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U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

IN THE MATTER OF: 

BRENDAN AIRWAYS, LLC No.: FAA-2012-0020 

Suite 600 

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1220 L Street, N.W. 

Washington, D.C. 

Wednesday, 

June 27, 2012 

. l"·~ .. ,, The parties met, pursuant to the notice, a 

10:57 a.m. 

BEFORE: HONORABLE J.F. SULLIVAN 

Administrative Law Judge 

APPEARANCES: (Via Telephone) 

For the Complainant: 

ZACHARY M. BERMAN, Esquire 

Federal Aviation Administration 

Office of the Regional Counsel, AS0-7 

1 Aviation Plaza 

Jamaica, New York 11434 

(718) 553-3285 

For the Respondent: 

,,.,._,., 

f-.,) 

__ , 

JASON DICKSTEIN, Esquire 

Washington Aviation Group 

2233 Wisconsin Avenue, N. W., 

Washington, D.C. 20007 

(202) 628-6776 

Suite 503 

RECEIVED 

JUL 1 2, 20t2 

HEARING DOCKET 

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2 (10:57 a.m.) 

3 JUDGE SULLIVAN: We're on the record in the 

4 matter of Brendan Airways, LLC. This is Docket No. 

5 FAA-2012-0020. Today is Wednesday, June 27, 2012, and 

6 the parties have convened for a litigation scheduling 

7 conference. 

8 The Federal Aviation Administration, which 

9 I'll hereinafter abbreviate as FAA, is represented by 

10 its attorney, Zachary M. Berman. Brendan Airways, LLC 

11 is represented by its attorney of record, Jason 

12 Dickstein. Good morning and welcome to both of you. 

13 MR. DICKSTEIN: Good morning. 

14 MR. BERMAN: Good morning. 

15 JUDGE SULLIVAN: Folks, just so that our 

16 record is clear, I' 11 simply note that on April 23, 

17 2012, I fi'led an order setting a Rule 16 litigation 

18 scheduling conference and directing Rule 26(f) 

19 planning and submission. I'll note that I received 

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the parties' jointly proposed scheduling/discovery 

plan as of this morning, June 27, 2012, and I've 

reviewed it. 

I also got a phone call message from my 

staff indicating that Mr. Dickstein may have some 

additional matters that he wants to add to this 

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1 morning's agenda, so why don't I turn to you first, 

2 Mr. Dickstein. Is there anything you would like to 

3 add to the conference agenda? 

4 MR. DICKSTEIN: It is less a matter of 

5 adding to the conference agenda and more a matter of 

6 simply making sure that the Court is aware of some 

7 matters that I've made Mr. Berman aware of. 

8 The air carrier had announced last year that 

9 they would be discontinuing operations. They 

10 discontinued operations in January. They're in the 

11 process of surrendering the certificate and closing up 

12 operations, and their intent is to actually have no 

13 staff and no further corporate actions of any kind a.s 

14 of June 30, so basically Friday of this week, and I 

15 wanted to make sure that the Court was aware of that 

16 as well as Mr. Berman. 

17 JUDGE SULLIVAN: Okay. And just to clarify, 

18 you basically stated that your client discontinued 

19 operations in January 2012? 

20 MR. DICKSTEIN: Correct. 

21 JUDGE SULLIVAN: Okay. And then as of 

22 June 30, 2012, this Saturday, the airline intends to 

23 have no staff, no business dealings by June 30, 2012? 

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MR. DICKSTEIN: That is correct, Your Honor. 

JUDGE SULLIVAN: Okay. Where does that 

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1 leave you and your client in terms of litigating this 

2 particular action? 

3 MR. DICKSTEIN: To be honest, Your Honor, I 

4 am unsure. I have researched the issue, and my 

5 reading of existing caselaw is that the courts have 

6 actually refused motions to declare actions in this 

7 sort of a situation to be moot on the grounds that the 

8 action, the underlying action took place before the 

9 discontinuation of operations, and courts have 

10 suggested that for policy reasons they don't want the 

11 regulated public to believe that they can violate 

12 regulations and simply go out of business. 

13 So I understand that we may not be able to 

14 successfully file a motion to seek for dismissal on 

15 the ground of mootness, but I do have a client that is 

16 on the throes of no longer existing and I wanted to 

17 make sure that the Court was aware of that, and it is 

18 certainly possible that at a point down the road I may 

19 ask the Court to withdraw on the grounds that I have 

20 no more client. 

21 JUDGE SULLIVAN: Well, let me ask you this, 

22 and we can talk about the potential mo~ion for 

23 withdrawal process as well, but before we get there, 

24 is your client in a position to utilize your services 

25 to respond to motions at this point? Because if you 

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1 have a client who is unable to pay for the cost of 

2 litigation, one of the things that we should be 

3 talking about in terms of scheduling is a dispositive 

4 motion. There could be any number of dispositive 

5 motions, and I think it depends, quite frankly, on 

6 where the FAA wants to spend its time. 

7 So, for example, there could be a motion by 

8 the Respondent to withdraw its pleadings, at which 

9 point there's not much to litigate. There could be a 

10 motion by the FAA for a decision on summary judgment. 

11 There could be a potential motion for default if the 

12 Respondent basically states we are not in a position 

13 to respond any further to any further litigation 

14 requests, which is essentially an abandonment of the 

15 defense, short of moving to withdraw the request for 

16 hearing and the answer. There could be motions to 

17 essentially admit the violation. There appeared to be 

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some answers in the Respondent's answer where some 

things were admitted, some things were denied. 

There can be any number of things short of 

going to trial in I think it was Philadelphia, 

Pennsylvania, that could potentially resolve this, and 

that would be independent of any kind of settlement 

the parties might reach during private discussions 

regarding this matter. 

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1 And I'm going to turn to Mr. Berman next. I 

2 think he may have some experience with cases in 

3 litigation where the respondent has gone out of 

4 business, and there may be some preferred ways that 

5 his agency likes to deal with that, or there may be 

6 any number of choices available to him that we have 

7 yet to learn about. 

8 Mr. Berman, what's your general process when 

9 you have a client, or not a client, excuse me, when 

10 you have an opposing litigant like Brendan Airways 

11 who's in the process of going out of business? How do 

12 you like to handle these things? 

13 MR. BERMAN: Well, as Mr. Dickstein 

14 referenced about the caselaw that it's against public 

15 policy just to withdraw actions simply because the 

16 Respondent is going out of business. In this 

17 particular case, I don't know the exact details 

18 about -- I am aware that Brendan Airways is in some 

19 kind of process of discontinuing operations. I'm not 

20 sure of the exact details, but our position at this 

21 time is we'll go forward, but it could change 

22 depending on the circumstances. 

23 If they don't exist in any shape, form or 

24 manner, then it would be difficult for us to proceed 

25 to collect a civil penalty, although at a minimum, 

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1 even under the circumstances where we decide we don't 

2 want to press to collect a civil penalty, we would at 

3 least want a finding of a violation. 

4 JUDGE SULLIVAN: Okay. Well, that's why I'm 

5 talking to you both today. I wasn't suggesting that 

6 the FAA withdraw the violation. I was speaking to the 

7 Respondent about the possibility of withdrawing its 

8 request for a hearing and withdrawing its pleadings, 

9 which is allowed by regulation. That's one option for 

10 the parties to discuss and consider. 

11 Another option is for the FAA to make 

12 various motions short of going to trial that would 

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resolve this matter, get a viOlation, have potentially 

a civil penalty on the books without costing Brendan 

Airways thousands of dollars in attorney time and 

without costing the FAA thousands of dollars of 

attorney time. 

So my question to you, Mr. Berman, is are 

there documents or pieces of information that would be 

helpful to you to get from the Respondent to see if 

there are ways to address this informally or even by 

stipulated agreement short of going to trial? 

Sometimes people just need to file certain 

certificates or documentation showing they've gone 

completely out of business for the FAA to feel 

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1 comfortable enough to say, okay, this is what we,re 

2 going to do, this is how we,d like to do it, would you 

3 be willing to agree at this point and go forward. 

4 So are there documents in your opinion, Mr. 

5 Berman, that you would need to .have that you don,t 

6 have now that .would allow and facilitate more 

7 discussion for resolving this matter without going to 

8 trial? 

9 MR. BERMAN: In terms of Brendan Airways 

10 going out of business? 

11 JUDGE SULLIVAN: Correct. 

12 MR. BERMAN: Well, if they,re dissolving as 

13 a corporation, I would like to see a record, an 

14 official corporate record of that. 

15 JUDGE SULLIVAN: And if you received that, 

16 what would that lead you to do, if anything? 

17 MR. BERMAN: Well, if everything indicates 

18 that they no longer exist, that they don,t have a 

19 certificate, I don, t want to commit myself to saying 

20 what we would -- you know, but that would definitely 

21 be a factor, and if we were to receive information 

22 that the corporation dissolves, then that might lead 

23 us to conclude that we should not proceed, should not, 

24 you know, have a civil penalty. 

25 JUDGE SULLIVAN: Okay. I 1 m not trying to 

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1 pin you to the wall. I'm trying to ask you for 

2 options that you could potentially look at given your 

3 expertise as an FAA litigator. So, for example, I 

4 could easily set up a litigation schedule that pushes 

5 this case out for trial until next year. That's 

6 certainly one option before us this morning. I could 

7 also push the litigation scheduling conference out a 

8 month to give the parties some private time to talk to 

9 each other about fast, cheap and effective ways to 

10 resolve this so that the FAA gets what it apparently 

11 would like, which is a violation on the books, and get 

12 Brendan Air what it would ideally like, which is out 

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of the shadow of a litigation which would cost 

thousands of dollars to respond to and out of the 

shadow of a potential fine that it might have to 

discharge in bankruptcy, for example. 

So my question is really focused on how can 

I help you parties get to a point where you can tell 

me more definitively what would be a fast, cheap, easy 

solution to try and resolve this matter'short of 

extending it out into next year for a trial, which it 

appears Brendan Airways will not have the capacity or 

money to defend, and I'm making an assumption about 

that, but I'll make it because it seems to be 

reasonable for today's discussion. 

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1 Let me turn to you, Mr. -- is it Dickstein 

2 or Dickstein? 

3 MR. DICKSTEIN: Dickstein, Your Honor. 

4 JUDGE SULLIVAN: Thank you. Mr. Dickstein, 

5 you know your client better than anybody else that's 

6 on the phone today. Do you have some suggestions 

7 about what would work for your client short of 

8 scheduling this for a trial in March or April of 2013? 

9 Are there some short-term solutions that you and your 

10 client have discussed that you'd like to suggest 

11 hypothetically today, or would you feel more 

12 comfortable doing that privately with Mr. Berman 

• 13 outside the presence of the Court? How can we utilize 

14 this time today to assist your client to a resolution 

15 that would be palatable? 

16 MR. DICKSTEIN: Well, I understand that the 

17 government's interests and past policy suggests that 

18 the government wants to drive to a finding of 

19 violation, not just because it affects Brendan Airways 

20 but also because they want to establish a record to 

21 demonstrate to other similarly situated air carriers 

22 that this sort of conduct or the conduct that they 

23 alleged is unacceptable. 

24 Brendan Airways has taken the position that 

25 they did not in fact infringe a regulation. However, 

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1 in light of the air carrier's position, having 

2 discontinued operations and with no intention to 

3 resume operations at this stage, I would be very 

4 comfortable taking back to my client a proposal of 

5 withdrawing our pleadings or taking any other similar 

6 step if the FAA were interested, for example, in 

7 making a finding, but either waiving or suspending any 

8 penalties in light of Brendan Airways' inability to 

9 pay, which obviously is one of the regulatory bases 

10 for modifying a penalty. 

11 I cannot 100 percent guarantee that they 

12 would accept that, but (a) I would feel very 

13 comfortable taking it back to them, and (b) I don't 

14 see that there's any reason for them not to accept it. 

15 JUDGE SULLIVAN: Okay. Let's talk about 

16 that. We're going to talk a little bit about some 

17 other things too I think. There are lots of different 

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ways to resolve disputes, and when I look at the Code 

of Federal Regulations, I look at it in conjunction 

with the Civil Rules of Procedure, the Federal Civil 

Rules of Procedure, and the world is our oyster in 

terms of crafting and creating resolutions up to and 

that include trial. 

So, for example, one possible option is to 

withdraw a pleading, withdraw a request for hearing. 

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1 One option is to talk about stipulating to certain 

2 facts and then having the rest of the facts resolved 

3 by a decision on the written record, for example. 

4 Another possibility is looking at the whole case and 

5 moving for partial summary judgment or for full 

6 summary judgment. Another way to deal with it is of 

7 course to exchange more discovery between the parties, 

8 for example, Brendan Airways giving more written 

9 confirmation of the corporate status of dissolving and 

10 then coming to a private agreement about the amount of 

11 fine and how the fine will or will not be actually 

12 assessed against the dissolving corporation. 

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I mean, all of those have great merit and 

are only examples of the different kinds of things the 

parties can craft when you have a respondent litigant 

like Brendan Airways who is in the process of 

dissolving the corporation, going out of business and 

most likely is thinking about the costs that it. can 

and cannot pay or will or will not pay depending on 

its status. 

I think what might work best for both 

parties is if I postpone this particular litigation 

conference for about a month unless you tell me 

differently and within that month period of time give 

you an opportunity to talk privately with each other 

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1 about an alternate resolution short of going to trial. 

2 If you cannot reach any other type of resolution, when 

3 we come back for the second conference, then I would 

4 be happy to set up a litigation schedule that tracks 

5 pretty closely what you've given me in your jointly 

6 proposed discovery plan, and then you can go from 

7 there and we would still have options available to us 

8 for both informal settlement and for more formal 

9 resolution short of going to trial, that being, you 

10 know, doing summary judgment arguments, making motions 

11 for default, making motions for a partial decision, 

12 submitting the whole record on a written record basis 

13 for decision, those kinds of things. 

14 In addition, Mr. Dickstein, you had talked a 

15 little bit about potentially moving to withdraw. In 

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essence, I think a motion to withdraw should be done 

with care and thoroughness, and I generally utilize 

Rule 1.16 of the ABA Code of Professional Conduct as a 

guideline, and typically once a case gets to me, if an 

attorney wants to move to withdraw, I prefer that you 

make a motion on the record, that that motion is 

served on all parties, including your own client, and 

that we set the matter up for a telephone conference 

with your client present so that I can take any and 

all objections from the client if there are 

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1 objections, any and all objections from the opposing 

2 side if there are objections, and if under the ideal 

3 circumstance I grant your withdrawal, you would be 

4 allowed to leave before the conference ends, and then 

5 I would be dealing with your client or your client's 

6 new representative, whoever that might be, to take 

7 care of whatever matters need to be addressed once you 

8 go. 

9 When you do it that way, you've covered all 

10 your bases in terms of notice, contact, addressing 

11 objections and being given a very clear directive from 

12 the Court about whether you can go or whether you 

13 still need to stay for some particular reason. Does 

14 that make sense to you? Does that help? 

15 MR. DICKSTEIN: I think that sounds like a 

16 very effective way to approach it. The one issue I 

17 would have is my thoughts about withdrawal are, and 

18 actually I've used the analogy of musical chairs, when 

19 I'm the last person circling the chairs and no one 

20 else is in the game, it doesn't seem to make sense for 

21 me to stay in the game. So, at the point in time when 

22 I would be seeking to withdraw, there in fact may no 

23 longer be a client representative. 

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JUDGE SULLIVAN: Okay. Well, you want to 

think about that because I'm not sure that as counsel 

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1 you have the ability to go forward representing 

2 someone who has not authorized you to continue to 

3 represent them. I mean, that's an interesting 

4 conundrum. I mean, you always have to have a client 

5 who directs you in some way, shape or form. You're an 

6 agent. 

7 MR. DICKSTEIN: And iri light of the fact 

8 that the last day of employment for the employees and 

9 representatives is this Friday, that's sort of forming 

10 the basis for my thought that I may ethically need to 

11 withdraw if the client no longer exists. 

12 JUDGE SULLIVAN: Well, and there's always an 

13 agent representative for the corporation, whoever that 

14 might be. So the fact that the corporation itself 

15 goes out of business I don't think necessarily 

16 terminates your relationship with the agent of the 

17 corporation, but that's a matter for you to address 

18 with your client because there are many different 

19 activities that the corporate entity has to take care 

20 of even if it's no longer engaged in the active 

21 practice of its business. So whoever it was --

22 MR. DICKSTEIN: The client has been wrapping 

23 things up since their January cessation of business. 

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JUDGE SULLIVAN: Yes, no doubt about that. 

I'm just saying that I think that there has to be some 

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1 accountability for your client in terms of how he or 

2 she wants you to proceed, how he or she is going to 

3 direct you and how she or he is finishing up the ends 

4 of the business. If they don't want you as the agent 

5 for any lingering problems that the business has to 

6 deal with, such as this litigation, then he or she has 

7 to be identified and has to step into your shoes in 

8 some way, shape or form. 

9 This again would avoid the problem that you 

10 raised yourself earlier in these proceedings about 

11 having a business basically disappear and then no 

12 longer be held to accounting for things that occurred 

13 while the business was in place. 

14 So, in terms of allowing people to withdraw, 

15 I have a very liberal policy about that because I 

16 think attorneys have a right to be paid for their 

17 work, and it is preferable always to have attorneys 

18 feel that they can move out of an agency 

19 representation when their client no longer is able or 

20 willing to pay them. There are some rare exceptions 

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to that, particularly when you're on the eve of trial, 

but for the most part, if counsel can show that it's 

time to leave and there's a person to step into 

counsel's shoes, I find usually there's a good reason 

to let counsel go. Not always, but often. 

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1 So let me suggest this to the both of you. 

2 Do you think it would be helpful to postpone this 

3 conference for about a month, or do you think you 

4 would rather lock into some litigation dates now? And 

5 I will start with you, Mr. Berman. 

6 MR. BERMAN: Yes, I think that would be a 

7 good idea to put this off one month. 

8 JUDGE SULLIVAN: Okay. Mr. Dickstein, what 

9 about you? 

10 MR. DICKSTEIN: I agree with Mr. Berman. 

11 I've actually been in contact with Mr. Berman and Mr. 

12 Cohen about settlement discussions, and I feel like we 

13 have been moving in a positive direction, so having 

14 some additional time may be beneficial. 

15 JUDGE SULLIVAN: Okay. Why don't we look at 

16 our calendars then. Today is June 27, 2012. 

17 Approximately one month from now would be the week of 

18 July 23, 2012. Mr. Berman, starting with you, do you 

19 have any open times during that week, or maybe I 

20 should say any blackout times would probably be 

21 easier? 

22 MR. BERMAN: Let me just -~ I just have to 

23 click on each date on the computer. Hold on. I'm 

24 open. My schedule is open from the 23rd of July 

25 through the 26th. 

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1 JUDGE SULLIVAN: Okay. Mr. Dickstein, what 

2 about you looking at that week? 

3 MR. DICKSTEIN: The Court's indulgence for 

4 one moment. 

5 JUDGE SULLIVAN: Okay. 

6 MR. DICKSTEIN: I'm actually sitting in a 

7 hotel room in Seattle and logging into my office 

8 calendar. 

9 JUDGE SULLIVAN: Oh, I lived in Seattle for 

10 many years. What hotel are you in? 

11 MR. DICKSTEIN: I'm at the Grand Hyatt. 

12 JUDGE SULLIVAN: I'm not sure where that is. 

13 Is that in downtown Seattle? 

14 MR. DICKSTEIN: It's right in the middle of 

15 downtown. It's actually a beautiful location. I wish 

16 I could have spent more time walking around the city. 

17 And if I am not mistaken, the week of the 

18 23rd, I believe that I don't have anything that can't 

19 be moved, so I believe I am free at the Court's 

20 discretion. 

21 JUDGE SULLIVAN: Okay. And is there any 

22 preferred date or time that would be helpful to you so 

23 that you don't have to juggle different appointments 

24 or move them around? 

25 MR. DICKSTEIN: You can't see me, Your 

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1 Honor, but I am smiling here because I'm actually 

2 looking at the 23rd, which is my anniversary and 

3 thinking that there would be some amusement factor in 

4 scheduling it for the 23rd. When my wife and I 

5 originally married we never took a honeymoon because I 

6 had a trial immediately aft~r our wedding. 

7 JUDGE SULLIVAN: W~ll, I want you to think 

8 carefully about that, Mr. Dickstein. Do you really 

9 want to set something on your wedding anniversary 

10 date? 

11 MR. DICKSTEIN: She does have a tremendous 

12 sense of humor, which is why I married her. 

13 JUDGE SULLIVAN: Okay. We can do that if 

14 you like. Do you have a preferred time? Do you want 

15 to have a time that coincides with your original trial 

16 date? 

17 MR. DICKSTEIN: Actually this time seems to 

18 work very well as long as it would work okay for Mr. 

19 Berman. 

20 JUDGE SULLIVAN: Mr. Berman, would 11:00 

21 Eastern Standard Time on Monday, July 23, 2012, work 

22 for you? 

23 MR. BERMAN: That would be fine. 

24 JUDGE SULLIVAN: Okay. So noted. We'll set 

25 this for that date and time, and then what I will do 

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1 is I will plan on chatting with you both one month 

2 from now on July 23, 2012 at 11 a.m. Eastern Standard 

3 Time. If you settle the case or if you need the 

4 Court's assistance prior to July 23, 2012, please let 

5 me know, and I will keep your proposed scheduling/ 

6 discovery plan and I will use it in preparing 

7 potential suggestions to you for next time if in fact 

8 you both appear and need to have a trial set. 

9 So, with that, on behalf of the FAA, Mr. 

10 Berman, is there anything else that we need to address 

11 for you today? 

12 MR. BERMAN: No, Judge. 

13 JUDGE SULLIVAN: And, Mr. Dickstein, on 

14 behalf of your client, anything else we need to 

15 address? 

16 MR. DICKSTEIN: No. Thank you, Your Honor. 

17 JUDGE SULLIVAN: Okay. Thank you both very 

18 much. It appears our business is complete. With 

19 that, we can go off the record, and I wish you all a 

20 good day. 

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MR. BERMAN: Thank you. 

JUDGE SULLIVAN: Thank you. Bye-bye. 

MR. DICKSTEIN: Bye. 

(Whereupon, at 11:27 a.m., the hearing in 

the above-entitled matter was concluded.) 

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REPORTER'S CERTIFICATE 

DOCKET NO.: FJ\.J\-- 2..012.- 001-0 

cAsE TITLE: f3ret~~.~ A1Ywa~s 1 LLC. 

HEARING DATE: f.R /2..?-/12_ 

LOCATION:. WttS~iVIfj'~ De, 

I hereby certify that the proceedings and 

evidence are contained fully and accurately on the 

tapes and notes reported by me at the hearing in the 

above case before +'h~ U·S · '1)~6-\+ oflV(JiU~~'ho¥'1 · 

Official Reporter 

Heritage Reporting Corporation Suite 600 

1220 L Street, N.W. 

Washington, D.C. 20005-4018 

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