SOUTHLAKE, Texas – Jul 20, 2017 – Sabre Corporation (NASDAQ: SABR) has filed its opening appeal brief in the U.S. Second Circuit Court of Appeals seeking to reverse the December 2016 verdict and damages award in litigation brought by US Airways. Sabre cited numerous errors of law by the trial court. Those errors include jury instructions that were inconsistent with higher court rulings and the erroneous exclusion of key evidence, resulting in a jury verdict in favor of US Airways for $5 million in damages (pre-trebling) on one of its claims. Sabre’s appeal asserts that the verdict was based on incorrect legal standards and an inaccurate framework to assess the case.
A cornerstone of Sabre’s appeal is the District Court’s refusal to follow the Second Circuit’s precedent set in its decision in the U.S. v. American Express (Amex) case, which found that Amex operated in a two-sided market in which contract provisions were designed to protect competition by ensuring that one side of the market (merchants) did not discriminate against the defendant’s customers on the other side of the platform (cardholders). US Airways had previously cited the federal government’s case against Amex as precedent for its own claim that Sabre’s contract provisions were anticompetitive.
Sabre also cited other errors by the District Court, including:
- No reasonable jury could have concluded that the challenged provisions were anticompetitive because the provisions only prevented discrimination against Sabre and therefore could not exclude efficient competitors.
- The District Court improperly lowered US Airways’ burden of proof by instructing the jury that Sabre was liable if the challenged provisions had the potential to harm competition, rather than if it actually harmed competition.
- US Airways’ causation theory was chronologically impossible: there could be no causal link between the effects of the challenged conduct (the provisions in the 2011 agreement) and the alleged injuries (the price set forth in the same 2011 agreement) as those booking fees were set before the challenged provisions took effect.
- The District Court erred by excluding evidence about US Airways’ “sign-and-sue” strategy, which refuted US Airways’ argument that it was coerced into signing the 2011 agreement. The evidence, including handwritten notes titled, “Sabre—Sign & Sue,” would have shown that after telling Sabre it wanted certain provisions during negotiations, US Airways developed a sign-and-sue strategy to set up Sabre for the lawsuit, which US Airways filed just two months after signing the 2011 agreement. Despite finding Sabre’s arguments “fairly persuasive,” the District Court excluded the sign-and-sue evidence.
Sabre Corporation is the leading technology provider to the global travel industry. Sabre’s software, data, mobile and distribution solutions are used by hundreds of airlines and thousands of hotel properties to manage critical operations, including passenger and guest reservations, revenue management, flight, network and crew management. Sabre also operates a leading global travel marketplace, which processes more than US$120 billion of global travel spend annually by connecting travel buyers and suppliers. Headquartered in Southlake, Texas, USA, Sabre serves customers in more than 160 countries around the world.