UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 03-2388 SARAH FUTCH HALL, d/b/a Travel Specialist, on

behalf of themselves and all others similarly

situated; JEANINE FLAUGHER, d/b/a Flowers

Travel; ASSOCIATION OF RETAIL TRAVEL AGENTS, Plaintiffs - Appellants, and PEOPLES TRAVEL LIMITED; JOHN FLAUGHER, d/b/a

Flowers Travel; LANEY INTERNATIONAL TRAVEL;

TRAVEL MANAGEMENT PROFESSIONALS, INCORPORATED,

d/b/a Travel Is Fun, Plaintiffs, versus AMERICAN AIRLINES, INCORPORATED; DELTA

AIRLINES, INCORPORATED; NORTHWEST AIRLINES,

INCORPORATED; CONTINENTAL AIRLINES, INC.;

MIDWEST EXPRESS AIRLINES, INCORPORATED;

AIRTRAN HOLDINGS, INCORPORATED; AMERICAN WEST

AIRLINES, INCORPORATED; FRONTIER AIRLINES,

INCORPORATED; ALASKA AIR GROUP, INCORPORATED;

ALASKA AIRLINES, INCORPORATED; HORIZON AIR

INDUSTRIES, INCORPORATED; SOCIETE AIR FRANCE;

KLM ROYAL DUTCH AIRLINES, Defendants - Appellees, and UNITED AIRLINES, INCORPORATED; DELTA AIRLINES

GLOBAL SERVICES, INCORPORATED; U.S. AIRWAYS,

INCORPORATED; TRANS WORLD AIRLINES; MIDWAY

- 2 - AIRLINES CORPORATION; AIRTRAN AIRLINES,

INCORPORATED; DEUTSCHE LUFTHANSA AG; ALITALIA,

SPA; AIR CANADA, Defendants. Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. W. Earl Britt, Senior

District Judge. (CA-00-123-BR)

Argued: October 27, 2004 Decided: December 9, 2004

Before MOTZ and TRAXLER, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Affirmed by unpublished per curiam opinion.

ARGUED: Daniel Rees Shulman, GRAY, PLANT, MOOTY, MOOTY & BENNETT, P.A., Minneapolis, Minnesota, for Appellants. Lee H. Simowitz,

BAKER & HOSTETLER, L.L.P., Washington, D.C., for Appellees. ON BRIEF: Dean C. Eyler, GRAY, PLANT, MOOTY, MOOTY & BENNETT, P.A., Minneapolis, Minnesota; Henry L. Anderson, Jr., A. L. Butler

Daniel, Bradley A. Coxe, ANDERSON, DANIEL & COXE, Wrightsville

Beach, North Carolina, for Appellants. Gary J. Rickner, WARD AND

SMITH, P.A., New Bern, North Carolina; Ronald F. Wick, Eric Berman,

BAKER & HOSTETLER, L.L.P., Washington, D.C., for Northwest

Airlines, Inc., KLM Royal Dutch Airlines, Continental Airlines,

Inc., Delta Air Lines, Inc., American Airlines, Inc., and Societe

Air France. James V. Dick, Marshall S. Sinick, SQUIRE, SANDERS &

DEMPSEY, L.L.P., Washington, D.C., for Alaska Air Group, Inc.,

Alaska Airlines, Inc., and Horizon Air Industries, Inc. Thomas W. Rhodes, Edward H. Wasmuth, Jr., SMITH, GAMBRELL & RUSSELL, L.L.P.,

Atlanta, Georgia, for AirTran Holdings, Inc. Peter Huston, J. Thomas Rosch, LATHAM & WATKINS, L.L.P., San Francisco, California,

for America West Airlines, Inc. John D. Shively, Heather T. Perkins, FAEGRE & BENSON, L.L.P., Denver, Colorado, for Frontier

Airlines, Inc. Robert P. Silverberg, SILVERBERG, GOLDMAN & BIKOFF,

L.L.P., Washington, D.C.; Pressly M. Millen, WOMBLE, CARLYLE,

SANDRIDGE & RICE, P.L.L.C., Raleigh, North Carolina, for Midwest

Express Airlines, Inc. - 3 -

- 4 - Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).

The defendant-airlines in this action are: Air Canada; Airtran Holdings, Inc. (Airtran); Alaska Air Group, Inc., Alaska

Airlines, Inc., and Horizon Air Industries, Inc. (collectively

Alaska); Alitalia, SPA (Alitalia); America West Airlines, Inc. (America West); American Airlines (American); Continental Airlines,

Inc. (Continental); Delta Air Lines (Delta); Delta Air Lines Global

Services, Inc.; Deutsche Lufthansa AG (Lufthansa); Frontier

Airlines, Inc. (Frontier); KLM Royal Dutch Airlines (KLM); Midway

Airlines, Corp. (Midway); Midwest Express Airlines, Inc. (Midwest

Express); Northwest Airlines, Inc. (Northwest); Societe Air France

(Air France); Trans World Airlines, Inc. (TWA); United Airlines,

Inc. (United); and US Airways, Inc. (US Airways). - 5 - PER CURIAM:

This is a nationwide class action lawsuit by travel agents

(the Travel Agents) against numerous foreign and domestic

airlines. 1 The Travel Agents claim the defendant-airlines illegally conspired and executed a scheme to reduce and ultimately

eliminate travel-agent-base-commissions on the sale of domestic and

international airline tickets in a concerted effort to boost

profits of the defendant-a irlines and to force them (the Travel Agents) out of business, all in violation of § 1 of the Sherman

Antitrust Act (the Sherman Act), 15 U.S.C. § 1. The Travel Agents

allege the conspiracy began in 1995 and ended by late summer 2002.

Since the initial filing of this action on June 21, 2000, it

has been dismissed, on varying grounds, against Alitalia, Delta Air

Lines Global Services, Inc., Midway, and Lufthansa. The action has

also been stayed against Air Canada, TWA, United, and US Airways,

based upon notices of bankruptcy filed by those airlines.

Here, the district court specifically found there was no just reason to delay the entry of final judgment with respect to the Airlines to await the conclusion of bankruptcy proceedings against

Air Canada, TWA, United, and US Airways. - 6 - The case proceeded against the remaining defendant-airlines

(hereinafter collectively the Airlines): Airtran, Air France,

Alaska, America West, American, Continental, Delta, Frontier, KLM,

Midwest Express, and Northwest. After full discovery, the Airlines

moved for summary ju dgment pursuant to Federal Rule of Civil Procedure 56. See

Fed. R. Civ. P. 56. On October 30, 2003, in a lengthy published opinion, the

district court exam ined the Travel AgentsÂ’ proffered evidence against the Airlines and found no triable issue of fact. Hall v. United Airlines, Inc. , 296 F. Supp. 2d 652 (E.D.N.C. 2003). Accordingly, the district court granted summary judgment in favor

of the Airlines. Notably, the district court directed the clerk of

court to enter final judgment in favor of the Airlines pursuant to

Federal Rule of Civil Procedure 54(b), which allows a district

court to order the entry of final judgment as to less than all

parties and all claims in an action when there is no just reason

for delay. 2 See

Fed. R. Civ. P. 54(b). The Travel Agents noted a timely appeal of this final judgment.

We review the grant of summary judgment de novo

. Higgins v. E.I. DuPont de Nemours & Co. , 863 F.2d 1162, 1167 (4th Cir. 1988). Summary judgment is appropriate “if the pleadings, depositions,

- 7 - 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 a

judgment as a matter of law.” Fed. R. Civ. P. 56(c). Moreover, in

assessing the merits of a motion for summary judgment, we view the

evidence in the light most favorable to the non-moving party, here

the Travel Agents, and draw all reasonable inferences in the

non-moving partyÂ’s favor. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986).

Section 1 of the Sherman Act provides, in pertinent part, that

“[e]very contract, combination in the form of trust or otherwise,

or conspiracy, in restraint of trade or commerce among the several

States, or with foreign nations, is decl ared to be illegal.§ 1. Therefore, to establish a conspiracy in restraint of

trade in violation of § 1 of the Sherman Act, as the Travel Agents

have alleged, “a plaintiff must show: (1) a contract, combination

or conspiracy; (2) that imposed an unreasonable restraint of

trade.” American Chiropractic Assn., Inc. v. Trigon Healthcare,

Inc. , 367 F.3d 212, 223 (4th Cir. 2004) (internal quotation marks

omitted). Significantly, purely unilateral action does not violate

§ 1 of the Sherman Act. Copperweld Corp. v. Independence Tube

Corp.

, 467 U.S. 752, 767-68 (1984). Rather, concerted activity

between at least two legally distinct persons or entities is at the

heart of a § 1 Sherman Act violation. American Chiropractic Assn.,

- 8 - Inc. , 367 F.3d at 223. To elaborate, “concerted activity susceptible to sanction by section 1 is activity in which multiple

parties join their resources, rights, or economic power together in

order to achieve an outcome that, but for the concert, would

naturally be frustrated by their competing interests (by way of

profit-maximizing choices).” Virginia Vermiculite, Ltd. v. Historic Green Springs, Inc. , 307 F.3d 277, 282 (4th Cir. 2002). We have carefully reviewed and considered the district court’s

opinion, the voluminous appellate record, and the partiesÂ’ oral and

written appellate arguments. We agree with the district court that

the Travel Agents have not proffered sufficient evidence, when

viewed in the light most favorable to them and when drawing all reasonable inferences in their favor, to support a finding of

concerted activity by the Airlines, which finding is necessary to

establish a § 1 Sherman Act violation. Accordingly, we find no error in the district courtÂ’s decision to grant summary judgment in

favor of the Airlines, and we affirm entry of final judgment in favor of the Airlines on the reasoning of the district court. See

Hall

, 296 F. Supp. 2d at 661-78, 680-81. AFFIRMED