Barbara T. Sicalides, a partner with Pepper Hamilton LLP and head of the Antitrust Section of the firm’s Trial and Dispute Resolution Practice Group, was quoted in the January 10, 2019 Law360 article, "Airline Merger Trial Preparing for Takeoff in Bankruptcy Court."
Even with that fix, it makes sense that the customers had repeatedly tried to get into a different forum, especially after the TRO and plan confirmation had been decided by the bankruptcy judge, according to Barbara T. Sicalides, head of Pepper Hamilton LLP's antitrust section.
"While I understand these judges can separate from their decisions and look at it with care, I think there's going to be somewhat of a natural inclination for a judge to tend to give the merging parties the benefit of the doubt, somewhat, once they have already concluded that the merger should proceed as far as the bankruptcy plan," Sicalides said.
"I think he doesn't want to be dismissive, and he's being very cautious," Sicalides said of the summary judgment ruling. "But it looks to me like he's pretty skeptical."
The airline case could be another success, but Sicalides said the deal at issue would be particularly difficult to unwind given the nature of the airline industry and the amount of time the companies have been combined. The Jeld-Wen case involved just a single factory, not slots or gates at different airports around the country.
"It's definitely a combination that, at this point, I think would be near impossible to undo," she said. "These airports are important to the localities. I think there's a strong public policy argument that any sort of structural remedy would be unwise in this situation."