inform USAir of the negotiations between BA and AA, which continued through 1995. (Id. PP 57, 58.) BA and AA allegedly were conspiring to stifle USAir's efforts to compete in the U.S.-U.K. market. (Id. P 60.) On September 21, 1995, BA finally informed USAir that it had been negotiating a strategic alliance with AA. The directors of BA who sat on USAir's Board of Directors, however, did not inform USAir of the true scope of the alliance. They allegedly assured USAir's Board that BA would not enter into any agreement that was not acceptable to USAir. (Id. P 63.)
In the fall of 1995, USAir and United Airlines began discussions concerning United Airlines' possible acquisition of USAir. (Id. P 64.) In September of 1995, BA and AA allegedly agreed to undermine United Airline's acquisition of USAir. (Id. P 65.) The strategy of BA and AA was to have AA engage in sham negotiations for acquisition of USAir. (Id. P 67.) AA allegedly forced United Airlines to back away from any plans to acquire USAir by informing United Airlines that it would respond to any bid by United Airlines or would protect AA's competitive position "by other means as necessary." (Id. P 71.) On November 13, 1995, United Airlines announced that it would not seek to acquire USAir. (Id.)
BA and AA allegedly conspired in other ways to prevent USAir from competing in the U.S.-U.K. market. BA allegedly agreed with AA not to seek liberalization of Bermuda II so that USAir would not be able to obtain DoT approval for Phases Two and Three of the Investment Agreement. (Id. P 76.) BA allegedly used its influence to delay ongoing negotiations between the United States and the United Kingdom so that any "open skies" agreement would benefit the BA-AA alliance and not the BA-USAir alliance. (Id.)
On November 19, 1995, BA informed USAir that BA and AA's proposed alliance included a frequent flyer relationship with terms more favorable than the BA-USAir alliance and a reciprocal code sharing agreement. (Id. P 77.) On January 19, 1996, BA announced that it would not exercise its option under Phase Two of the Investment Agreement. (Id. P 78.) However, BA allegedly continued to reassure USAir that any relationship with AA would be "competitive" and that USAir would benefit from such an agreement. BA allegedly misled USAir about the true nature and scope of the proposed alliance with AA until June 11, 1996, when AA publicly announced the BA-AA alliance. (Id. PP 81-85.) The alliance contemplates the pooling of revenues, profit sharing, coordination of flight schedules, integration of passenger and cargo handling between the U.S. and Europe, extensive reciprocal code sharing, and full reciprocity of frequent flyer programs. (Id.) The alliance is expressly conditioned on obtaining an order from the DoT conferring antitrust immunity. (Id.)
In deciding defendants' motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the factual allegations of the complaint must be accepted as true, Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993), and all reasonable inferences must be drawn in favor of plaintiffs, Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). A motion to dismiss should be granted only if it appears beyond a doubt that plaintiffs can prove no set of facts that would entitle them to relief. Id.
I. Antitrust Claims
The Clayton Act provides a private right of action for violation of the federal antitrust laws. Section 4 of the Clayton Act authorizes a "person . . . injured in his business or property by reason of anything forbidden in the antitrust laws" to recover treble damages. 15 U.S.C. § 15(a). The Clayton Act's definition of "antitrust laws" includes Sections 1 and 2 of the Sherman Act and Section 7 of the Clayton Act, see 15 U.S.C. § 12, the antitrust violations complained of by USAir.
In order to state a cognizable claim of antitrust violation, a plaintiff must allege "antitrust injury." Without antitrust injury, a private party does not have standing to bring an action under the antitrust laws. "Not all competitive conduct that injures another allows resort to laws regulating trade." Capital Imaging Assocs., P.C. v. Mohawk Valley Medical Assocs., Inc., 996 F.2d 537, 539 (2d Cir.), cert. denied, 510 U.S. 947, 126 L. Ed. 2d 337, 114 S. Ct. 388 (1993). In order to have standing, an antitrust plaintiff must:
prove more than injury causally linked to an illegal presence in the market. Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful.