NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 2 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FLIGHTBLITZ, INC.; DAVID KAYE, No. 22-55524

Plaintiffs-Appellants, D.C. No. 2:21-cv-02116-CBM-KES v.

TZELL TRAVEL, LLC, a New York limited MEMORANDUM* liability company; TZELL HOLDINGS, LLC, a Delaware limited liability company; TRAVEL LEADERS GROUP, LLC, a Delaware limited liability company; TZELL TRAVEL GROUP, LLC, a business entity of unknown form,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, District Judge, Presiding

Argued and Submitted August 14, 2023 Pasadena, California

Before: WARDLAW, CHRISTEN, and SUNG, Circuit Judges.

Plaintiffs FlightBlitz, Inc. and David Kaye (together, “FlightBlitz”) appeal

the district court’s dismissal of their Second Amended Complaint (“SAC”) for

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. failure to state claims under the Sherman Act, 15 U.S.C. § 1, and the California

Cartwright Act, Cal. Bus. & Prof. Code § 16700 et seq. We have jurisdiction

under 28 U.S.C. § 1291. We vacate and remand.

1. The district court erred in dismissing FlightBlitz’s Sherman Act claim.

It is axiomatic that a single entity cannot “conspire” within the meaning of the

Sherman Act, 15 U.S.C. § 1. Copperweld Corp. v. Independence Tube Corp., 467

U.S. 752, 771 (1984). The district court dismissed this case under the single entity

rule, concluding that as alleged, Defendants and All Star Travel Group (“ASTG”)

did not constitute distinct business entities. In reaching this conclusion, the district

court relied on our decision in Freeman v. San Diego Association of Realtors,

which held that “[w]here there is substantial common ownership, a fiduciary

obligation to act for another entity's economic benefit or an agreement to divide

profits and losses, individual firms function as an economic unit and are generally

treated as a single entity” for purposes of liability for antitrust conspiracy under the

Sherman Act. 322 F.3d 1133, 1148 (9th Cir. 2003).

Applying the Freeman rule, the district court found FlightBlitz’s allegation

that Defendants held a majority equity stake in non-party ASTG dispositive. But

the district court failed to apply the Supreme Court’s decision in American Needle,

Inc. v. National Football League, 560 U.S. 183 (2010). There, the Supreme Court

rejected a formalistic approach to the single entity analysis and instead required

2 “functional consideration of how the parties involved in the alleged

anticompetitive conduct actually operate.” Id. at 191. The relevant question is the

degree to which Defendants’ agreement with ASTG joined together separate

decisionmakers and thereby “deprive[d] the marketplace of independent centers of

decisionmaking.” Id. at 195 (citing Copperweld, 467 U.S. at 769). Under this

functional test, Defendants’ majority equity stake in ASTG does not, in and of

itself, mandate dismissal under the single entity rule. Instead, American Needle

requires courts to consider the “competitive reality” of the relationship. Id. at 196.

And here, FlightBlitz also alleged that ASTG retained independent management

control and rights, making it an independent decisionmaker in direct competition

with Defendant Tzell in the travel agent independent contractor market.1 Upon

remand, the district court should consider these allegations and apply American

Needle in the first instance.

2. For the same reason, the district court also erred in dismissing

FlightBlitz’s Cartwright Act claim. See Olean Wholesale Grocery Coop., Inc. v.

Bumble Bee Foods LLC, 31 F.4th 651, 665 n.8 (9th Cir. 2022) (declining to

evaluate Cartright Act claims separately because “the analysis of a claim under the

Cartwright Act ‘mirrors the analysis under federal [antitrust] law.’” (quoting

1 The Second Amended Complaint alleges, inter alia, that Defendant Tzell and ASTG had two employees tasked with competing with each other, including over business with FlightBlitz.

3 County of Tuolumne v. Sonora Cmty. Hosp., 236 F.3d 1148, 1160 (9th Cir. 2001)

(alteration in original)).

3. We need not and do not reach FlightBlitz’s additional arguments

regarding the district court’s denial of its motion “for an order denying to exercise

supplemental jurisdiction; or, in the alternative, for leave to amend.”

VACATED AND REMANDED.

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