Michael Malaney v. Ual Corporation, 552 F. App'x 698

Forty-nine private plaintiffs appealed dismissal of their Clayton Act §7 challenge to the merger of UAL/United and Continental.
This appeal follows a prior unpublished Ninth Circuit decision (Malaney I) that affirmed denial of a preliminary injunction and held plaintiffs failed to show the national market for air travel was the relevant product market.
The Ninth Circuit treated that prior holding identifying the product-market legal conclusion as binding law of the case.
On remand plaintiffs amended their complaint and sought to (1) invoke judicial estoppel based on earlier litigation (In re CRS) and (2) ask the court to reconsider Malaney I as clearly erroneous, arguing supply cross-elasticity matters.
The district court declined to apply judicial estoppel and adhered to Malaney I; the Ninth Circuit reviewed those rulings and affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the prior panel’s legal conclusion (national market not shown) is binding law of the case	Malaney I was incorrect; on remand new facts and prior defendants’ positions in CRS justify departing from law of the case	Malaney I’s legal holding is binding and plaintiffs did not cure its defect	Court enforces law of the case; declines to depart from Malaney I
Whether defendants should be judicially estopped from opposing a national-market theory based on CRS filings	United (and Continental) previously advocated a national market in CRS; they should be estopped from taking the contrary position now	CRS record is too thin; prior position not shown clearly; no unfair advantage identified	Judicial estoppel not applied; district court did not abuse discretion
Whether supply cross-elasticity (supply-side substitution) makes a national market appropriate	Plaintiffs contend cross-elasticity of supply links different air travel products into single market	Defendants argue plaintiffs failed to plead specific facts showing supply interchangeability is relevant	Plaintiffs’ allegations are conclusory; Iqbal governs; Malaney I not clearly erroneous
Whether plaintiffs cured pleading defects on remand	Amendments address prior omission	Amendments remain conclusory and lack factual support	Amendments insufficient; dismissal affirmed

Ranchers Cattlemen Action Legal Fund United Stockgrowers of Am. v. U.S. Dep’t of Agric., 499 F.3d 1108 (9th Cir.) (law-of-the-case limits and when prior legal rulings bind later proceedings)
Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008) (likelihood of success on merits standard for preliminary injunctions)
Brown Shoe Co. v. United States, 370 U.S. 294 (1962) (product-market definition principles under §7)
In re Air Passenger Computer Reservations Systems Antitrust Litigation, 694 F. Supp. 1443 (C.D. Cal. 1988) (prior litigation plaintiffs relied on for alleged prior defendant position)
Ah Quin v. County of Kauai Dep’t of Transp., 733 F.3d 267 (9th Cir.) (factors informing judicial estoppel analysis)
New Hampshire v. Maine, 532 U.S. 742 (2001) (Supreme Court articulation of judicial estoppel factors)
Equifax, Inc. v. F.T.C., 618 F.2d 63 (9th Cir.) (cross-elasticity of supply can inform market definition)
Ashcroft v. Iqbal, 556 U.S. 662 (2009) (complaint must plead factual content to state a plausible claim)
Wagner v. Professional Eng’rs in Cal. Gov’t, 354 F.3d 1036 (9th Cir.) (judicial estoppel prevents litigants from "playing fast and loose" with courts)
Leslie Salt Co. v. United States, 55 F.3d 1388 (9th Cir.) (standard for reconsidering prior panel decisions)
Baccei v. United States, 632 F.3d 1140 (9th Cir.) (judicial notice standards for appellate consideration)