15-1161

Planetarium Travel, Inc. v. Altour International 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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 19th 4 day of November, two thousand fifteen.

5

6 PRESENT: DENNIS JACOBS,

7 DEBRA ANN LIVINGSTON,

8 CHRISTOPHER F. DRONEY,

9 Circuit Judges.

10

11 - - - - - - - - - - - - - - - - - - - -X

12 PLANETARIUM TRAVEL, INC. 

13 Plaintiff-Appellant,

14

15 -v.- 15-1161

16

17 ALTOUR INTERNATIONAL INC., 

18 Defendant-Appellee.

19 - - - - - - - - - - - - - - - - - - - -X

20

21 FOR APPELLANT: DAVID DETOFFOL, DETOFFOL &

22 ASSOCIATES, New York, New York.

23

24 FOR APPELLEE: EVAN SHAPIRO, SKARZYNSKI BLACK

25 LLC, New York, New York.

26

27 Appeal from a judgment of the United States District

28 Court for the Southern District of New York (Torres, J.).

1
1

2 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

3 AND DECREED that the judgment of the district court be

4 AFFIRMED. 

5

6 Planetarium Travel, Inc. (“Planetarium”) appeals from

7 the judgment of the United States District Court for the

8 Southern District of New York (Torres, J.), granting Altour

9 International Inc’s (“Altour”) motion to dismiss this

10 antitrust case. We assume the parties’ familiarity with the

11 underlying facts, the procedural history, and the issues

12 presented for review. 

13

14 Planetarium’s complaint alleges that Altour, another

15 supplier, induced American Express Travel Related Services

16 Company, Inc. (“Amex”), a distributor, not to renew

17 Planetarium’s franchise agreement with Amex. Planetarium’s

18 antitrust claim is thus based on a vertical restraint. See

19 Bus. Elecs. Corp. v. Sharp Elecs. Corp., 485 U.S. 717, 730

20 (1988) (“Restraints . . . imposed by agreement between firms

21 at different levels of distribution [are] vertical

22 restraints.”). “[V]ertical restraints are generally subject

23 to ‘rule of reason’ analysis.” Elecs. Commc’ns Corp. v.

24 Toshiba Am. Consumer Prods., Inc., 129 F.3d 240, 243 (2d

25 Cir. 1997); see also Leegin Creative Leather Prods., Inc. v.

26 PSKS, Inc., 551 U.S. 877, 907 (2007). 

27

28 To establish an antitrust violation under the rule of

29 reason: (1) plaintiff “‘bears the initial burden of showing

30 that the challenged action has had an actual adverse effect

31 on competition as a whole in the relevant market’”; (2) if

32 the plaintiff carries this burden, “the burden shifts to the

33 defendant to establish the ‘pro-competitive redeeming

34 virtues’ of the action”; (3) should the defendant make this

35 showing, “the plaintiff must then show that the same pro36 competitive effect could be achieved through an alternative

37 means that is less restrictive of competition.” K.M.B.

38 Warehouse Distribs., Inc. v. Walker Mfg. Co., 61 F.3d 123,

39 127 (2d Cir. 1995) (quoting Capital Imaging Assocs., P.C. v.

40 Mohawk Valley Med. Assocs., Inc., 966 F.2d 537, 543 (2d Cir.

41 1993)). Planetarium’s initial burden in this analysis can

42 be discharged in two different ways: alleging an “actual

43 adverse effect on competition, such as reduced output,” or

44 “indirectly by establishing that [the competitor] had

45 sufficient market power to cause an adverse effect on

46 competition.” Tops Mkts., Inc. v. Quality Mkts., Inc., 142

47 F.3d 90, 96 (2d Cir. 1998). Importantly, “[b]ecause the

2
1 antitrust laws protect competition as a whole, evidence that

2 plaintiffs have been harmed as individual competitors will

3 not suffice.” Geneva Pharm. Tech. Corp. v. Barr Labs.,

4 Inc., 386 F.3d 485, 507 (2d Cir. 2004). 

5

6 Planetarium has failed to allege an actual adverse

7 effect on competition. “[E]xclusive distributorship

8 arrangements are presumptively legal,” and Planetarium has

9 failed to explain how this arrangement would impair

10 competition in the sales of first class and business class

11 airline tickets. Elecs. Commc’ns Corp., 129 F.3d at 245. 

12 Nor has Planetarium alleged that Altour has sufficient

13 market power to adversely affect competition. At most, an

14 examination of the complaint and its attached documents

15 reveals that Altour is the 13th largest travel agency in the

16 United States and that Amex was only recouping 9 % of travel

17 spending from its card members. These factual allegations

18 provide no indication that such market share gives rise to

19 market power, i.e., the ability “to raise price

20 significantly above the competitive level without losing all

21 of [its] business.” K.M.B. Warehouse Distribs., 61 F.3d at

22 129 (quoting Graphic Prods. Distribs., Inc. v. ITEK Corp.,

23 717 F.2d 1560, 1570 (11th Cir. 1983)). The district court

24 correctly ruled that Planetarium did not plausibly allege a

25 violation of the antitrust laws. 

26

27 For the foregoing reasons, and finding no merit in

28 Planetarium’s other arguments, we hereby AFFIRM the judgment

29 of the district court.

30

31 FOR THE COURT:

32 CATHERINE O’HAGAN WOLFE, CLERK

33

3