Order 2010-6-12

Served: June 8, 2010

UNITED STATES OF AMERICA

DEPARTMENT OF TRANSPORTATION

OFFICE OF THE SECRETARY

WASHINGTON, D.C.

Issued by the Department of Transportation

on the 8th Day of June, 2010

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

ORDER ESTABLISHING PROCEDURAL SCHEDULE AND RULING ON REQUEST

FOR ACCESS TO CONFIDENTIAL INFORMATION

SUMMARY

By this order, we (1) strike certain confidentiality affidavits, (2) determine that the record in the 

above-captioned matter is substantially complete, and (3) establish a schedule for public 

comments.

BACKGROUND

On December 23, 2009, All Nippon Airways, Co., Ltd. (“NH”), Continental Airlines Inc. 

(“CO”), and United Air Lines, Inc. (“UA”) (together, “NH/CO/UA” or “Star Applicants”) filed 

an application for antitrust immunity which included a written application, copies of alliance 

agreements, and supporting documents. On February 12, 2010, American Airlines Inc. (“AA”) 

and Japan Airlines International Co., Ltd. (“JL”) (together, “AA/JL” or “oneworld Applicants”) 

filed a similar application requesting antitrust immunity which included a written application and 

copies of alliance agreements; supporting documents were submitted separately on March 5, 

March 8, and March 9, 2010. Both applications describe plans to launch joint ventures for the 

conveyance of transpacific air traffic, focused on the U.S.-Japan market. These matters were 

consolidated into one proceeding under Docket DOT-OST-2010-0059.1 

On December 24, 2009 and February 17, 2010, we issued notices granting interim access to 

confidential documents submitted with the applications, limited to interested parties who filed 

confidentiality affidavits with the Department. 

 

1 See Order 2010-3-10 (March 31, 2010).
2

On February 16, 2010, Mr. Hubert Horan filed an affidavit requesting access to confidential 

documents. On February 24, the Star Applicants filed a motion2 to strike Mr. Horan’s 

confidentiality affidavit on the basis that he does not meet the requirements of the December 24th

and February 17th notices. On March 2, Mr. Horan filed a reply objecting to the Star Applicants’ 

motion.3 Mr. Horan argues that he should be entitled to access the confidential record because 

he is a veteran of the airline industry with direct experience in alliance matters. He believes he 

needs access to confidential information to evaluate and comment on the issues, and that the Star 

Applicants have not identified any risks associated with granting him access.

On March 31, 2010, the Star Applicants renewed their request to strike Mr. Horan’s 

confidentiality affidavit4 and requested that the Department strike three other affidavits filed by 

employees of Dallas-Fort Worth International Airport (“DFW”) on February 19 and 22, 2010, on 

the basis that the three employees in question were not licensed attorneys. Mr. Horan replied on 

April 2, requesting that the Department formally reject the Star Applicants’ motion to strike.5 

An answer was filed by DFW on April 9, requesting the DOT deny the Star Applicants’ motion 

to strike the affidavits and offering to limit their request to confidential documents produced only 

by AA/JL.6 DFW argues that its employees should not be denied any access to the AA/JL 

documents because DFW has a substantial interest in the proceeding and that, as the affiants in 

question are not employees of rival airlines, there is no identifiable risk of harm.

On April 16, 2010, the Department issued Order 2010-4-9, requesting additional evidence from 

the air carriers. In May 2010,7 the Star Applicants and the oneworld Applicants submitted 

documents and information supplementing their initial applications. 

DECISION

We have reviewed the affidavits and the challenges to those affidavits. We have decided to grant 

the Star Applicants’ motions to strike all four affidavits. 

As is our standard practice, the Notice set the requirements for access to the confidential 

information: that affiants be attorneys, who could be in-house or outside counsel for a party in 

the case, or an outside consultant to a party. These criteria reflect our policy that access to 

confidential information in a proceeding must balance, inter alia, the interest of commenting 

parties in the outcome of the proceeding and their need to have the information available to allow 

presentation of their views, on one hand, with the need of parties providing the information to 

protect business confidential data from unnecessary and unwarranted disclosure, on the other. In 

 

2 See Motion of Star Applicants, Docket DOT-OST-2009-0350 (February. 24, 2010).

3 See Reply of Hubert Horan, Docket DOT-OST-2009-0350 (March 2, 2010). 

4 See Motion of Star Applicants (March 31, 2010).

5 See Reply of Hubert Horan (April 2, 2010).

6 See DFW Answer (April 9, 2010).

7 The Star Applicants filed additional documents on May 14, 2010. The oneworld Applicants filed documents on 

May 10, May 11, and May 13, 2010.
3

the case of Mr. Horan and the three DFW employees, we agree with the challengers that the 

affiants do not comply with the terms of the Notice. 

We believe that, in the case of Mr. Horan, who is neither an attorney nor an outside consultant to 

a party, the balance of interests dictates denying him confidential access. The public record 

contains ample and detailed information about the competitive issues. Mr. Horan has full access 

to this information to assist him in providing meaningful comments. In balancing the interests at 

stake, there must be a presumption in favor of confidentiality. Mr. Horan has not overcome that 

presumption.

The three DFW employees present a different question. DFW has outside counsel who has

access to the confidential materials. Notwithstanding the three employees’ assertion that they are 

performing the function of in-house counsel to DFW, they are not attorneys. The requirements 

of the notice that limit in-house participation with access to confidential materials to attorneys 

rely upon special professional obligations and practices to protect against the unauthorized 

disclosure of business secrets, including unintentional disclosures. Because these three affiants 

do not meet the terms of the Notice, they have not overcome the presumption of confidentiality 

and may not receive access to the confidential information filed in the proceeding.8

Additionally, in order to decide this matter, we must determine if the record is substantially 

complete and ready for public comment.9 

Upon review of documents provided, we determine that the record is now substantially complete 

and establish the following schedule for public comments:

Answers – must be filed no later than 21 calendar days from the date of issuance of this 

Order;

Replies – must be filed no later than 7 business days after the last day for filing an 

answer.

ACCORDINGLY:

1. We grant the motions of All Nippon Airways, Co., Ltd., Continental Airlines Inc., and 

United Air Lines, Inc., submitted on February 24, 2010 and March 31, 2010, to strike 

confidentiality affidavits;

 

8 We recognize that the three DFW affiants have, in fact, already had access to some of the confidential materials 

in this docket. Even though we are striking their affidavits, we consider them to continue to be bound by their 

undertakings to maintain the confidentiality of any material that they have accessed. That access must now end and 

we expect them to turn over any copies of confidential materials in their possession to their attorney, and not to 

discuss them with anyone.

9 See 14 C.F.R § 303.04.
4

2. We strike the affidavits of Hubert Horan, dated February 16, 2010 and submitted in 

Docket DOT-OST-2009-0350; Damian Brooke, dated February 18, 2010 and submitted 

in Docket DOT-OST-2010-0034; William Frainey, dated February 18, 2010 and 

submitted in Docket DOT-OST-2010-0034; and Mr. Joseph Lopano, dated February 19, 

2010 and submitted in Docket DOT-OST-2010-0034; 

3. We establish the following procedural schedule: answers must be filed no later than 21

calendar days from the date of issuance of this Order, and replies must be filed no later 

than 7 business days after the last day for filing an answer; and

4. We will serve this order on all parties on the service list in this docket.

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