its allegation that ARTA enjoyed the knowing participation of any of its members in illegal activity in restraint of trade. Counterplaintiff has thus failed sufficiently to allege concerted activity in violation of section 1 of the Sherman Act.
Counterplaintiff also fails to allege activities "in restraint of trade" as required under section 1 of the Sherman Act. ATA is an association of air carriers. ARTA is an association of travel agents. ARC is an "industry travel agency program for the retail sale in the United States of passenger air transportation" which is run by ATA. Amended Counterclaim at para. 7. All of ATA's allegations relate to activities of ARTA during the development of the ARC program. They thus relate to vertical negotiations between producers and distributors of air travel services, through their agents, as to the structure of the distribution network. In fact, according to the allegation of the counterclaim, counter-defendant sought competitive input into the formation of the air travel sale distribution network. Counterplaintiff's injuries, e.g., increased cost in the development of the program, appear to have resulted from its failure to suppress such competitive input. Similarly, ARTA's alternate plan, as alleged, was merely a proposal that ATA and its individual members were free to accept or reject. A producer cannot sue under the antitrust laws simply because a distributor, or a group of distributors, do not accept without question all of its terms and conditions. The general rule is that an entity is allowed, absent monopolistic purpose, to deal with any chosen customer or supplier. United States v. Colgate & Co., 250 U.S. 300, 307, 39 S. Ct. 465, 468, 63 L. Ed. 992 (1919). Mere refusal to deal, without an agreement or conspiracy, is not a violation of the antitrust laws. Dahl, Inc. v. Roy Cooper Co., 448 F.2d 17, 19 (9th Cir.1971); Moore v. Jas. H. Matthews & Co., 550 F.2d 1207, 1220 (9th Cir.1977).
The antitrust laws "were enacted for 'the protection of competition not competitors.'" Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc., 429 U.S. 477, 488, 97 S. Ct. 690, 697, 50 L. Ed. 2d 701 (1977) (quoting Brown Shoe Co. v. United States, 370 U.S. 294, 320, 82 S. Ct. 1502, 1521, 8 L. Ed. 2d 510 (1962)) (emphasis in original). To distinguish its claim from a mere business tort, counter-plaintiff must allege significant anticompetitive effects resulting from counter-defendant's actions. Walker v. U-Haul Co. of Mississippi, 734 F.2d 1068, 1073 & n. 18 (5th Cir.1984); Havoco of America, Ltd. v. Shell Oil Co., 626 F.2d 549, 554 (7th Cir.1980); Mizlou Television Network, Inc. v. National Broadcasting Co., 603 F. Supp. 677, 683 (D.D.C.1984) (citing id.). The only injuries alleged by counter-plaintiff are "ATA's additional costs and expenses in the conduct of its trade association activities, including the development and establishment of the ARC program." Amended Counterclaim at para. 20. These injuries are quintessentially business tort injuries -- harm to a competitor -- not harm to competition in the market. Absent factually supported allegations of anticompetitive effect, counter-plaintiff's counterclaim fails to state a claim under section 1 of the Sherman Act and must be dismissed. Walker, supra; Havoco of America, Ltd., supra; Mizlou Television Network, Inc., supra.
Like its other allegations as to restraint of trade, counter-plaintiff's allegations as to alleged efforts to organize a boycott of the ARC program appear to have been simply part of the give and take of negotiations. Most fundamentally, however, a boycott is traditionally a horizontal restraint whereby "traders at one level . . . seek to protect themselves from competition from non-group members who are competing . . . at that level. They do this by taking concerted action aimed at depriving the excluded [traders] of some trade relationship which they would need to compete effectively at th[at] . . . level." L. Sullivan, Handbook of the Law of Antitrust 230 (1977). To constitute an illegal boycott, ARTA's action must have been aimed at fellow travel agents, to be influenced by a boycott of the ARC program. ATA does not allege such an intent. And even if it did allege such an intent, as an association of air carriers it would not have standing to sue for any competitive injuries suffered by travel agents. Transource International, Inc. v. Trinity Industries, Inc., 725 F.2d 274, 280 (5th Cir.1984). On its face ATA's counterclaim recites antitrust terminology, but fails to support its terminology with facts which would make such allegations meaningful under antitrust theory. As such, the claim under section 1 of the Sherman Act must be dismissed. Mizlou Television Network, Inc., supra, 603 F. Supp. at 683.
To state a claim for attempted monopolization counter-plaintiff must allege (1) a specific intent to destroy competition or control competition in the relevant market and (2) a dangerous probability of success. Swift & Co. v. United States, 196 U.S. 375, 396, 25 S. Ct. 276, 279, 49 L. Ed. 518 (1905); Transource International, Inc., supra, 725 F.2d at 282; Nifty Foods Corp. v. Great Atlantic & Pacific Tea Co., 614 F.2d 832, 841 (2d Cir.1980); Consolidated Terminal Systems, Inc. v. ITT World Communications, Inc., 535 F. Supp. 225, 228 (S.D.N.Y.1982); Merit Motors, Inc. v. Chrysler Corp., 417 F. Supp. 263, 269-70 (D.D.C.1976), aff'd, 187 U.S. App. D.C. 11, 569 F.2d 666 (D.C.Cir.1977). Counterplaintiff alleges the elements of the offense in only a conclusory fashion. Nowhere does ATA allege "a single fact to document [ARTA's] supposed actual or probable market power," Mizlou Television Network, Inc., supra, 603 F. Supp. at 684, or any other reason to find a dangerous probability of success. The "omission is fatal." Id. Such conclusory allegations will not survive a motion to dismiss. Quality Foods de Centro America, S.A. v. Latin American Agribusiness Dev. Corp., S.A., 711 F.2d 989, 995 (11th Cir.1983);* id.
The elements necessary to establish a claim of conspiracy to monopolize are: (1) the existence of a combination or conspiracy to monopolize; (2) overt acts done in furtherance of the combination or conspiracy; (3) an effect upon an appreciable amount of interstate commerce; and (4) a specific intent to monopolize. J.T. Gibbons, Inc. v. Crawford Fitting Co., 704 F.2d 787, 796 (5th Cir.1983); Olsen v. Progressive Music Supply Inc., 703 F.2d 432, 438 (10th Cir.), cert. denied, 464 U.S. 866, 104 S. Ct. 197, 78 L. Ed. 2d 172 (1983). This count of the counterclaim suffers from some of the same deficiencies as the allegations of the other counts. First, counter-plaintiff does not adequately allege a conspiracy between ARTA and any of its members to monopolize the retail travel sale market. And second, counter-plaintiff does not allege that counter-defendant "has the power to control price and exclude competition generally in the relevant market." Mizlou Television Network, Inc., supra, 603 F. Supp. at 684 (emphasis in original). Absent the necessary factual support, counter-defendant's claim of conspiracy to monopolize must be dismissed.
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Counterplaintiff has failed to support its conclusory allegations of antitrust violations with facts necessary to state a claim. The accompanying Order will dismiss ATA's counterclaim with prejudice.
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