To: Page 4 of 9 2012-03-28 18:37:26 EDT 12023799195 From: Christian Curran



### BEFORE THE DEPARTMENT O.F TRANSPORTATION OFFICEOF THE SECRETARY WASHINGTON, D.C.

In the matter ofthe cancellation ofthe AirTaxi authority issued to: VIH COUGARHELICOPTERS, INC. DocketDOT-OST-2012-0022

REPLY IN SUPPORT OF VIH COUGAR'S OBJECTIONTO THE AFFIDAVIT OFJONATHAN BLANK AND OF OTHER PETROLEUMHELICOPTER, INC. COUNSEL Communications with 

### respect to this document should be sentto:

David M. Nadler 

### David Y. Yang 

### Andrew E. Smith DICKSTEIN SHAPIRO LLP 

### 1825 Eye Street, NW Washington, DC 20006 

### Telephone: (202) 420-2200 Facsimile: (202) 420-2201 nadlerd@dicksteinshapiro.com yangd@dicksteinshapiro.com 

### smitha@dicksteinshapiro.com Counsel to VIH Cougar Helicopters, Inc.
Dated: March 28, 2012 , -**~ ·~**  ' ' '•" j L_' ;**--~'** ;' '**~** -,**,~** 'i C: >\ f---;_

DSMDB·3044353vITo: Page 5 of 9 2012-03-28 18:37:26 EDT

BEFORE THE DEPARTMENT OF TRANSPORTATION OFFICE OF THE SECRETARY WASHINGTON, D.C. 12023799195 From: Christian Curran

In the matter ofthe cancellation ofthe Air Taxi authority issued to: Docket DOT-OST-2012-0022 VIH COUGAR HELICOPTERS, INC.
REPLY IN SUPPORT OFVIH COUGAR'S OBJECTION TO THEAFFIDAVIT OF JONATHAN BLANK AND OF OTHER PETROLEUMHELICOPTER, INC. COUNSEL On**~arch** 23, 2012 VIR Cougar Helicopters, Inc. ("VIH Cougar") learned that Jonathan Blank ofK&L Gates LLP, counsel for Petroleum Helicopters, Inc. ("PHI"), a competitor ofVIH Cougar, filed an Affidavit ofCounsel with the U.S. Department ofTransportation (''Department") seeking access to the**co~fidential** information that VIH Cougar has submitted to the Department 

### in connection 

### with the above-captioned proceedings over the past four years. That same day, VIH Cougar filed an objection to Mr. Blank's affidavit pursuantto Department Rules II and 12 ofits Rules ofPractice (14 C.F.R. 

### §§ 302.11, 302.12). Sincethose events, VIH Cougar has learned thatAttorneys John Longstreth and J. Timothy Hobbs and Paralegal Winthrop M. Chew, all ofK&L Gates, have filed affidavits for access to VIH Cougar protected information. Accordingly, VIR Cougarrespectfully requests that its earlier motionregarding Mr. Blank's application, and now this reply in further support thereof, also be applied to the applications ofMessrs. Longstreth, Hobbs, and Chew. I. ARGUMENT VIH Cougar's objection asks the Department to deny interim access to all confidential informationprovided by VIH Cougar until the Departmenthas ruled on the Rule 12 Motion that

DSMDB·3044J53vITo: Page 6 of 9 2012-03-28 18:37:26 EDT 12023799195 From: Christian Curran



### VIH Cougar.submitted on March 16, 2012, and ifthat decision is adverse to VIH Cougar, until the matter has beenruled upon by a court ofcompetentjurisdiction. Counsel for PHI has submitted a three-page response to this objection. In his response, Mr. Blank contends that, as outside counsel for PHI, he should be granted access to confidential documents in this proceeding because he has submitted an affidavit ofconfidentialitypursuant to the stipulations set forth in the Department's March 12,2012 Show Cause Order and has averred that he does not engage in any competitive decision-making on behalfofPHJ. Significantly, however, Mr. Blank agrees to be bound by any 

### other and further protective order that the Department may impose. Accordingly, Mr. Blanknot only acknowledges that additional safeguards are available (such as those found in GAO protective orders for bid protest proceedings- the gold standard for federal protective orders), but agrees that such measures 

### are appropriate for purposes ofthese proceedings. Given that counsel for PHI does not object to the implementation ofadditional procedures to safeguard the confidentiality ofVIH Cougar information, the Department should grant VIH Cougar'sRule 12 Motion and provide access to proposed counsel affiants, such as 

### Mr. Blank (and Messrs. Longstreth and Hobbs since then), only pursuant to terms and conditions that are similarto those found in GAO bid protest protective orders. Amongthese additional conditions, but by 

### no means limitedto them, Messrs. Blank, Longstreth, and Hobbs should be required to aver that in addition to PHI, they do not engage in any competitive decision-making
onbehalfofany other actual orpotential competitors ofVIH Cougar, and should further be required to agree to take 

### "all precautions necessary" to prevent disclosure (and inadvertent disclosure) to those who are engaged in such activities. They also should be required to agree to



### 2 DSMDB-3044353vlTo: Page 7 of9 2012-03-28 18:37:26 EDT 12023799195 From: Christian Curran

limit the number ofcopies ofconfidential information that canbe made or distributed and be subject to oversight and any penalties ifthey violate their representations and these conditions. Without these additional safeguards, there is an unacceptable risk that any VIH Cougar protected information provided to Messrs. Blank, Longstreth, Hobbs, and Chew could fall inadvertently into the hands ofthirdparties or individuals who are responsible for PHI or other competitive decision-making. 1 Finally, VIH Cougarhas a strong interest in protecting its confidential andproprietary informationfrom the competitors that have involved themselves, and indeed appear to be driving, these proceedings, and to have fair and reasonable procedures adopted which are more comprehensive than the terms thatthe Department has proposed in its Show Cause Order. 

### II. CONCLUSION Forthe foregoing reasons, VIII Cougar respectfully requests that its Rule 12 Motion be granted and that any VIH Cougar confidential information be released to counsel and outside experts to interested parties in connection withthese proceedings onlypursuant to the terms and conditions set forth in 

### VJH Cougar's Motion.

1Mr. Blank complains about notbeing served with VJH Cougar's objections to his affidavit that was submitted to the Department on March 23,2012. However, the complaint is without merit given that 

### Mr. Blank did not even serve a "notice ofappearance" in this proceeding until yesterday, March 27, 2012, and in any event, PHI is not and has not been admitted as a partyto these proceedings. Although we are unaware ofany service obligations inthese circumstances, we will provide courtesy copies ofnon-confidential documents to Mr. Blank. 3 DSMDB-3044353vlTo: Page 8 of 9

Dated: March 28, 2012 2012-03-28 18:37:26 EDT 12023799195 From: Christian Curran

Respectfully submitted, 

### By

# ~**David~ler** David 

### Y. Yang Andrew

### E. Smith DICKSTEIN SHAPIRO LLP 1825 Eye Street, NW Washington, DC 20006 Telephone: (202) 420-2200 Facsimile: (202) 420-2201 nadlerd@dicksteinshapiro.com yangd@dicksteinshapiro.com smitha@clicksteinshapiro.com Counsel to VJH Cougar Helicopters. Inc.



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### CERTIFICATE OF SERVICE I certify that 1have onthis 28th day ofMarch 2012 served the foregoing uponthe persons listed below:
Susan L Kurland Office ofthe Assistant Secretary for Aviation and International Affairs U.S. Department ofTransportation 1200 New Jersey Avenue, SE Room W96-495 Washington, DC 20590 Lauralyn Remo Office ofthe Assistant Secretary for Aviation and International Affairs U.S. Department ofTransportation 1200 New Jersey Avenue, SE Room W96-495 Washington, DC 20590 Peter Lynch, AGC-300 Asst. ChiefCounsel for Enforcement Federal Aviation Administration 800 Independence Ave. SW Washington, DC 20591 William J. Weber Certification Section Manager FAAAFS-900 45005 AviationDrive Suite 131 Dulles, VA 20166 Roy Hardie Aviation Safety Inspector Federal AviationAdministration 1601 Lind Avenue SW, Suite 260 Renton, W A 98057

Andrew

### E. Smith



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