Stock prices dropped, at least nine class action suits have been filed and Congress is piling on the pressure to find wrongdoing following recent news of the latest target of the U.S. Department of Justice’s antitrust division: the United States airline industry. Indeed, the news that DOJ has issued civil investigative demands (CIDs) to the major U.S. airlines has led some commentators to suggest that this could turn into a major criminal investigation. U.S. Senator Chuck Schumer, D-New York, also has made some grave assumptions in his request that “the feds step up their efforts . . . immediately” and enlarge their investigation to include other practices he believes are anti-competitive.

There is a long way, however, from a CID to criminal charges alleging violations of the Sherman Act. Given the airline industry’s familiarity with the antitrust division, which conducted a major criminal investigation of the industry from 2005-2011 and also has scrutinized several high-profile mergers, it is difficult to believe that the airlines would engage in collusion. It is even harder to believe that, if they did, they would create documentary evidence of their unlawful coordination. Without that kind of tangible corroboration, the likelihood that DOJ would bring criminal charges is greatly diminished.

Background of the Investigation

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