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January 21, 2014

Southwest asks Dallas judge to quash subpoenas in American-US Airways consumer antitrust lawsuit

Southwest Airlines has asked a federal judge to quash subpoenas made by a San Francisco attorney, who has filed an antitrust suit against American Airlines and US Airways merger.

In the filing, Southwest said that Joseph Alioto's law firm is seeking documents that are confidential and could be used against Southwest instead of in the case against American.

Alioto's firm filed an antitrust suit in July asking federal courts to stop American's merger with US Airways because it would be harmful to consumers. A bankruptcy judge declined to hear the matter in an expedited trial and allowed the merger to close after the two carriers settled last November an antitrust complaint filed by the U.S. Department of Justice.

"The improper way in which the Alioto Law Firm litigated the case against Southwest is not an isolated occurrence, nor is it confined to the past. In litigating the Southwest Plaintiffs’ appeal, the Alioto Law Firm has repeatedly (and improperly) sought to supplement the factual record with documents, pertaining to the American Airlines-US Airways merger, the Delta-Northwest Airlines merger, and to Southwest’s schedule changes. Counsel’s most recent attempt to supplement the appellate record came on January 8, 2014. That conduct combined with the documents the American plaintiffs now seek, strongly suggests that the Subpoenas are being used for the improper purpose of fishing for documents to use against Southwest, rather than for the proper purpose of obtaining discovery to be used in the case from which the Subpoenas were issued," Southwest said in the filing.

Alioto had previously sued Southwest in an antitrust suit to try to stop the Dallas-based carrier's merger with AirTran Airways. Federal courts had dimissed the lawsuit and had ordered Alioto to pay $67,495 to cover Southwest's legal costs, however, Alioto is currently appealing the case.

Southwest also noted in its filing that Alioto is asking for improper information from executives that have no knowledge of the American-US Airways deal, including founder Herb Kelleher.

"In addition to the Subpoenas, the American Plaintiffs have also served a subpoena to Herbert Kelleher, Southwest’s former CEO and former Chairman of the Board. Mr. Kelleher resigned as CEO in 2001 and as Chairman of the Board in 2008, years before the merger being challenged in the lawsuit from which the subpoena was served. Exhibit B at ¶ 8. Thus, Mr. Kelleher has no knowledge of Southwest’s Proprietary and Internal Information, and has no role in analyzing, evaluating, or approving changes based on the Proprietary and Internal Information. Id. The issuance of a subpoena to Southwest’s retired CEO and retired Chairman further evidences the improper purpose of the discovery being sought by the American Plaintiffs," the filing said.

-Andrea Ahles

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