Case 1:23-cv-10678-WGY Document 184 Filed 08/22/23 Page 1 of 26

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

GABRIEL GARAVANIAN, et al.,

Plaintiffs,

v. Civil Action No.: 1:23-cv-10678-WGY

JETBLUE AIRWAYS CORPORATION and

SPIRIT AIRLINES, INC.,

Defendants.

PLAINTIFFS’ MEMORANDUM IN OPPOSITION TO

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

REDACTED
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TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii

INTRODUCTION .......................................................................................................................... 1

APPLICABLE LAW ...................................................................................................................... 2

ARGUMENT .................................................................................................................................. 4

I. THE MERGER WILL INCREASE PRICES, REDUCE OUTPUT, AND RESULT IN

“CONCRETE,” “IMMINENT” “ANTITRUST INJURY” ............................................................... 4

II. PLAINTIFFS WILL BE DIRECTLY IMPACTED BY THE MERGER’S ANTICOMPETITIVE

EFFECTS. .............................................................................................................................. 6

A. The Merger Will Harm Consumers In At Least 700 Markets Across The
Country ......................................................................................................................... 7

B. The Merger Will Injure Plaintiffs On The Harmed Routes, Regardless Of

What Airline They Fly ................................................................................................ 11

III. PLAINTIFFS ARE THREATENED WITH IRREPARABLE HARM ............................................... 14

A. Plaintiffs Are Threatened With Irreparable Harms That Cannot

Adequately Be Remedied With Money Damages ...................................................... 14

B. Plaintiffs’ History Of Suffering The Effects of Past Airline Mergers

Informs Standing: Defendants’ Cynical Ad Hominem Attacks Must Be
Rejected....................................................................................................................... 17

IV. RESOLUTION IN THE GOVERNMENT’S CASE CANNOT “MOOT” THIS ACTION ................... 20

CONCLUSION ............................................................................................................................. 20

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TABLE OF AUTHORITIES

Cases
Am. Passage Media Corp. v. Cass Commc'ns, Inc.,
750 F.2d 1470 (9th Cir. 1985) .................................................................................................. 14
Ball Mem’l Hosp., Inc. v. Mut. Hosp. Ins., Inc.,
784 F.2d 1325 (7th Cir. 1986) .......................................................................................... 3, 4, 14
Brown Shoe Co. v. United States,
370 U.S. 294 (1962) .................................................................................................................... 2
Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc.,
429 U.S. 477 (1977) .............................................................................................................. 3, 14
California v. Am. Stores Co.,
492 U.S. 1301 (1989) (O’Connor, J., Circuit Justice) .............................................................. 14
California v. Am. Stores, Co.,
495 U.S. 271 (1990) .......................................................................................................... 2, 3, 14
Clapper v. Amnesty Int’l USA,
568 U.S. 398 (2013) .......................................................................................................... 3, 6, 11
FTC v. Indiana Fed'n of Dentists, 476 U.S. 447 (1986) ................................................................. 4
Lujan v. Defenders of Wildlife,
504 U.S. 555 (1992) .............................................................................................................. 3, 11
Malaney v. UAL Corp.,
No. 3:10-cv-02858-RS, 2010 WL 3790296 (N.D. Cal. Sept. 27, 2010)................................... 19
Palmyra Park Hosp. Inc. v. Phoebe Putney Mem’l Hosp.,
604 F.3d 1291 (11th Cir. 2010) ................................................................................................ 15
Rebel Oil Co. v. Atlantic Richfield Co.,
51 F.3d 1421 (9th Cir. 1995) ...................................................................................................... 4
St. Alphonsus Medical Center v. St. Luke’s Health System, Ltd.,
778 F.3d 775 (9th Cir. 2015) .................................................................................................. 4, 9
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014) ................................................................................................................ 3, 6
United States v. Borden Co.,
347 U.S. 514 (1954) .................................................................................................................. 20
United States v. Falstaff Brewing Corp.,
410 U.S. 526 (1973) .................................................................................................................... 8
United States v. JetBlue and Spirit,
Case No. 23-cv-10511 (Mar. 7, 2023) ...................................................................................... 18
Zenith Radio Corp. v. Hazeltine Research, Inc.,
395 U.S. 100 (1969) .......................................................................................................... 2, 3, 14

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TABLE OF AUTHORITIES (Cont’d)

Statutes
15 U.S.C. § 18 ....................................................................................................................... 2, 5, 14
15 U.S.C. § 26 ........................................................................................................................... 2, 14

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INTRODUCTION

To enjoin an unlawful merger, private plaintiffs “need only demonstrate a significant

threat of injury” from the impending acquisition. Zenith Radio Corp. v. Hazeltine Research, Inc.,

395 U.S. 100, 130 (1969); 15 U.S.C. § 26. There is no need to show actual present harm. Id. A

merger will be held unlawful where its “probable future effect” is to lessen competition. Brown

Shoe Co. v. United States, 370 U.S. 294, 323, 332 (1962).

In this exceptional Section 7 case challenging the merger of JetBlue Airlines and Spirit

Airlines, the Defendants’ own admissions provide an astounding quality of direct evidence that

the merger not only threatens anticompetitive harm, it will almost assuredly result in it: higher

prices, reduced output, the elimination of choice in a vibrant rival, and the diminution of service

quality, among other harms. The evidence overwhelmingly shows that Plaintiffs regularly travel

the impacted routes and stand to suffer “concrete” and “imminent” antitrust injury; they are

consumers of air travel on the routes directly impacted by this merger. Defendants’ motion for

summary judgment is wholly without merit.

Defendants’ assertion that the undisputed evidence demonstrates Plaintiffs do not fly the

harmed routes requires ignoring the record evidence. The merger will impact well over 700

routes in the country, and likely more than 1,000. Yet, Defendants only analyzed Plaintiffs’

participation from an incomplete list of some 100 impacted routes. In choosing to do so,

Defendants waste the lion’s share of their motion attacking an irrelevant strawman. Defendants

also err by concluding, without basis, that the merger will only injure Spirit fliers. To do so, they

ignore more evidence, this time the testimony of their own corporate witness who admitted that

when Spirit exits a route, all the passengers on that route suffer anticompetitive effects,

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regardless of the airline they fly. To be sure, the Plaintiffs’ group includes consistent and regular

Spirit fliers, but their consumption of Spirit air travel is not a prerequisite to standing.

Finally, Defendants contend that Plaintiffs’ injuries are not irreparable. They fail to

recognize that the lessening of competition itself creates irreparable harm. Plaintiffs will suffer

myriad other harms from the merger that cannot be remedied by money damages: the loss of

consumer choice, diminutions in the quality of service, flight cancellations, lost baggage, and

losses in innovation, among others. The threat of these harms is well supported by the evidence –

evidence the Defendants unsurprisingly disregard. The motion is meritless and should be denied.

APPLICABLE LAW

Section 7 of the Clayton Act prohibits mergers whose effect “may be substantially to

lessen competition … in any line of commerce … in any section of the country.” 15 U.S.C. § 18.

“Section 7 itself creates a relatively expansive definition of antitrust liability: To show that a

merger is unlawful, a plaintiff need only prove that its effect ‘may be substantially to lessen

competition.’” California v. Am. Stores, Inc., 495 U.S. 271, 284 (1990) (emphasis in original).

By prohibiting mergers that may substantially lessen competition, Congress “indicate[d] that its

concern was with probabilities, not certainties,” and courts are to find violations where “the

probable future effect of the merger” is to lessen competition. Brown Shoe, 370 U.S. at 323.

Section 16 of the Clayton Act authorizes private plaintiffs to obtain injunctive relief for

any “threatened loss or damage” resulting from a violation of the antitrust laws. 15 U.S.C. § 26.

Since Section 16 requires only “‘threatened’ injury,” an injunction is available “even though the

plaintiff has not yet suffered actual injury.” Zenith, 395 U.S. at 130. To win an injunction, a

private plaintiff “need only demonstrate a significant threat of injury from an impending

violation of the antitrust laws.” Id. (citations omitted). The threatened injury must be an

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“antitrust injury,” that is, “injury of the type the antitrust laws were intended to prevent and that

flows from that which makes defendants’ acts unlawful.” Brunswick Corp. v. Pueblo Bowl-O-

Mat, Inc., 429 U.S. 477, 489 (1977). Among other things, “‘antitrust injury’ … means injury

from higher prices or lower output, the principal vices proscribed by the antitrust laws.” Ball

Mem’l Hosp., Inc. v. Mut. Hosp. Ins., Inc., 784 F.2d 1325, 1334 (7th Cir. 1986) (citing

Brunswick, 429 U.S. 477).

Moreover, “the purpose of giving private parties … injunctive remedies was not merely

to provide private relief, but was to serve as well the high purpose of enforcing the antitrust

laws.” Zenith, 395 U.S. at 130. Section 16 “should be construed and applied with this purpose in

mind.” Id. at 131; see also Am. Stores Co., 495 U.S. at 284-85 (Section 16 was intended to

“encourage vigorous private litigation against anticompetitive mergers;” “was an integral part of

the congressional plan for protecting competition;” and “fits well in a statutory scheme that …

subjects mergers to searching scrutiny”).

“To establish Article III standing, an injury must be ‘concrete, particularized, and actual

or imminent; fairly traceable to the challenged action; and redressable by a favorable ruling.’”

Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (citation omitted). “Imminence is

concededly a somewhat elastic concept.” Id. quoting Lujan v. Defenders of Wildlife, 504 U.S.

555, 564 n.2 (1992). The purpose of establishing the “imminence” of injury is “to ensure that the

alleged injury is not too speculative for Article III purposes.” Id. “An allegation of future injury”

– as in the present case – will suffice as long as “there is a ‘substantial risk’ that the harm will

occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) quoting Clapper, 568 U.S.

at 415 n.5.

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ARGUMENT

I. THE MERGER WILL INCREASE PRICES, REDUCE OUTPUT, AND RESULT IN

“CONCRETE,” “IMMINENT” “ANTITRUST INJURY”

In most merger cases, the plaintiff relies heavily on indirect evidence of concentrated

market shares, which alone is sufficient to establish a plaintiff’s prima facie case of a violation of

Section 7. See St. Alphonsus Medical Center v. St. Luke’s Health System, Ltd., 778 F.3d 775, 785

(9th Cir. 2015) (“prima facie case can be established simply by showing high market share”).

This case, however, is remarkable for the strength of direct evidence of anticompetitive effects.

“[E]vidence of restricted output and supracompetitive prices [are] direct proof of the injury to

competition” proscribed by the antitrust laws. Rebel Oil Co. v. Atlantic Richfield Co., 51 F.3d

1421, 1434 (9th Cir. 1995); FTC v. Indiana Fed'n of Dentists, 476 U.S. 447, 460-61 (1986).

In sworn testimony, the defendants here have conceded that the JetBlue/Spirit merger

will raise prices and lower output in markets throughout the country that directly impact

Plaintiffs. Thus, contrary to Defendants’ contentions (Def. Mot. at 3), the Defendants’ own

statements prove their merger will result in antitrust injury. Ball Mem’l Hosp., 784 F.2d at 1334

(“‘antitrust injury’ … means injury from higher prices or lower output, the principal vices

proscribed by the antitrust laws”).

First, in a presentation to shareholders, Spirit’s own top executives described JetBlue’s

then-unsolicited hostile takeover as “JetBlue is a high-fare airline acquiring a low-fare airline

and vowing to reduce capacity and increase prices to consumers.” Plaintiffs’ Opposition to

Defendants’ Purported Statement of Undisputed Material Fact (“PSUMF”) ¶ 201. Spirit has

admitted that “a JetBlue acquisition of Spirit will have lasting negative impacts on consumers,”

stating that the merger will “raise[] Spirit’s ticket prices,” and “remove ~50% of the ULCC

[Ultra Low Cost Carrier] capacity in the U.S.” PSUMF ¶ 201.

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JetBlue then verified Spirit’s initial concerns. When JetBlue calculated the impact the

merger would have on its revenues, it modelled for price increases and capacity reductions.

PSUMF ¶ 206 (testifying that model “will increase the fare, minimally shrink the market size,

we’ll then get our fair share of that new market size at that fare”).) Indeed, JetBlue plans to

increase fares on aircraft it acquires from Spirit by at least 24%. PSUMF ¶¶ 196, 197. JetBlue

states that 24% is a conservative estimate, and that fare increases may be as high as 40%.

PSUMF ¶ 197. Thus, there is direct evidence in the form of party admissions that the merger will

have anticompetitive effects. Section 7 only requires Plaintiffs to prove the merger “may” have

such effects. 15 U.S.C. § 18.

Second, Defendants do not dispute the merger will reduce capacity. As Spirit itself

predicts: “[S]pirit believes the DOJ – and a court – will be very concerned that a JetBlue-Spirit

combination will result in a higher-cost/higher fare airline and remove about half of the ULCC

capacity in the United States.” PSUMF ¶ 203 (emphasis added).

Spirit planes have more seats than JetBlue planes. PSUMF ¶ 198. But, after the merger,

JetBlue will remove seats from every Spirit plane to match the configuration of JetBlue’s planes.

PSUMF ¶ 199. This reconfiguration will result in a reduction of 10-15% (or approximately 20-

28) of the seats on former Spirit planes. PSUMF ¶ 199. In its initial rejection of JetBlue’s

unsolicited hostile takeover bid, Spirit expressed grave concern about this reduction in capacity,

stating that “JetBlue is … vowing to reduce capacity and increase prices to consumers.” PSUMF

¶ 201. Even if the merger permits it to “increase utilization” of its aircraft, JetBlue admits that

alone will not offset the capacity lost as a result of removing seats from former Spirit aircraft.

PSUMF ¶¶ 207-212. JetBlue posits no other basis for offsetting the capacity lost as a result of

stripping 24 seats on average from every one of Spirit’s roughly 200 planes. PSUMF ¶ 212.

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These sworn statements directly undermine Defendants’ argument that the merger will

not result in “antitrust injury” to consumers, like Plaintiffs, that fly routes impacted by the

merger. If the merger is permitted to proceed, it will have direct anticompetitive effects on the

impacted markets and is therefore plainly unlawful under Section 7.

Defendants’ sworn testimony also undermines their Article III standing arguments.

According to Defendants themselves, the merger will increase prices and reduce capacity, so

those harms are “concrete” and “imminent.” There is not only “a substantial risk that the harm

will occur,” Susan B. Anthony, 573 U.S. at 158, Defendants have promised it. The injury is

“fairly traceable to the challenged action” because the increased prices and reduced capacity are

but-for effects of the merger. A “favorable ruling” that enjoins the merger will “redress” the

future harm by preventing the elimination of Spirit, the reduction of capacity, and the increase in

prices. Clapper, 568 U.S. at 409.

II. PLAINTIFFS WILL BE DIRECTLY IMPACTED BY THE MERGER’S ANTICOMPETITIVE

EFFECTS.

The merger’s anticompetitive harms will be felt in hundreds of routes across the nation,

threatening Plaintiffs with direct and imminent harm because they routinely fly routes impacted

by the merger.

Defendants’ argument that Plaintiffs lack standing suffers from two fundamental errors,

each independently warrants denying the motion. First, Defendants analyze Plaintiffs’ standing

in the wrong markets. (Def. Mot. at 6-13.) For their analysis, Defendants compare Plaintiffs’ past

flights to a list of 121 “harmed routes.” (Def. Mot. at 6-13.) But, expert discovery has not been

completed, and that list of 121 routes was “partial,” “not complete” and would change after

“further information” was provided by Plaintiffs’ “expert.” PSUMF ¶ 36. On July 28, 2023,

Plaintiffs served their expert report of Hal Singer, which identified the updated list of “Harmed

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Markets.” However, Defendants chose to ignore the Singer Report. Instead, they strategically

opted to attack a strawman list of “harmed markets” they knew to be incomplete. As a result, the

lion’s share of Defendants’ analysis is literally meaningless. (Def. Mot. at 6-13.)

Second, Defendants’ argument hinges on the false assumption that the merger will only

harm Spirit fliers. They contend that Plaintiffs’ standing depends entirely on whether they have

flown Spirit in the past or will fly Spirit in the future. (Def. Mot. at 5-9.) Defendants’ factual

representations about Plaintiffs’ past and future Spirit flights is woefully inaccurate, as explained

below. But, more importantly, Defendants’ sworn testimony undermines their argument that the

merger will only harm Spirit fliers. JetBlue acknowledges that Spirit’s exit from a route results in

market-wide price increases of all other airlines serving that route by 30%. PSUMF ¶ 205.

Therefore, every passenger flying a harmed route will suffer antitrust injury – regardless of what

airline they fly.

A. The Merger Will Harm Consumers In At Least 700 Markets Across The
Country

The proposed merger will lessen “actual competition” in at least 697 routes across the

nation and “potential competition” will be harmed in hundreds more. All twenty-four Plaintiffs

are threatened with concrete, impending antitrust injury as a result of their participation as

consumers in the impacted markets.

The “Harmed Markets” impacted by the merger are as follows:

1. Overlapping Routes. In 414 overlapping routes in which JetBlue and Spirit

compete head-to-head (“Overlapping Routes”), the merger will harm actual competition by

eliminating a price-cutting competitor, increasing concentration, raising prices, reducing

capacity, and limiting consumer choice. PSUMF ¶ 36.

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2. Spirit Only Routes. In an additional 283 routes serviced by Spirit in which neither

JetBlue nor any other ULCC provides service (PSUMF ¶ 36), the elimination of Spirit and its

replacement with JetBlue will result in former Spirit consumers paying at least 24% more in

fares (PSUMF ¶¶ 196-197), while passengers of every other airline in that market will pay 30%

more on average (PSUMF ¶ 205). Consumers in these markets will also suffer antitrust injury

from reduced capacity, fewer consumer choices, decreased quality of service, and the elimination

of JetBlue as a viable potential competitor.

3. Potential Competition Markets. Hundreds of additional routes will suffer antitrust

injury as a result of the elimination of Spirit as a “potential competitor.” PSUMF ¶ 36; see, e.g.,

United States v. Falstaff Brewing Corp., 410 U.S. 526, 557-62 (1973) (discussing “perceived

potential competition” and “actual potential competition” theories of liability). These routes

include (1) current Spirit routes that JetBlue does not serve but plans to serve absent the merger;

(2) current JetBlue routes that Spirit does not serve but plans to serve absent the merger; and (3)

routes that neither airline serves but that Spirit plans to serve absent the merger. PSUMF ¶ 36.

Because the two carriers operate from 159 airports across the nation, the potential range of routes

affected under the potential harm to competition spans the entirety of the nation. PSUMF ¶ 36.

At the very least, absent the merger Spirit plans to acquire 171 new aircraft and expand into 30

new airports over the next 5 years, leading to hundreds of new future routes. PSUMF ¶ 36.

All twenty-four Plaintiffs are consumers of airline travel in these harmed markets.1

Plaintiffs have flown and will continue to fly on over 160 of the harmed routes.2 Of these,

Plaintiffs have concrete future plans to fly in over 70 of the impacted routes, either because they

1
PSUMF ¶¶ 39, 46, 53, 60, 68, 74, 80, 87, 93, 99, 105, 112, 119, 126, 132, 139, 146, 152, 158, 164, 172,
178, 183, 190.
2
Id.

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fly these routes regularly (e.g. to visit family) or because they have planned business trips or

vacations.3

For example, Plaintiff Leonard Marazzo travels for work on the Richmond to Orlando

route. PSUMF ¶ 132. Not only is the Richmond to Orlando route a harmed route, if the merger

proceeds, JetBlue will have a complete and unchallenged monopoly on that route, rendering the

merger facially unlawful and essentially unrebuttable under the law. PSUMF ¶ 36 (Alioto Decl.,

Ex. 73 (Singer Rep.) Table A3.1-A3.7). Mr. Marazzo also regularly flies from New York to Las

Vegas. PSUMF ¶ 132. The merger will cause the market concentration index (known as the

“HHI”) on that route to increase over 500 points to 2,800 – well above the 2,500 post-merger and

200-point increase thresholds that establish the merger’s presumptive illegality under the law.

PSUMF ¶ 36 (Alioto Decl., Ex. 73 (Singer Rep.) Table A3.1-A3.7); see, e.g., St. Alphonsus, 778

F.3d at 786 (“[m]ergers that increase the HHI more than 200 points and result in highly

concentrated markets [i.e. 2,500 HHI or higher]” are presumptively anticompetitive). In another

example, Plaintiff Lisa McCarthy lives in Fort Myers and regularly visits family in Hartford and

Boston. PSUMF ¶ 139. If the merger goes forward, the HHI in the Fort Myers-Hartford market

will increase an astronomical 3,335 points to a post-merger concentration level of 8,910. PSUMF

¶ 36 (Alioto Decl., Ex. 73 (Singer Rep.) Table A3.1-A3.7). The HHI in the Fort Myers-Boston

route that Ms. McCarthy flies will increase 1,464 points to 6,184 post-merger. PSUMF ¶ 36

3
PSUMF ¶¶ 39 (regularly flies routes to visit family), 68 (planned cruise), 74 (vacations regularly), 80
(regularly visits sister, nephew), 87 (flies routes every year; planned cruise), 93 (booked flights; planned
cruise), 99 (flies route four times a year; lives in Boston, works and owns property in Florida), 105 (flies
route frequently; visits son), 112 (visits friends), 119 (flies frequently; visits friends; planned wedding),
126 (regular golf trips), 132 (visits friends; regular work trips), 139 (visits friends), 146 (travels route
frequently, owns timeshare at destination; visits family), 152 (planned cruise; work trips), 158 (planned
cruise; travels route three times/year to visit family), 164 (travels route frequently), 178 (travels for work
and annual meetings; visits friends/vacations regularly), 183 (frequently vacations and frequent family
visits), 190 (visits family regularly).

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(Alioto Decl., Ex. 73 (Singer Rep.) Table A3.1-A3.7). Another example is Plaintiff Katherine

Arcell, who frequently flies from her home in New Orleans to Newark to visit family in New

Jersey. PSUMF ¶ 39. The merger will increase the concentration index in the New Orleans-

Newark market by almost 600 points to 2,800 – well in excess of the threshold for presumptive

unlawfulness. PSUMF ¶ 36 (Alioto Decl., Ex. 73 (Singer Rep.) Table A3.1-A3.7).

Plainly, Defendants’ conclusion that Plaintiffs have no “concrete, imminent” plans to fly

in the future is wrong. But, to shoehorn that argument anyway, Defendants resort to

mischaracterizations of the record. One egregious example is Defendants’ treatment of plaintiff

Gabriel Garavanian’s testimony. Mr. Garavanian testified that he travels from his residence near

Boston to Fort Myers, Florida (a harmed route) four times a year. PSUMF ¶ 97-99. He travels to

look after condominiums he bought in Florida, and he visits family there. Id. In fact, Mr.

Garavanian travels so frequently that he lives in Boston but works part-time in Myrtle Beach.

PSUMF ¶ 99. When he travels from Boston to Florida, he flies Spirit Airlines, and testified, “I

fly on, you know, Spirit, a lot, obviously.” Id.

In the face of the undisputable regularity of Mr. Garavanian’s travel on Spirit along the

Boston-Fort Myers route, Defendants incredibly argue he has no “concrete, imminent plans to fly

Spirit in the future.” (Def. Mot. at 6.) That absurd conclusion is propped up by Defendants’ razor

thin definition of “imminent” that has no support from (or citation to) the law. They claim no

plaintiff’s travel is “imminent” unless that plaintiff has already purchased the ticket, even,

apparently, if the plaintiff commutes on the route every three months. (Def. Mot. at 7.)

Defendants’ definition of convenience is utterly unreasonable. Applying it, only a sliver of actual

air travelers could possibly have standing, since airline tickets are rarely booked more than a few

weeks in advance. The merger is not set to close for another 6 months. The law does not require

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plaintiffs to show they purchased tickets more than 6 months in advance to show standing.

Defendants’ definition is also contradicted by law. “Imminence is concededly a somewhat elastic

concept.” Clapper, 568 U.S. at 409 citing Lujan, 504 U.S. at 564 n.2. The purpose of

establishing the “imminence” of injury is merely “to ensure that the alleged injury is not too

speculative for Article III purposes.” Id. Plaintiffs regularly travel the harmed routes. They have

so testified under oath. Their travel is not speculative. They will continue to regularly visit

family members, attend annual work meetings, and go on vacation – along routes that will be

impacted by Defendants’ merger. Defendants’ suggestions to the contrary are entirely baseless.

B. The Merger Will Injure Plaintiffs On The Harmed Routes, Regardless Of What
Airline They Fly

Defendants also fundamentally err by relying on the false premise that the merger will

only impact Spirit passengers. The lion’s share of their standing argument is wasted on

discussing whether and when the various Plaintiffs flew or will fly Spirit. (Def. Mot. at 5-9.)

But, based on JetBlue’s own analysis of “real world Spirit exits from markets,” Defendants

concede that every time Spirit exits a route, “route fares increase[] by 30 percent thereafter.”

PSUMF ¶205. That is, passengers of any airline that travel routes serviced by Spirit will be

injured as a result of Spirit’s elimination – by higher prices, a reduction of capacity, a diminution

of service quality, and the lessening of consumer choice. PSUMF ¶ 36 (Alioto Dec., Ex. 73

(Singer Rep.) at pp. 2-3, ¶ 4 and n. 2; p. 18, ¶ 42).

Moreover, Plaintiffs will also suffer injury from the loss of potential competition in

routes that Spirit has not yet entered but intends to enter in the near future. Specifically, Spirit

intends to purchase 171 new aircraft and enter 6 new airports every year for the next 5 years.

PSUMF ¶ 36. The loss of Spirit as a potential competitor in the hundreds of routes Spirit will

enter absent the merger will harm consumers, including Plaintiffs, who will be forced to forego

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the benefits of Spirit’s competition. PSUMF ¶ 36 (Alioto Dec. Ex. 73 (Singer Rep.) at pp. 52-58,

¶¶ 103-116). Plaintiffs Faust, Talewski, and Ward each live near airports or travel to airports that

Spirit intends to enter in the near future absent the merger.4

While not necessary to establish their standing, the record is nonetheless replete with

Plaintiffs’ plans to fly Spirit in the near future, and Defendants’ assertions to the contrary are

wrong. Eighteen of the plaintiffs have plans to fly Spirit on specific routes in the near future.5

Seven Plaintiffs currently have flights booked on Spirit or have definitive plans to book Spirit

flights in the next month or so.6 The remaining six plaintiffs either have intentions to fly Spirit or

consider Spirit a viable option as the date of departure nears.

4
PSUMF ¶¶ 74 (Faust; Spirit plans to enter Cincinnati (airport code CVG) in 2026); 178 (Talewski; Spirit
plans to enter Rhode Island (airport code PVD) in 2027); 183 (Ward; Spirit plans to enter Sarasota,
Florida (airport code SRQ) in 2028).
5
PSUMF ¶¶ 38. (Arcell; will likely fly Spirit in harmed routes); 52 (Brown; plans to fly Spirit to Orlando
next year to visit sister); 59 (D’Augusta; will fly Spirit to New York within next six months for wedding,
to nephew’s graduation in June 2024, and to San Diego in next few months); 67 (Davis; flight booked on
Spirit from Dallas to Las Vegas on September 6, 2023; will fly Spirit to Seattle for upcoming cruise to
Alaska); 73 (Faust; plans to fly Spirit to Los Angeles next month; will fly Spirit when it expands to
CVG); 86 (Freeland; will fly Spirit to Mexico to visit daughter in near future and has researched pricing
and availability); 92 (Fry; Spirit flight booked October 5, 2023 from Phoenix to Seattle); 98 (G.
Garavanian; regularly flies Spirit from Boston to Myrtle Beach and will fly Spirit to Myrtle Beach in
December 2023 and March 2024); 104 (H. Garavanian; is flying Spirit from Boston to Myrtle Beach in
Fall 2023 to visit son); 111 (Gardner; is flying Denver to Miami for a cruise in February 2024 and will
book Spirit if it is lowest price as trip approaches); 131 (Marazzo; regularly purchases Spirit flights for his
daughter; booked Spirit on November 4, 2023 for trip from Reno to Las Vegas; booked Spirit on
December 13, 2023 from Orlando to Richmond); 138 (McCarthy; in addition to considering Spirit for a
number of upcoming trips, intends to fly Spirit from Fort Myers to Las Vegas for annual conference); 145
(Nieboer; will book Spirit roundtrip flight from Detroit to Fort Lauderdale for February 17, 2024 to
March 2, 2024; Spirit has “always been the most economical one, so that is what I would run with”); 151
(Pulfer; will fly Spirit from Denver to Columbus in summer 2024); 157 (Rubinsohn; has booked Spirit
flight in December 2023 from Philadelphia to Detroit to visit family); 163 (Russell; plans on flying Spirit
domestically in the future, travels frequently from Dallas to Fort Lauderdale, Miami, and Orlando); 171
(Stensrud; intends to fly Spirit when retires); 177 (Talewski; plans to fly Spirit from West Palm Beach or
Fort Lauderdale to Atlantic City with friends in October 2023).
6
PSUMF ¶¶ 67 (Davis; flight booked on Spirit from Dallas to Las Vegas on September 6, 2023; will fly
Spirit to Seattle for upcoming cruise to Alaska); 92 (Fry; Spirit flight booked October 5, 2023 from
Phoenix to Seattle); 98 (G. Garavanian; regularly flies Spirit from Boston to Myrtle Beach and will fly

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Moreover, many of the Plaintiffs run active travel agencies that 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.7 Defendants fail to address this line of injury at

all, making unremarkable points that the merger will not impact the amount of “flat fees” or

commissions Plaintiffs receive.8 But, Defendants disregard the erosion of sales that will result as

“the merger drive[s] [Plaintiffs’] clients to choose alternative modes of transportation and

eliminate [Plaintiffs’]” travel agency services as “flight options disappear.” PSMUF ¶ 77 (Faust).

Defendants argue there is no genuine issue of material fact that Plaintiffs are not

threatened with “concrete” “imminent” “antitrust harm” from the merger. The record readily

refutes these claims. In fact, there is no genuine dispute that the merger will injure competition

with anticompetitive effects, facts established through Defendants’ own admissions. Plaintiffs

need only prove they are “threatened” with probable harm. But here, because they routinely fly

Spirit to Myrtle Beach in December 2023 and March 2024); 104 (H. Garavanian; is flying Spirit from
Boston to Myrtle Beach in Fall 2023 to visit son); 131 (Marazzo; regularly purchases Spirit flights for his
daughter; booked Spirit on November 4, 2023 for trip from Reno to Las Vegas; booked Spirit on
December 13, 2023 from Orlando to Richmond); 145 (Nieboer; will book Spirit roundtrip flight from
Detroit to Fort Lauderdale for February 17, 2024 to March 2, 2024; Spirit has “always been the most
economical one, so that is what I would run with”); 157 (Rubinsohn; has booked Spirit flight in
December 2023 from Philadelphia to Detroit to visit family).
7
Plaintiffs have not “waived” this theory of standing. Faust 77 (merger will drive clients to choose
alternative modes of transportation and erode sales); G. Garavanian 102 (based on prior experience with
airline mergers, increased prices from merger will result in customers foregoing travel and his service);
Gardner 115 (ability to service clients will be hampered by loss of choices, degradation of service); Pulfer
153 (fewer customers will book trips as airline costs increase); Rubinsohn 161 (number of people that
book airfare will go down if prices for air tickets go up); Talewski 180 (merger will impact his business
since customers will travel less frequently due to higher prices, reduced flight schedules, worse customer
service, and devalued loyalty programs); Ward 186 (merger will have “negative effects” on her travel
agency business as a result of fewer flight options)
8
Plaintiffs dispute Defendants’ contention that commissions necessarily increase as fares go up. PSUMF
¶ 48 (Brito) (explaining that commissions do not necessarily go up just because ticket prices increase).

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routes where competition will be drastically impacted, Plaintiffs are not only threatened with

harm, they are ensured to suffer absent an injunction.

III. PLAINTIFFS ARE THREATENED WITH IRREPARABLE HARM

To demonstrate “irreparable harm” justifying the injunction of an unlawful merger under

Section 7, “[r]easonable apprehension of threatened injury will suffice.” Am. Passage Media

Corp. v. Cass Commc'ns, Inc., 750 F.2d 1470, 1473 (9th Cir. 1985) (citing 15 U.S.C. § 26 and

Zenith, 395 U.S. at 130). Moreover, a “lessening of competition ‘is precisely the kind of

irreparable injury that injunctive relief under section 16 of the Clayton Act was intended to

prevent’.” California v. Am. Stores Co., 492 U.S. 1301, 1304 (1989) (O’Connor, J., Circuit

Justice); Am. Passage Media, 750 F.3d at 1473 (“A sufficient showing of injury to competition

could support a finding of irreparable harm”).

A. Plaintiffs Are Threatened With Irreparable Harms That Cannot Adequately Be

Remedied With Money Damages

There is no genuine dispute in this case that the effect of the merger “may be substantially

to lessen competition,” 15 U.S.C. § 18, since the direct evidence shows the merger will have

those effects. Defendants concede they will use the elimination of Spirit to increase prices and

reduce output, “the principal vices proscribed by the antitrust laws,” Ball Mem’l Hosp., 784 F.2d

at 1334 (citing Brunswick, 429 U.S. 477). See supra, Sec. I. This “lessening of competition,”

standing alone, “is precisely the kind of irreparable injury” Section 16 was intended to enjoin.

Am. Stores, 492 U.S. at 1304.

Defendants also argue Plaintiffs will suffer no injuries that cannot be remedied with

money damages. (Def. Mem. at 15.) Their argument again requires ignoring the record. Each of

the plaintiffs testified to being threatened with myriad harms that cannot be remedied with

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money damages.9 The elimination of Spirit will result in “fewer choices for consumers …

precisely the type of harm that we allow plaintiffs to vindicate through the antitrust laws.”

Palmyra Park Hosp. Inc. v. Phoebe Putney Mem’l Hosp., 604 F.3d 1291, 1303 (11th Cir. 2010)

(emphasis added). Every Plaintiff testified the merger will harm them by reducing their choices

as consumers.10 As Plaintiff D’Augusta put it, “when you take away a viable competitor … you

would take away my choice” because “[t]his merger will create fewer choices as flights and routes

are consolidated.” (SMF ¶ 64.) Plaintiff Gabriel Garavanian lived that experience. He regularly

flies Spirit from Boston to Myrtle Beach. SMF ¶ 99. However, in January 2023, he was forced to

drive back to Boston because Spirit was not operating and the cost of other flights in the market

9
SMF ¶ 42 (Arcell), ¶ 49 (Brito), ¶ 57 (Brown), ¶ 64 (D’Augusta), ¶ 71 (Davis), ¶ 77 (Faust), ¶ 83
(Fjord), ¶ 90 (Freeland), ¶ 96 (Fry), ¶ 102 (G. Garavanian), ¶ 108 (H. Garavanian), ¶ 115 (Gardner), ¶ 122
(Jolly), ¶ 129 (Malaney), ¶ 135 (Marazzo), ¶ 142 (McCarthy), ¶ 149 (Nieboer), ¶ 155 (Pulfer), ¶ 161
(Rubinsohn), ¶ 167 (Russell), ¶ 176 (Stensrud), ¶ 181 (Talewsky), ¶ 187 (Ward), ¶ 194 (Whalen).
10
SMF ¶ 42 (Arcell) (“[I] would like to have the ability – the choice to choose”); SMP ¶ 49 (Brito)
(merger will lessen choice for air travel); SMF ¶ 57 (Brown) (“based on past experience” merger will
result in “fewer choices of carriers”); SMF ¶ 64 (D’Augusta) (“This merger will create fewer choices as
flights and routes are consolidated and will contribute to reduced flexibility to manage longer or forced
layovers or inconvenient travel schedules”); SMF ¶ 71 (Davis) (merger will reduce consumer choice);
SMF ¶ 77 (Faust) (“I should be concerned about any kind of merger as a travel agent and consumer
because it’s just one more nail in the coffin on the options that American customers have for their flight
travel”); SMF ¶ 83 (Fjord) (“alternatives for myself, family, friends, and clients travel will be
eliminated”); ¶ 90 (Freeland) (merger would “reduce his options” for flying), ¶ 96 (Fry) (merger “will
reduce the number of airline choices,” as prior “mergers have created very few options out of Tucson”), ¶
102 (G. Garavanian) (“JetBlue will cancel routes completely … so a route that Spirit had previously
serviced will be completely discontinued”), ¶ 108 (H. Garavanian) (“I believe we will have less options
for flight routes, especially Boston to Ft. Lauderdale. I, in particular, will have less options to fly into and
out of Tampa and Manchester”), ¶ 115 (Gardner) (merger will result in “less service”), ¶ 122 (Jolly) (“I
do not want to see another option leave from the Dallas airport”), ¶ 129 (Malaney) (merger will result in
“fewer flights” and “less consumer choice”), ¶ 135 (Marazzo) (harms experienced from the merger will
include “fewer travel options,” “less choice in flights”), ¶ 142 (McCarthy) (merger will result in “fewer
available seats”, ¶ 149 (Nieboer) (“mergers … only help the companies, not the public” and will result in
“less opportunity to … fly certain destinations”) , ¶ 155 (Pulfer) (“Flights and seating availability will be
lower”), ¶ 161 (Rubinsohn), ¶ 167 (Russell) (merger will “eliminate consumers choice”), ¶ 176 (Stensrud)
(merger will result in “less availability of flights”), ¶ 181 (Talewsky) (merger will result in “less choice
for flight options” and “reduced flight schedules”), ¶ 187 (Ward) (merger will “limit the choices” and
result in “fewer flights”), ¶ 194 (Whalen) (merger will impact her personally because it will result in “less
choices” and “cutbacks in maybe some flights and destinations”).

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had skyrocketed. SMF ¶ 99. Mr. Garavanian testified he wanted to fly home for Christmas but

with Spirit out of the market, prices had gone from $90/$180 per roundtrip to $750 per

roundtrip. SMF ¶ 99. With Spirit gone, Mr. Garavanian could not afford to travel by air and was

forced to drive 14 hours home to Boston. From atop their ivory towers, Defendants argue they

can simply pay money damages to address harms like those experienced by everyday fliers like

Mr. Garavanian once Spirit is eliminated from the market. But, Defendants are deaf to the fact

that eliminating Spirit will prevent some people, like Mr. Garavanian, from flying at all. As Mr.

Garavanian testified, if Spirit is eliminated, people like him “aren’t going to be able to afford to

go to some of these destinations or [make] any of these trips” at all. SMF ¶ 99. In fact, JetBlue’s

own estimates suggest the elimination of Spirit will result in large percentages of Spirit’s current

customer base, like Mr. Garavanian, foregoing flights altogether. PSUMF ¶ 213 (JetBlue

estimates Spirit’s entry into markets stimulates increases of 18% to 36% in new passengers).

Plaintiffs also testified that the proposed transaction will reduce service quality.11

Plaintiffs base these beliefs on their decades in the industry as travel agents, having lived through

and experienced the effects of half a dozen airline mergers. PSUMF ¶ 102 (Alioto Dec. Ex. 10

(G. Garavanian Dep. at 110-112) (in 34 years as travel agent, saw higher prices and steep

reductions in service after previous mergers). Reductions in service will include “longer and

11
SMF ¶ 49 (Brito) (based on his personal experience with previous airline mergers, the “trend that’s
taken place” is there will be “lower service”), ¶ 57 (Brown) (“based on prior experience,” airline mergers
have resulted in “reduced routing,” “reduced number of seats” and “more crowded flights”), ¶ 64
(D’Augusta) (merger will “contribute to reduced flexibility to manage longer or forced layovers or
inconvenient travel schedules”), ¶ 71 (Davis) (“service may be cut in Dallas for Spirit”), ¶ 77 (Faust), ¶ 90
(Freeland) (“poorer service” based on his experience observing impacts of prior airline mergers), ¶ 96
(Fry) (based on experience of prior mergers, her livelihood will be affected in a very direct way through,
among other things, cancellation of flights), ¶ 102 (G. Garavanian) (merger will result in trip
interruptions, baggage handling problems, computer system integration problems, cancellations, double
bookings, and internal conflict that all negatively impact the consumer experience), ¶ 108 (H.
Garavanian), ¶ 115 (Gardner), ¶ 122 (Jolly), ¶ 129 (Malaney), ¶ 135 (Marazzo), ¶ 167 (Russell), ¶ 181
(Talewsky) (merger will result in poor service, “especially customer service” which “[h]istorically … has
happened every time there is a merger”), ¶ 187 (Ward).

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forced layovers” and “inconvenient travel schedules.” PSUMF ¶ 64. The merger is likely to

result in “crowded flights,” “double bookings” PSUMF ¶ 102, “flight cancellations,” “difficulties

in transferring between flights,” “lost or delayed baggage,” and various other service disruptions

related to “[m]erging different airline systems.” SUMP ¶ 64. These threatened irreparable harms

facing Plaintiffs are not speculative; they are based on Plaintiffs’ personal observations of the

deterioration of quality that has accompanied previous airline mergers. An erosion of “customer

service” has “historically … happened every time there is a merger.” PSUMF ¶ 181; see also e.g.

PSUMF ¶ 49 (likelihood of harms based on “trend that’s taken place” with concentration in

airline industry); ¶ 57 (likelihood of harms “based on prior experience”); ¶ 90 (“poorer service”

based on experience observing impacts from prior airline mergers); ¶ 97 (same).)

B. Plaintiffs’ History Of Suffering The Effects of Past Airline Mergers Informs

Standing: Defendants’ Cynical Ad Hominem Attacks Should Be Rejected

Defendants finally offer a series of arguments related to Plaintiffs’ history challenging

anticompetitive airline mergers. The logic of these arguments is so poor that it appears they are

offered solely as a vehicle to attack Plaintiffs personally. But, not only are Defendants’ cynical

ad hominem attacks inappropriate, Plaintiffs’ previous experience with airline mergers at best

supports their standing and at worst is irrelevant.

Defendants deride Plaintiffs for having challenged six airline mergers in the past.

PSUMF ¶ 6. The argument is deeply hypocritical. In a pre-merger filing with the government,

Defendants concede that the airline industry “has been allowed to drastically consolidate” since

2005, “leaving just four dominant carriers (American, Delta, United and Southwest, collectively

the ‘Big Four’) that currently account for approximately 80% of capacity.” PSUMF ¶ 214

(JetBlue Response to DOJ “Second Request” at 75). They seize on this to make the backward

argument that yet one more merger will somehow fix the industry’s overconcentration. (Def.

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 Case 1:23-cv-10678-WGY Document 184 Filed 08/22/23 Page 22 of 26

Mot. at 6.) But, Defendants are right to lament the “drastic consolidation” of the airline industry,

even if their lament is feigned. The government also recognizes the historic unlawful trend

toward consolidation in the airline industry. United States v. JetBlue and Spirit, Case No. 23-cv-

10511 (Mar. 7, 2023) (Compl. ¶ 8) (alleging that JetBlue’s acquisition of Spirit would be

“simply the latest step in a trend toward concentration in the industry”). But, the antitrust

regulators have not always had that view. In the eleven years from 2005 to 2016, seven airline

mergers were permitted to close. Under previous administrations, the government allowed all of

them to proceed, sometimes requiring structural remedies that ultimately made little or no

difference. But while everyone now agrees the airline industry is “drastically consolidated,”

Plaintiffs were the only ones who did anything to stop it while it was occurring. Plaintiffs

challenged six of these mergers, even forming a group (Passengers Against Mergers), the central

tenet of which was to protect and maintain competition in the airline industry. Plaintiffs have

worked in the airline industry (mostly as travel agents) for decades. They have personally

experienced and suffered the impact prior airline mergers have had on competition, price, service

quality, flight cancellations, flight availability, and other harms – and that experience informs the

likelihood those harms will be repeated if the present merger is allowed to proceed. See supra,

notes 10, 11. Defendants deride Plaintiffs for challenging these mergers, yet in the same breath

(when beneficial to them), Defendants righteously declare the airline industry “drastically

consolidate[d].” To the extent their litigation history is relevant at all, it supports Plaintiffs’

standing. Defendants’ unfounded ad hominem attacks should be disregarded.

Defendants also make the logically flawed argument that by founding Passengers Against

Mergers, the Plaintiffs “acknowledge that money damages would remedy alleged harms from

‘all’ airline mergers.” (Def. Mot. at 15.) Plaintiffs were well within their rights to create a group

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aimed at protecting competition in the airline industry. That Plaintiffs did so does not amount to

an “acknowledgment” of anything other than a disdain for the destruction of competition that

Defendants only now acknowledge has plagued the airline industry. The agreement Plaintiffs

signed divided among themselves “any award” obtained from the Court, which includes court-

awarded fees for winning injunctions of unlawful mergers, not just settling cases. Plaintiffs’

agreement is emphatically not an impeachment of their characters, and ultimately it is irrelevant

to whether the harms Defendants consciously intend to inflict on Plaintiffs should be prevented.

Equally infirm is the logic Defendants apply to Plaintiffs’ previous settlement of a merger

lawsuit. Defendants nonsensically argue Plaintiffs’ settlement in a case ten years ago is somehow

tantamount to an admission that money damages are an adequate remedy in this merger case.

Without relying on evidence or law, Defendants only muster this textbook example of syllogistic

fallacy: “[i]f it was true then, it is true now.” (Def. Mot. at 16.) Never mind the facts are

different, as yet again Defendants ignore the evidence. But, setting aside their flawed logic, the

last court to consider Defendants’ recycled argument summarily rejected it, reasoning, “the

policy of favoring settlement counsels against using the terms of those agreements as evidence in

another case.” Malaney v. UAL Corp., No. 3:10-cv-02858-RS, 2010 WL 3790296 at *14 n.20

(N.D. Cal. Sept. 27, 2010). The evidence here reflects the intangible antitrust injuries the present

merger threatens to inflict on Plaintiffs – e.g., reductions in service, cancelled flights, fewer

flight options, the elimination of innovation, and so on. See supra Sec. III. Defendants cite no

evidence or law, much less establish there is no genuine issue of material fact, to support the

conclusion that the harms threatening Plaintiffs can be adequately remedied at law.

Finally, Defendants rely on more flawed logic to argue Plaintiffs’ expert’s quantification

of price-related damages equates to an admission that money damages are adequate for all the

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 Case 1:23-cv-10678-WGY Document 184 Filed 08/22/23 Page 24 of 26

merger’s harms. The expert’s report quantifies losses stemming from the higher prices Plaintiffs

will be forced to pay if the illicit merger closes. But, the expert report did not address – much

less quantify – the intangible harms Plaintiffs know through experience will follow from the

elimination of Spirit and the concomitant destruction of competition. PSUMF ¶¶ 194-196.

IV. RESOLUTION IN THE GOVERNMENT’S CASE CANNOT “MOOT” THIS ACTION

In a single sentence at the end of their brief – unencumbered by a citation to law –

Defendants claim Plaintiffs cannot meet their “threshold burden” of showing how their action

would not be “mooted” by resolution of the government’s case at trial. (Def. Mot. at 17.) This

purported “threshold burden” is cut from whole cloth. The Supreme Court has held otherwise. In

United States v. Borden Co., the Court addressed whether an injunctive action brought by the

government was rendered “useless” by a prior decree in a private action enjoining the same

challenged activity. 347 U.S. 514, 515 (1954). The Court held it was not, and that the action

should proceed, since “[t]hese private and public actions were designed to be cumulative, not

mutually exclusive. … They may proceed simultaneously or in disregard of each other.” Id.

Accordingly, resolution of the government’s case cannot as a matter of law prevent Plaintiffs’

action from proceeding.

CONCLUSION

Defendants’ motion for summary judgment should be denied.

Dated: August 22, 2023 Respectfully submitted,

ALIOTO LEGAL

By /s/ Joseph M. Alioto Jr.

Joseph M. Alioto Jr. (CA Bar No. 215544)
100 Pine Street, Suite 1250
San Francisco, California 94111

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 Case 1:23-cv-10678-WGY Document 184 Filed 08/22/23 Page 25 of 26
Robert F. Ruyak
Stephen G. Larson
Scott Gregory Herrman
LARSON LLP
555 South Flower Street, Suite 4400
Los Angeles, California 90071
Tel: (213) 436-4888
Fax: (213) 623-2000
Email:slarson@larsonllp.com
Email:rruyak@larsonllp.com
Email:gherrman@larsonllp.com
(Admitted Pro Hac Vice)
Jeffery K. Perkins
LAW OFFICES OF JEFFERY K. PERKINS
1550-G Tiburon Blvd., Box 344
Tiburon, California 94920
Telephone: (415) 302-1115
Lingel H. Winters
LAW OFFICES OF LINGEL H. WINTERS
275 Battery Street, Suite 2600
San Francisco, California 94111
Telephone: (415) 398-2941
Christopher A. Nedeau
NEDEAU LAW PC
154 Baker Street
San Francisco, CA 94117-2111
Telephone: (415) 516-4010
Email: cnedeau@nedeaulaw.net
Counsel for Plaintiffs
21
Joseph M. Alioto
ALIOTO LAW FIRM
One Sansome Street, 35th Floor
San Francisco, California 94104
Telephone: (415) 434-8900
(Admitted pro hac vice)
Josephine Alioto
THE VEEN FIRM
20 Haight Street
San Francisco, CA 94102
Telephone: (415) 673-4800
Email: j.alioto@veenfirm.com
(Admitted pro hac vice)
Lawrence G. Papale
LAW OFFICES OF LAWRENCE G.
PAPALE
The Cornerstone Building
1308 Main Street, Suite 117
St. Helena, California 94574
Telephone: (707) 963-1704
(Admitted pro hac vice)
Robert J. Bonsignore, Esq.
BONSIGNORE TRIAL LAWYERS,
PLLC
23 Forest Street
Medford, MA 02155
Phone: 781-856-7650
Email: rbonsignore@classactions.us
 Case 1:23-cv-10678-WGY Document 184 Filed 08/22/23 Page 26 of 26

CERTIFICATE OF SERVICE

I certify that this document was filed through the ECF system in redacted form on August

22, 2023 and will be sent electronically to the registered participants as identified on the Notice

of Electronic Filing.

I further certify that this document, in unredacted form, was served on the defendants on

August 22, 2023 by transmitting it by email to counsel for defendants.

/s/ Joseph M. Alioto Jr.

JOSEPH M. ALIOTO JR.

22