AAI Tells Eleventh Circuit Not to Weaken Ban Against Price Fixing When It Involves Invitations to Collude Made During Investor Earnings Calls (Avery Ins. Group, Inc. v. Delta Air Lines, Inc.)

In an amicus brief filed in the Eleventh Circuit Court of Appeals, the American Antitrust Institute (AAI) urged the court to reject the district court’s overly restrictive approach for allowing a price-fixing claim to reach a jury when the claim is based on an invitation to collude made during an investor earnings call.

In the case, Avery Insurance Group v. Delta Air Lines, plaintiffs allege that Delta’s and Air Tran’s adoption of first-bag fees in 2008 was the product of a price-fixing conspiracy.  During an investor earnings call, the AirTran CEO said that AirTran would strongly consider such a fee if Delta adopted it first.  Plaintiffs contend that the statement constituted an invitation to collude, which Delta accepted when it adopted a fee in reliance on the AirTran statement.

In granting summary judgment to defendants, the district court suggested that the AirTran statement could not be the basis of a Section 1 violation, even if AirTran’s invitation was accepted by Delta, because of its public nature and the fact that it provided information of interest to investors.

AAI’s amicus brief argues that the district court’s approach towards inferring agreements based on invitations to collude made during investor earnings calls is overly restrictive.  The brief points out that many industries like airlines have become increasingly concentrated and, as a result, investor earnings calls pose a heightened danger for promoting collusion.

AAI Vice President and General Counsel Richard Brunell wrote the brief.  AAI previously filed an amicus brief in the appeal of the Delta/AirTran class certification order, which has been consolidated with the summary judgment appeal.