Sunday, January 7, 2018

When Does a Comment to Investors Become an Illegal "Signal" to Competitors?

On July 18, 2015 I wrote a blog post entitled:  DOJ Investigates Airlines - Are the Trucking Companies Next?  At that time I had just read an article about the DOJ investigating the airlines concerning collusion on capacity and ticket pricing (The original article was on Bloomberg News and titled: What Does it Take to Prove Airline Collusion).  What I found interesting is they were investigating statements made during earnings calls and "investor" conferences where one airline executive might say they are going to practice things such as "disciplined capacity control" or have "expected price increases through disciplined revenue management".

The question raised by the investigation was essentially whether these were statements to investors so they could make a good investment decision or where they "signals" to the competitors?  For example, does the statement "disciplined capacity control" state a good business practice to the investors or does it state to the competition "If you don't add capacity I won't add capacity".

As part of the post, I posited this exact question could be applied to the trucking and freight transportation industry.  Every conference I have been to and every investor deck I have seen usually has the freight transportation executive using these exact words. 

The example used in the lawsuit is, according to the article:
"...airline officials repeatedly assured one another on earnings calls and at conferences that exercising "capacity discipline was good for the industry"
Sound familiar?

It is a fascinating question and it really puts the companies in a pickle.  If they do not disclose "material" items to the investors they can get sued for not disclosing but if they disclose too much they can (and are) get sued for collusion. 

Well, there is an update to the story and I think it is a big deal.  In today's NY Times it is reported: Southwest Airlines Settles Suit but Denies Colluding to Keep Ticket Prices High.  Southwest has agreed to pay $15M in cash and "provide extensive cooperation" with the on-going investigation against American Airlines, Delta Airlines and United Airlines. "Extensive Cooperation is defined as:
 "a full account of facts relevant to the plaintiff's case as well as a series of informational meetings and interviews with industry experts and Southwest employees facilitated by the company."
How could this effect trucking:

  1. We all have been to the many conferences where this type of language has been used by top executives.  Could the airline case be used as a precedent for a case against transportation?
  2.  Does SWA have something and essentially became the first one to talk - get a lighter penalty for turning?  $15M is a lot more than just "nuisance" money.  Something is going on here.
  3. Will trucking companies start being a lot more careful at conferences and public statements as a result of this settlement?
As I said in 2015, this is definitely a case to keep an eye on and it could have broad and deep implications for the transportation industry as a whole.