Civil Procedure and the DOJ Antitrust Suit

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A lot of bloggers have spoken more at length about DOJ’s decision to file an antitrust lawsuit to stop the US/AA merger.   Most of the blog posts I’ve seen are patently ridiculous, as they either claim that “consumer  advocacy” in form of some ridiculous air travel consumer organizations deserve the credit, or that DOJ is some sort of evil political hack organization and how dare it commence such a lawsuit.

Until I see evidence otherwise – and I haven’t yet – I assume DOJ’s decision to commence this lawsuit was premised on a good-faith belief that the merger would violate antitrust laws.  As a lawyer, it is extremely serious to criticize someone for filing a lawsuit and claiming it is baseless.  Disagree with the DOJ’s analysis? Fine. But don’t impugn career lawyers’ integrity and say they have no basis to file the lawsuit.

Moreover, it is remarkable how many bloggers have seemed to accept everything the airlines’ lawyers are saying as gospel.  They are being paid to fight this as a PR war as much as a legal war, fully aware that DOJ is never going to engage in the kind of media availability that US and AA are.  The biggest joke is all of the bloggers who are parroting the idea that US and AA aren’t really competitors, as they don’t overlap on nonstop routes so much, and it’s unfair to consider connections because DOJ hasn’t considered connections before.  Of course the reality is most domestic flyers are connecting these days, so it would be irresponsible for DOJ to ignore the impact of the merger on consumers in this aspect.  That DOJ “didn’t do it before” is not a very good legal argument if it is correctly interpreting its statutory mandate now.

One thing I am constantly seeing is discussions “dismantling” the Government’s “arguments” based on their complaint.  A complaint is not a brief, though, and it does not need to contain any arguments at all. Are there arguments in a good complaint?  Sure, as someone who drafts complaints for a living, I would be remiss not to put in a bit.  But are you required to put argument in a complaint? Absolutely not – even under the heightened Twombly/Iqbal regime.  A smart lawyer does not put all of the precedent and detailed theories of his argument in his complaint, providing his opponent a roadmap as to the possible flaws in a case.  Why not?  Because as long as you meet the pleading standard, you will have a chance to detail whatever the other side claims to be the deficiency in a brief during motion practice.   This is, of course, a broad general statement, but saying that an argument in a complaint is too vague, wrong, or hasn’t “met the burden of proof” (which is nonexistent for a complaint—all you need is an allegation that could conceivably be supported by facts)  because it hasn’t provided support for its factual allegations shows a misunderstanding of what a complaint is.  It’s irresponsible to treat a complaint as anything other than a summary of the claims and a preview of the theories that will be developed and supported later in a case.  Who knows, maybe there are emails between US and AA that specifically say, “With this merger, we will be able to increase costs to consumers, freeze out competition, and kill puppies.”   DOJ might not even know about those emails yet, pre-discovery.  I don’t think any bloggers know they don’t exist.

In addition, the purpose of antitrust law is not to make the airline industry as profitable as possible.   “But if we can’t engage in anticompetitive behavior and dominate an industry in which we have spent millions lobbying to minimize regulation and neuter organized labor, while providing for a golden parachute for a CEO that got us into bankruptcy, giving money to Susan G. Komen, painting all of our planes with new logos, and giving free flights and goodies to bloggers and other folks who rarely pay for flights, we won’t be successful” is not a legal defense.  You may think it should be as a matter of policy, but its not.  The antitrust analysts at DOJ have presumably reviewed a bit more information then that selectively released by US/AA PR.  US/AA probably hasn’t seen that stuff yet, and they will in discovery.

Note, I am not predicting how this will end up, nor am I taking a firm position on the competitive effects of the merger.  What I am saying is that casting aspersions on DOJ for having the audacity to do its job and criticizing a complaint for not meeting a burden of proof is irresponsible.


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