In re NORTHWEST AIRLINES CORP., et al., Antitrust Litigation, 208 F.R.D. 174

OPINION AND ORDER REGARDING PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION AND DEFENDANTS’ MOTION FOR

SUMMARY JUDGMENT ROSEN, District Judge. I. INTRODUCTION On October 11, 1996, Plaintiff Nelson Chase brought the first of these four consolidated antitrust actions on behalf of himself and other similarly situated air travelers, alleging that Defendants Northwest Airlines Corp., Northwest Airlines, Inc., Airline Reporting Corporation (“ARC”) and others have conspired among themselves to restrain trade in violation of § 1 of the Sherman Act, 15 U.S.C. § 1, and that Defendant Northwest has engaged in unlawful monopolistic practices in violation of § 2 of the Sherman Act, 15 U.S.C. § 2.

The three remaining suits were filed in 1999, with Defendants Northwest and ARC again named as Defendants, but with the addition of Defendants Delta Air Lines, Inc., U.S. Airways Group, Inc., and U.S. Airways, Inc. as parties. These four actions, with their substantially similar allegations, were consolidated for all pretrial purposes through a stipulated Order dated September 16,1999. As detailed in a prior Opinion and Order, see Chase v.

Northwest Airlines Corp., 49 F.Supp.2d 553 (E.D.Mich.1999), this case concerns the Defendant Airlines’ refusal to sell so-called “hidden-city” tickets, whereby a passenger who wishes to travel to or from one of the Airlines’ hub airports is able to obtain a cheaper fare by purchasing a “spoke-hub-spoke” ticket that encompasses the desired “hub-spoke” route, and then simply discarding the unused portion of the ticket. Each of the Defendant Airlines has adopted a policy prohibiting the sale of such tickets, and the Airlines also have devised various mechanisms to enforce their prohibitions.

Plaintiffs allege that the Defendant Airlines, Defendant ARC, and others have conspired to enforce these prohibitions, and that each Airline’s separate prohibition constitutes an unlawful exercise of monopoly power over many of the routes that originate or terminate at its hub airports. By motion filed on November 15, 2000, Plaintiffs now request certification of several proposed classes of airline customers under Fed.R.Civ.P. 23, including: (

i) a class of ticket purchasers who seek injunctive relief from Defendants’ alleged

Section 1 and 2 violations; (ii) a class of ticket purchasers who purportedly suffered monetary losses as a result of Defendants’ alleged

Section 1 conspiracy to eliminate hidden-city ticketing; and (iii) subclasses of customers of each individual Defendant Airline who seek to recover damages for each Airline’s alleged violation of

Section 2. For their part, the Defendant Airlines filed a motion for

summary judgment on November 15, 2000, arguing that Plaintiffs’

Section 1 and 2 claims are deficient as a matter of law in a number of respects. Both of these motions have been fully briefed by the parties. In addition, on November 14, 2001, the Court heard oral argument on these matters. Having reviewed the parties’ submissions and the voluminous record, and having considered the arguments of counsel at the November 14 hearing, the Court now is prepared to rule on Plaintiffs’ and the Airline Defendants’ motions. This Opinion and Order sets forth the Court’s rulings. II.

FACTUAL AND PROCEDURAL BACKGROUND The parties have submitted lengthy recitations of the facts of this case, and have provided innumerable boxes of exhibits in support of their respective positions. Needless to say, a full account of all of the facts of this case would fill an entire volume of the Federal Supplement. Accordingly, what follows is necessarily a

summary of the most pertinent facts and circumstances, with more details to follow as necessary to the Court’s analysis of the arguments raised in the parties’ motions. A. The Parties to These Actions The named Plaintiffs in this consolidated action are Nelson Chase, Norman Yolk, Nitrogenous Industries Corp., and Keystone Business Machines, Inc. The Defendants are (

i) Northwest Airlines Corp. and Northwest Airlines, Inc. (collectively “Northwest”); (ii) U.S. Airways Group, Inc. and U.S. Airways, Inc. (collectively “U.S. Airways”); (iii) Delta Air Lines, Inc. (“Delta”); and (iv) Airline Reporting Corporation (“ARC”). Defendant ARC is an airline trade association owned and controlled by its constituent member airlines. ARC provides accreditation for travel agencies and a central clearinghouse for ticket sales made by these agencies. The remaining Defendants, of course, are major passenger airlines that provide air travel service throughout the nation and the world.

Each of the named Plaintiffs purchased at least one unrestricted, full-fare ticket from one of the Defendant Airlines during the relevant time period — on or after October 10, 1992, as to the claims against Northwest; on or after May 18, 1995, as to the claims against U.S. Airways; and on or after June 11, 1995, as to the claims against Delta. These ticket purchases all involved travel that began or ended at a Defendant Airline’s hub airport — either Minneapolis, Detroit, or Memphis, for Northwest; Pittsburgh or Charlotte, for U.S. Airways; and Atlanta and Cincinnati, for Delta.

In all, Plaintiffs have identified 234 “Affected City-Pair Routes” that begin or end at one of these hub airports. The named Plaintiffs seek to serve as class representatives for all passengers who purchased unrestricted, full-fare tickets on or after the above-cited dates for travel on one of these “Affected City-Pair Routes.” B. The Practice of “Hidden-City” Ticketing This case arises from the Defendant Airlines’ efforts to discourage or eliminate the practice of “hidden-city” ticketing (also referred to as “point-beyond” ticketing).

To use an example that has become ubiquitous in these proceedings, consider a passenger who wishes to travel from New York to Northwest’s hub airport in Detroit. Upon calling Northwest or a travel agent to inquire about fares, this passenger might discover that the unrestricted, one-way full fare for travel from New York to Detroit is $394.00. However, upon further inquiry, the passenger might learn that a one-way full fare ticket for travel from New York to Columbus, Ohio costs only $238.73.

Yet, because of the hub-and-spoke layout of Northwest’s flight network, it happens that a trip from New York to Columbus actually involves two segments, one from New York to Detroit and one from Detroit to Columbus. Thus, a savvy — or, Defendants would say, unscrupulous — traveler might elect to purchase a New York-Columbus ticket, disembark in Detroit, and simply throw away the unneeded portion of the ticket for travel from Detroit to Columbus. The Defendant Airlines oppose this practice, and have devised various measures to prevent it.

The focus of this case is to determine the reasons for this opposition, and the lawfulness of these reasons. Plaintiffs allege that Defendants have two motives for seeking to eliminate the practice of hidden-city ticketing: (

i) an agreement among themselves and other airlines that they would do so; and (ii) a concern that this practice, if permitted, would undermine the Airlines’ overall fare structure, including an alleged “hub premium” imposed upon passengers traveling to or from hub airports by virtue of the Airlines’ alleged monopoly power at these airports. Plaintiffs further assert that the first of these motivations violates

Section 1 of the Sherman Act, and that the second violates

Section 2. The Defendant Airlines, for their part, deny that they have acted in concert in adopting and enforcing their rules against hidden-city ticketing, deny that they possess monopoly power at their respective hub airports, and affirmatively contend that their fare structures are an economically rational and wholly lawful means to recover the fixed costs of their hub-spoke systems, notwithstanding that these fare structures might give rise to the occasional hidden-city fare anomaly.

Defendants further assert that each Airline may lawfully protect its fare structure by prohibiting hidden-city ticketing, and that, in the face of these prohibitions, a passenger’s attempt to employ the practice of hidden-city ticketing is tantamount to fraud. C. The History of the Airlines’ Prohibitions on Hidden-City Ticketing 1. The Airlines’ Tariff Rules Against Hidden-City Ticketing Over the course of the 1980’s, each of the Defendant Airlines, as well as several other airlines, adopted two tariff rules that have some bearing upon the practice of hidden-city ticketing.

The first of these, Tariff Rule 100, dealt only indirectly with the practice (at least in the form initially enacted by the airlines), but the second, Tariff Rule l, was more explicit in its prohibition. These and other tariff rules are incorporated by reference into the “contract of carriage” that is a part of each passenger ticket. As an example, Northwest adopted its version of Rule 100 in 1983, and this rule provides, in pertinent part: TICKETS — GENERAL (

A) No person shall be entitled to transportation except upon presentation of a valid ticket. Such ticket shall entitle the passenger to transportation only between point of origin and destination and via the routing designated thereon. (

B) Flight coupons will be honored only in the order in which they are issued, and only if all unused flight coupons and the passenger coupons are presented together. (Defendants’ Exhibits, Tab 1, A-9.) Some airlines (e.g., Delta), but not others (e.g., Northwest), issued detailed amendments to Rule 100 that expressly address hidden-city ticketing.

Delta’s 1997 version of Rule 100, for example, includes language that “specifically prohibits the practice! ] commonly known as ... ‘HIDDEN CITY/POINT BEYOND TICKETING.’ ” (Id. at A-16.) As noted, the Airlines’ Rule 1 is more directly applicable to hidden-city ticketing. For example, Northwest’s initial Rule 1, as adopted in 1983, states in pertinent part: (

E) Fares apply for travel only between the points for which they are published. Tickets may not be issued at fare(

s) published to and/or from a more distant point(

s) than the points being traveled, even when issuance of such tickets would produce a lower price. (Id. at A-24.) By 1988, each of the Defendant Airlines had adopted this rule, or one to similar effect. Some Airlines (e.g., Northwest) amended their versions of this rule to more expressly identify the means of its enforcement and consequences of its violation. As amended in 1987, Northwest’s Rule 1 now provides, in pertinent part: (

E) Fares apply for travel only between the points for which they are published. Tickets may not be issued at fare(

s) published to and/or from a more distant point(

s) than the points being traveled, even when issuance of such tickets would produce a lower fare. When a through or connecting passenger enplanes at an intermediate point between the origin and destination shown on his/her ticket, NW may require evidence, such as a boarding pass, of use of a preceding flight for the portion of the ticket from point of origin to intermediate point.

Absent such evidence, NW may require additional fare collection from the passenger for any difference between the fare paid for the ticket from origin to destination and the fare which would apply from the intermediate boarding point to the destination. (Id. at A-26.) Until the mid 1980’s, one of the mechanisms used by the Airlines to enforce their tariff rules was the Air Traffic Conference (“ATC”), the predecessor to Defendant ARC.

In particular, ATC required that each accredited travel agent enter into a “Passenger Sales Agency Agreement,” under which the agent agreed to “adhere to and comply with” the Airlines’ tariffs. (Plaintiffs’ Exhibits, Tab 11, Passenger Sales Agency Agreement at 11.) The failure to do so could lead to a loss of accreditation. In 1984, the travel agent oversight function of ATC was assumed by Defendant ARC.

However, ARC abandoned ATC’s practice of assisting in the enforcement of the Airlines’ tariff rules, and removed any reference to tariffs from its “Agent Reporting Agreement” (the successor to ATC’s “Passenger Sales Agency Agreement”). ARC’s reason for doing so was an investigation conducted by the Civil Aeronautics Board (“CAB”), which had expressed antitrust concerns with any collective tariff enforcement efforts through an airline trade group.

As stated in a 1992 letter from an ARC representative to Delta Ah* Lines: ARC’s jurisdiction does not extend to individual carrier tariff-related matters ____ While under the controlling agreement of ARC’s predecessor, the Air Traffic Conference, an agent was obligated to “adhere to and comply with the tariffs, rules and regulations of the carriers”, ... thereby providing ATC with jurisdiction over agents failing to comply with applicable tariffs; parallel language was not carried over to the ARC Agent Reporting Agreement.

This omission was intentional, reflecting not only the competitiveness brought about by deregulation of the airline industry, but also attendant antitrust concerns. (Id., Dep. Ex. 737.) As for other tariff enforcement efforts by the Airlines, Plaintiffs have produced a fair amount of evidence that, at least through the late 1980’s, many airlines tolerated the practice of hidden-city ticketing and, in some cases, even encouraged it.

Plaintiffs cite various newspaper articles which, in turn, quote airline executives as stating that their companies would have to “live with” the practice and that there was little they could do to prevent it, and which quote others in the air travel industry as stating that travel agents could easily evade the airlines’ uneven efforts to enforce their tariff rules against the practice. Likewise, Plaintiffs point to the deposition testimony of Jerry Strong, the manager of Northwest’s agency audit department until 1988, that Northwest did not audit for hidden-city tickets while he worked in that department.

Plaintiffs also have offered the affidavit of a former airline employee, Bruce Bishins, who recounts his efforts in the late 1970’s and early 1980’s — initially on behalf of Trans World Airlines, and then on behalf of the airlines collectively through the Air Traffic Conference — to teach the airlines’ sales agents and independent travel agents how to write hidden-city tickets. Finally, Plaintiffs point to the 1988 edition of Defendant ARC’s travel agent handbook, which expressly instructs agents on the practice of writing hidden-city tickets. 2.

The Airlines’ Discussions of Hidden-City Ticketing at Trade Association Meetings, and Their Formation of Industry “Fraud Prevention” Groups According to Plaintiffs, the economies of the airline industry changed in response to the economic downturn experienced throughout the nation in the early 1990’s. The result, according to Northwest memoranda offered by Plaintiffs, was to widen the gap between business and leisure fares, thereby increasing the incentive of business travelers to seek out hidden-city ticketing opportunities, as well as other devices for avoiding high business fares.

Plaintiffs also cite newspaper accounts of surveys indicating the increased employment in the late 1980’s and early 1990’s of the practice of hidden-city ticketing and other fare-saving devices. They further point to reports and testimony indicating that travel agents felt more pressure in this time period to sell hidden-city tickets in order to keep pace with other agents who did so. In Plaintiffs’ view, these developments led the airlines to consider anew their responses to the practice of hidden-city ticketing.

Whether or not one subscribes to this cause-and-effect theory, the record contains ample evidence that the airlines did, in fact, discuss the practice of hidden-city ticketing at various trade group meetings during this time frame. Plaintiffs trace this back to the mid-1980’s, when the airlines collectively addressed a similar practice, involving international travel and known as “cross-border” ticketing, at meetings of the International Air Transport Association (“IATA”).

In 1986, for example, the IATA formed a “Fraud Prevention Steering Group,” which issued a report in 1987 stating that cross-border ticketing “is not fraud in the strict sense of criminal activity” and is “virtually impossible to detect,” but “does however infringe IATA rules,” and represents a “prevalent form of revenue dilution” and a “potentially substantial threat to yield maximization.” (Plaintiffs’ Exhibits, Tab 12, Dep.

Ex. 206.) The report recommended that the airlines “take fraud prevention seriously,” that they “make every effort to enhance systems and procedures to detect, evaluate and eliminate fraudulent practices,” and that they take steps to “ensure that a dialogue and effective action takes place on fraud prevention measures.” (Id.) This report was distributed as part of the agenda for a September 1987 joint conference of the IATA and its U.S. counterpart, the ATA, which was attended by representatives of Defendants Northwest and Delta, among other airlines.

Several airlines, including Northwest and Delta, responded to these recommendations by forming a “Joint IATA/ATC Cross Border Selling Working Group,” which was charged, in part, with the task of developing and recommending solutions to the “fraud problem” created by cross-border ticketing.

This group issued a 1988 report to the IATA which, among its various recommendations, proposed that the airlines report any agents who engaged in cross-border ticketing to the IATA Agency Administrator for “appropriate compliance action.” The report also recommended that the airlines develop in-house fraud prevention and detection programs, and that they alert other carriers whenever they detected an instance of cross-border selling involving the other carrier’s tickets.

Plaintiffs also offer evidence of other IATA meetings, fraud prevention seminars, and training sessions at which airline representatives discussed cross-border ticketing and possible means of preventing it. Plaintiffs contend, in essence, that these IATA efforts served as a “blueprint” for a similar, if less overt, collective endeavor involving the domestic U.S. airlines and the domestic analogue to cross-border ticketing — namely, hidden-city ticketing.

This “crossover” allegedly began in 1990, when Mark Hawes, IATA’s director of fraud prevention, wrote to Richard Lally, ATA’s vice president for security, to propose a joint fraud prevention group that would, among other things, identify trends and “main areas” of fraud in the North American airline industry, collect and disseminate information through IATA and ATA to each airline’s fraud representatives, and use industry training facilities to increase awareness of fraud prevention. (Plaintiffs’ Exhibits, Tab 18.) Hawes also opined that ARC should attend this group’s meetings.

The security committee of the ATA ratified this proposal in a March 1991 meeting, and a “Joint ATA/IATA North American Fraud Prevention Task Force” was formed as a result, with Defendant Northwest chairing this task force, and with representatives of Defendants U.S. Airways and ARC attending its meetings. The Northwest representative who chaired these meetings, Doug Laird, made a presentation to ATA’s 1992 annual security workshop regarding the task force’s activities.

In addition, this task force met a number of times, during which its members discussed tariff abuse issues, including hidden-city ticketing, and shared new methods for detecting the various forms of tariff abuse.

The minutes of the March 17, 1993 meeting of this task force, for example, reflect a discussion as to whether practices such as hidden-city ticketing should be considered “simply as tariff matters,” and thus outside the reach of ARC’s enforcement role, or whether these practices should be “characterized as fraud,” in light of their “elements of deception and dishonesty that were prejudicial to the airlines.” (Plaintiffs’ Exhibits, Tab 34, 3/17/93 Meeting Minutes at 6.) The minutes further indicate an agreement among the membership “that there were indeed problems in this area and that there was a need for an increasing awareness of these practices,” but that “no positive action was proposed.” (Id.) In addition to suggesting the formation of this task force, IATA also, according to Plaintiffs, played an active role in urging airlines to combat various forms of even domestic “ticket fraud,” including hidden-city ticketing.

For example, IATA conducted a fraud prevention seminar in April of 1992 in Miami, during which a representative of American Airlines discussed methods of preventing hidden-city ticketing and other types of practices.

The agenda for this seminar compared ticket fraud to shoplifting, stated that “[ijndustry cooperation” was a “critical element in combating fraud,” and set forth as the goal of the seminar to increase “industry consideration of ticket fraud and to establish what positive steps can be taken to improve industry responses.” (Plaintiffs’ Exhibits, Tab 19, ATA 01532.) In addition, Mark Hawes made a presentation at this seminar, and observed that “[ajnyone who has experience of policing well knows that the important thing is not necessarily how many you catch but how many you deter; and that unless a certain degree of ‘presence’ is apparent, the risk is that things can deteriorate to a level where recovery is at best painful and at worst impossible.” (Id., Dep.

Ex. 389 at 4.) Hawes further opined that “if we don’t want to lose control we need to have a clear message,” and that “[wje need to be telling the market that attempts to defraud airlines will be discovered and dealt with severely.” (Id.) Regarding the impact of these IATA efforts, Plaintiffs point, for example, to the testimony of United’s head of corporate security, Ken Gilbart, who stated: Q: Prior to the issue being raised at the International Airline Transportation Association — that is IATA, correct? A: Correct. Q: Was United seeking to prohibit back-to-back ticketing? A: Not in a very active way.

Q: Would the same answer be for hidden-city ticketing? A: Correct. Q: United was not actively enforcing hidden-city ticketing. Correct? A: Not unless somehow or another we determined that a particular agency was very abusive in that area. Q: So it was the people at IATA that stirred up the fire to start enforcing hidden-city ticketing and back-to-back in a more active way? A: I don’t know that I would characterize them as being the pot stirrer, but if you want to, that’s fíne, I guess. Q: Well, would you consider — who stirred the pot for United Airlines, if they were not actively enforcing it prior to that time?

A: To the extent that tariff abuse was an agenda item on any of these meetings, some abusive practices were discussed. And more carriers were saying, yeah, we think this is a big problem. So I don’t know if we were saying IATA did it first or ATA did it first, just it all got going kind of at the same time. (Plaintiffs’ Exhibits, Tab 82, Gilbart Dep. at 92-93.) Plaintiffs also offer other evidence of the Airlines’ alleged use of IATA as a means of taking collective action against hidden-city ticketing.

They note, for instance, that IATA’s annual fraud survey for 1992 asked airlines to estimate their losses from various practices, including hidden-city ticketing, and that IATA’s 1992 report of its 1991 fraud survey identified the “areas of most concern” as encompassing “tariff abuse including cross border or hidden city fares.” (Plaintiffs’ Exhibits, Tab 22, Dep. Ex. 383.) Moreover, in November of 1992, IATA issued a version of its “Fraud Detection Training Handbook” that addressed “ ‘Cross Border Sales’ (or Hidden City Fares as it is called in the US).” (Plaintiffs’ Exhibits, Tab 14, Dep.

Ex. 102, § 13 at 1.) IATA conducted another survey in 1993, and again urged industry cooperation in addressing the issue of fraud. According to Plaintiffs, these meetings, task forces, and the like led the Defendant Airlines and other domestic air carriers to adopt a uniform stance that hidden-city ticketing was a fraudulent practice that should be prevented.

As evidence of this purported collective decision, Plaintiffs point first to a June 1992 memo by Donna Kizer-Devine, a regional manager in Defendant Delta’s corporate security department, recounting what she had learned at the 1992 IATA fraud prevention seminar in Miami. This memo restated the recommendation of Mark Hawes that “the airline industry must tell the market that attempts to defraud the airlines ... will be discovered and dealt with severely,” and that a “proactive stance is necessary ... because what is important is how many are deterred, not how many are caught.” (Plaintiffs’ Exhibits, Tab 19, Dep.

Ex. 407.) More generally, Plaintiffs cite the testimony of various airline officials that the information shared at industry meetings gave them a better understanding of (

i) the extent of the problem of tariff abuse, (ii) the best use of their resources to combat tariff fraud, and (iii) the efforts used by other airlines to prevent such occurrences. Plaintiffs also assert that this alleged collective decision led to Defendant ARC’s formation of a “Fraud Prevention Advisory Committee” in late 1992, for the stated purpose of assisting ARC’s management in the development of a “Fraud Program.” Several of the members of this committee, including representatives of all three Defendant Airlines, previously had participated in ATA’s fraud prevention task force.

Plaintiffs offer evidence that this committee provided another means through which the airlines were able to share information regarding hidden-city ticketing practices and prohibitions. 3. Other Alleged Examples of Collective Efforts to Eliminate Hidden-City Ticketing In addition to this trade group involvement with hidden-city ticketing issues, Plaintiffs point to other evidence which, in their view, is suggestive of a collective effort by the airlines in the early 1990’s to eliminate this practice.

First, they cite Defendant Northwest’s development of certain computer software, the Passenger Revenue Accounting (“PRA”) system, which Northwest and its business partner, Andersen Consulting, began to share with other airlines in 1992.

While the PRA system apparently does not directly identify instances of hidden-city ticketing, Plaintiffs have produced evidence that it facilitates the detection of this practice, as part of its general detection of tariff violations, by automating the ticket auditing process that previously had been performed manually, and thereby identifying potential tariff violations that could be further investigated by an airline’s revenue accounting staff.

Plaintiffs further point to evidence that, beginning in 1992, the airlines touted their improved technology and computer systems for detection of such practices as hidden-city ticketing. A March 30, 1992

article in the Atlanta Journal and Constitution, for example, quoted Delta Air Lines executive Bob Blumberg as stating at a conference of travel agents that “Delta and other carriers are developing software to combat such tactics” as hidden-city ticketing, and that “the new systems, due to roll out in the next 12 to 24 months, will audit every ticket to match the segments flown with the reservation made.” (Plaintiffs’ Exhibits, Tab 26, Dep. Ex. 370.) Plaintiffs also have placed into the record various warning letters issued by the airlines to travel agents regarding the practice of hidden-city ticketing.

In June of 1992, for example, Defendant Northwest prepared a form letter reminding travel agents that “[domestic published tariffs prohibit hidden-city and point-beyond ticketing,” and cautioning that “Northwest Airlines will audit all agencies believed to be ticketing hidden cities ... regardless of agency size or geographic location.” (Plaintiffs’ Exhibits, Tab 26, NWC 0039123.) Northwest also issued a letter to a particular travel agent in July of 1992, noting an apparent hidden-city ticketing “discrepancy],” and warning that such “violations are considered fraudulent by Northwest Airlines and will not be tolerated.” (Plaintiffs’ Exhibits, Tab 28, NW 63768.) Plaintiffs also have produced a September 9, 1992 newspaper

article recounting warnings issued by Defendants Delta and Northwest to travel agents regarding hidden-city and other such ticketing practices. Next, Plaintiffs cite evidence of communications among the airlines’ fraud prevention personnel regarding tariff abuse and, more specifically, hidden-city ticketing.

For example, Ken Gilbart of United testified about the formation of an ATA fraud task force in 1992 or 1993, and confirmed that the airlines’ security directors used the meetings of this task force to discuss problems of tariff abuse, including hidden-city ticketing, and to share new methods for detecting such abuses. Continental Airlines’ director of fraud prevention, Fred Koch, testified to similar sorts of discussions with his colleagues at other airlines.

Plaintiffs further cite mid-1992 Northwest memoranda that disclose information obtained from the airline’s competitors regarding their various efforts to monitor and enforce hidden-city ticket prohibitions. Finally, Plaintiffs have presented evidence of Defendant Northwest’s attempt in the fall of 1993 to enlist ARC in the effort to identify and eliminate hidden-city ticketing.

An August 1993 internal Northwest memo surveyed various industry groups, including IATA, ATA, and ARC, in an effort to identify a “policeperson” on the matters of hidden-city and back-to-back ticketing, but reported that an ARC representative “strongly feels that [ARC] would not be willing to intervene on this issue,” in light of possible antitrust concerns. (Plaintiffs’ Exhibits, Tab 34, Dep.

Ex. 605.) Nevertheless, at an ARC Executive Committee meeting in September of 1993, attended by representatives of all three Defendant Airlines, Northwest executive Mark Osterberg proposed “that ARC look into the possibility of detecting and enforcing tariff violations such as back-to-back ticketing and hidden city ticketing,” and “it was agreed that ARC would examine the issue, including technical and legal concerns.” (Plaintiffs’ Exhibits, Tab 34, Dep. Ex. 400 at ARC00109.) This matter was again raised at the next Executive Committee meeting in October of 1993.

In support of its proposal, Northwest argued that “[t]ariff violations result in theft,” and that such violations came within ARC’s right to enforce the “Agent Reporting Agreement” governing each travel agent. {Id. at ARC00124.) Northwest further asserted that “each airline could individually enforce tariff rules,” but that “enforcement of certain published tariffs by ARC would likely be more efficient and effective,” in part because “known enforcement would likely deter violations,” which was the “real objective of enforcement.” {Id.) Northwest also provided a letter to ARC’s general counsel stating that it had “analyzed the antitrust implications” of using ARC to police hidden-city and back-to-back ticketing practices, and had concluded that “ARC may enforce travel agency compliance with airline rules without fear of violating the antitrust laws.” (Plaintiffs’ Exhibits, Tab 34, Dep.

Ex. 399 at ARC00317.) Despite these efforts, Northwest’s proposal was not adopted. D. Plaintiffs’ Specific Claims of Sherman Act Violations Against this factual backdrop, the Court now turns to Plaintiffs’ specific claims in this case. First, Plaintiffs allege that the Defendant Airlines, ARC, and other non-party airlines agreed among themselves to deter the practice of hidden-city ticketing, allegedly so that this practice would not jeopardize each Airline’s ability to charge supra-competitive fares for travel on many of the routes to and from its hub airports.

Plaintiffs assert that this was a conspiracy in restraint of trade, in violation of § 1 of the Sherman Act, 15 U.S.C. § 1. As the Court observed at the November 14, 2001 hearing, and as acknowledged by Plaintiffs’ counsel, the precise form of this alleged conspiracy has evolved through further development of the factual record. Initially, Plaintiffs alleged “that competing carriers conspired through ARC to successfully implement [the Airlines’] refusal to sell policy.” Chase, 49 F.Supp.2d at 564.

It is now plain that ARC was not the instrument through which the Airlines implemented their hidden-city ticket prohibitions; indeed, as noted earlier, the Court has concluded that ARC is entitled to

summary judgment for lack of evidence that it even participated in a conspiracy to adopt or enforce such prohibitions.

Instead, Plaintiffs now allege that, in the early 1990’s, the Airlines abandoned their past, disparate policies and enforcement efforts regarding hidden-city ticketing, and collectively adopted a uniform stance designed to substantially deter the practice of hidden-city ticketing, focused around a collective determination that this practice should be deemed “fraudulent” and treated as “tariff abuse.” Next, Plaintiffs have asserted claims against each of the individual Defendant Airlines under § 2 of the Sherman Act, 15 U.S.C. § 2.

Plaintiffs allege that each of the Airlines possesses monopoly power over many of the “city-pair” markets that offer air travel to or from the Airline’s hub airports. Plaintiffs further allege that each Airline has exercised this monopoly power in an anticom-petitive manner by prohibiting the practice of hidden-city ticketing, and thereby defeating a mechanism through which consumers in the relevant city-pair markets could otherwise avoid the supra-competitive “hub premiums” imposed by the Airlines in these markets. These § 2 claims rest principally upon the expert testimony of economist John C.

Beyer, Ph.D., and his colleague, Dr. Gary French, who have opined: (

i) that the Defendant Airlines possess monopoly power in the relevant city-pair markets; (ii) that they have exercised this power to charge “hub premiums” for travel in these markets, thereby giving rise to the hidden-city fare phenomenon; and (iii) that the members of the various Plaintiff classes have been overcharged in an aggregate amount in excess of $950 million, beyond what these air travelers would have paid if the Airlines had not prevented them from taking advantage of competitive hidden-city fares for travel on the desired hub-spoke routes. III. THE DEFENDANT AIRLINES’ MOTION FOR

SUMMARY JUDGMENT A. The Standards Governing Defendants’ Motion In their present motion, the Defendant Airlines seek

summary judgment in their favor on Plaintiffs’ antitrust claims under both

Section 1 and

Section 2 of the Sherman Act. This motion, of course, is governed by the familiar standards set forth in Federal Rule of Civil Procedure 56, under which

summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Three 1986 Supreme Court cases — Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)— ushered in a “new era” in the federal courts’ review of motions for

summary judgment. These cases, in the aggregate, lowered the movant’s burden in seeking

summary judgment. As explained in Celotex: In our view, the plain language of Rule 56(

c) mandates the entry of

summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322, 106 S.Ct. at 2552. In considering a defendant’s motion for

summary judgment, then, the question is “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented,” and the “mere existence of a scintilla of evidence in support of the plaintiffs position” is insufficient to satisfy this test. Anderson, 477 U.S. at 252, 106 S.Ct. at 2512. When performing this inquiry, “[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.” 477 U.S. at 255, 106 S.Ct. at 2513. These same principles govern, of course, in cases brought under the Sherman Act. In fact, one of the Supreme Court’s above-cited trilogy of

summary judgment decisions, Matsushita, itself was an antitrust case. As in other complex fields, however, substantive antitrust law has placed a gloss upon the traditional standards for resolving a motion for

summary judgment. The Matsushita Court observed that “antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 case,” and that, to withstand a motion for

summary judgment, a plaintiff “must present evidence that tends to exclude the possibility that the alleged conspirators acted independently” Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356 (internal ■quotations and citation omitted). Similarly, under § 2, if a defendant advances a legitimate business explanation for its allegedly anticompetitive conduct, the plaintiff must produce probative evidence tending to rebut this explanation in order to defeat a motion for

summary judgment. See Beard v. Parkview Hosp., 912 F.2d 138, 145 (6th Cir.1990). With these principles in mind, the Court turns to Defendants’ motion. B. Plaintiffs’

Section 1 Antitrust Conspiracy Claim 1. The Defendant Airlines Are Not Entitled to

Summary Judgment Under the So-Called “Fraud Prevention” Exception to Sherman Act Liability. The cornerstone of Defendants’ present challenge to Plaintiffs’

Section 1 antitrust conspiracy claim is set forth with unmistakable clarity in the Airlines’ brief, where they declare that the practice of hidden-city ticketing “is fraud.” (Defendants’ Motion, Br. in Support at 11.) Defendants then explain: [Hidden-city ticketing] is an intentional effort on the part of a passenger to trick an airline through false pretenses into selling transportation services at a price that the airline would not be willing to accept if the passenger had truthfully represented his intended itinerary. In doing so, the passenger also breaches his contract of carriage with the airline.

Misrepresenting one’s intended itinerary to get air transportation services at a price the airline would not otherwise have charged is no different from lying to get a bereavement fare, misrepresenting one’s age to get a senior citizen discount at the movies, or switching price tags on merchandise at a grocery store. (Id.) Having thus stated their premise, Defendants appeal to decisions in which the Supreme Court recognized that certain exchanges of information among competitors do not run afoul of § 1 of the Sherman Act, where such exchanges are necessary to prevent fraud.

It follows, in Defendants’ view, that the Airlines’ joint discussions of hidden-city ticketing at trade association meetings and on other occasions do not give rise to Sherman Act liability for an antitrust conspiracy. In considering this contention, it is helpful to begin with the Supreme Court decision that first established a “fraud prevention” exception to antitrust liability. In Cement Mfrs. Protective Ass’n v.

United States, 268 U.S. 588, 590-91, 45 S.Ct. 586, 587, 69 L.Ed. 1104 (1925), the Court addressed the antitrust implications of a trade association of cement manufacturers that was formed for the stated purpose of collecting and disseminating “such accurate information as may serve to protect each manufacturer against misrepresentation, deception and imposition, and enable him to conduct his business exactly as he pleases in every respect.” The Government brought suit against this trade association and its members, charging that certain of the association’s practices violated § 1 of the Sherman Act, and requesting that it be enjoined from further such violations.

At the outset of its analysis, the Court observed that “[element is a thoroughly standardized product,” that the manufacturers which comprised the membership of the defendant association were “competitors in the business of shipping the product in interstate commerce,” and that, even before this association was formed, “there was substantial uniformity of trade practices in the cement trade,” so that the adoption of such practices by cement manufacturers was not the product of any conspiracy among association members. 268 U.S. at 591, 593, 45 S.Ct. at 587.

The Court then described the particular conduct challenged by the Government, relating to “specific job contracts”: The specific job contract is a form of contract in common use by manufacturers of cement whereby cement is sold for future delivery for use in a specific piece of construction which is described in the contract.

As was stated in the opinion of the court below, they are contracts “whereby a manufacturer is to deliver, in the future, cement to be used in a specific piece of work, such as a particular building or road, and the obligation is that the manufacturer shall furnish and the contractor shall take only such cement as is required for or used for the specific purpose.” These contracts have, by universal practice, been treated by cement manufacturers as, in effect, free options customarily made and acted upon on the understanding that the purchaser is to pay nothing until after the delivery of the cement to him; that he is not obligated in any event to take the cement contracted for unless he chooses to; that he is not held to the price named in the contract in the event of a decline in the market price; whereas the manufacturer may be held to the contract price if the market advances and may be held for the delivery of the full amount of cement required for the completion of the particular piece of construction described in the contract.

The practical effect and operation of the specific job contract therefore is to enable contractors who are bidding upon construction work to secure a call or option for the cement required for the completion of that particular job at a price which may not be increased, but may be reduced if the market declines. It enables contractors to bid for future construction work with the assurance that the requisite cement will be available at a definitely ascertained maximum price.

In view of the option features of the contract referred to, the contractor is involved in no business risk if he enter into several specific job contracts with several manufacturers for the delivery of cement for a single specific job. The manufacturer, however, is under no moral or legal obligation to supply cement except such as is required for the specific job.

If, therefore, the contractor takes advantage of his position and of the peculiar form of the specific job contract, as modified by the custom of the trade, to secure deliveries from each of several manufacturers of the full amount of cement required for the particular job, he in effect secures the future delivery of cement not required for the particular job, which he is not entitled to receive, which the manufacturer is under no legal or moral obligation to deliver, and which presumably he would not deliver if he had information that it was not to be used in accordance with his contract.

The activities of the defendants complained of are directed toward securing this information and communicating it to members, and thus placing them in a position to prevent contractors from securing future deliveries of cement which they are not entitled to receive under their specific job contracts, and which experience shows they endeavor to procure especially in a rising market.

Members are required to make to the secretary of the association prompt reports of all specific job contracts, describing in detail the contract and giving the name and address of the purchaser; the amount of cement required, the price and delivery point; also the date of expiration of the contract ....

The association also employs “checkers,” whose business it is, by actual inspection and inquiry, to ascertain, so far as possible, the amount of cement required for specific jobs referred to in specific job contracts, and whether cement shipped under specific job contracts is actually used or required for use under such contracts ____ [W]e accept fully the government’s contention that the defendants regularly take all practicable steps to ascertain whether cement contracted for under the specific job type of contract was actually being used for the job described in the contract, and that the fullest information with respect to such contracts and the use of cement shipped under said contracts is reported to the members of the association through the mediation of the secretary.

The government does not contend that the activities of the association with respect to specific job contracts diminished the number of such contracts, or that they diminished in any way the obligations of members of the association upon such contracts. There is, however, abundant evidence to show that there were actual e[a]n-cellations of deliveries on the ground that contractors were not entitled, under the terms of their contracts, to receive such deliveries.

In 1920, of 1,392 contracts investigated and found to be “padded” to the extent of more than 3,500,000 barrels of cement, 978 were partially canceled to the extent of 2,014,653 barrels. 268 U.S. at 594-97, 45 S.Ct. at 588-89. While conceding that there was no “agreement or understanding between the defendants placing limitations on either prices or production,” the Government nonetheless charged that “uniformity of prices and limitation of production [we]re necessary results” of the manufacturers’ sharing of information concerning specific job contracts. 268 U.S. at 592, 45 S.Ct. at 587.

Even assuming such indirect effects, however, the Supreme Court held that, under the circumstances, the dissemination of specific job contract information among association members did not constitute an unlawful conspiracy in restraint of trade: That a combination existed for the purpose of gathering and distributing [specific job contract] information is not denied.

That a consequence of the gathering and dissemination of information with respect to the specific job contracts was to afford, to manufacturers of cement, opportunity and grounds for refusing deliveries of cement which the contractors were not entitled to call for, an opportunity of which manufacturers were prompt to avail themselves, is also not open to dispute. We do not see, however, in the activity of the defendants with respect to specific job contracts any basis for the contention that they constitute an unlawful restraint of commerce.

The government does not rely on any agreement or understanding among members of the association that members would either make use of the specific job contract, or that they would refuse to deliver “excess” cement under specific job contracts.

Members were left free to use this type of contract and to make such deliveries or not as they chose____It may be assumed, however, if manufacturers take the precaution to draw their sales contracts in such form that they are not to be required to deliver cement not needed for the specific jobs described in these contracts, that they would, to a considerable extent, decline to make deliveries, upon receiving information showing that the deliveries claimed were not called for by the contracts.

Unless the provisions in the contract are waived by the manufacturer, demand for and receipt of such deliveries by the contractor would be a fraud on the manufacturer, and in our view the gathering and dissemination of information which will enable sellers to prevent the perpetuation of fraud upon them, which information they are free to act upon or not as they choose, cannot be held to be an unlawful restraint upon commerce, even though in the ordinary course of business most sellers would act on the information and refuse to make deliveries for which they were not legally bound. .... [W]e cannot regard the procuring and dissemination of information which tends to prevent the procuring of fraudulent contracts or to prevent the fraudulent securing of deliveries of merchandise on the pretense that the seller is bound to deliver it by his contract, as an unlawful restraint of trade even though such information be gathered and disseminated by those who are engaged in the trade or business principally concerned. 268 U.S. at 603-04, 45 S.Ct. at 591.

In so ruling, the Court cited a case decided the same day, Maple Flooring Mfrs. Ass’n v. United States, 268 U.S. 563, 45 S.Ct. 578, 69 L.Ed. 1093 (1925), involving the activities of a trade association of corporations engaged in the business of selling wood flooring. The defendant association gathered from and disseminated to its members information concerning (

i) the average cost to members of various dimensions and grades of flooring, (ii) standard freight rates for shipment of flooring, (iii) quantities and kinds of flooring sold, and (iv) the prices charged by members for these sales.

In that case, the Government “neither alleged nor proved that there was any agreement among the members of the association either affecting production, fixing-prices, or for price maintenance,” and the constituent members of the trade association remained “free to sell their product at any price they cho[ ]se and to conduct their business as they please[d].” 268 U.S. at 567, 45 S.Ct. at 579. “On the contrary, the defendants offered a great volume of evidence tending to show that the trend of prices of the products of the defendants corresponded to the law of supply and demand and that it evidenced no abnormality when compared with the price of commodities generally.” 268 U.S. at 567-68, 45 S.Ct. at 579.

Under these facts, the Court held that the defendant trade association’s compilation and distribution of historical information regarding the activities of its constituent members did not, standing alone, violate the Sherman Act: We realize that such information, gathered and disseminated among the members of a trade or business, may be the basis of agreement or concerted action to lessen production arbitrarily or to raise prices beyond the levels of production and price which would prevail if no such agreement or concerted action ensued, and those engaged in commerce were left free to base individual initiative on full information of the essential elements of their business.

Such concerted action constitutes a restraint of commerce and is illegal and may be enjoined ....

But in the absence of proof of such agreement or concerted action having been actually reached or actually attempted, under the present plan of operation of defendants we can find no basis in the gathering and dissemination of such information by them or in their activities under their present organization for the inference that such concerted action will necessarily result____ We decide only that trade associations or combinations of persons or corporations which openly and fairly gather and disseminate information as to the cost of their product, the volume of production, the actual price which the product has brought in past transactions, stocks of merchandise on hand, approximate cost of transportation from the principal point of shipment to the points of consumption as did these defendants and who, as they did, meet and discuss such information and statistics without however reaching or attempting to reach any agreement or any concerted action with respect to prices or production or restraining competition, do not thereby engage in unlawful restraint of commerce. 268 U.S. at 585-86,45 S.Ct. at 585-86.

Upon reviewing the decisions in Cement Manufacturers and Maple Flooring, the Court finds that they speak to some aspects of the present ease, but not to others. In the former category, at least some of the information gathered and disseminated by airline industry groups, including the IATA and the ATA, concerned the airlines’ individual, historical efforts at tariff enforcement.

This activity falls within the rule of Maple Flooring — namely, while such information might conceivably be used as an aid to collective efforts, it is not unlawful, in itself, to gather and share such information as to past practices, so long as this activity is not a stepping stone to concerted anticompetitive measures.

Moreover, regarding Defendants’ claim of “fraud prevention” within the rule of Cement Manufacturers, Plaintiffs apparently do not dispute that the practice of hidden-city ticketing requires a passenger to breach an airline’s tariff rules and contract of carriage, which are incorporated by reference into the conditions of sale of each ticket purchased.

In this sense, a passenger must “misrepresent” his intended itinerary, impliedly stating as he purchases the ticket that he wishes to travel the entire spoke-hub-spoke route, but knowing that he instead will discard the tickets for travel to and from the point beyond his true destination. To this extent, then, the situation here is like the one presented in Cement Manufacturers, where contractors breached their contracts with cement manufacturers by representing that several different purchases of cement all were earmarked for use in a single project.

However, there are a number of ways in which the rubric of “fraud prevention” does not precisely carry over from Cement Manufacturers to this case. First, in Cement Manufacturers, the contractual limitation upon a contractor’s purchase of cement— namely, that the cement must be used on a specific job — presumably was a quid pro quo for the manufacturer’s agreement to “lock in” the maximum price for that purchase, with the manufacturer bearing the full risk of any intervening price increases.

When a contractor violated this contractual limitation, purchasing cement that would not be used on the job specified in the contract, the contractor received something more than the bargained-for benefit, thereby disrupting the seemingly settled expectations of both contracting parties. It can be assumed, moreover, that the contractor was aware that “padded” purchases were contrary to the business arrangement as established and agreed to by the parties.

Under these circumstances, there was no question as to the unlawful nature of the contractor’s conduct in representing that each of several purchases of cement was intended for use in the same project. This case, in contrast, involves the unilateral imposition by the Airlines of an additional condition of sale — a condition of which, it seems fair to say, many passengers are not even aware.

Although Defendants suggest that a passenger’s knowledge of the airlines’ tariff rules is irrelevant, the very case they cite confirms that fraud requires a misrepresentation that is “calculated or intended to deceive” the injured party. VanDenBroeck v. CommonPoint Mortgage Co., 210 F.3d 696, 701 (6th Cir.2000).

Package discount pricing is commonplace in many industries — children’s meals at fast food restaurants and automobile luxury packages are two examples that come to mind — and the average consumer presumably would not perceive that his purchase of such a package would serve as an implied “representation” that he intends to use each and every part of that package, much less that he might be accused of fraud or deception if he chooses to discard a particular portion.

While the Airlines surely would prefer to know in advance whether a passenger intends to travel on each segment for which he purchased a ticket — so that, for instance, they can sell tickets for any unused seats, and can plan their operations based on a more accurate count of passengers — their business objectives do not automatically trigger a passenger’s duty to disclose his true itinerary, nor do they transform his silence on the subject into an “intent to deceive.” In short, the question of “fraud” here involves a fact-intensive inquiry of a sort that was not needed in Cement Manufacturers.

Of course, a duty to disclose may be imposed by contract, and this arguably is what the Airlines have done. Even so, however, the situation here is different from the one presented in Cement Manufacturers, where, as noted, the contractors received a benefit in exchange for their agreement to a limiting contractual term. Here, the tariff rules incident to a passenger ticket are not the subject of negotiations, but instead are presented to the passenger on a take-it-or-leave-it basis, almost as in a contract of adhesion.

It cannot be said here, as it could in Cement Manufacturers, that a contracting party expressly and knowingly agreed to a limiting condition in exchange for a particular benefit, and then, having received the benefit, refused to adhere to the condition. In addition, even accepting the enforceability of the Airlines’ hidden-city prohibitions as a matter of contract law, it is well established that the breach of a contractual obligation cannot support a claim of fraud. See, e.g., Brock v. Consolidated Biomedical Lab., 817 F.2d 24, 25-26 (6th Cir.1987).

More importantly, Defendants’ appeal to “fraud prevention” begs one of the central questions in this case — namely, whether the Airlines’ prohibition on hidden-city ticketing is an anticompetitive practice that violates the Sherman Act. In Cement Manufacturers, there was no claim that the underlying industry practice of using specific job contracts was itself anticompetitive, or that any manufacturer’s use of this practice was the product of concerted action.

Moreover, the Government did not challenge the right of each individual manufacturer to adopt measures to enforce the terms of its own specific job contracts; indeed, the Government presumably would not have challenged even a concerted enforcement effort, but for its claim that “uniformity of prices and limitation of production [wejre necessary results” of this joint endeavor. Cement Mfrs., 268 U.S. at 592, 45 S.Ct. at 587.

In rejecting the Government’s claim, the Court found that the only price and production effects that had resulted from the defendants’ collective information-gathering effort were those that “would naturally flow from the dissemination of that information in the trade and its natural influence on individual action.” 268 U.S. at 606, 45 S.Ct. at 592.

Here, by contrast, Plaintiffs’ § 2 claim expressly challenges the lawfulness of each Airline’s individual prohibition on hidden-city ticketing, alleging that this represents the anticompetitive exercise of each Defendant’s alleged monopoly power, with an attendant impact upon the price of travel to or from Defendants’ hub airports. Clearly, an individual Airline could not immunize itself from Sherman Act liability merely by characterizing the prohibited practice as “fraudulent” and enacting rules to prevent it.

Just as clearly, § 1 would forbid any collective effort by Defendants to prohibit a practice that each could not lawfully proscribe on its own. Thus, while Cement Manufacturers did not address the propriety of an industry practice, but only the collective means of its enforcement, the present case implicates both questions, and the two are intertwined. The success of Defendants’ appeal to “fraud prevention,” then, necessarily depends to a degree upon their success in defeating Plaintiffs’ § 2 claims, and factual issues as to the latter — a question addressed below — would preclude

summary judgment as to the former. More generally, Defendants’ “fraud prevention” argument misconceives the nature of Plaintiffs’ complaint about the Airlines’ prohibition on hidden-city ticketing. Plaintiffs do not claim any “entitlement” to purchase hidden-city tickets, but presumably would be pleased to purchase tickets reflecting their actual hub-spoke itineraries, so long as the price of these tickets did not include a hub “premium” imposed as a product of an Airline’s alleged monopoly power.

Likewise, Plaintiffs presumably would not balk' at disclosing their true hub-spoke travel plans to the Airlines, provided that they were required to pay only the discounted price that reflected any hidden-city savings opportunity. Indeed, according to Plaintiffs’ experts, if Defendants are enjoined from enforcing their prohibitions on hidden-city ticketing, the Airlines’ eventual response will be to lower their hub-spoke fares, thereby defeating their passengers’ incentive to “misrepresent” their itineraries in order to obtain a cheaper hidden-city fare.

In sum, while misrepresentation was the lynchpin of the scheme employed by the contractors in Cement Manufacturers, and the means through which they sought to avoid paying the prevailing market price in effect at the time they actually needed additional cement, the species of “fraud” practiced by airline customers in this case is not an essential prerequisite to the achievement of the fare structure sought by Plaintiffs, but is only a byproduct of these customers’ “self-help” efforts to circumvent an allegedly unlawful pricing scheme imposed by the Airlines.

In any event, even accepting Defendants’ characterization of hidden-city ticketing as “fraud,” the Court still would find that the rule of Cement Manufacturers does not apply here, at least not as a matter of law. In Cement Manufacturers, the Supreme Court observed that the defendants’ collective effort to gather and disseminate information about specific job contracts “enable[d] sellers to prevent the perpetration of a fraud upon them.” Cement Mfrs.; 268 U.S. at 603-04, 45 S.Ct. at 591 (emphasis added).

Absent this sharing of information, it would have been far more difficult, if not impossible, for any individual manufacturer to uncover a contractor’s “padded” purchase of excess cement, beyond the amount needed to complete a specific project. Thus, Cement Manufacturers stands only for the limited proposition that the Sherman Act does not prohibit “the procuring and dissemination of information which tends to prevent the procuring of fraudulent contracts. ” 268 U.S. at 604, 45 S.Ct. at 591 (emphasis added); see also United States v.

Container Corp. of America, 393 U.S. 333, 335, 89 S.Ct. 510, 511, 21 L.Ed.2d 526 (1969) (explaining that Cement Manufacturers allowed the exchange of price information among competitors “as a means of protecting their legal rights from fraudulent inducements to deliver more cement than needed for a specific job”). Defendants can advance no such justification for any concerted efforts in this case.

To the contrary, as part of a different challenge to Plaintiffs’ § 1 claim, discussed in detail below, Defendants assert that each individual Airline has its own independent business reasons for prohibiting hidden-city ticketing. As proof of this point, Defendants offer evidence that each Airline separately adopted its prohibition at a different time and in a different form, and that each has taken a different approach to enforcing its separate prohibition. This argument belies the proposition that collective action “enabled” the Airlines to uncover and prevent any instances of hidden-city ticketing.

Similarly, nothing in the record suggests that the Airlines must collectively gather or share information in order to enforce their respective prohibitions; rather, the practice of hidden-city ticketing involves only a single Airline, and any individual occurrence of the practice presumably may be uncovered solely by resort to information in the possession of the “defrauded” Airline. {See Defendants’ Reply Br. at 12 n. 16 (“[Hidden-city] ticketing implicates only the fares of the airline being subjected to the misrepresentation.”).) In fact, the record indicates that Defendants have been able to unilaterally detect and penalize individual instances of hidden-city ticketing, through such countermeasures as cancellation of the remainder of a ticket when a passenger fails to travel one of its segments, and rules prohibiting the retrieval of checked baggage at the midpoint of a spoke-hub-spoke route.

Consequently, Cement Manufacturers’ “rule of necessity” has no application here. Finally, Plaintiffs’ § 1 claim goes beyond the mere sharing of information, and charges that Defendants agreed to a concerted course of action. The Court in Cement Manufacturers was careful to point out that the manufacturers had not reached any agreement or understanding as to the use they would make of the information they had gathered, but instead remained “free to act upon [it] or not as they cho[ ]se.” Cement Mfrs., 268 U.S. at 603-04, 45 S.Ct. at 591.

In the present case, if the evidence shows only that Defendants collectively discussed the issue of hidden-city ticketing and shared information as to their respective prohibitions on the practice, but that they did not agree on a concerted policy or course of conduct with regard to this practice, Plaintiffs’ § 1 claim will fail under the authority of Maple Flooring. And, in fact, this is the next of Defendants’ challenges to the

Section 1 claim in this ease— namely, that the evidentiary record does not give rise to a reasonable inference of collusive action. Accordingly, having rejected Defendants’ claim that the “fraud prevention” rule of Cement Manufacturers precludes their liability as a matter of law, the Court now turns to this next challenge. 2. Plaintiffs Have Produced Sufficient Evidence of Concerted Action to Withstand

Summary Judgment on Their

Section 1 Claim. As noted earlier, the courts have adopted fairly stringent standards for assessing claimed violations of § 1 of the Sherman Act. The Matsushita Court explained: [Antitrust law limits the range of permissible inferences from ambiguous evidence in a § 1 ease. Thus, in Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Id., at 764, 104 S.Ct., at 1470. To survive a motion for

summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of § 1 must present evidence “that tends to exclude the possibility” that the alleged conspirators acted independently. 465 U.S., at 764,104 S.Ct., at 1471. [The plaintiffs] in this case, in other words, must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action or collusive action that could not have harmed [the plaintiffs]. Matsushita, 475 U.S. at 588, 106 S.Ct. at 1356-57.

The Court also cautioned that “mistaken inferences” can be “especially costly” in antitrust cases, because they threaten to “chill the very conduct the antitrust laws are designed to protect.” 475 U.S. at 594,106 S.Ct. at 1360. Following Monsanto and Matsushita, the Sixth Circuit has adopted a two-step inquiry for resolving a motion for

summary judgment on a antitrust conspiracy claim. See Riverview Investments, Inc. v. Ottawa Community Improvement Corp., 899 F.2d 474, 483 (6th Cir.), cert, denied, 498 U.S. 855, 111 S.Ct. 151, 112 L.Ed.2d 117 (1990). First, the Court must ask whether Plaintiffs’ evidence of conspiracy is “ambiguous,” meaning that it is “as consistent with the defendants’ permissible independent interests as with an illegal conspiracy.” 899 F.2d at 483.

If so, the Court then must consider whether there is “any evidence that tends to exclude the possibility that the defendants were pursuing these independent interests.” 899 F.2d at 483. “A plaintiff thus fails to demonstrate a conspiracy if, using ambiguous evidence, the inference of a conspiracy is less than or equal to an inference of independent action.” 899 F.2d at 483; see also Blomkest Fertilizer, Inc. v.

Potash Corp., 203 F.3d 1028,1032 (8th Cir.2000) (“[I]f it is as reasonable to infer from the evidence a price-fixing conspiracy as it is to infer permissible activity, then the plaintiffs claim, without more, fails on

summary judgment.”), cert, denied, 531 U.S. 815, 121 S.Ct. 50, 148 L.Ed.2d 19 (2000). Moreover, “a litigant may not proceed by first assuming a conspiracy, and then explaining the evidence accordingly.” Blomkest Fertilizer, 203 F.3d at 1033. In their present motion, Defendants argue that Plaintiffs’ evidence fails this test, as it is ambiguous and is just as consistent with an inference of independent action as with an inference of conspiracy. Principally, Defendants contend (

i) that each Defendant Airline has an independent business interest in prohibiting hidden-city ticketing; (ii) that the record reflects disparate adoption of hidden-city prohibitions by each Airline and disparate enforcement of these measures, there- , by undermining any inference of concerted action; and (iii) that Plaintiffs’ evidence of discussions among airline representatives about hidden-city ticketing is insufficient as a matter of law to establish a § 1 violation, absent further evidence of an agreed-upon course of conduct.

Upon reviewing the record in light of Defendants’ assertions, the Court finds that Plaintiffs’ evidence of a § 1 conspiracy, while considerably short of overwhelming, would nevertheless permit a reasonable inference of collusive action. It must be acknowledged, at the outset, that Plaintiffs have not produced any “smoking gun” evidence of an antitrust conspiracy.

In Cement Manufacturers, for example, there was no doubt as to the existence of concerted action in gathering and disseminating information about specific job contracts; indeed, the constitution of the defendant trade association expressly called for this activity. Here, by contrast, there is no express agreement, in any form, as to a common course of action with regard to the practice of hidden-city ticketing.

To the contrary, the initial impression upon surveying the record is one of independent action; the Airlines adopted their respective prohibitions on hidden-city ticketing at various times over a several-year period, and Plaintiffs do not contend that Defendants uniformly enforced these prohibitions through the same or similar measures or to the same or similar extents.

In fact, as Defendants point out, Plaintiffs’ evolving theory of the unlawful conspiracy in this case now includes the apparent concession that each Airline remained “free to prevent hidden-city ticketing” in “whatever manner or degree it saw fit.” (Plaintiffs’ Motion for Class Cert., Br. in Support at 4.) Plainly, there can be no conspiracy where each supposed participant is free to act in any way it chooses.

Next, as Defendants contend, and as evidenced by the fact that each of the Defendant Airlines had adopted tariff rules against hidden-city ticketing at some point (often years) before the commencement of the alleged conspiracy, each Airline arguably has an independent business interest in prohibiting this practice.

This weakens any inference of conspiracy that might otherwise arise from uniformities or parallelisms in Defendants’ conduct with respect to hidden-city ticketing, because Defendants’ parallel approaches to proscribing the practice might just as well be the product of independent business decisions as of deliberate collusion. See Wallace v.

Bank of Bartlett, 55 F.3d 1166,1168 (6th Cir.1995) (observing that parallel conduct, “without more, does not itself establish a violation of the Sherman Act”), cert, denied, 516 U.S. 1047,116 S.Ct. 709,133 L.Ed.2d 664 (1996); Blomkest Fertilizer, 203 F.3d at 1032-33 (noting that the same is true even with conscious parallelism). Yet, upon closer inspection, Defendants’ evidence of independent interests and actions is more equivocal than they would have the Court believe.

First, Defendants sweep too broadly in their claim that each airline is indifferent to the hidden-city ticketing policies of other airlines, and is wholly free to adopt (or not) a prohibition on this practice by reference solely to its own independent business interests, and without fear of competitive losses to another airline.

Even Defendants concede, in their reply brief, that this analysis does not necessarily continue to hold true for routes between two carriers’ hub airports. (See Defendants’ Reply Br. at 12.) Similarly, Northwest’s former Chief Accounting Officer, Mark Osterberg, pointed out that hub airports shared by two carriers give rise to different competitive considerations: Let’s take Dallas. Let’s suppose in Dallas, Delta elects to enforce hidden-city ticketing and American elects not to. They are both hub carriers in Dallas.

If I want to do hidden-city ticketing and I’m a customer, I’m a passenger, I’m going to go on the carrier that’s not going to enforce it. (Plaintiffs’ Exhibits, Tab 95, Osterberg Dep. at 113.) Thus, the relevant question, in terms of an airline’s economic self-interest, would seem to be whether the financial gains from unilaterally enforcing a hidden-city prohibition on all hub-spoke routes would exceed the anticipated losses on hub-to-hub routes and at shared hubs if the airline’s competitors chose not to prohibit hidden-city ticketing.

Neither side’s argument and evidence on this point is particularly compelling. Defendants note that only 12 of the 234 routes at issue in this case involve the hubs of two different carriers, and they surmise that losses on 12 routes could not possibly outweigh gains on 222 others.

This “numbers game” loses much of its persuasive force, however, when it is recalled that the gains on the 222 routes are confined to the difference between the hub-spoke fare and the encompassing hidden-city fare, while the losses on the remaining 12 routes consist of the entire fare that otherwise would have been collected from each passenger who gives his business to the competing carrier with no hidden-city prohibition. Plaintiffs’ evidence, likewise, is either inconclusive or rests upon questionable assumptions.

Although they cite various testimony and memoranda evincing the Airlines’ recognition of the potential competitive risks involved in unilateral action against hidden-city ticketing, Defendants point to other materials in the record reflecting the Airlines’ ultimate conclusion that such risks were relatively modest and worth taking. Plaintiffs also cite the calculations of their expert, Dr. John Beyer, which indicate that each Airline’s gain in revenue as a result of its hidden-city prohibition is dwarfed by the revenues achieved by that Airline on hub-to-hub routes.

Yet, it cannot be assumed that an Airline would lose all of its hub-to-hub revenue if it continued to prohibit hidden-city ticketing while its competitors did not, and Plaintiffs have not suggested any basis for determining what percentage of this revenue might be at risk. Nonetheless, the Court cannot accept Defendants’ contention that this questionable assumption deprives Plaintiffs’ position of all its weight.

Rather, even if it were assumed, say, that an Airline faced only a 20-percent reduction in hub-hub revenue as a result of its unilateral stance against hidden-city ticketing, this loss still would exceed the gain posited by Dr. Beyer as a result of that Airline’s enforcement of its prohibition. In short, questions of fact remain on the issue of each Airline’s individual business interest in adopting a unilateral prohibition against hidden-city ticketing.

Next, the Court cannot concur in the dis-positive weight Defendants would give to the evidence of each Airline’s separate adoption and disparate enforcement of its tariff rules against hidden-city ticketing. As an initial matter, the evidentiary impact of the written rules against hidden-city ticketing is greatly diminished by the Airlines’ apparent willingness, at some points in the past, to overlook — and, indeed, even to encourage — violations of these rules.

In particular, Plaintiffs have produced fairly extensive evidence that several airlines, including those which had already adopted tariff rules against hidden-city ticketing, at least tolerated the practice through the late 1980’s, and occasionally even promoted it. This evidence includes, for example: (

i) testimony by Barbara Amster, a former Vice President of Pricing and Yield Management for American Airlines, as to her belief in 1989 that hidden-city ticketing— which, incidentally, she did not view as fraud — was a product of fare anomalies that the airline would “have to live with,” (Plaintiffs’ Exhibits, Tab 72, Amster Dep. at 26-28, 36, 39); (ii) a 1988 edition of an Industry Agents’ Handbook put out by the Airlines Reporting Corporation, which instructs travel agents in writing “point beyond” and “more distant point” tickets, (Plaintiffs’ Exhibits, Tab 3, Industry Agents’ Handbook at 11, 13); (iii) the affidavit of a former airline employee, Bruce Bishins, stating that he “used to work for the airlines teaching travel agents how to write” hidden-city and point-beyond tickets, (Plaintiffs’ Exhibits, Tab 3, Bishins Aff. at H 12); and (iv) various news articles quoting airline officials as stating that there was little or nothing that they could do about the practice, or that hidden-city fares were merely loopholes that the airline was not concerned with closing, (see generally Plaintiffs’ Exhibits, Tab 4).

Plainly, a tariff rule says little about an Airline’s independent policy against hidden-city ticketing if the rule is not enforced. More generally, Defendants’ challenge to Plaintiffs’ evidence of collusive action seems to rest on a questionable premise — namely, that a conspiracy cannot be established absent a complete “sea change” in each Airline’s practices that results in a lock-step approach to hidden-city-ticketing.

As readily as an Airline adopts a policy toward hidden-city ticketing, it can just as readily change it — as, indeed, is evidenced by the record of the Airlines’ periodic amendments to their respective tariff rules. Thus, even if an Airline already had adopted a tariff rule against hidden-city ticketing prior to the onset of the conspiracy alleged by Plaintiffs, this would not preclude the conclusion that this Airline nevertheless joined the conspiracy, and thereby agreed to retain its prior prohibition on hidden-city ticketing, or to enforce a previously dormant tariff rule.

While it might well be more difficult to prove a conspiracy that involves only subtle changes in the conduct of its constituent members — and although, as discussed earlier, a given member’s prior adoption of the supposed object of the conspiracy is strong evidence that this member’s actions were independently motivated, and not the product of collusion— Defendants’ evidence of prior prohibitions does not alone establish, as a matter of law, that the Airlines could not have conspired to deter the practice of hidden-city ticketing.

Nor is Plaintiffs’ claim of conspiracy fatally undermined by minor variances in the particular means of enforcement chosen by each individual Airline — an agreement need not dictate every conceivable aspect of each conspirator’s behavior in order to violate § l. Nonetheless, to survive

summary judgment, Plaintiffs still must offer sufficient evidence of an agreement to act collectively against hidden-city ticketing. In particular, beyond Plaintiffs’ evidence of arguably parallel conduct — which, as noted, is far from conclusive, where the record reflects only general similarities in the actions taken by the various Airlines to deter hidden-city ticketing, and where Plaintiffs c

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