United States v. Braniff Airways, Inc.

United States v. Braniff Airways, Inc.

Opinion

 [*725]  MEMORANDUM RULING

EDWIN F. HUNTER, JR., SENIOR UNITED STATES DISTRICT JUDGE:

On August 16, 1977, a federal grand jury in and for the Western District of Texas returned an indictment charging Braniff Airways, Inc., and Texas International Airlines, Inc., in two counts, with participation in a combination and conspiracy in restraint of trade and commerce in violation of Section 1 of the Sherman Act and with participation in combination and conspiracy to monopolize trade and commerce in violation of Section 2 of the Sherman Act (15 U.S.C. §§ 1 and 2).

Pursuant to an order of this Court, the Government has filed a detailed bill of particulars.  [**2]  Defendants move for an order dismissing the indictment.

Four principal grounds are presented:

(1) The Federal Aviation Act vests the Civil Aeronautics Board with exclusive jurisdiction over the criminal violations of the antitrust laws charged in the indictment.

(2) If the Court rejects their claims of immunity, then, in the alternative, this Court should apply the doctrine of primary  [*726]  jurisdiction and suspend this prosecution until certain Civil Aeronautics Board determinations are made.

(3) Certain litigation which was allegedly brought (as one of a series of overt acts) in furtherance of the conspiracy is immunized from antitrust attack by the First Amendment and the Noerr-Pennington Doctrine.

(4) Southwest's alleged "unlicensed" entry into the interstate market immunizes defendants from this criminal prosecution.

IMMUNITY

The indictment charges defendants with engaging in a classic antitrust conspiracy. It is narrowly drawn to cover restraints of trade and monopolization of the tri-city intrastate market in Texas. Defendants insist that in the particular circumstances presented the Federal Aviation Act displaces the Sherman Act, and that it is for the Civil Aeronautics [**3]  Boards alone to assess their conduct. The essence of the argument is:

"This case is governed by four decisions of the United States Supreme Court. Pan-American World Airways, Inc. v. United States, 371 U.S. 296, 83 S. Ct. 476, 9 L. Ed. 2d 325 (1963); Hughes Tool Co. v. Trans World Airlines, Inc., 409 U.S. 363, 34 L. Ed. 2d 577, 93 S. Ct. 647 (1973); United States v. National Ass'n of Securities Dealers, Inc., 422 U.S. 694, 45 L. Ed. 2d 486, 95 S. Ct. 2427 (1975); and Gordon v. New York Stock Exchange, Inc., 422 U.S. 659, 45 L. Ed. 2d 463, 95 S. Ct. 2598 (1975).

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