The opinion
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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