleged agreement

between Travelport and Sabre to align themselves in their

negotiations with American would, given the economic landscape

alleged in the second amended complaint, unreasonably restrain

trade in, and foreclose a substantial share of, the Market and

submarkets in violation of section 1. Golden Bridge, 547 F.3d at

271.

C. Count Five: Group Boycott in Violation of Section 1

American contends that “Sabre, Travelport, and numerous travel

agencies have combined and conspired with one another to retaliate

against American for its efforts to implement direct connect.” 

(Second Am. Compl. ¶ 183.) American alleges that Sabre and

Travelport carried out the boycott by “obtain[ing] agreements from

these travel agencies to bias their displays to disfavor American

flights” and by “soliciting travel agents and major corporate

customers’ agreement[s] to reduce their sales of tickets on

American flights.” (Id.)

Technically, the allegations contained in the second amended

complaint under the headings “Sabre and Travelport Orchestrate a

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Group Boycott” and “Fifth Claim for Relief: Group Boycott in the

Relevant Markets in Violation of Section 1 of the Sherman Act” do

not establish the existence of a group boycott involving both Sabre

and Travelport. Instead, the allegations under these headings show

the existence of two boycotts--one orchestrated by Sabre and the

other by Travelport. But reading the allegations in the context of

the entire second amended complaint, and considering that elsewhere

in the complaint allegations of collusion between Sabre and

Travelport can be found, the Court is satisfied that American has

alleged sufficient facts to support a reasonable inference that

Sabre and Travelport orchestrated a group boycott of American. 

Further, because American has alleged that Sabre and

Travelport (1) possess dominant positions in the Market and their

respective submarkets, (2) “control access to an element necessary

to enable [American] to compete,” and (3) have no pro-competitive

justifications for their alleged boycott, the alleged horizontal

boycott is per se unlawful. Tunica Web Adver. v. Tunica Casino

Operators, 496 F.3d 403, 414-15 (5th Cir. 2007); see also Nw.

Wholesale Stationers, Inc. v. Pac. Stationery & Printing Co., 472

U.S. 284, 290 (1985) (“This Court has long held that certain

concerted refusals to deal or group boycotts are so likely to

restrict competition without any offsetting efficiency gains that

they should be condemned as per se violations of § 1 of the Sherman

Act.”); Hood v. Tenneco Tex. Life Ins. Co., 739 F.2d 1012, 1017

(5th Cir. 1984) (“Horizontal agreements are ordinarily considered

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illegal per se ‘because of their pernicious effect on competition

and lack of any redeeming virtue.’” (quoting Transource Int’l, Inc.

v. Trinity Indus., Inc., 725 F.2d 274, 279 (5th Cir. 1984))). 

D. Count Six: Customer-Allocation Agreement in Violation of

Section 1

A customer-allocation agreement is per-se unlawful under

section 1. See Cont’l Ore Co. v. Union Carbide & Carbon Corp., 370

U.S. 690, 708 (1962). American alleges that “[b]eginning in

November 2010, Travelport and Orbitz entered into secret customer

allocation agreements with numerous other travel agencies.” 

(Second Am. Compl. 54, ¶ 187.) According to American, “[p]ursuant

to these agreements, these agencies agreed not to compete for the

business of [the] corporate customers” of Orbitz for Business

(“OFB”), Orbitz’s corporate travel agency. (Id.)

What American is alleging here is not a horizontal customerallocation agreement. A “classic” customer-allocation agreement is

“one[] in which ‘competitors at the same level agree to divide up

the market for a given product.’” Ca. ex ral. Harris v. Safeway,

Inc., 651 F.3d 1118, 1137 (9th Cir. 2011) (quoting Metro Indus.,

Inc. v. Sammi Corp., 82 F.3d 839, 844 (9th Cir. 1996)). Instead,

what American is alleging is an agreement between Orbitz and other

travel agencies, monitored and enforced by Travelport, not to

compete for OFB customers. Such an agreement constitutes a per-se

violation under section 1. See Transource, 725 F.2d at 280

(“[A]greements not to compete among potential competitors are also

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illegal per se.”). Thus, while the Court disagrees with American’s

characterization of this claim as one challenging a customerallocation agreement, the Court nevertheless concludes that

American has pleaded a section 1 claim based on Orbitz and other

travel agents’ alleged agreement not to compete for OFB customers.7

E. Count Seven: Section 1 Violation Based on Sabre’s and

Travelport’s Contracts with American

Lastly, American alleges that “Sabre and Travelport have

included terms in their subscriber agreements with American that

have the purpose and effect of excluding [from] competition . . . 

direct connect, as well as restricting competition among GDSs.” 

(Pl.’s Supp. to Second Am. Compl. 1, ¶ 2.) More specifically,

alleges American, “both Sabre and Travelport require that American

provide them with full content and content parity, and restrict

American’s ability to provide incentives to travel agents to shift

 7 This alleged agreement not to compete is horizontal because it is

primarily between Orbitz and other travel agencies. See Bus. Elec. Corp. v.

Sharp Elec., 485 U.S. 717, 730 (1988) (“Restraints imposed by agreement between

competitors have traditionally been denominated as horizontal restraints.”). 

That Travelport has joined in the agreement and policed it does not render the

agreement a vertical restraint, even though Travelport has a vertical

relationship with Orbitz. See Red Diamond Supply, Inc. v. Liquid Carbonic Corp.,

637 F.2d 1001, 1004 (5th Cir. 1981) (“Conspiracies between a manufacturer and its

distributors are . . . treated as horizontal when the source of the conspiracy

is a combination of the distributors.”).

Moreover, American’s failure to identify the other travel-agency

participants is not fatal to American’s section 1 claim (as it was to many of

American’s claims in the first amended complaint) because American has alleged

the identity of at least two members of the conspiracy--Travelport and Orbitz--

and because American has alleged sufficient facts to apprise Travelport and

Orbitz of the particular agreement that it is challenging. In any event,

American explains that it knows the identities of the other travel-agency

participants but that Orbitz refused to consent to American’s filing of a

proposed second amended complaint that included those names. If this is true,

then Orbitz should not be permitted to now challenge the sufficiency of

American’s complaint on that basis.

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bookings among GDSs.” (Id.) In addition, American alleges that

Sabre “has prohibited American from publicly marketing a Direct

Connect program.” (Id.) According to American, “[t]hese

provisions effectively prevent American from promoting competition

and supporting new entrants in the relevant markets, including

competition from its own AA Direct Connect.” (Id.)

“To prove conspiracy or ‘concerted action’ [for purposes of

section 1], the plaintiff must prove that the conspirators had a

‘conscious commitment to a common scheme designed to achieve an

unlawful objective.’” Spectators’ Commc’n Network, 253 F.3d at 220

(quoting Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 768

(1984)). That said, “[a]ntitrust law has never required identical

motives among conspirators, and even reluctant participants have

been held liable for conspiracy.” (Id.) Indeed, section 1 itself

states that “[e]very contract, combination in the form of trust or

otherwise, or conspiracy, in restraint of trade or commerce among

the several States, or with foreign nations, is declared to be

illegal.” 15 U.S.C.A. § 1 (emphasis added). Based on this

language, if a contract unreasonably restrains trade, then it

offends section 1--even if one of the parties to the contract

assented to its terms merely because of financial necessity.8 See

8 Travelport posits that “[a] plaintiff that voluntarily enters into and

enjoys the benefits of a contract cannot later complain that the contract

violates the antitrust laws.” (Travelport Supp. Mot. to Dismiss 6.) According

to Travelport, American “will need to show that [it] had anticompetitive terms

imposed upon it” and that it “unwillingly complied.” (Id. (internal quotation

marks omitted).) Travelport’s position is difficult to reconcile with the

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id.

Sabre and Travelport contend that their subscriber agreements

with American cannot support a section 1 claim because the

agreements are not exclusionary and do not foreclose a substantial

share of the Market or submarkets. Concerning the latter, Sabre

argues that American must allege facts indicating its percentage

share of the airline-services market. But in the Court’s view,

this argument would more likely be correct if the aggrieved party

were a passenger or a travel agent seeking to obtain flights. 

Instead, because American is the aggrieved party, the relevant

United States Supreme Court’s comments in Perma Life Mufflers, Inc. v.

International Parts Corporation, 392 U.S. 134, 140 (1968), overruled on other

grounds by Copperweld Corporation v. Independence Tube Corporation, 467 U.S. 752,

777 (1984). There, the Supreme Court, in holding that in pari delicto is not a

defense to an antitrust action, stated that a “plaintiff who reaps the reward of

treble damages may be no less morally reprehensible than the defendant, but the

law encourages his suit to further the overriding public policy in favor of

competition.” Id. at 139. The Court noted further that “permitting the

plaintiff to recover a windfall gain does not encourage continued violations by

those in his position since they remain fully subject to civil and criminal

penalties for their own illegal conduct.” Id. Thus, the Court is not persuaded

that American must allege facts showing that it was completely innocent in its

involvement in the scheme embodied by the subscriber agreements.

But at the same time, the Supreme Court explicitly declined to answer the

question of whether “truly complete involvement and participation in a

monopolistic scheme could ever be a basis, wholly apart from the idea of in pari

delicto, for barring a plaintiff’s cause of action.” Id. at 140. That is,

“Perma Life Mufflers did not foreclose a defense to an antitrust claim based on

a plaintiff's ‘truly complete involvement.’” Rogers v. McDorman, 521 F.3d 381,

388-89 (5th Cir. 2008) (quoting Perma Life Mufflers, 392 U.S. at 140). In any

event, American’s allegations do not suggest that it had “truly complete

involvement” in the drafting and selection of provisions in the subscriber

agreements. To the contrary, American has alleged facts indicating that the

economic realities were such that American had little choice but to accept the

terms in the subscriber agreements. Thus, American should not be barred from

asserting section 1 claims based on its subscriber agreements with Sabre and

Travelport simply because American was a party to those agreements. See Perma

Life Mufflers, 392 U.S. at 140 (“[E]ven if petitioners actually favored and

supported some of the other restrictions, they cannot be blamed for seeking to

minimize the disadvantages of the agreement once they had been forced to accept

its more onerous terms as a condition of doing business.”).

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market for purposes of American’s section 1 claim is the Market

(i.e., the distribution of airline fare, flight, and availability

information and the provision of booking services to travel

agents), along with the Sabre and Travelport submarkets (i.e., the

provision of airline booking services to Sabre and Travelport

subscribers, respectively). American has alleged facts showing

that its subscriber agreements with Sabre and Travelport (or

Travelport’s predecessors) bear on its ability to access Sabre and

Travelport’s combined ninety-plus percentage share of the Market

and their respective 100% shares of their submarkets. These

allegations are sufficient to establish substantial foreclosure.

Regarding Sabre and Travelport’s contentions that the

subscriber agreements are not exclusionary, the Court maintains the

position it took in its November 21, 2011 Order Regarding Motions

to Dismiss and Motion for Leave (doc. 244): that while the

factfinder may eventually find that the full-content and related

provisions are not anticompetitive, at this stage of the litigation

the Court is simply not able to say that the aforementioned

allegations are, as a matter of law, insufficient to support a

section 1 claim. 

IV. Conclusion

Based on the foregoing, the Court concludes that American’s

second amended complaint and supplement contain sufficient

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allegations to avoid dismissal under Rule 12(b)(6). Accordingly,

the defendants’ motions to dismiss are DENIED.

SIGNED August 7, 2012.

____________________________

TERRY R. MEANS

UNITED STATES DISTRICT JUDGE

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