US Airways, Inc., for American Airlines, Inc. as Successor and Real Party in Interest v. Sabre Holdings Corporation

Opinion

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP ONE MANHATTAN WEST NEW YORK 10001-8602 FIRM/AFFIL ---I -A ---T --E -- OFFICES ________ BOSTON TEL: (212) 735-3000 HC OH UIC SA TG OO N FAX: (212) 735-2000 LOS ANGELES PALO ALTO www.skadden.com WASHINGTON, D.C. DIRECT DIAL WILMINGTON 2 91 12 7D- -I7 7RE3 7C5 7T F- -3 3AX8 8 3 34 4 FB RB R AUE-- N- SI- J- K- S- I- F- N- E- U G L RS T boriE sM .A bI eL rA sD hDR tE eS yS n @SKADDEN.COM HO LN OG N DK OO NN G MOSCOW MUNICH PARIS September 13, 2021 SÃO PAULO SEOUL SHANGHAI SINGAPORE TOKYO TORONTO VIA ECF Hon. Lorna G. Schofield United States District Court Judge Thurgood Marshall U.S. Courthouse 40 Foley Square New York, NY 10007 RE: US Airways, Inc. v. Sabre Holdings Corp., et al., No. 1:11-cv-02725, Uncontested Requests Regarding Summary Judgment Exhibit Limits, Sealing, & Daubert Motion Page Limits Dear Judge Schofield: We represent Defendants (collectively, “Sabre”) in the above-captioned matter, and submit this letter with Plaintiff’s (“US Air”) consent. As the Court may recall, motions for summary judgment are due to be filed by September 17, 2021, and Daubert motions are due to be filed by February 18, 2022. As further explained below, Sabre intends to file a Daubert motion to exclude testimony of US Air’s expert on damages concurrently with its forthcoming summary judgment motion because resolution of the Daubert motion could be dispositive with respect to US Air’s proof of damages. Concerning Sabre’s forthcoming summary judgment and Daubert motions, and as set forth in more detail below, the parties respectfully request that the Court permit them to: (i) exceed the limit of 15 exhibits in support of, and in opposition to, the summary judgment motion; (ii) provisionally file the briefing on the summary judgment and Daubert motions, along with all supporting documents, under seal September 13, 2021 Page 2 until 30 days after the completion of all briefing on those motions; and (iii) submit briefing related to the Daubert motion on the same schedule as the summary judgment briefing, and to exceed this Court’s page limits for memoranda of law related to motions in limine. Enlargement Regarding Summary Judgment Exhibits Sabre notes that it does not seek an enlargement of the 25-page limit for its memorandum of law in support of its forthcoming summary judgment motion. However, the parties request that each party be permitted to submit up to 30 exhibits in connection with the summary judgment briefing. The parties request this enlargement out of an abundance of caution, and will make every effort to exceed the ordinary exhibit limit by as few exhibits as possible. Notably, the Court granted a similar uncontested request to enlarge the limit on summary judgment exhibits in connection with earlier summary judgment motion practice in this case. (ECF Nos. 192-193.) Provisional Filing Under Seal The parties request that they be permitted to provisionally file the briefing on forthcoming summary judgment and Daubert motions, along with supporting documents (including 56.1 statements and exhibits), under seal until 30 days after the completion of all briefing on those motions. The parties make this request in an abundance of caution because the papers related to these motions will include third- party confidential material and material that the other party has marked as confidential—all of which would, per the operative protective order, require that these materials be filed under seal. (See ECF No. 123.) Allowing these papers to be filed provisionally under seal will provide the parties time to meet and confer (with each other and third parties) regarding the material designated as confidential, and to propose minimally-redacted public filings. The parties note that the information contained in the documents they seek to file provisionally under seal is the same—or similar to—information that the Court previously permitted to be redacted. (See, e.g., ECF Nos. 245 (redacted summary judgment opinion); 250 (order granting redactions); 267 (redacted 56.1 statement).) Enlargement Regarding Motion to Exclude Testimony of Dr. Abrantes-Metz Finally, Sabre intends to file a motion to exclude certain testimony of US Air’s damages expert, Dr. Rosa Abrantes-Metz, concurrently with its motion for summary judgment. The parties request that they be permitted to file memoranda in support of and in opposition to the Daubert motion of no more than 15 pages each; Hon. Lorna G. Schofield September 13, 2021 Page 3

and that Sabre be permitted to file a reply brief of no more than 7 pages. The parties request that briefing for this Daubert motion follow the same schedule as briefing related to Sabre’s motion for summary judgment. The parties request these enlargements because the issues to be decided are both technical in nature (Dr. Abrantes-Metz submitted two reports totaling over 150 pages without appendices) and implicate the Supreme Court’s decision regarding two-sided transaction platforms in Ohio v. American Express, 138 S. Ct. 2274 (2018). While Sabre expects to file additional motions in limine (including, potentially, additional Daubert motions) no later than February 18, 2022 (see ECF No. 992), Sabre plans to file its motion to exclude certain testimony of Dr. Abrantes- Metz concurrently with its summary judgment motion because it believes that the motion, if granted, could be dispositive of this case. Earlier resolution of this Daubert motion would thus promote judicial economy and the efficient administration of this case. We thank the Court for its consideration of these requests. Respectfully submitted, /s/ Boris Bershteyn Boris Bershteyn cc: Counsel for US Airways, Inc., via ECF Application GRANTED. The parties shall submit no more than thirty exhibits each in support of, and in opposition to, the summary judgment motion, and each party shall submit no more than 225 pages of exhibits. The parties shall provisionally file the briefing on the summary judgment and Daubert motions, along with all supporting materials, under seal until thirty days after the briefing on all those motions, at which time the parties shall file their motions to seal and proposed redactions, if any. The parties shall file the Daubert motion on the same schedule as the summary judgment motion. The memoranda in support of and in opposition to the Daubert motion shall not exceed fifteen pages, and the reply memorandum shall not exceed seven pages. Dated: September 14, 2021 New York, New York .

LORNA G. SCHOFIEL UNITED STATES DISTRICT JUDGE