Order 2010-3-10 

Served: March 11, 2010 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF THE SECRETARY 

WASHINGTON, D.C. 

 

 

Issued by the Department of Transportation 

on the 11th Day of March, 2010 

U.S.-Japan Alliance Case Docket DOT-OST-2010-0059 

Joint Application of: 

ALL NIPPON AIRWAYS CO., LTD., 

CONTINENTAL AIRLINES, INC. 

 and 

UNITED AIR LINES, INC. 

under 49 U.S.C. §§ 41308-41309 for approval of 

and antitrust immunity for alliance agreements

Docket DOT-OST-2009-0350 

Joint Application of: 

AMERICAN AIRLINES, INC.

 and

JAPAN AIRLINES INTERNATIONAL CO., LTD.

under 49 U.S.C. §§ 41308-41309 for approval of 

and antitrust immunity for alliance agreements 

Docket DOT-OST-2010-0034 

ORDER CONSOLIDATING PROCEEDINGS 

SUMMARY

By this order, we grant a motion to consolidate two pending applications for antitrust 

immunity. From this date forward, we will consider the applications of Star Alliance members All 

Nippon Airways, Continental Airlines, and United Air Lines (“NH/CO/UA”) and oneworld 

alliance members American Airlines and Japan Airlines (“AA/JL”) in a single new proceeding, to 

be called the U.S.-Japan Alliance Case, in Docket DOT-OST-2010-0059. 
2 

BACKGROUND

On December 23, 2009, the Star carriers filed the NH/CO/UA application, which included a 

written application, copies of alliance agreements, and supporting documents.1 Seven weeks later, 

on February 12, 2010, the oneworld carriers filed the AA/JL application, which included a written 

application and copies of alliance agreements;2 supporting documents were submitted separately 

on March 8 and March 9.3 Both applications describe plans by the alliance partners to launch 

joint ventures for the conveyance of transpacific traffic, focused on the U.S.-Japan market. 

On February 12, in connection with the filing of their application, the oneworld carriers moved 

to consolidate the two proceedings.4 American and JAL assert that the applications present 

common issues, since both will require the Department to examine the state of competition on 

routes between and beyond the United States and Japan. Consolidation is appropriate, they 

maintain, because it would enable the Department and the parties to address the issues more 

efficiently, and it would not delay a decision on either application.5 Quoting extensively from our 

consolidation order in the U.S.-U.K. Alliance Case of 2001, American and JAL argue that all of 

the Department’s reasons for consolidating matters in the U.S.-U.K. cases apply with equal force 

in the pending U.S.-Japan cases. 

The Star carriers do not oppose consolidation.6 They do, however, express the concern that 

consolidation could result in delayed approval of their application because the AA/JL filing was 

submitted after the NH/CO/UA filing, and because the AA/JL filing is not as complete. Noting 

that consolidation is not required under the circumstances, the Star carriers emphasize that their 

consent is based on the premise that “the Department determines that such action will expedite, 

not delay, a final decision on the NH/CO/UA application, thereby enabling implementation of the 

U.S.-Japan Open Skies Agreement at the earliest possible date.”7

DECISION

We will grant oneworld’s motion and consolidate the existing dockets into a single new 

proceeding, to be called the U.S.-Japan Alliance Case. Our decision is consistent with Rule 13 of 

the Department’s Rules of Practice, which states in relevant part that 

 

1 Joint Application of NH/CO/UA (Dec. 23, 2009). 

2 Joint Application of AA/JL (Feb. 12, 2010). 

3 Letter from Carol Gosain, Attorney for Japan Airlines (Mar. 8, 2010) (noting the filing of confidential 

documents); Letter from Carl Nelson, Jr., Attorney for American Airlines (Mar. 5, 2010) (noting the filing 

of confidential documents). 

4 Joint Motion of AA/JL (Feb. 12, 2010). 

5 Joint Motion of AA/JL at 1-4 (Feb. 12, 2010) (citing Order 2001-11-10 in Docket DOT-OST-2001-11029 

(Nov. 20, 2001)). 

6 Joint Answer of NH/CO/UA (Feb. 24, 2010). 

7 Joint Answer of NH/CO/UA at 1 (Feb. 24, 2010). 
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[t]he Department, upon its own initiative or upon motion, may consolidate for 

hearing or for other purposes or may contemporaneously consider two or more 

proceedings that involve substantially the same parties, or issues that are the 

same or closely related, if it finds that such consolidation or contemporaneous 

consideration will be conducive to the proper dispatch of its business and to the 

ends of justice and will not unduly delay the proceedings.8

We have determined that the pending applications involve essentially the same issues. To 

resolve both requests for immunity, we will need to consider the current and future state of 

competition for air services between the United States and Asia, focused on the U.S.-Japan 

market, as well as the role of the immunized alliances in promoting or lessening that competition. 

The overlap in the issues is driven by factual similarities. Both applications involve requests by 

U.S. and Japanese airlines to form integrated joint ventures with the goal of enhancing transpacific 

services. 

Moreover, both applications are predicated on the implementation of an open-skies agreement 

between the United States and Japan. To wit, the applicants in both cases make the same core 

argument: the immunized alliances will generate substantial consumer benefits and enhance 

competition in an “open-skies” environment; however, the implementation of the open-skies 

agreement between the United States and Japan is contingent upon the Department’s expeditious 

review of the antitrust immunity applications.9 Given the convergence of the core arguments and 

issues, our analysis and findings concerning one application are likely to relate to the other. 

We find that our ability to analyze and resolve the issues will be improved by consolidation of 

the applications. While consolidation is never required, here it is conducive to the proper dispatch 

of our business and to the ends of justice.10 The benefits for administrative efficiency are 

compelling in these cases. As in the U.S.-U.K. Alliance Case, consolidation will, under these 

circumstances, avoid duplication of resources, allow parties to address common issues more 

efficiently, and allow for cross-referencing of evidence. It will not unduly delay the proceedings. 

To the contrary, a more efficient process will aid the consideration and resolution of both 

applications. Additionally, no party opposes the motion to consolidate. 

We understand the Star carriers’ concern about timing and the importance they place on 

expeditious consideration of their application, which was, in fact, submitted before oneworld’s 

application. However, with oneworld’s recent filing of supporting documents, we believe that 

both cases have a similar procedural posture at this point in time and all applicants express the 

same desire for expeditious consideration. Thus, the applicants share the same incentive to be 

responsive to evidentiary needs. 

Therefore, we hereby consolidate the captioned pending applications into a single new 

proceeding in Docket DOT-OST-2010-0059. Applicants and interested parties should direct all 

 

8 14 C.F.R. § 302.13(a). 

9 Joint Application of NH/CO/UA at 2-6 (Dec. 23, 2009); Joint Application of AA/JL at 2-6, 13-16, 24 

(Feb. 12, 2010). 

10 See 14 C.F.R. § 302.13(a); 49 U.S.C. § 46102(a). 
4 

future filings to the new docket. For the purposes of accessing the confidential material in the 

record, we will deem previous submissions of confidentiality affidavits, submitted in either 

predecessor case in accordance with the Department’s Rule 12 procedures, as satisfactory to 

permit access to all submissions in the new, consolidated case.11

ACCORDINGLY: 

1. We grant the joint motion of American Airlines, Inc. and Japan Airlines International Co., 

Ltd., submitted on February 12, 2010, to consolidate the captioned proceedings; 

2. We consolidate the captioned proceedings into a new case, to be known as the U.S.-Japan 

Alliance Case, Docket DOT-OST-2010-0059; 

3. We direct applicants and interested parties to submit all future filings concerning the 

pending applications in the consolidated docket; and 

4. We will serve this order upon interested parties. 

By: 

SUSAN L. KURLAND 

Assistant Secretary for Aviation 

and International Affairs 

(SEAL) 

An electronic version of this document is available at http://www.regulations.gov

 

11 Cf. American/ British Airways II Case, Order 2001-11-10 at 13-14 (Nov. 20, 2001) (deeming previous 

submissions of affidavits in separate dockets as sufficient for accessing confidential information in the 

consolidated docket).