Judge Schofield Allows U.S. Airways to Restore Damages Claim in Antitrust Case Despite Previous Waiver

Last week, Judge Schofield granted U.S. Airways' motion to reinstate their claim for $70 million in damages ($210 million when trebled under antitrust laws) as part of a third amended complaint in an antitrust action over online booking fees.  Sabre, a global distribution system operator used by travel agents to book flights on multiple airlines, argued that U.S. Airways had already waived the claims in its second amended complaint in an attempt to secure a bench trial and that reinstatement was improper and would prejudice Sabre.  Judge Schofield rejected these arguments, noting that U.S. Airways' revocation of its waiver did not change the claims at issue (only the damages) and thus amendment was still proper under Rules 15 and 16. Judge Schofield noted:

Sabre [] argues that it has been prejudiced by being forced to reveal to US Airways its trial strategy in the course of preparing for an imminent bench trial.  However, both sides were forced to reveal their respective positions and strategy, at least for a bench trial.  Those strategies may change for presentation to a jury.  The pre-trial process in any event is designed to provide "the fullest possible knowledge of the issues and facts before trial" so that "civil trial in the federal courts no longer need to be carried on in the dark."  To the extent Sabre revealed still relevant trial strategies, that revelation was not unduly prejudicial.

U.S. Airways was granted leave to amend provided that it paid Sabre's attorney fees for motion practice stemming from the previous complaint.  In the underlying action, U.S. Airways alleged that Sabre had engaged in unlawful tactics to eliminate competition and raise fees paid by U.S. Airways to list its flights on Sabre's system.  U.S. Airways had waived the damages claim earlier this year in an effort to secure a bench trial before Judge Schofield on the remaining claims, but the bench trial did not materialize after Judge Schofield granted Sabre's motion to dismiss the U.S. Airways' claim for declaratory judgment in September.