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US RESPONSE TO AMERICANS SUBMISSION REGARDING REMEDY
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EXTRACTED KEY WORDS
REMEDY AMERICAN STANDARD LIABILITY COURT VIOLATION SUBMISSION LEGAL STANDARD EVIDENCE RESPONSE ROUTE COST MONOPOLIZATION CAPACITY LIABILITY DETERMINATION SUMMARY JUDGMENT REVENUES SOF SHERMAN ACT VARIABLE COST PREDATORY MOTION POWER COMPETITORS LCCS SOUND DISCRETION FASHIONING CONFERENCE LAW |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
_________________________________)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No.: 99-1180-JTM
v. ))
AMR CORPORATION, )
AMERICAN AIRLINES, INC., and )
AMR EAGLE HOLDING )
CORPORATION, ))
Defendants. )
_________________________________)
UNITED STATES' RESPONSE TO AMERICAN'S
SUBMISSION REGARDING REMEDY
I. INTRODUCTION
As we understood it from Magistrate Judge Humphreys, the Court has already expressed a
preference to address the issue of remedy after it has made its liability determination. The
1
States concurs with the Court's view and submits this brief response to Defendants' (collectively
"American") submission to the Court regarding remedy. What appears to be at the root of
American's submission is its desire to pre-argue to the Court the merits of American's defenses
1/19/01 Pretrial Conf. Trans., at 22:13-19 (emphasis supplied) ("I think there will
1
further discussion with counsel with Judge Marten about it, but as we discussed it yesterday in
anticipation of the conference today, I think he feels that the liability stage of the case is
going to have to go forward. Until there is any proof of liability, the remedy issue doesn't really
rise to a level of proof.").
UNITED STATES' RESPONSE TO AMERICAN'S
SUBMISSION REGARDING REMEDY -- 1
on the ultimate issue of liability.
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2
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US OPPOSITION TO DEFENDANTS MOTION TO COMPEL MEMORANDUM
|
EXTRACTED KEY WORDS
COURT UNITED STATES INTERROGATORY FACTS DISTRICT COURT INTERVIEWS WORK-PRODUCT ATTORNEY SUPPORT AMERICAN COUNSEL HICKMAN WITNESSES WITNESS PARTY MEMORANDUM PRODUCTION ALLEGATIONS GOVERNMENT DISCLOSURE FACTS RELATING ORAL STATEMENTS FORTENBAUGH UNDULY BURDENSOME MONOPOLIZATION WORK-PRODUCT DOCTRINE DEPOSITION LITIGATION MENTAL IMPRESSIONS |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No. 99-1180-JTM
v. ))
AMR CORPORATION, )
AMERICAN AIRLINES, INC, and )
AMERICAN EAGLE HOLDING )
CORPORATION, ))
Defendants. ))
MEMORANDUM OF THE UNITED STATES IN SUPPORT
OF ITS OPPOSITION TO DEFENDANTS' MOTION TO COMPEL
CRAIG W. CONRATH
United States Department of Justice
Antitrust Division
325 7 Street, N.W., Suite 500
th
Washington, D.C. 20530
Attorney for the United States
TABLE OF CONTENTS
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Table of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I. Defendants' Interrogatory No. 2 Impermissibly Seeks Production of
Government Work-Product and Otherwise Is Overly Broad and Unduly
Burdensome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. Tying Facts Learned to Particular Witness Interviews
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3
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US OPPOSITION TO DEFENDANTS MOTION TO COMPEL DOCUMENTS-2
|
EXTRACTED KEY WORDS
AMERICAN MATERIALS CARRIERS DISCLOSURE LAW ENFORCEMENT REQUESTS COURT CONFIDENTIALITY AIRLINES PLAINTIFF PURSUANT MOTION CONNECTION DEFENDANTS HUBS DOMESTIC AIRLINE INDUSTRY CID NW/CO DISTRICT COURT AIR CARRIERS AIRLINE INDUSTRY DFW PROTECTIVE ORDER INVESTIGATORY FILES CONRATH DECL ANTITRUST CIVIL COMPETITORS ONGOING INVESTIGATION CIVIL INVESTIGATIVE DEMAND |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No. 99-1180-JTM
v. ))
AMR CORPORATION, )
AMERICAN AIRLINES, INC, and )
AMERICAN EAGLE HOLDING )
CORPORATION, ))
Defendants. ))
MEMORANDUM OF THE UNITED STATES IN SUPPORT
OF ITS OPPOSITION TO DEFENDANTS' MOTION TO COMPEL
DOCUMENTS RESPONSIVE TO AMERICAN'S FIRST AND
SECOND REQUESTS FOR DOCUMENTS
I. INTRODUCTION
We oppose American's motion because it would require us to violate the Antitrust Civil
Process Act, to violate an order entered by the United States District Court of the Eastern
Michigan, and also to divulge to American confidential materials that Plaintiff has obtained from
American's competitors in connection with its on-going law enforcement investigations involving
suspected anticompetitive conduct of other air carriers in hubs other than DFW -- the only hub at
in this case.
American seeks disclosure of two general categories of documents. First, American seeks
documents obtained by the United States pursuant to Civil Investigative Demand ("CID") in connection
with its investigations of other carriers in the domestic airline industry. To support its claim
documents, American argues erroneously that the United States has failed to produce to American the
one category of documents that all parties agree should be produced to American: all documents
obtained by the United States during its investigation into American's suspected predatory conduct
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4
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US OPPOSITION TO DEFENDANTS MOTION TO COMPEL DOCUMENTS-1
|
EXTRACTED KEY WORDS
COURT AMERICAN DISTRICT DEFENDANTS MOTION PLAINTIFF AIRLINES LAW ENFORCEMENT VIOLATE INVESTIGATIONS DOCUMENT REQUESTS AMR REQUIRING FEDERAL STATUTE ANTITRUST HUBS DISCLOSURE AIR CARRIERS DFW MICHIGAN CONSISTENT ANTITRUST CIVIL PROCESS CIVIL PROCESS ACT POTENTIALLY RESPONSIVE DOCUMENTS NORTHWEST AIRLINES CONTINENTAL AIRLINES ENFORCEMENT INVESTIGATORY FILES INVESTIGATORY FILES PRIVILEGE NON-PRIVILEGED DOCUMENTS |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No. 99-1180-JTM
v. ))
AMR CORPORATION, )
AMERICAN AIRLINES, INC, and )
AMERICAN EAGLE HOLDING )
CORPORATION, ))
Defendants. ))
UNITED STATES OPPOSITION TO DEFENDANTS' MOTION
TO COMPEL DOCUMENTS RESPONSIVE TO AMERICAN'S
FIRST AND SECOND OF DOCUMENT REQUESTS
Plaintiff United States opposes the motion of defendants AMR Corporation, American Airlines,
Inc. and AMR Eagle Holding Corporation ("defendants" or "American") for an order compelling the
production of documents responsive to Defendants' First and Second Set of Document Requests. The
United States responds as follows, in conjunction with its accompanying Memorandum of Law.
American's motions seeks nothing less than an order from this court requiring the United
to violate not only the federal statute that establishes the process by which the Department of
Antitrust Division ("the Division") obtains and uses information in the course of its law
investigations into suspected anticompetitive conduct, but also to divulge to American confidential
materials that Plaintiff obtained in connection with its on-going investigation of other air
other than DFW, the only hub at issue in this case. As if that were not enough, American also asks
Court to require Plaintiff to violate an Order entered by the United States District Court for the
District of Michigan.
The United States has produced all the documents it is permitted to produce consistent with
Antitrust Civil Process Act, 15 U.S.C. §1313(c). Any potentially responsive documents the United
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5
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US OPPOSITION TO DEFENDANTS MOTION TO COMPEL DOCUMENTS JOHN NANNES
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EXTRACTED KEY WORDS
DECLARATION CID ATTORNEYS AMERICAN SUPPORT COMPEL DOCUMENTS HUBS ADD-ON CLEARANCE JOHN NANNES MOTION RESPONSIBILITY ANTITRUST CIVIL PURSUANT ENFORCEMENT ASSISTANT OPP REQUESTING PRODUCTION EMANATING PREDATORY ECONOMISTS DALLAS/FT WORTH LOW COST CARRIERS FTC DISCLOSURE MATERIALS |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No. 99-1180-JTM
v. ))
AMR CORPORATION, )
AMERICAN AIRLINES, INC, and )
AMERICAN EAGLE HOLDING )
CORPORATION, ))
Defendants. )
____________________________________)
DECLARATION OF JOHN M. NANNES IN SUPPORT
OF PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION
TO COMPEL DOCUMENTS RESPONSIVE TO AMERICAN'S
FIRST AND SECOND REQUESTS FOR DOCUMENTS
I, John M. Nannes, hereby declare as follows:
1. I am a Deputy Assistant Attorney General in the Antitrust Division ("Division") of
United States Department of Justice. I have held that position since early 1998. I make this
declaration in support of plaintiff's opposition to Defendants' Motion to Compel production of
information contained in the Division's files relating to ongoing investigation of attempts by
carriers (other than American) to monopolize certain city pairs emanating from their hubs (other
Dallas/Ft. Worth) by predatory conduct directed against low cost carriers.
2. The statements made in this declaration are based upon my personal knowledge, upon
information made available to me in my official capacity, and upon conclusions and determinations
reached and made in accordance therewith.
3. As Deputy Assistant Attorney General, I have supervisory responsibility for directing
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6
.
US OPPOSITION TO DEFENDANTS MOTION TO COMPEL
|
EXTRACTED KEY WORDS
UNITED STATES DEFENDANTS FACTS DISTRICT MOTION AMERICAN LAW WORK-PRODUCT STATES DISTRICT COURT OPPOSES AMR GOVERNMENT INTERVIEW ATTORNEY ANTICIPATION LITIGATION WORK-PRODUCT DOCTRINE PARTY WITNESS-BY-WITNESS OBJECTIONS NARROWLY DRAWN DISCRETE OVERREACH CLARIFYING STATEMENTS THIRD PARTIES UNITED STATES WITHDRAWS REASONS STATES RESPECTFULLY REQUESTS DENY |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No.: 99-1180-JTM
v. ))
AMR CORPORATION, )
AMERICAN AIRLINES, INC., and )
AMR EAGLE HOLDING )
CORPORATION, ))
Defendants. )
_________________________________)
UNITED STATES' OPPOSITION TO DEFENDANTS' MOTION TO COMPEL
Plaintiff United States opposes the motion of defendants AMR Corporation, American Airlines,
Inc., and AMR Eagle Holding Corporation ("defendants" or "American") for an order compelling an
answer to Interrogatory No. 2 of Defendants' First Set of Interrogatories, and responds as follows
conjunction with its accompanying Memorandum of Law.
Relying largely on a recent decision from the United States District Court for the District
Delaware, U.S. v. Dentsply Int'l, Inc., 187 F.R.D. 152 (D. Del. 1999), American propounded
Interrogatory No. 2, which calls for a recitation of the facts the government obtained in each
conducted in law enforcement investigations that are relevant to its claims against American. With
exception of the Dentsply decision, the law is clear that what facts an attorney learned in a
interview conducted in anticipation of litigation is protected by the work-product doctrine.
party cannot discover protected work-product contained in documents through interrogatories or
-1-
depositions. Thus, defendants' claim that they are seeking only facts, and not work-product is
because it is the form in which they seek the facts -- on a witness-by-witness basis -- that
work-product doctrine. As a result, American's motion should be denied.
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7
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US OPPOSITION TO AMERICANS MOTION IN LIMINE-2
|
EXTRACTED KEY WORDS
LEGEND UNITED STATES LEGEND AIRLINES MOTION PLASKETT COURT DISCOVERY TESTIMONY EXCLUDE LIMINE OPPOSITION DISTRICT COURT HUFFMAN DECL SUBPOENA AMERICAN MEMO MAGISTRATE JUDGE TESTIFYING MAGISTRATE JUDGE SANDERSON DFW AIRPORT DEPOSITION REPUTATION MONOPOLY POWER GOVERNMENT LITIGATION DISCOVERY DISPUTE LOW COST CARRIERS UNDERSTANDING HEARING TRANSCRIPT RELEVANCE |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No.: 99-1180-JTM
v. ))
AMR CORPORATION, )
AMERICAN AIRLINES, INC., and )
AMR EAGLE HOLDING )
CORPORATION, ))
Defendants. )
______________________________ )
PLAINTIFF'S OPPOSITION TO AMERICAN'S MOTION IN LIMINE TO EXCLUDE
CERTAIN EVIDENCE RELATED TO LEGEND AIRLINES, INC.
INTRODUCTION
Defendants (collectively, "American") attempt to preclude testimony from Thomas G.
Plaskett of Legend Airlines, Inc. ("Legend"). American's motion arises from its unsuccessful
1
attempt to enforce a subpoena for documents issued to Legend. Having failed to obtain the
discovery it desired through the appropriate channels, American now attempts to visit the
consequences of that failure on the United States. There is simply no basis for granting the relief
that American seeks. Mr Plaskett's testimony is relevant and admissible and should be heard by
the Court.
Although American styles its Motion as one to exclude "certain testimony," American
1
actually seeks to prevent Mr. Plaskett from testifying entirely. (3/2/2001 American Memo at 2.)
PLAINTIFF'S OPPOSITION TO AMERICAN'S MOTION IN LIMINE TO
EXCLUDE CERTAIN EVIDENCE RELATED TO LEGEND AIRLINES, INC. -- PAGE 1
Thus, American's motion should be denied because: (1) the discovery dispute that forms
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8
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US MOTION IN LIMINE TO EXCLUDE EVIDENCE-MEETING COMPETITION DEFENSE-1
|
EXTRACTED KEY WORDS
DEFENSE SHERMAN ACT PREDATORY AMERICAN PRICE UNITED STATES COURT MONOPOLIZATION EVIDENCE CAPACITY FARES LCCS EXCLUDE ROBINSON-PATMAN PREDATORY PRICING COSTS MEMO CAPACITY ADDITIONS LIMINE CONSUMER SUPP FLIGHT MOT EXCUSES FAITH AIRLINE DEFENDANT DISCRIMINATION AUTHORITY |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No.: 99-1180-JTM
v. )))
AMR CORPORATION, )
AMERICAN AIRLINES, INC., and )
AMR EAGLE HOLDING )
CORPORATION, ))
Defendants. )
_________________________________)
MEMORANDUM IN SUPPORT OF UNITED STATES' MOTION IN LIMINE
TO EXCLUDE EVIDENCE RELATED TO A MEETING COMPETITION DEFENSE
I. INTRODUCTION
The United States believes that the defendants (collectively, "American") will attempt to
evidence in support of their claim that their conduct should be immunized from liability under the
Sherman Act due to the application of a "meeting competition" defense. Analogizing to the absolute
statutory meeting competition defense to price discrimination under the Robinson-Patman Act (15
U.S.C. §13(b)), American argues that if it can show that it merely "matched" the prices set by the
cost carriers ("LCCs"), then -- even assuming that its matching prices were below an appropriate
measure of cost -- the Court cannot find in favor of the United States. (American 3/16/01 Memo. at
27.) As set forth below, there is no "meeting competition" defense under Section 2 of the Sherman
and American should be precluded from offering any evidence in support of this specious claim.
the United States moves in limine to exclude evidence related to such a defense pursuant to FED. R.
EVID. 402.
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9
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STIPULATION PROTECTIVE ORDER REGARDING EXPERT DISCOVERY
|
EXTRACTED KEY WORDS
PARTIES STIPULATION DISCOVERY DISCLOSURES MATTER COMPUTER PROGRAMS TESTIMONY OPINIONS PARTY DRAFT GUIDELINES UNITED STATES AMR SCOPE CONNECTION COUNSEL RELATING DISCLOSURE REQUIREMENTS REPORTS BUSINESS DEPOSITION WRITINGS ASSISTANTS SUPPORT STAFF NON-TESTIFYING CONSULTANTS ATTORNEYS PARTY OFFERING RELYING |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA,
Plaintiff, Civil Action No.: 99-1180-JTM
v.
AMR CORPORATION,
AMERICAN AIRLINES, INC., and
AMR EAGLE HOLDING CORPORATION,
Defendants.
STIPULATION AND PROTECTIVE ORDER
REGARDING EXPERT DISCOVERY
The parties hereto, through their respective counsel of record, hereby stipulate to the
regarding the scope of expert discovery and testimony relating to experts in this matter:
1. In order to avoid consuming the parties' and the Court's time and resources on
discovery issues relating to experts, the parties have agreed to certain limitations on the scope of
expert-related discovery and testimony in this matter. Neither the terms of the stipulation nor the
parties' agreement to them implies that any of the information restricted from discovery in this
would otherwise be discoverable.
2. The parties will make all disclosures required by Rule 26(a)(2)(B), as modified or
limited by this Stipulation, at the times provided by this Court for the service of written expert
The parties will supplement such disclosures at least three (3) business days before an expert's
deposition. To the extent that the disclosures include exhibits, information or data processed or
modeled by computer at the direction of a disclosed expert in the course of forming the expert's
opinions, machine readable copies of the data along with the appropriate computer programs and
instructions shall be produced, provided that no party need produce computer programs that are
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13
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ORDER-GOVERNING THIRD PARTY DISCOVERY
|
EXTRACTED KEY WORDS
SUBPOENA PARTIES COURT DISCOVERY REACH AGREEMENT OUTSTANDING MANNER THIRD PARTIES PROCEEDS ENTRY UNITED STATES ENSURING RELATING EXPEDITIOUS MANNER JURISDICTION ORDER DIRECTING SUBSEQUENT SUBPOENA UNITED STATES DISTRICT ORDER GOVERNING THIRD UNDUE UNREASONABLE DELAY DISCOVERY DISPUTES RELATING CONSISTENT EFFICIENT MANNER FAIRNESS COUNSEL SERVE DEPOSITION PROCEDURES SET CONNECTION |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No. 99-1180-JTM
v. ))
AMR CORPORATION, )
AMERICAN AIRLINES, INC, and )
AMERICAN EAGLE HOLDING )
CORPORATION, ))
Defendants. ))
ORDER GOVERNING THIRD PARTY DISCOVERY
WHEREAS the Court has an interest in ensuring that all discovery proceeds in a manner so as
not to cause undue or unreasonable delay;
WHEREAS the Court has an interest in providing the parties with a means by which all
discovery disputes relating to third parties are resolved in a consistent and efficient manner;
WHEREAS the Court has an interest in providing fairness and an opportunity to be heard to
any third party that is served with a subpoena in this case; and
WHEREAS in the interest of ensuring that discovery of third parties proceeds in an orderly
expeditious manner, the parties, by and through their counsel in this action, have agreed to the
this Order relating to discovery of third parties:
IT IS HEREBY ORDERED that the parties shall take all appropriate steps to ensure that
discovery of third parties proceeds in an orderly and expeditious manner;
IT IS HEREBY ORDERED that within 15 days from the date of entry of this Order, each
party shall serve a copy of this Order on any third party to whom it has propounded a subpoena for
documents or for a deposition and with whom such party has been unable to reach agreement on all
outstanding issues.
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14
.
MOTION IN LIMINE TO PRECLUDE ADMISSION OF STATE ACTION EVIDENCE-1
|
EXTRACTED KEY WORDS
EVIDENCE ADMISSION DFW AIRPORT AUTHORITY PRECLUDE POLICY WORTH ACCOMPANYING MEMORANDUM LIMINE TEXAS COMPETITION DALLAS/FT WORTH AREA CONFERRED AUTHORITY CITES DALLAS FORT WORTH BUSINESS PRACTICES FURTHERANCE AUTHORITY ACTIVELY SUPERVISES FACILITIES LESSEES SUBLEASING TRANSFERS LEASEHOLDS PLAINTIFF UNITED STATES REBEKAH FRENCH UNITED STATES DEPARTMENT JUSTICE |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No.: 99-1180-JTM
v. ))
AMR CORPORATION, )
AMERICAN AIRLINES, INC., and )
AMR EAGLE HOLDING )
CORPORATION, ))
Defendants. ))
PLAINTIFF'S MOTION IN LIMINE
TO PRECLUDE ADMISSION OF "STATE ACTION" EVIDENCE
Pursuant to Federal Rules of Evidence 401 and 402, and for the reasons set forth in the
accompanying memorandum, the United States moves in limine to preclude the admission of
evidence that the State of Texas has articulated a clear policy to regulate competition at airports
the Dallas/Ft. Worth area and has conferred authority on the cites of Dallas and Fort Worth and/or
the DFW Airport Authority to implement business practices in furtherance of that state policy, and
the admission of evidence that the DFW Airport Authority actively supervises the facilities at DFW,
including certain activities of lessees, such as subleasing and transfers of leaseholds.
Respectfully submitted,
Plaintiff United States
By: /"s"/
Rebekah J. French
United States Department of Justice
Antitrust Division Dated April 1, 2001
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15
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KARL KNUTSEN IN SUPPORT OF US OPPOSITION TO AMERICANS MOTION IN LIMINE
|
EXTRACTED KEY WORDS
UNITED STATES DISTRICT DECLARATION PLASKETT MOTION LIMINE KARL SUPPORT OPPOSITION LEGEND DEPOSITION COUNSEL PEARLSTEIN DISTRICT COURT AIRLINES NORTHERN DISTRICT TEXAS ROTHMAN TESTIMONY VOICE-MAIL MESSAGE INTENTION SEEKING DISCOVERY ANTICIPATED FILING PRECLUDE PENALTY PERJURY FOREGOING COLUMBIA |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No.: 99-1180-JTM
v. ))
AMR CORPORATION, )
AMERICAN AIRLINES, INC., and )
AMR EAGLE HOLDING )
CORPORATION, ))
Defendants. )
______________________________ )
DECLARATION OF KARL D. KNUTSEN IN SUPPORT OF PLAINTIFF'S
OPPOSITION TO AMERICAN'S MOTION IN LIMINE TO EXCLUDE CERTAIN
EVIDENCE RELATED TO LEGEND AIRLINES, INC.
I, Karl D. Knutsen, hereby declare as follows:
1. I am an attorney in the Antitrust Division ("Division") of the United States
Department of Justice and am a member of the trial staff working on the United States' case
against American. I make this declaration in support of Plaintiff's Opposition to American's
Motion in Limine. I have personal knowledge of the matters set forth herein and can and will
testify thereto if called upon to do so.
2. I was present at the deposition of Mr. Thomas G. Plaskett, taken on November 6-
7, 2000, by American, when Mr. Plaskett's counsel instructed Mr. Plaskett not to answer
questions related to documents that Magistrate Judge Sanderson of the Northern District of Texas
refused to order Legend to produce to American.
3. After the deposition I telephoned Richard Rothman, counsel for American, and
asked whether American intended to return to the District Court for the Northern District of
Texas to seek additional documents from Legend and/or to compel the testimony of Mr. Plaskett.
Mr. Rothman told me that he would have Debra Pearlstein, also counsel for American, respond to
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16
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APPENDIX OF UNREPORTED DECISIONS IN SUPPORT OF US MOTION IN LIMINE
|
EXTRACTED KEY WORDS
ANTITRUST LAW LIMINE EXCLUDE EVIDENCE MEETING COMPETITION DEFENSE PLAINTIFF DISTRICT AMERICAN SUPPORT MOTION HERBERT HOVENKAMP SUPP MOT CIVIL ACTION AMERICAN AIRLINES DEFENDANTS MEMORANDUM VON KALINOWSKI TRADE REGULATION PHILLIP AREEDA AMERICAN BAR PREDATORY PRICING LAW CIRCUIT-BY-CIRCUIT SURVEY COUNSEL JUSTICE ANTITRUST DIVISION SUITE WASHINGTON |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No.: 99-1180-JTM
v. )))
AMR CORPORATION, )
AMERICAN AIRLINES, INC., and )
AMR EAGLE HOLDING )
CORPORATION, ))
Defendants. )
_________________________________)
APPENDIX OF UNREPORTED DECISIONS
IN SUPPORT OF THE UNITED STATES' MOTION IN LIMINE
TO EXCLUDE EVIDENCE RELATED TO A MEETING COMPETITION DEFENSE
Plaintiff submits true and correct copies of the following unreported decisions and other
authority cited in its Memorandum in Support of a Motion In Limine to Exclude Evidence Related to a
Meeting Competition Defense:
1. 3 VON KALINOWSKI, ET AL., ANTITRUST LAWS AND TRADE REGULATION ¶ 40.02[1] (2d
ed. 1999);
2. 3 PHILLIP E. AREEDA & HERBERT HOVENKAMP, ANTITRUST LAW ¶ 748 (rev. ed. 1996);
3. 14 HERBERT HOVENKAMP, ANTITRUST LAW ¶ 2352a (1999);
4. SECTION OF ANTITRUST LAW, AMERICAN BAR ASS'N, PREDATORY PRICING LAW: A
CIRCUIT-BY-CIRCUIT SURVEY 118 (1995).
APPENDIX OF UNREPORTED DECISIONS
IN SUPP. OF THE UNITED STATES' MOT. IN LIMINE TO EXCLUDE
EVIDENCE OR ARGUMENT RELATED TO A MEETING COMPETITION DEFENSE - 1
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MAX HUFFMAN IN SUPPORT OF US OPPOSITION TO AMERICANS MOTION IN LIMINE
|
EXTRACTED KEY WORDS
UNITED STATES HERETO AMERICAN LEGEND MOTION DEPOSITION DECLARATION DISTRICT SUPPORT RESPONSE HUFFMAN OPPOSITION LIMINE PLASKETT COURT DEFENDANTS WESTLAW ELECTRONIC DATABASE INTERROGATORY COUNSEL LEGEND AIRLINES DALLAS MORNING NEWS EDWARDS ROSENSTEIN SUBPOENA JUDGE TEXAS SCHEDULING ORDER BATES LAGUARDIA AIRPORT |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No.: 99-1180-JTM
v. ))
AMR CORPORATION, )
AMERICAN AIRLINES, INC., and )
AMR EAGLE HOLDING )
CORPORATION, ))
Defendants. )
______________________________ )
DECLARATION OF MAX R. HUFFMAN IN SUPPORT OF PLAINTIFF'S
OPPOSITION TO AMERICAN'S MOTION IN LIMINE TO EXCLUDE CERTAIN
EVIDENCE RELATED TO LEGEND AIRLINES, INC.
I, Max R. Huffman, hereby declare as follows:
1. I am an attorney in the Antitrust Division ("Division") of the United States
Department of Justice and am a member of the trial staff working on the United States' case
against American. I make this declaration in support of Plaintiff's Opposition to American's
Motion in Limine. Except as otherwise stated, I have personal knowledge of the matters set forth
herein and can and will testify thereto if called upon to do so.
2. In a November 6-7, 2000, deposition of Thomas G. Plaskett of Legend, American
caused to be labeled as Defendants' deposition exhibit 6051 a seven-page document, bates
numbered TBP/DOJ-AA 0001-0007, which is a series of Mr. Plaskett's résumés. A true and
correct copy of Defendant's deposition exhibit 6051 is attached hereto as Exhibit 1.
3. On April 26, 2000, the Dallas Morning News reported that American had plans to
fly from Dallas Love Field to Chicago-O'Hare and Los Angeles on 56-seat, all first class
configuration Fokker 100 aircraft. In the same article, the Dallas Morning News noted that
American's new Love Field service would compete with Legend's all-first class service, begun in
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18
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MEMORANDUM AND ORDER
|
EXTRACTED KEY WORDS
AMERICAN LCC COST COMPETITION FLIGHTS DFW FARES ROUTES VANGUARD HUB KANSAS DFW-MCI MARKET SUMMARY JUDGMENT SUNJET PASSENGERS DFW-ICT DFW-COS LOW COST CARRIER UNITED STATES ENTRANT AIRLINES ROUND TRIP DFW-LGB MONOPOLIZE FORT WORTH DESTINATION ALLEGATIONS YIELD MANAGEMENT GOVERNMENT |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
UNITED STATES OF AMERICA, ))
Plaintiff, ))
vs. ) No. 99-1180-JTM
)
AMR CORPORATION, )
AMERICAN AIRLINES, INC., and )
AMR EAGLE HOLDING CORPORATION, ))
Defendants. )
__________________________________________)
MEMORANDUM AND ORDER
TABLE OF CONTENTS
A. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B. FINDINGS OF FACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
1. SUMMARY JUDGMENT STANDARD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2. THE PLAINTIFF'S ALLEGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. COMPETITION IN THE DALLAS - FORT WORTH AREA . . . . . . . . . . . . . . . . . 5
4. LCC COSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5. NEW ENTRANT AIRLINE COMPETITION . . . . . . . . . . . . . . . . . . . . . . . . . . .
6. AMERICAN'S COMPETITIVE EXPERIENCE WITH LCCs . . . . . . . . . . . . . . . . 15
7. HOW AMERICAN COMPETED ON THE ROUTES AT ISSUE . . . . . . . . . . . . . 21
a. DFW-MCI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
b. DFW-ICT (Wichita) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
c. DFW-COS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
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19
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US MOTION IN LIMINE TO EXCLUDE EVIDENCE-MEETING COMPETITION DEFENSE-2
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EXTRACTED KEY WORDS
EXCLUDE EVIDENCE MEETING COMPETITION UNITED STATES PLAINTIFF COURT MOTION LIMINE ACT AMERICAN SUPPORT UNDERMINE GOALS SHERMAN ACT PREVAIL FAITH PLAINTIFF FILES ACCOMPANYING MEMORANDUM WHEREFORE STATES RESPECTFULLY REQUESTS COURT GRANT ORDER PRECLUDING AMERICAN OFFERING MARK NIEFER JUSTICE ANTITRUST DIVISION SUITE WASHINGTON MOT |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No.: 99-1180-JTM
v. ))
AMR CORPORATION, )
AMERICAN AIRLINES, INC., and )
AMR EAGLE HOLDING )
CORPORATION, ))
Defendants. )
_________________________________)
PLAINTIFF'S MOTION IN LIMINE TO EXCLUDE EVIDENCE
RELATED TO A MEETING COMPETITION DEFENSE
Plaintiff United States hereby moves in limine to exclude evidence or argument for a
competition" defense pursuant to FED. R. EVID. 402. Plaintiff believes any such argument or
is irrelevant because there is no judicial authority for the defense. Moreover, the defense would
undermine the goals of the Sherman Act. Furthermore, even if the Court were to consider making
new law, American cannot prevail on a "meeting competition" defense because it failed to act in good
faith.
In support of this Motion, Plaintiff files its accompanying Memorandum.
WHEREFORE, the United States respectfully requests that the Court grant this Motion and
enter an order precluding American from offering argument or evidence in support of a "meeting
competition" defense.
Date: April 2, 2001
Respectfully submitted,
Plaintiff United States
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20
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CERTIFICATE OF SERVICE
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EXTRACTED KEY WORDS
ENTRY BARRIERS UNITED STATES STATE ACTION AIRPORT AMERICAN REGULATION TEXAS AUTHORITY EVIDENCE POLICY COURT MEMORANDUM SUPPORT ARTICULATION LEASEHOLDS DEFENSE MONOPOLIZES COMPETITION ROUTES ACTIVELY SUPERVISES ACTION IMMUNITY MONOPOLY POWER MARKET ADMISSION ANTITRUST DOMINANT POSITION AIRLINES DETERMINATION |
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
_________________________________)
UNITED STATES OF AMERICA, ))
Plaintiff, )) Civil Action No.: 99-1180-JTM
v. ))
AMR CORPORATION, )
AMERICAN AIRLINES, INC., and )
AMR EAGLE HOLDING )
CORPORATION, ))
Defendants. )
________________________________ )
MEMORANDUM IN SUPPORT OF PLAINTIFF'S MOTION
IN LIMINE TO PRECLUDE ADMISSION OF "STATE ACTION" EVIDENCE
Pursuant to Federal Rules of Evidence 401 and 402, the United States moves in limine to
preclude the admission of evidence that the State of Texas has articulated a clear policy to
regulate competition at airports in the Dallas/Ft. Worth area and has conferred authority on the
cities of Dallas and Fort Worth and/or the DFW Airport Authority to implement business
practices in furtherance of that state policy, and the admission of evidence that the DFW Airport
Authority actively supervises the use of facilities at DFW, including certain activities of lessees,
such as subleasing and transfers of leaseholds. Such evidence, offered by way of presenting a state
action immunity defense to this antitrust action, is inadmissible because it is irrelevant.
The only conduct for which American appears to be claiming state action immunity
involves American's operation of leaseholds at DFW. (Pretrial Order at 74). While the United
MEMORANDUM IN SUPPORT OF PLAINTIFF'S
MOTION IN LIMINE 1
States may seek to introduce evidence that American's dominant position at DFW (however
achieved) raises barriers to entry by other airlines into DFW routes, the United States does not
intend to challenge American's operation of leaseholds at DFW. The sole issue presented by this
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