Litigators fighting the Department of Justice's (DoJ's) challenge to block US Airways' proposed acquisition of American Airlines took a step back in late October. The litigators declined to fight further, and they will not be able to access government documents outlining the DoJ's approach to similar airline mergers in the past. Following a ruling from a special master assigned to the case, critical government documents concerning past airline mergers will not be made available for review regarding the US Airways/American Airlines merger battle, set to begin November 25, 2013.
George Paul, a partner in White & Case's global antitrust/competition group who has significant experience representing companies before the DoJ in similar merger issues commented that, "Not having access to the government documents certainly inhibits their ability to make their position [that the standards have changed] forcefully," regarding the DoJ approval of four previous airline mergers.
"The position of the airlines, that in this case the government is using a disparate standard from previous cases, was strong and appealing to me," Paul noted.
"People, and the [airlines] need transparency to understand what standards the government is using," which will be "harder to do without linking the argument directly to the DoJ's official evaluations," he further added.
And Paul noted that if the government acknowledges that prior actions were a mistake, it becomes more difficult for the DoJ to argue it is on the right path in this case.