The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_________________________________
)
GABRIEL GARAVANIAN, et al., )
)
Plaintiffs, )
)
v. ) CIVIL ACTION
) NO. 23-10678-WGY
JET BLUE AIRWAYS CORPORATION, )
SPIRIT AIRLINES, INC., )
)
Defendants. )
)
_________________________________)
YOUNG, D.J. December 13, 2023
MEMORANDUM OF DECISION
In this private antitrust litigation, the Defendant
Airlines filed a motion for summary judgment, Def.’s Mot. Summ.
J., ECF No. 172, and the parties fully briefed the issue, Pl.’s
Opp’n. Mot. Summ. J., ECF No. 184; Def.’s Reply Opp’n. Mot.
Summ. J., ECF No. 212. This Court held oral argument on October
4, 2023, and took the parties’ arguments regarding the
Plaintiffs’ standing under advisement.
After careful review, this Court DENIED the motion for
summary judgment, Def.’s Mot. Summ. J., ECF No. 172, with
respect to Plaintiffs Gabriel Garavanian (“G. Garavanian”) and
Timothy Niebor (“Niebor”). This Court GRANTED the motion for
summary judgment, Def.’s Mot. Summ. J., ECF No. 172, with
respect to all other Plaintiffs as they lack standing under
Article III of the United States Constitution. See Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560-61 (1992).
I. BACKGROUND
A. The JetBlue and Spirit Merger
On July 28, 2022, Jet Blue Airways Corporation (“JetBlue”)
and Spirit Airlines, Inc. (“Spirit”) executed a final merger
agreement. Compl. ¶ 48, ECF No. 1. JetBlue, the sixth largest
airline in the United States, agreed to pay $3.8 billion to
acquire Spirit, the seventh largest airline in the United
States. Id. at ¶¶ 33, 48. The proposed merger would create the
country’s fifth largest airline with 10.2% of the national
market. Id. at ¶ 50. Spirit is known as an “Ultra-Low-Cost
Carrier” (“ULCC”), meaning that its offerings target budget-
conscious passengers with low-cost flight options. Id. at ¶¶
52-55. The Department of Justice, joined by multiple states,
has also filed a lawsuit under the Clayton Act to prevent the
proposed merger between JetBlue and Spirit. See United States
of America, Commonwealth of Massachusetts, District of Columbia,
State of New York, State of California, State of North Carolina,
State of Maryland, State of New Jersey v. JetBlue Airways
Corporation, Spirit Airlines, Inc., Civ. Action No. 1:23-cv-
10511-WGY (D. Mass. 2023).
B. Plaintiffs’ Relationship to the Airline Industry
The Plaintiffs here are a group of private individuals who
have flown and continue to fly as passengers in commercial air
travel. Compl. ¶ 42, ECF No. 1. Some of the Plaintiffs also
work as travel agents. Id. As of the close of discovery, none
of the Plaintiffs had booked plans to travel with Spirit in the
future.1 Reply Mem. Supp. Summ. J., ECF No. 212. Twenty-two of
the twenty-four living Plaintiffs have not flown Spirit within
the past four years.2 Pl.’s Opp’n. Def.’s Statement Material
Facts Supp. Summ. J. ¶ 27, ECF No. 186.
The Plaintiffs who work in the travel industry are Brito,
Brown,3 Faust, Fjord, Freeland, Fry, G. Garavanian, Gardner,
Jolly, McCarthy, Pulfer, Rubinsohn, Stensrud, Talewsky, and
Ward. Id. at ¶ 29. Aside from Brown and McCarthy (who each
receive a set yearly salary), the Plaintiffs who work in the
travel industry are generally paid in one of two ways for
1 On August 22, 2023 (almost two months after the close of
discovery -- June 28, 2023 -- and weeks after the Airlines filed
for summary judgment), eighteen of the Plaintiffs filed
declarations, contradicting prior sworn testimony, to state that
they now had future flight plans booked with Spirit. Reply Mem.
Supp. Summ. J., ECF No. 212.
2 Stansbury died after the commencement of this action.
Pl.’s Opp’n Def.’s Statement Material Facts Supp. Summ. J. ¶
168, ECF No. 186.
3 Brown’s affiliation with the travel industry is disputed
by the parties; she has testified that she is presently employed
as the travel manager for the Beach Boys. Pl.’s Opp’n Def.’s
Statement Material Facts Supp. Summ. J. ¶ 29, ECF No. 186.
booking airline tickets: 1) flat service fees for each flight,
for which they charge customers directly; and 2) scaled service
fees based on the price of the airline ticket. Id. at ¶¶ 30,
55, 141.
The two Plaintiffs who have flown Spirit in the past four
years, Niebor and G. Garavanian, both fly Spirit regularly. See
Pl. Niebor’s Supp. Responses Interrogs., ECF No. 175-66. In the
past eight years, Niebor has flown 25 times, with 57% of those
flights on Spirit Airlines. Id. Garavanian flies Spirit about
four times a year, traveling mostly between Boston and his
second home in Myrtle Beach, FL. See Pl. G. Garavanian’s Supp.
Responses Interrogs., ECF No. 175-43; G. Garavanian Dep., ECF
No. 175-42.
II. STANDARD OF REVIEW
A movant is entitled to summary judgment when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). An issue of material fact is genuine “if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Materiality depends on the
substantive law, and only factual disputes that might affect the
outcome of the suit can preclude summary judgment. Id.
In reviewing the evidence, this Court must “draw all reasonable
inferences in favor of the nonmoving party, and it may not make
credibility determinations or weigh the evidence.” Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). This
Court must also “disregard all evidence favorable to the moving
party that the jury is not required to believe.” Id. at 151.
The moving party bears the initial burden of demonstrating
that “the nonmoving party has failed to make a sufficient
showing on an essential element of her case with respect to
which she has the burden of proof.” Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). If the movant does so, then the
nonmovant must set forth specific facts sufficient to establish
a genuine issue for trial. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986).
III. ANALYSIS
The Plaintiffs who do not regularly fly Spirit Airlines
lack standing under Article III of the United States
Constitution. Therefore, the Court granted summary judgment for
the Airlines with regards to those Plaintiffs (Arcell, Brito,
Brown, D'Augusta, Davis, Faust, Fjord, Freeland, Fry, H.
Garavanian, Gardner, Jolly, Malaney, Marazzo, McCarthy, Pulfer,
Rubinsohn, Russell, Stensrud, Talewsky, Ward, and Whalen). The
Court denied summary judgment with regards to the two Plaintiffs
who fly Spirit Airlines regularly: G. Garavanian and Niebor.
A. Standing Under Article III
“Article III confines the federal judicial power to the
resolution of ‘Cases’ and ‘Controversies.’ For there to be a
case or controversy under Article III, the plaintiff must have a
‘personal stake’ in the case -- in other words, standing.”
TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203, (2021). “[T]o
establish standing, a plaintiff must show (i) that he suffered
an injury in fact that is concrete, particularized, and actual
or imminent; (ii) that the injury was likely caused by the
defendant; and (iii) that the injury would likely be redressed
by judicial relief.” Id. (citing Lujan v. Defs. of Wildlife,
504 U.S. 555, 560-61 (1992)).
Most of the Plaintiffs in this case fail to establish
standing because they cannot show that they have suffered an
injury in fact that is concrete, particularized, and actual or
imminent. The injury in fact must be “concrete and
particularized”; it must also be “actual or imminent, not
conjectural or hypothetical.” Lujan, 504 U.S. at 560 (quoting
Whitmore v. Arkansas, 495 U.S. 149, 155 (1990)). Plaintiffs G.
Garavanian and Niebor have standing because they are “the type
of person the law intends to protect against the harm of which
[they] complain.” Cia. Petrolera Caribe, Inc. v. Arco
Caribbean, Inc., 754 F.2d 404, 408 (1st Cir. 1985) (citing
Ozonoff v. Berzak, 744 F.2d 224, 227 (1st Cir. 1984)).
A plaintiff must show that “he personally has suffered some
actual or threatened injury ....” Valley Forge Christian Coll.
v. Am. United for Separation of Church & State, 454 U.S. 464,
472 (1982) (quotations omitted). “Requiring a plaintiff to
demonstrate a concrete and particularized injury caused by the
defendant and redressable by the court ensures that federal
courts decide only the rights of individuals,” and that federal
courts exercise “their proper function in a limited and
separated government.” TransUnion LLC, 141 S. Ct. at 2203
(citations and quotations omitted). “Concreteness and
particularity are two separate requirements.” Lyman v. Baker,
954 F.3d 351, 360 (1st Cir. 2020) (citing Spokeo, Inc. v.
Robins, 578 U.S. 330 (2016)). An injury is “concrete” when it
“actually exist[s].” Id. (quotations omitted). An injury is
“particularized” when it “affect[s] the plaintiff in a personal
and individual way,” Lujan, 504 U.S. at 560 n.1, that goes
beyond widely shared “generalized grievances about the conduct
of government,” Lyman, 954 F.3d at 361 (citing Becker v. Fed.
Election Comm'n, 230 F.3d 381, 390 (1st Cir. 2000)).
Plaintiffs Arcell, Brito, Brown, D'Augusta, Davis, Faust,
Fjord, Freeland, Fry, H. Garavanian, Gardner, Jolly, Malaney,
Marazzo, McCarthy, Pulfer, Rubinsohn, Russell, Stensrud,
Talewsky, Ward, and Whalen here argue that the proposed merger
of JetBlue and Spirit is “a violation of Section 7 of the
Clayton Antitrust Act (15 U.S.C. § 18) because the direct effect
of the elimination of Spirit may be ‘substantially to lessen
competition, or tend to create a monopoly’ in the passenger
airline industry by the elimination of a significant competitor
in a non-trivial transaction.” Compl. ¶ 6, ECF No. 1. Under
Section 16 of the Clayton Act, “[a]ny person . . . shall be
entitled to sue for and have injunctive relief . . . against
threatened loss or damage by a violation of the antitrust laws.”
15 U.S.C. § 26. The Plaintiffs claim that they will suffer
losses and damages from the proposed merger due to their
participation as consumers in the markets that may be impacted
by the proposed merger. See Pl.’s Mem. Opp’n Summ. J. 7-11, ECF
No. 184. These Plaintiffs, however, do not attempt to
differentiate themselves from any other consumers in the market;
on the contrary, they argue that the merger will harm all
consumers in the relevant markets, regardless of their preferred
airline. Id. at 11-12. The Plaintiffs also argue that those
Plaintiffs who work in the travel industry will be further
harmed because they will “lose customers and sales as a result
of the merger’s effects, as more and more people turn away from
air travel as a result of higher prices and reductions in
service.” Id. at 13.
The Plaintiffs’ claims of harm do not meet the “concrete
and particularized” standard. Although, viewing all facts in
the light most favorably for the Plaintiffs, there could be an
argument that the harms alleged will be concrete (at least for
the two travel agent Plaintiffs who rely on commissions), this
harm is still not particularized. As the Plaintiffs themselves
argue, the proposed merger will not affect the Plaintiffs in a
“personal and individual way.” Lujan, 504 U.S. at 560 n.1.
Plaintiff’s injuries, instead, are “widely shared.” Lyman, 954
F.3d at 361. These claimed injuries, therefore, do not meet the
requirements for Article III standing.
B. The Plaintiffs as Consumers of Air Travel
According to their deposition testimony and the proffered
evidence, both Plaintiffs G. Garavanian and Niebor fly Spirit
Airlines regularly, with 57% of Niebor’s 25 flights in the past
8 years on Spirit and G. Garavanian flying 8 times with Spirit
in the last year alone. See Pl. Niebor’s Supp. Responses
Interrogs., ECF No. 175-66; Pl. G. Garavanian’s Supp. Responses
Interrogs., ECF No. 175-43; G. Garavanian Dep., ECF No. 175-42.
In contrast, none of the other Plaintiffs have ever flown
Spirit, and only two have even flown on a route the Plaintiffs’
expert identified as an “affected route” as defined by antitrust
harms. See generally Pl.’s Supp. Responses Interrogs. and Pl.’s
Dep., ECF No. 175. These Plaintiffs’ flying habits, even if
frequent, fail to demonstrate a “‘personal stake’ in the case”
as needed for Article III standing. TransUnion, 141 S. Ct. at
2203.
IV. CONCLUSION
The defendants’ motion for summary judgment, ECF No.
172, was denied as to Plaintiffs G. Garavanian and Niebor,
and granted as to all others for the reasons set forth
above. As the Court of Appeals has reminded me, grant of a
motion under Fed. R. Civ. P. 54 (b) requires the district
court “expressly [to] determine that there is no just
reason for delay.” I reasoned here that a prompt appeal by
the dismissed individuals is in the interest of justice due
to the pendency of a companion case by the United States
seeking the same relief. See United States v. Jet Blue
Airways Corp., Civ. Action No. 23-10511-WGY (D. Mass.).
Respectfully Submitted,
_/s/William G. Young_
WILLIAM G. YOUNG
JUDGE
of the
UNITED STATES4
4 This is how my predecessor, Peleg Sprague (D. Mass. 1841-
1865), would sign official documents. Now that I’m a Senior
District Judge I adopt this format in honor of all the judicial
colleagues, state and federal, with whom I have had the
privilege to serve over the past 45 years.