Court tosses Mesa’s final antitrust count against Hawaiian Air

Mesa had alleged that a suit by Hawaiian was an attempt to quash interisland competition

Mesa Air Group Inc.'s final chance to prevail in its antitrust countersuit against Hawaiian Airlines was thrown out of court yesterday.

Federal Bankruptcy Judge Robert Faris granted Hawaiian's motion for summary judgment to dismiss the last of three counts of Mesa's lawsuit against the incumbent carrier. The suit, filed in March, alleged that Hawaiian's own lawsuit against Mesa a month earlier was an attempt to monopolize the interisland market by trying to keep out Mesa's new interisland airline, go!

Hawaiian's February lawsuit, which is still pending, claims Mesa violated a nondisclosure agreement and used proprietary information it gathered as a potential investor during Hawaiian's bankruptcy.

Faris, who dismissed Mesa's two other claims against Hawaiian in May, yesterday discounted Mesa's argument that Hawaiian's suit was a sham and was filed without having any evidence that Mesa misused Hawaiian's proprietary information. The judge said Hawaiian had enough information at the time of its filing to get over the legal hurdle for filing such a suit, and that what Hawaiian learned through discovery after that "is icing on the cake."

Faris also agreed to move back the trial date of Hawaiian's suit against Mesa from April to Sept. 25, to accommodate the attorney for Mo Garfinkle, a former consultant to both Hawaiian and Mesa. Hawaiian alleges Garfinkle used information that he gathered as a Hawaiian consultant when he later went to work for Mesa.

Mark Dunkerley, president and chief executive of Hawaiian, said the ruling on the countersuit cleared the way to go to trial on Hawaiian's suit.

"Mesa's arguments were never more than an attempt to distract from our suit against them and from their predatory behavior," Dunkerley said. "Now that the court has thrown out the last of their counterclaims, we're anxious to move forward with our case against Mesa and the substantial damage they are causing."

Jonathan Ornstein, chairman and chief executive of Mesa, said despite the ruling that Hawaiian is attempting to stifle competition.

"We're in the market to compete, we're convinced that what we're doing is benefiting hundreds of thousands of people and we're going to continue to do it," he said. "I'm not sure from a legal standpoint what constitutes what, but I know for sure that these lawsuits are about stopping competition and that's just something we're not going to let happen."

In October, Faris denied Hawaiian's request for a preliminary injunction to prevent go!, which began flights in June, from selling new tickets for one year. But Faris also said the "evidence raises real doubts about the propriety of Mesa's conduct" and added that Hawaiian has established "probable success of its case" at next year's trial.

Ornstein said go! will remain in the Hawaii market.

"The people in Hawaii have suffered too long at the hands of Aloha (Airlines) and Hawaiian, and every opportunity they've had to quash competition, they've done so," he said. "Now they're up against a competitor that they just can't squash."