OST-97-2965 | OST-97-2966 | Undocketed | OST-96-1700 | OST-97-2058 | OST-97-2054-2057 | American and Iberia | American and TACA | American and British Airways | Motion of American to Strike Answer by Delta Air Lines and for Sanctions for Violating Confid

OST-97-2965 | OST-97-2966 | Undocketed | OST-96-1700 | OST-97-2058 | OST-97-2054-2057 | American and Iberia | American and TACA | American and British Airways | Motion of American to Strike Answer by Delta Air Lines and for Sanctions for Violating Confidentiality Procedures / October 20, 1997

Applications of

AMERICAN AIRLINES, INC. and IBERIA LINEAS AEREAS DE ESPANA, S.A. a

for exemptions and statements of authorization

(U.S.-Spain and beyond code-sharing)

AMERICAN AIRLINES, INC. et al. and THE TACA GROUP RECIPROCAL CODE-SHARE SERVICES PROCEEDING

Joint Application of

AMERICAN AIRLINES, INC. and BRITISH AIRWAYS PLC

under 49 USC 41308 and 41309 for approval of and antitrust immunity or alliance agreement

Joint Application of

AMERICAN AIRLINES, INC. and BRITISH AIRWAYS PLC

for exemptions, certificate authority, foreign air carrier permit authority, and statements of authorization

MOTION OF AMERICAN AIRLINES, INC. TO STRIKE

ANSWER BY DELTA AIR LINES, INC. AND FOR SANCTIONS

FOR VIOLATING CONFIDENTIALITY PROCEDURES

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American Airlines, Inc. hereby moves to strike the answer submitted by Delta Air Lines, Inc. in the captioned dockets on October 17, 1997, and for sanctions against Delta for violating the confidentiality procedures established by the Department.

In the confidential version of its answer, filed in response to the American/Iberia codeshare applications of October 2, 1997, Delta has blatantly violated the Department's confidentiality procedures by using materials that American submitted on September 19, 1997 under 14 CFR 302.39 in the American/British Airways immunity proceeding in OST-97-2058.

American submitted this confidential material in reliance on Order 97-9-4, September 5, 1997, which states that "[a]s with other documents covered by Rule 39 motions for confidential treatment...counsel and outside experts, for the interested parties only, may review the Joint Applicants' confidential documents under Rule 39, consistent with our previously established confidential affidavit procedures" (p. 15). Those procedures provide, among other things, that "the affidavit will use the information only for the purpose of participating in this proceeding." See e.g., Notice Granting Access to Documents, OST-97-2058, July 31, 1997, p. 2.

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In the American/British Airways proceeding, Delta submitted affidavits promising to abide by this restriction. See, e.g., Affidavit of Alexander van der Bellen, September 18, 1997, 1 4 ("I promise to use the confidential information filed in this proceeding only for the Purposes of participating in this proceeding and for no other purpose"). /1

There is no question that Delta has violated the Department's affidavit procedures. Delta has used confidential information it obtained in the American/British Airways proceeding -- and promised to use "only for purposes of participating in [that] proceeding and for no other purpose" -- in the American/Iberia (and American/TACA Group) dockets. This is a serious, clearcut, and inexcusable violation of the Department's orders and of Delta's own affidavits, and fully justifies striking Delta's answer from all dockets in which it has been submitted. /2

1/ This individual did not file an affidavit at the Department until September 18, 1997, many weeks after he had been permitted to review American's confidential documents on the understanding that he had an affidavit on file. He submitted this affidavit after American asked for a copy of what we believed had already been filed.

2/ Moreover, quite apart from the serious violation of the Department's confidentiality procedures, Delta's answer should be stricken for the independent reason that it is procedurally defective. While answers to the American/Iberia applications were due on October 17, 1997, that was not an established date for answers or responsive pleadings of any kind in the American/British Airways or American/TACA Group dockets. Delta cannot create non-existent answer dates in other dockets simply by arraying captions on the cover page of its pleading.

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As American stated in its petition for reconsideration of Order 97-9-4 in the American/British Airways proceeding (OST-97-2058), submitted on September 19, 1997, we are extremely concerned that the Department's affidavit procedures do not provide adequate protection, and are being abused by some parties. In its answer to American's petition, submitted on September 29, 1997, Delta dismissed American's concern as a "red herring," and said that the affidavit procedures are adequate "so long as all such information is held confidential in accordance with the Department's requirements" (p. 13). Yet in its answer here, Delta has flagrantly violated those very requirements. Delta's misconduct serves to confirm the validity of American's concern with the adequacy of the affidavit procedures to protect highly sensitive documents.

In these circumstances, the Department should not only strike Delta's answer, but should investigate this matter and impose substantial sanctions on Delta. Until the Department's investigation is concluded, Delta should be prohibited from further review of confidential documents under Rule 39, or from participating in joint arrangements with other parties in gaining access to such documents.

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Respectfully submitted,

CARL B. NELSON, JR.

Associate General Counsel American Airlines, Inc.

October 20, 1997