The opinion of the court was delivered by: William C. Conner, Senior District Judge.
Plaintiffs Hisa Travel Service, 10-N-10 Travel, Inc. and
Panorama Travel, Inc., on behalf of themselves and other members
of the class consisting of United States travel agents, bring
this class action against defendants Rail Europe Group, Inc.
("REG"), a Delaware corporation, and DERTOUR America, Inc., f/k/a
DER Travel Service, Inc. ("DER"), a California corporation,
pursuant to Section 1 of the Sherman Act, 15 U.S.C. § 1, alleging
a combination and conspiracy in unreasonable restraint of trade
and commerce. Defendants now move to dismiss the Amended
Consolidated Class Action Complaint pursuant to FED. R. CIV. P.
12(b)(6) and, in the alternative, move for a more definite
statement pursuant to FED. R. CIV. P. 12(e). For the reasons
stated hereinafter, defendants' motions are denied.
The Amended Complaint alleges the following:
Defendants are "major wholesalers" of travel services that
include, inter alia, European Rail Passes, which permit train
travel within participating European countries. (¶¶ 5, 20.) The
European Rail Passes include both single and multi-country
passes, such as the Eurail Pass and the Europass. (¶ 5.)
Plaintiffs are United States travel agents who are paid
commissions by defendants for selling the European Rail Passes.
(¶¶ 5, 20.) The majority of the European Rail Passes sold in the
United States are sold through travel agents. (¶ 21.)
In mid-1997, Heinz Wesner, president of DER (¶ 23), and Barbara
Schmidt, a corporate officer of DER, agreed with certain
corporate officers of REG to lower the commissions paid to travel
agents who sold European Rail Passes. (¶ 22.) Thereafter,
defendants learned that the United States Department of Justice
was investigating them, prompting Wesner to schedule a meeting
between the two defendants to discuss how to conceal the
price-fixing scheme. (¶ 23.) Wesner urged the parties to admit
that they discussed price fixing of minor importance, but to deny
any allegation that they agreed to fix the amount of commissions
paid to the travel agents. (Id.) In May 1999, DER shredded
documents that, upon plaintiffs' information and belief,
evidenced the conspiracy. (¶ 24.)
Plaintiffs allege that defendants' acts have had the following
(a) competition in the commissions payable to travel
agents for the sale of European Rail Passes by
defendant[s] . . . has been restrained, suppressed
and eliminated throughout the United States;
(b) commissions payable to travel agents for the sale
of European Rail Passes by defendants . . . have been
fixed, maintained and stabilized at artificially low
and noncompetitive levels throughout the United
(c) travel agents paid upon commission for the sales
of European Rail Passes from defendants . . . have
been deprived of the benefit of free and open
(¶ 33.) Plaintiffs allege that they received lower commissions
for the sale of European Rail Passes than they would have
received in the absence of the conspiracy between defendants. (¶
I. Motion to Dismiss Standard
On a motion to dismiss brought pursuant to FED. R. CIV. P.
12(b)(6), the Court must accept as true all of the well pleaded
facts and consider those facts in the light most favorable to the
plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct.
1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v.
Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984);
Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir.
1993). On such a motion, the issue is "whether the claimant is
entitled to offer evidence to support the claims." Scheuer, 416
U.S. at 236, 94 S.Ct. 1683. A complaint should not be dismissed
for failure to state a claim "unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Padavan v. United States,
82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe,
449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). Generally,
"[c]onclusory allegations or legal conclusions masquerading as
factual conclusions will not suffice to prevent a motion to
dismiss." 2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE §
12.34[b] (3d ed. 1997); see also Hirsch v. Arthur Andersen ...