20-1022-cv
Go New York Tours, Inc. v. Gray Line New York Tours, Inc., et al.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 22nd day of December, two thousand twenty.
PRESENT: JOSÉ A. CABRANES,
MICHAEL H. PARK,
WILLIAM J. NARDINI,
Circuit Judges.
GO NEW YORK TOURS, INC.,
Plaintiff-Appellant, 20-1022-cv
v.
GRAY LINE NEW YORK TOURS, INC., TWIN AMERICA,
LLC, SIGHTSEEING PASS LLC, BIG BUS TOURS
GROUP HOLDINGS LIMITED, BIG BUS TOURS GROUP
LIMITED, BIG BUS TOURS LIMITED, LEISURE PASS
GROUP HOLDINGS LIMITED, LEISURE PASS GROUP
LIMITED, LEISURE PASS GROUP, INC., OPEN TOP
SIGHTSEEING USA, INC., TAXI TOURS, INC.,
Defendants-Appellees,
BIG BUS LLC,
Defendant. *
* The Clerk of Court is respectfully directed to amend the official caption as listed above.
1
FOR PLAINTIFF-APPELLANT: MAURICE NEWMARK ROSS, Randall L.
Rasey, Barton LLP, New York, NY.
FOR DEFENDANTS-APPELLEES: JUSTIN EPNER, Jonathan M. Jacobson,
Wilson Sonsini Goodrich & Rosati,
Washington, D.C., New York, NY;
Michael Lacovara, Virginia F. Tent,
Sindhu Boddu, Latham & Watkins LLP,
New York, NY.
Appeal from a judgment of the United States District Court for the Southern District of
New York (Lewis A. Kaplan, Judge).
UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the District Court be and hereby is
AFFIRMED.
Plaintiff-Appellant Go New York Tours, Inc. (“Go New York” or “Plaintiff”), a tour-bus
company, appeals the District Court’s dismissal, pursuant to Fed. R. Civ. P. 12(b)(6), of Plaintiff-
Appellant’s Second Amended Complaint (“Complaint”) against two competitors and related
companies, Defendants-Appellees Gray Line New York Tours, Inc, Twin America, LLC, and
Sightseeing Pass LLC (together “Gray Line”), and Defendants-Appellees Big Bus Tours Group
Holdings Limited, Big Bus Tours Group Limited, Big Bus Tours Limited, Open Top Sightseeing
USA, Inc., Taxi Tours, Inc., Leisure Pass Group Holdings Limited, Leisure Pass Group Limited, and
Leisure Pass Group, Inc. (together “Big Bus”) (Defendants-Appellees collectively, “Defendants”).
Plaintiff alleges that Defendants, in violation of Section 1 of the Sherman Antitrust Act of 1890
(“Sherman Act”), 15 U.S.C. § 1 et seq., 1 conspired to persuade or coerce tourist attractions to refuse
or withdraw from trade partnership agreements with Go New York to offer multi-attraction passes. 2
The District Court held that Go New York failed to state a claim under the Sherman Act because it
did not plausibly allege the existence of an anticompetitive agreement between the Defendants. 3 Go
1
Section 1 of the Sherman Act makes illegal “[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.” 15 U.S.C. § 1.
2
Multi-attraction passes are sightseeing passes that permit the bearer entrance to multiple tourist
attractions for a single, discounted price. See, e.g., App’x at 58-59 (Complaint, ¶ 40).
3
Go New York also brought state-law claims for antitrust violations, unfair competition,
tortious interference with contract, and tortious interference with prospective business relations.
Having dismissed the Sherman Act claims, the District Court declined to exercise supplemental
jurisdiction over the state-law claims.
2
New York argues on appeal that the District Court improperly applied an unduly restrictive version
of the “plausibility” pleading standard established by Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). We assume the parties’ familiarity with the underlying
facts, the procedural history of the case, and the issues on appeal.
We review de novo a district court’s dismissal of a complaint pursuant to Fed. R. Civ. P.
12(b)(6), “accept[ing] all factual allegations as true and draw[ing] every reasonable inference from
those facts in the plaintiff’s favor.” Mayor & City Council of Baltimore, v. Citigroup, Inc., 709 F.3d 129,
135. (2d Cir. 2013). To survive a motion to dismiss, a complaint must plausibly plead a claim to
relief—i.e., allege facts that do more than “create[] a suspicion [of] a legally cognizable right of action,”
Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 182 (2d Cir. 2012) (quoting Twombly, 550 U.S.
at 555) (second alteration in original), and “raise a right to relief above the speculative level,” Mayor
& City Council of Baltimore, 709 F.3d at 135 (quoting Twombly, 550 U.S. at 555), such that a court can
“draw the reasonable inference that the defendant is liable for the misconduct alleged,” Anderson
News, 680 F.3d at 182 (quoting Iqbal, 556 U.S. at 678).
To adequately plead a conspiracy under Section 1 of the Sherman Act, a plaintiff must allege
facts from which it can be inferred that the anticompetitive conduct “stem[s] from … an agreement,
tacit or express” and not from “independent decision.” Id. (quoting Twombly, 550 U.S. at 553).
Where, as here, the plaintiff does not allege direct evidence of an agreement, the plaintiff may
adequately plead a Section 1 claim by making “allegations of interdependent conduct [by the
conspirators], accompanied by circumstantial evidence and plus factors.” Gelboim v. Bank of Am.
Corp., 823 F.3d 759, 781 (2d Cir. 2016) (quotation marks omitted). “‘[P]lus factors’ may include: a
common motive to conspire, evidence that shows that the parallel acts were against the apparent
individual economic self-interest of the alleged conspirators, and evidence of a high level of
interfirm communications.” Mayor & City Council of Baltimore, 709 F.3d at 136.
Go New York has failed to plead a Section 1 Sherman Act claim against Defendants because
it has not alleged the existence of sufficiently powerful “plus factors” to “raise [Plaintiff’s] right to
relief above the speculative level.” Id. at 135. 4 To be sure, Go New York has adequately pled the
existence of one “plus factor,” namely a motive to conspire. Go New York alleges that it
“disrupted” the New York hop-on-hop-off bus tour market by charging substantially lower prices
than Defendants for roughly comparable services. Taking those allegations as true, it is reasonable to
infer that Defendants had a shared interest in protecting their comparatively high prices by
minimizing Go New York’s market share. It is objectively rational for Defendants to make joint
4
It is unclear what conduct Go New York means to identify as “interdependent” or “parallel”
action by Defendants. We assume Go New York relies on Defendants’ alleged use of economic
pressure and disparagement to discourage tourist attractions from dealing with Go New York.
3
efforts to defame Plaintiff and to pressure tourist attractions not to deal with Plaintiff, since such
joint efforts are presumably more likely to succeed than separate ones. Nonetheless, the motive to
conspire is not here so obvious or compelling that it suffices to create more than a “suspicion [of] a
legally cognizable right of action.” Anderson News, 680 F.3d at 182 (quoting Twombly, 550 U.S. at 555)
(alteration in original). Defendants’ allegedly anticompetitive acts would have been objectively
rational even if done independently of one another, and Plaintiff pleads no facts suggesting that they
in reality “stem[med] from … an agreement.” Id. (quoting Twombly, 550 U.S. at 555).
We disagree with Go New York’s assertion that it has pleaded a second “plus factor” by
alleging that the tourist attractions acted against their economic self-interest in boycotting Go New
York. The “actions against self-interest” plus factor relates specifically to the interdependent or
parallel actions by the alleged conspirators, rather than third parties like the tourist attractions. See Mayor
& City Council of Baltimore, 709 F.3d at 136 (“‘[P]lus factors’ may include … evidence that shows that
the parallel acts were against the apparent individual economic self-interest of the alleged
conspirators ….”) (internal citation and quotation marks omitted, emphasis added). 5 Here, Go New
York does not plead that Defendants took any actions against their own economic self-interest. 6
Because Go New York has failed to state a claim under Section 1 of the Sherman Act, we affirm the
judgment of the District Court.
CONCLUSION
We have reviewed all of the arguments raised by Go New York on appeal and find them to
be without merit. For the foregoing reasons, we AFFIRM the March 6, 2020 judgment of the
District Court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
5
It makes sense to consider only the antitrust defendants’ alleged conduct, because “plus
factors” are allegations supporting the inference that defendants acted pursuant to an agreement.
When a business acts contrary to its ostensible economic self-interest, it may be reasonable to infer
that it is acting in concert with others.
Go New York’s allegations regarding actions against self-interest by the tourist attractions may
6
support the inference that the Defendants in fact influenced the attractions’ behavior, but they do not
support the inference that Defendants conspired to do so.
4