Several Las Vegas hotel operators, two software companies and Blackstone all told the Ninth Circuit to reject a rehearing petition for its August decision for a proposed price-fixing class action that accused hotel operators and Blackstone of conspiring to use the software companies' GuestRev software to set prices for Las Vegas hotel rooms.

In their filing posted Thursday, hotel operators Caesars Entertainment Inc., Treasure Island LLC, Wynn Resorts Holdings LLC, JC Hospitality LLC, revenue management software vendor Cendyn Group LLC, Cendyn subsidiary The Rainmaker Group Unlimited Inc., Blackstone and its affiliate Blackstone Real Estate Partners VII LP alleged that the Ninth Circuit rightfully ruled that the proposed class failed to show how the alleged price-fixing agreements unfairly restrained trade.

The proposed class started its suit in January 2023. They included Blackstone and its affiliate because Blackstone used to operate the Cosmopolitan of Las Vegas hotel.

They pushed for a rehearing in September, arguing in part that the software licensing agreements between the hotel operators and Cendyn restrained trade in an anticompetitive way. Their rehearing bid is being supported by the American Antitrust Institute, a nonprofit organization focused on antitrust issues.

According to the appellees, a claim under Section 1 of the Sherman Act requires business agreements to restrain trade in an unfair way. The Ninth Circuit rightfully determined that the software licensing deals between the hotel operators and Cendyn were "'ordinary sales contracts'", not anticompetitive agreements, the appellees argued.

"Plaintiffs failed to allege the licensing agreements 'affect[ed] the competitive incentives in the market for hotel-room rentals on the Las Vegas Strip' because they neither revealed any confidential information among the various hotel defendants nor required hotel defendants to follow Cendyn's pricing suggestions," the appellees claimed.

The appellees added that the Ninth Circuit ruled the licensing agreements did not prevent the hotel operators from selling rooms in any manner they chose.

"Plaintiffs were silent as to how any aspect of those contracts could meet Section 1's threshold requirement that the agreements 'restrain[ed] ... trade in the relevant market,'" the appellees alleged. "That fundamental failure sunk plaintiffs' claim from the start because 'Section 1 requires a causal link between the contested agreement and an anticompetitive restraint of trade in the relevant market.'"

To support their argument, the appellees pointed to the Ninth Circuit's 1998 decision in Mularkey v. Holsum Bakery Inc. , which involved a pricing agreement between the bakery and several 7-Eleven convenience stores.

The agreement set pricing for the bakery's products in the stores and the Ninth Circuit ruled that it was not a vertical pricing agreement that was anticompetitive, according to the appellees, who also argued that the Mularkey case is similar to the present case.

"The software licenses permit the hotel defendants to use their own data to better understand their customers, forecast demand, and generate pricing recommendations," the appellees claimed. "But nothing in those licenses obligates any Cendyn client to use the software or accept its recommendations."

"There is no restraint on any hotel defendant's ability to make its own business decisions," they added.

The appellees further argued that the proposed class has conceded that hotel operators did not have to follow the GuestRev software's pricing recommendations.

In their rehearing petition, the proposed class claimed that the Ninth Circuit wrongfully created a new standard for scrutinizing whether business agreements are anticompetitive, but the appellees argued that the panel was not being unreasonable.

"There is nothing novel — in this circuit or elsewhere — about first asking whether an agreement 'restrain[s] ... trade' in a relevant market before asking whether it produces substantial anticompetitive effects in that market," they argued.

"This circuit has long engaged in that threshold inquiry, including in Mularkey, 49er Chevrolet, and Newman," they further argued, referring to the Ninth Circuit's Mularkey ruling, its 1986 decision in 49er Chevrolet Inc. v. General Motors Corp. and its 1987 ruling in Newman v. Universal Pictures .

The appellees also slammed the proposed class' argument that the Ninth Circuit was required by case law, such as its 2003 decision in Paladin Associates Inc. v. Montana Power Co. , to scrutinize whether the GuestRev agreements were anticompetitive.

According to the appellees, cases like Paladin Associates involved business agreements that unfairly restrained trade, unlike the GuestRev agreements.

Throughout the rest of their filing, the appellees lodged arguments such as alleging that the proposed class failed to tackle the second part of the Ninth Circuit's ruling.

"Even if the individual licensing agreements between Cendyn and the various hotel defendants could be considered restraints of trade," the appellees claimed, "the panel separately concluded that plaintiffs failed to plausibly plead a Section 1 violation 'because antitrust law provides no mechanism by which courts can evaluate the independent agreements between Cendyn and each hotel defendant 'in the aggregate.'"

"'Plaintiffs ... fail[ed] to plead facts' showing that any particular agreement 'has a discrete effect on competition,'" they added.

Class counsel and counsel for the appellees did not respond to requests for comment on Friday.

The proposed class is represented by Steve Berman and Rio Pierce of Hagens Berman Sobol Shapiro LLP.

Cendyn Group is represented by Sadik H. Huseny, Brendan A. McShane, Timothy L. O'Mara, Melissa A. Sherry, Anna M. Rathbun, Christopher J. Brown and Graham Haviland of Latham & Watkins LLP and Jon C. Williams of Campbell & Williams.

The Rainmaker Group is represented by Alicia Rubio-Spring and Arman Oruc of Goodwin Procter LLP and Nicholas J. Santoro of Spencer Fane LLP.

Caesars Entertainment is represented by Boris Bershteyn, Ken Schwartz, Michael Menitove and Sam Auld of Skadden Arps Slate Meagher & Flom LLP and Adam Hosmer-Henner, Chelsea Latino and Jane Susskind of McDonald Carano LLP.

Treasure Island is represented by Patrick J. Reilly, Arthur Zorio, Emily Garnett and Eric D. Walther of Brownstein Hyatt Farber Schreck LLP.

Wynn Resorts is represented by Mark C. Holscher and Tammy Tsoumas of Kirkland & Ellis LLP.

Blackstone and Blackstone Real Estate Partners VII LP are represented by Daniel R. McNutt and Matthew Wolf of McNutt Law Firm PC and Matthew L. McGinnis of Ropes & Gray LLP.

JC Hospitality is represented by Kasey J. Curtis, James C. Martin and Charles P. Hyun of Reed Smith LLP.

The case is Richard Gibson et al. v. Cendyn Group LLC et al., case number 24-3576, in the U.S. Court of Appeals for the Ninth Circuit.