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From Antitrust Law Daily, October 10, 2013

Union’s request to intervene in American Airlines/US Airways merger challenge denied

By Jeffrey May, J.D.

The Transport Workers Union of America AFL-CIO (TWU) will participate as amicus curiae in the federal/state action challenging the merger between US Airways Group Inc. and AMR Corporation, the parent of American Airlines. TWU dropped its request to intervene as a defendant in the proceeding in light of opposition from both the U.S. Department of Justice Antitrust Division and the defending airlines. Thus, the federal district court in Washington, D.C. yesterday granted the union’s request to appear as amicus curiae and denied the motion to intervene (U.S. v. US Airways Group Inc., October 9, 2013, Kollar-Kotelly, C.).

“[G]ranting the Transport Workers Union’s request to intervene as of right would stand in the way of the prompt resolution of this litigation on the expedited schedule set by this Court,” it was decided. A trial in the matter is set to begin on November 25.

TWU, which represents more than 23,000 AMR/American Airlines employees and 300 US Airways employees, moved to intervene as a defendant or alternatively to participate as a friend of the court, in an October 7 court filing. The court sought the views of the parties to the litigation.

The Antitrust Division filed a statement on October 8, asking the court to deny intervention on the grounds that the motion was untimely and that intervention was unnecessary. The union’s interest in seeing the merger completed was adequately protected by the current defendants, the government asserted. The defendants agreed. However, neither the plaintiffs nor the defendants indicated an opposition to the union’s participation.

Discovery dispute. Meanwhile, a special master has weighed in on a discovery dispute in the proceeding. Today, the special master recommended that the court deny a motion to compel filed by the defending airlines, seeking the production of information obtained by Justice Department attorneys in third-party interviews.

The defendants sought the identities of the third parties interviewed by the government as well as the relevant facts obtained through these interviews. The special master concluded that the information was subject to work product protection.

“The reality is that the interrogatory at issue ultimately is an effort by Defendants to find out what facts were important to Plaintiffs,” the special master suggested. “From such factual analysis it is a very small step to looking at the facts deemed relevant to Plaintiffs’ counsel and deriving insight and understanding into the legal theories and approaches of Plaintiffs.”

“In light of the substantial discovery already provided to Defendants, Defendants have not established that the specific information Plaintiffs obtained in the third party interviews is so significant that it would justify overcoming the very strong preference for protecting work product,” the special master decided.

Background. The U.S. Department of Justice, six states, and the District of Columbia, filed their antitrust complaint on August 13, challenging the creation of “the world’s largest airline.” An amended complaint was later filed adding the State of Michigan. The Texas attorney general has since withdrawn from the litigation in light of a settlement resolving the state’s concerns over the merger.

This is Case 1:13-cv-01236.

Attorneys: Jeffrey Blumenfeld (Lowenstein Sandler, LLP); Richard G. Parker (O’Melveny & Myers LLP), Paul T. Denis (Dechert LLP), and Charles F. Rule (Cadwalader, Wickersham & Taft, LLP) for US Airways Group, Inc. John M. Majoras (Jones Day) and Mary Jean Moltenbrey (Paul Hastings LLP) for AMR Corp. Mark W. Ryan for U.S. Department of Justice.

Companies: AMR Corp.; US Airways Group, Inc.; Transport Workers Union of America AFL-CIO

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