15-1161 Planetarium Travel, Inc. v. Altour International Inc. et al.



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED**
**ON OR AFTER J** **ANUARY 1,**  **2007, IS PERMITTED AND IS GOVERNED BY**  **F EDERAL**  **R ULE OF**  **A PPELLATE**  **P ROCEDURE**  **32.1 AND THIS COURT**  **’ S**  **L OCAL**  **R ULE**  **32.1.1. W**  **HEN CITING A SUMMARY ORDER IN A**
**DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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** 1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 19 th** **day of November, two thousand fifteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **DEBRA ANN LIVINGSTON,** 7 **CHRISTOPHER F. DRONEY,** 8 **Circuit Judges**

**.** 9 10 - - - - - - - - - - - - - - - - - - - -X 11 **PLANETARIUM TRAVEL, INC.** 12 **Plaintiff-Appellant ,**  13 14 **-v.- 15-1161** 15 16 **ALTOUR INTERNATIONAL INC.,** 17 **Defendant-Appellee**

**.** 18 - - - - - - - - - - - - - - - - - - - -X 19 20 **FOR APPELLANT:** DAVID DETOFFOL, DETOFFOL & 21 ASSOCIATES, New York, New York. 22 23 **FOR APPELLEE:** EVAN SHAPIRO, SKARZYNSKI BLACK 24 LLC, New York, New York. 25 26 Appeal from a judgment of the United States District 27 Court for the Southern District of New York (Torres, J. ). 28

11 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 2 **AND DECREED**that the judgment of the district court be 3
**AFFIRMED**

. 4 5 Planetarium Travel, Inc. (“Planetarium”) appeals from 6 the judgment of the United States District Court for the 7 Southern District of New York (Torres, J. ), granting Altour 8 International Inc’s (“Altour”) motion to dismiss this 9 antitrust case

. We assume the parties’ familiarity with the 10 underlying facts, the procedural history, and the issues 11 presented for review. 12 13 Planetarium’s complaint alleges that Altour, another 14 supplier, induced American Express Travel Related Services 15 Company, Inc. (“Amex”), a distributor, not to renew 16 Planetarium’s franchise agreement with Amex. Planetarium’s 17 antitrust claim is thus based on a vertical restraint. See 18 Bus. Elecs. Corp. v. Sharp Elecs. Corp. , 485 U.S. 717, 730 19 (1988) (“Restraints . . . imposed by agreement between firms 20 at different levels of distribution [are] vertical 21 restraints.”). “[V]ertical restraints are generally subject 22 to ‘rule of reason’ analysis.” Elecs. Commc’ns Corp. v. 23 Toshiba Am. Consumer Prods., Inc. , 129 F.3d 240, 243 (2d 24 Cir. 1997); seealsoLeegin Creative Leather Prods., Inc. v. 25 PSKS, Inc. , 551 U.S. 877, 907 (2007). 26 27 To establish an antitrust violation under the rule of 28 reason: (1) plaintiff “‘bears the initial burden of showing 29 that the challenged action has had an actual adverse effect 30 on competition as a whole in the relevant market’”; (2) if 31 the plaintiff carries this burden, “the burden shifts to the 32 defendant to establish the ‘pro-competitive redeeming 33 virtues’ of the action”; (3) should the defendant make this 34 showing, “the plaintiff must then show that the same pro35 competitive effect could be achieved through an alternative 36 means that is less restrictive of competition.” K.M.B. 37 Warehouse Distribs., Inc. v. Walker Mfg. Co. , 61 F.3d 123, 38 127 (2d Cir. 1995) (quoting Capital Imaging Assocs., P.C. v. 39 Mohawk Valley Med. Assocs., Inc. , 966 F.2d 537, 543 (2d Cir. 40 1993)). Planetarium’s initial burden in this analysis can 41 be discharged in two different ways: alleging an “actual 42 adverse effect on competition, such as reduced output,” or 43 “indirectly by establishing that [the competitor] had 44 sufficient market power to cause an adverse effect on 45 competition.” Tops Mkts., Inc. v. Quality Mkts., Inc. , 142 46 F.3d 90, 96 (2d Cir. 1998). Importantly, “[b]ecause the 47

2antitrust laws protect competition as a whole, evidence that 1 plaintiffs have been harmed as individual competitors will 2 not suffice.” Geneva Pharm. Tech. Corp. v. Barr Labs., 3 Inc. , 386 F.3d 485, 507 (2d Cir. 2004). 4 5 Planetarium has failed to allege an actual adverse 6 effect on competition. “[E]xclusive distributorship 7 arrangements are presumptively legal,” and Planetarium has 8 failed to explain how this arrangement would impair 9 competition in the sales of first class and business class 10 airline tickets. Elecs. Commc’ns Corp. , 129 F.3d at 245. 11 Nor has Planetarium alleged that Altour has sufficient 12 market power to adversely affect competition. At most, an 13 examination of the complaint and its attached documents 14 reveals that Altour is the 13th largest travel agency in the 15 United States and that Amex was only recouping 9 % of travel 16 spending from its card members. These factual allegations 17 provide no indication that such market share gives rise to 18 market power, i.e., the ability “to raise price 19 significantly above the competitive level without losing all 20 of [its] business.” K.M.B. Warehouse Distribs. , 61 F.3d at 21 129 (quoting Graphic Prods. Distribs., Inc. v. ITEK Corp.
, 22 717 F.2d 1560, 1570 (11th Cir. 1983)). The district court 23 correctly ruled that Planetarium did not plausibly allege a 24 violation of the antitrust laws. 25 26 For the foregoing reasons, and finding no merit in 27 Planetarium’s other arguments, we hereby **AFFIRM** the judgment 28 of the district court. 29 30 FOR THE COURT: 31 CATHERINE O’HAGAN WOLFE, CLERK 32 33

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