DOJ v. JBLU/SAVE Premium Update

A look at post-trial briefing arguments

There’s a niche-famous legal writing scholar named Bryan Garner who once told me, during a writing workshop at my first law firm job, “if you’re at a bar and a girl asks you what you do for work, just tell her you’re a writer.” Most people wouldn’t consider 70-page legal briefs Pulitzer-worthy prose, but sometimes a legal brief hits you just right and makes you reconsider.

What does this have to do with JetBlue / Spirit? Well, I encourage everyone to read JetBlue's post-trial brief, if only to see the type of writing a cartoon lawyer admires. But you’re probably not here to read about my adulation, nor does the mastery of writing guarantee a legal victory. You’re here for the meat and potatoes of it all.

Rather than go point-by-point through arguments on both sides (might as well just read the briefs for that), I want to highlight notable points that I found most compelling, along with how my opinion on ultimate outcome has shifted during the last few months.

You may recall that, following my attendance at the closing arguments, I was less bullish on SAVE 0.00%↑ as I had been.

This was largely due to the fact that I had heard, through multiple channels, that the DOJ experts were simply not credible. I expected JetBlue’s attorneys to highlight this deficiency in their arguments. Not only did JetBlue’s attorneys barely touch on expert credibility, Judge Young thanked both sides for putting on a fantastic case—something you wouldn’t expect to hear if a judge felt his time had been wasted with wholly untrustworthy testimony. And so I was slightly rattled, though I did not sell any equity following the closing arguments. The decision to exit the January calls I’ll discuss later.

Looking now at the post-trial briefs, it seems JetBlue decided to withhold punches in closings. This may have been to avoid tipping off the DOJ into bolstering its experts’ credibility too carefully, or perhaps for some other reason. Regardless of the rationale, the gloves came off in JetBlue’s post-trial briefing.

So what did the briefs look like, and was it enough for JetBlue to save the merger? Let’s dive in.