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20-1022-cv

Go New York Tours, Inc. v. Gray Line New York Tours, Inc., et al.

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 22nd day of December, two thousand twenty.

PRESENT: JOSÉ A. CABRANES,

MICHAEL H. PARK,

WILLIAM J. NARDINI,

Circuit Judges.

GO NEW YORK TOURS, INC.,

Plaintiff-Appellant, 20-1022-cv

v.

GRAY LINE NEW YORK TOURS, INC., TWIN AMERICA,

LLC, SIGHTSEEING PASS LLC, BIG BUS TOURS 

GROUP HOLDINGS LIMITED, BIG BUS TOURS GROUP 

LIMITED, BIG BUS TOURS LIMITED, LEISURE PASS 

GROUP HOLDINGS LIMITED, LEISURE PASS GROUP 

LIMITED, LEISURE PASS GROUP, INC., OPEN TOP 

SIGHTSEEING USA, INC., TAXI TOURS, INC.,

 

Defendants-Appellees,

BIG BUS LLC,

Defendant.

*

* The Clerk of Court is respectfully directed to amend the official caption as listed above. 
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FOR PLAINTIFF-APPELLANT: MAURICE NEWMARK ROSS, Randall L. 

Rasey, Barton LLP, New York, NY.

FOR DEFENDANTS-APPELLEES: JUSTIN EPNER, Jonathan M. Jacobson, 

Wilson Sonsini Goodrich & Rosati, 

Washington, D.C., New York, NY; 

Michael Lacovara, Virginia F. Tent, 

Sindhu Boddu, Latham & Watkins LLP, 

New York, NY.

Appeal from a judgment of the United States District Court for the Southern District of 

New York (Lewis A. Kaplan, Judge).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the order of the District Court be and hereby is

AFFIRMED.

Plaintiff-Appellant Go New York Tours, Inc. (“Go New York” or “Plaintiff”), a tour-bus 

company, appeals the District Court’s dismissal, pursuant to Fed. R. Civ. P. 12(b)(6), of PlaintiffAppellant’s Second Amended Complaint (“Complaint”) against two competitors and related 

companies, Defendants-Appellees Gray Line New York Tours, Inc, Twin America, LLC, and 

Sightseeing Pass LLC (together “Gray Line”), and Defendants-Appellees Big Bus Tours Group 

Holdings Limited, Big Bus Tours Group Limited, Big Bus Tours Limited, Open Top Sightseeing 

USA, Inc., Taxi Tours, Inc., Leisure Pass Group Holdings Limited, Leisure Pass Group Limited, and 

Leisure Pass Group, Inc. (together “Big Bus”) (Defendants-Appellees collectively, “Defendants”). 

Plaintiff alleges that Defendants, in violation of Section 1 of the Sherman Antitrust Act of 1890 

(“Sherman Act”), 15 U.S.C. § 1 et seq.,

1 conspired to persuade or coerce tourist attractions to refuse 

or withdraw from trade partnership agreements with Go New York to offer multi-attraction passes.

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The District Court held that Go New York failed to state a claim under the Sherman Act because it 

did not plausibly allege the existence of an anticompetitive agreement between the Defendants.3 Go 

1 Section 1 of the Sherman Act makes illegal “[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.” 15 U.S.C. § 1.

2 Multi-attraction passes are sightseeing passes that permit the bearer entrance to multiple tourist 

attractions for a single, discounted price. See, e.g., App’x at 58-59 (Complaint, ¶ 40). 

3 Go New York also brought state-law claims for antitrust violations, unfair competition, 

tortious interference with contract, and tortious interference with prospective business relations. 

Having dismissed the Sherman Act claims, the District Court declined to exercise supplemental 

jurisdiction over the state-law claims.
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New York argues on appeal that the District Court improperly applied an unduly restrictive version 

of the “plausibility” pleading standard established by Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). We assume the parties’ familiarity with the underlying 

facts, the procedural history of the case, and the issues on appeal. 

We review de novo a district court’s dismissal of a complaint pursuant to Fed. R. Civ. P.

12(b)(6), “accept[ing] all factual allegations as true and draw[ing] every reasonable inference from 

those facts in the plaintiff’s favor.” Mayor & City Council of Baltimore, v. Citigroup, Inc., 709 F.3d 129, 

135. (2d Cir. 2013). To survive a motion to dismiss, a complaint must plausibly plead a claim to 

relief—i.e., allege facts that do more than “create[] a suspicion [of] a legally cognizable right of action,” 

Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012) (quoting Twombly, 550 U.S. 

at 555) (second alteration in original), and “raise a right to relief above the speculative level,” Mayor 

& City Council of Baltimore, 709 F.3d at 135 (quoting Twombly, 550 U.S. at 555), such that a court can

“draw the reasonable inference that the defendant is liable for the misconduct alleged,” Anderson 

News, 680 F.3d at 182 (quoting Iqbal, 556 U.S. at 678). 

To adequately plead a conspiracy under Section 1 of the Sherman Act, a plaintiff must allege 

facts from which it can be inferred that the anticompetitive conduct “stem[s] from ... an agreement, 

tacit or express” and not from “independent decision.” Id. (quoting Twombly, 550 U.S. at 553). 

Where, as here, the plaintiff does not allege direct evidence of an agreement, the plaintiff may 

adequately plead a Section 1 claim by making “allegations of interdependent conduct [by the 

conspirators], accompanied by circumstantial evidence and plus factors.” Gelboim v. Bank of Am. 

Corp., 823 F.3d 759, 781 (2d Cir. 2016) (quotation marks omitted). “‘[P]lus factors’ may include: a 

common motive to conspire, evidence that shows that the parallel acts were against the apparent 

individual economic self-interest of the alleged conspirators, and evidence of a high level of 

interfirm communications.” Mayor & City Council of Baltimore, 709 F.3d at 136.

Go New York has failed to plead a Section 1 Sherman Act claim against Defendants because 

it has not alleged the existence of sufficiently powerful “plus factors” to “raise [Plaintiff’s] right to 

relief above the speculative level.” Id. at 135.4 To be sure, Go New York has adequately pled the 

existence of one “plus factor,” namely a motive to conspire. Go New York alleges that it 

“disrupted” the New York hop-on-hop-off bus tour market by charging substantially lower prices 

than Defendants for roughly comparable services. Taking those allegations as true, it is reasonable to 

infer that Defendants had a shared interest in protecting their comparatively high prices by 

minimizing Go New York’s market share. It is objectively rational for Defendants to make joint

4 It is unclear what conduct Go New York means to identify as “interdependent” or “parallel” 

action by Defendants. We assume Go New York relies on Defendants’ alleged use of economic 

pressure and disparagement to discourage tourist attractions from dealing with Go New York.
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efforts to defame Plaintiff and to pressure tourist attractions not to deal with Plaintiff, since such 

joint efforts are presumably more likely to succeed than separate ones. Nonetheless, the motive to 

conspire is not here so obvious or compelling that it suffices to create more than a “suspicion [of] a 

legally cognizable right of action.” Anderson News, 680 F.3d at 182 (quoting Twombly, 550 U.S. at 555) 

(alteration in original). Defendants’ allegedly anticompetitive acts would have been objectively 

rational even if done independently of one another, and Plaintiff pleads no facts suggesting that they

in reality “stem[med] from ... an agreement.” Id. (quoting Twombly, 550 U.S. at 555).

We disagree with Go New York’s assertion that it has pleaded a second “plus factor” by

alleging that the tourist attractions acted against their economic self-interest in boycotting Go New 

York. The “actions against self-interest” plus factor relates specifically to the interdependent or 

parallel actions by the alleged conspirators, rather than third parties like the tourist attractions. See Mayor 

& City Council of Baltimore, 709 F.3d at 136 (“‘[P]lus factors’ may include ... evidence that shows that 

the parallel acts were against the apparent individual economic self-interest of the alleged 

conspirators ....”) (internal citation and quotation marks omitted, emphasis added).5 Here, Go New 

York does not plead that Defendants took any actions against their own economic self-interest.6

Because Go New York has failed to state a claim under Section 1 of the Sherman Act, we affirm the 

judgment of the District Court.

CONCLUSION

We have reviewed all of the arguments raised by Go New York on appeal and find them to 

be without merit. For the foregoing reasons, we AFFIRM the March 6, 2020 judgment of the 

District Court.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk

5 It makes sense to consider only the antitrust defendants’ alleged conduct, because “plus 

factors” are allegations supporting the inference that defendants acted pursuant to an agreement. 

When a business acts contrary to its ostensible economic self-interest, it may be reasonable to infer 

that it is acting in concert with others.

6 Go New York’s allegations regarding actions against self-interest by the tourist attractions may 

support the inference that the Defendants in fact influenced the attractions’ behavior, but they do not 

support the inference that Defendants conspired to do so.