Article published on October 2013 in Legal Eye and reproduced by courtesy of Stephenson Harwood
The filing of an anti-trust suit by the US Department of Justice back in August to block the merger of American Airlines and US Airways on grounds that it would eliminate competition, reduce route choices, and raise prices, looked as though it would, at worst, completely derail the merger or, at best, delay the process by several months.
The DoJ’s blocking move seemed to represent a seismic shift in its attitude to consolidation in the US airline industry, which it has generally approved in recent years. It was also in stark contrast to the more relaxed stance of the European Commission, which approved the merger in double-quick time, albeit with minor conditions.
US Airways and AMR Corporation, AA’s parent company, that has been in Chapter 11 bankruptcy protection since November 2011, responded aggressively to the DoJ’s announcement, saying it would mount a “strong and vigorous defence” of its plans for the US$11 billion merger. Both US Airways and AA pointed to the advantages of the wave of consolidation over recent years in the US airline industry that has cut the number of large carriers in the US market from eight down to five, and how the reduction in cut-throat competition had enabled the consolidated airlines to operate more profitably and improve services for consumers.
In explaining its position, the DoJ maintained that it had learned important lessons from the 2008 merger of Delta and Northwest Airlines, and the 2010 merger between United and Continental, and were not convinced that the AA – US Airways merger would improve the lot of consumers further. Assistant Attorney General, Bill Baer, said that both US Airways and AA were in a position to be “competitive, aggressive and successful on their own, and that passengers would suffer if the merger was allowed to proceed”. The DoJ focused on how the merger would affect travellers from Washington’s Reagan National Airport, from which the merged airlines would have controlled 63% of nonstop flights, and on the fact that four US airlines would control over 80% of all US commercial flights.
Baer observed “If this merger goes forward, even a small increase in the price of airline tickets, checked bags or flight change fees would result in hundreds of millions of dollars of harm to American consumers.” He did not, however, rule out alternative ideas to a straightforward merger block, in order to preserve competition.
Faced with the prospect of unpicking what would be a very complex merger, which US Airways and AMR Corporation had been planning for over a year, and a costly and time-consuming anti-trust trial scheduled to start on 25 November, settlement negotiations were initiated to try and break the legal deadlock, and the parties agreed to consult a court appointed mediator.
On 12 November 2013, AMR and US Airways announced that they had settled the litigation with the Department of Justice, challenging the merger. Under the terms of the settlement the airlines will divest 52 pairs of slots at Washington Reagan National Airport and 17 pairs of slots at New York LaGuardia Airport, as well as certain gates and related facilities to support services at those airports. The airlines will also divest two gates and related support facilities at Boston Logan International Airport, Chicago O’Hare, Dallas Love Field, Los Angeles International and Miami International airports. The divestitures will take place through a DoJ approval process following the
completion of the merger. As part of the settlement agreement with the Department of Justice, the newly merged airline group has agreed to maintain its hubs in Charlotte, New York (JFK), Los Angeles, Miami, Chicago O’Hare, Philadelphia and Phoenix, in line with its historical operations, for a period of three years. In spite of the enforced divestitures, the new American Airlines Group Inc., as the combined airline will be called, is still expected to generate more than US$1 billion in annual net synergies from the merger, beginning in 2015.
Commenting on the settlement of the litigation and the approval of the merger, Bill Baer said that the airlines’ agreement to divest slots at key airports will allow low-cost carriers to expand and “will disrupt today’s cosy relationships among the incumbent legacy carriers and provide consumers with more choices and more competitive airlines”.
This agreement has the potential to shift the landscape of the airline industry
The settlement was approved by the US Bankruptcy Court on 27 November 2013, and Judge Sean Lane advised that the merger should be completed “without delay”. American Airlines and US Airways were planning to close their merger by 9 December 2013.
The US Attorney General, Eric Holder, commenting on the approved merger said:
“This agreement has the potential to shift the landscape of the airline industry. By guaranteeing a bigger foothold for low-cost carriers at key US airports, this settlement ensures airline passengers will see more competition on nonstop and connecting routes throughout the country.”
Author: Paul Phillips (Partner, Head of aviation litigation and regulation with Stephenson Harwood) / Publisher: SCMO
