The Lawyers Who Are To Blame For Making Flying So Miserable
There is an answer to why flying is the worst: the lawyers.
Things that are true about the world in 2017: you know a little girl named Madison who has a brother Brayden, you hate yourself just a little bit every time you sing along to that Ed Sheeran song, and flying sucks. While the popularity of Shape Of You and made-up first names is simply beyond comprehension, there is an answer to why flying is the worst: the lawyers.
Well, maybe it isn’t quite that simple — after all, unbridled late-stage capitalism also bears its share of the blame — but lawyers played a key role in getting us to where we are now. After the utterly reprehensible way that United Airlines treated a passenger whom they had forcibly removed from a plane — and the resulting PR (and legal) nightmare — a lot of focus is being put on all the horrible things airlines can (and do) do to their customers. They get away with treating passengers like trash because, well, there aren’t many other options.
At 40 of the 100 largest U.S. airports, a single airline controls a majority of the market, as measured by the number of seats for sale, up from 34 airports a decade earlier. At 93 of the top 100, one or two airlines control a majority of the seats, an increase from 78 airports, according to AP’s analysis of data from Diio, an airline-schedule tracking service.
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So, unless you live in the rare geographic location that affords you meaningful choice in your airport and/or airline, you are left picking, at best, the lesser of two evils. As Alex Pareene at Fusion notes:
What does United care if the internet is mad at it? The airlines divvied up the sky between themselves, and if you live or work in United territory, at some point you’ll face the real “choice” offered to consumers in a post-consolidation industry: flying with them, flying a more time-consuming and circuitous route with some other, probably equally horrible airline (if such a route is available), or not flying anywhere. Do you need to get from Fargo to Denver in a hurry? Congratulations, you are now a United customer.
It wasn’t always like this. Back in the day — 2000, to be exact — it was a real challenge for airlines that wanted to merge with competitors to overcome the antitrust hurdles. That year, United and US Airways wanted to merge, but eventually dropped the deal after the antitrust division of the Department of Justice sued over it. But then there was an economic slump in the industry — precipitated by 9/11 — and it became a lot easier for mergers to go through.
Jenna Greene at Law.com identifies three of the biggest mergers in the industry, and the lawyers responsible for making them happen.
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1. Delta and Northwest
In October of 2008, the Antitrust Division under Thomas Barnett (now the co-chair of Covington & Burling’s antitrust practice) greenlighted the merger of Delta and Northwest without divestitures to create what was then the world’s largest airline.
The merger was “likely to produce substantial and credible efficiencies that will benefit U.S. consumers,” according to the DOJ, and unlikely “to substantially lessen competition.”
While the DOJ didn’t put up a fight on this merger, there were also teams of lawyers making sure that was exactly how the division saw it. R. Hewitt Pate, D. Bruce Hoffman and Ian Conner from at Hunton & Williams; James Weiss of K&L Gates; and Don Flexner and Jim Denvir of Boies Schiller & Flexner (ironically, Pate is the former DOJ division chair that opposed the United/US Airways merger) were on the front lines for Delta. Northwest tapped an O’Melveny & Meyers team of Timothy Muris, Christine Wilson, Michael Antalics and David Beddow.
2. United and Continental
The DOJ under Christine Varney (now chair of Cravath, Swaine & Moore’s antitrust practice) asked for a modest concession to approve the deal: the parties agreed to transfer 36 Newark slots to Southwest.
According to Varney, “This resolution of the division’s competitive concerns was reached for the benefit of consumers but without creating obstacles to a transaction that was otherwise lawful under the antitrust laws.”
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And the antitrust lawyers behind this deal? Katherine Forrest and Stuart Gold of Cravath Swaine and Moore represented United, while Paul Yde of Freshfields repped Continental.
3. American and US Airways
The Antitrust Division under [William] Baer, to his credit, sued to block the deal. The airlines responded by hiring an antitrust dream team, tapping lawyers including Dechert partner Paul Denis and O’Melveny & Myers partner Richard Parker for US Airways, and Jones Day partners Joe Sims and John Majoras for American parent company AMR Corp.
Two weeks before trial, the case settled. DOJ spun it as a win—but so did the airlines. There were divestitures, but bottom line, they got to do their merger.
These lawyers served their clients well, and these big mergers increased the profitability of the industry, paving the way for other additional mergers like Southwest / AirTran and Alaska Air / Virgin America. But they also left most Americans with few options except empty complaints when something as shocking as the way Dr. Dao was treated by United comes to light.
Why is Flying So Terrible? Blame These Antitrust Lawyers [Law.com]
Kathryn Rubino is an editor at Above the Law. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
