Black Swan said:
Snap, that was pretty bad altering that verdict. Page 47-48 shows where you altered that ruling.
Black Swan...,.your initials are B.S. for a reason.
"Starting with the RICO case, USAPA lost miserably in the Federal District Court as the suit was not only dismissed, but dismissed with prejudice. Dismissed with prejudice is lay-speak for get out and dont come back with this claim - ever."
Leonidas Update February 15, 2009
The War Against The West
This is the Leonidas Update for February 15, 2009 . We can chalk this week up to further withering of the USAPA foundation as they apparently are now trying to extricate themselves from their self- induced RICO quagmire. We touched upon the RICO suit in an update from a few weeks ago. What we are going to be talking about this week is another example of the USAPA BPRs complete disconnect from reality. Apparently, USAPA has approached some or all of the defendants with an offer to end the RICO matter for both sides. Statistics on civil litigations throughout the United States in both federal and state courts are pretty consistent; more than 95% of all civil cases settle before trial. Therefore, the fact that USAPA is offering to end the matter is not unusual. However, what is unusual is the substance of their apparent offer: they want the defendants to admit guilt and pay restitution to USAPA. Perhaps, this would be a fair offer had their suit actually generated traction in the federal trial court. US Airways pilots should know the recent (and consistent) track record of USAPAs legal counsel.
Starting with the RICO case, USAPA lost miserably in the Federal District Court as the suit was not only dismissed, but dismissed with prejudice. Dismissed with prejudice is lay-speak for get out and dont come back with this claim - ever. Two things are quite remarkable about this. One, motions to dismiss are notoriously difficult to win as the Federal Rules of Civil Procedure require that judges analyze these motions in a light most favorable to the plaintiffs. The idea is to give plaintiffs the benefit of the doubt by taking all of the allegations in the complaint as being true, and then seeing if a legal claim is actually possible. Since the vast majority of plaintiffs at least insure there is a minimum connection between the alleged facts and a colorable legal claim, and since the judge is required by law to temporarily assume the allegations in the complaint are true, very, very few motions to dismiss are ever granted. Maybe somewhere in the neighborhood of a fraction of one percent of all motions to dismiss are ever granted. Here, the defendants did prevail on their motions to dismiss - but that is not all. The second significant point of this dismissal is that it was with prejudice. Of the infinitesimally small number of motions to dismiss which actually are granted in the United States , nearly all of those motions are dismissed without prejudice. This means that the plaintiff can usually amend their complaint with allegations and legal claims that could subsequently survive a motion to dismiss, and then refile. USAPA nonetheless was shut off from doing this as Judge Redinger dismissed their claim with prejudice. It is safe to say that having a claim or claims dismissed with prejudice is a very rare event as the standard called for by federal law basically insures rare event as the standard called for by federal law basically insures that any claim will survive so long as the complaint alleges facts consistent with a legal claim for relief. Our infamous labor union managed to put a lot of time and money into their nuclear weapon RICO claim only to see it fail. Obviously this was no bang for a lot of buck.
To properly put things into perspective, a plaintiff who loses on a defendant's a motion to dismiss and also has the claim dismissed with prejudice is very similar to the situation where a pilot lands gear up; there is virtually never a valid excuse for either of those two occurrences. Like a gear up landing, a plaintiff who winds up losing a motion to dismiss and loses with prejudice should normally invoke a bit of professional introspection. But, not with USAPA. Undeterred (and true to form), the BPR decided to take the humiliating defeat as something other than what it truly was and then file an appeal to the Fourth District Court of Appeals. We can only suppose that the inner circle tagged Judge Redinger as being another Arbitrator Nicolau - he just has to be wrong.
No matter how you view this situation, an appeal was asinine. For one, the numbers dont add up. If you take USAPAs allegations and claims for relief as being true for the moment (which is quite a stretch given their consistent problems with veracity and credibility), and if we estimate the legal costs for the multiple 50- page plus filings, the court appearances, the association of pro-hac vice counsel, then the numbers are totally out of whack. It would be very interesting to see the actual numbers, but none of us should hold our breath for any sort of transparency from the BPR. It has to be evident to every US Airways pilot by now that the transparency promise was clearly just a campaign slogan, and not to be taken at face value. We believe every union member has a right to see where their money is going, especially when the labor union itself campaigned to replace a national union on the very basis of transparency.
Although we cant get the numbers from USAPA, what we can do is use some rough estimation of the bills USAPA has incurred and then weigh that against the alleged harms that USAPA claims. With just a little bit math we can see that the final tally is quite lopsided as they have spent several hundreds of thousands of dollars to pursue a couple of hundred dollars worth of alleged harms. Whats more, USAPA now appears to want to throw in the towel and extricate itself from their self-made quagmire in the form of a settlement. But, heres the catch: USAPA appears to be stuck on having the defendants admit some sort of guilt and pay a couple of hundred dollars in restitution. If this is true (and we have no firsthand knowledge of exactly what is being proposed), but we would rhetorically ask a very, very basic question to the BPR and their counsel: Why on Earth would any of the defendants agree to such an offer after USAPA was completely shut down in the District Court? And even more disconcerting, What sort of mindset drives these calculations, as they are completely divorced from the reality the rest of us live in?
No, we predict that the defendants will be quite content to let the matter be ruled on by the Fourth Circuit as the defendants have already incurred a sizable expense in legal fees to get to this point. Fortunately, many West pilots have heeded the call by supporting the Cactus 18 with monetary support to help them fend off a malicious attack from the union which is supposed to be protecting them, not destroying them. After what has happened, why on Earth would the defendants stop now and then foreclose a future legal remedy for the malicious prosecution, defamation and slander? (If the defendants have committed criminal acts thereby making them criminals as USAPA has publicly stated, then where are the prosecutors and why havent criminal charges been filed? Note to the BPR: you are not above the law. Note to Lee Seham: The New York Lawyers Code of Professional Responsibility is not just a collection of words. All of you should have been a lot more careful with your bombast.) West Representative Brice Lecarre proposed a far more sensible course to the BPR, but predictably that proposal was summarily rejected. We suppose that in the rubric of BPR thinking, something that appears sensible to the real world is viewed by the BPR as being preposterous.
Perhaps it is this same BPR decision making which is behind what is clearly an attempt to delay our litigation. The West Plaintiffs have already been deposed, but USAPA apparently decided they wanted to depose additional West pilots. Two additional West pilots were scheduled to be deposed at the Federal Courthouse in San Diego on February 11th. USAPA actually served a subpoena on one of those pilots. Both of those pilots were ready and able to sit down and be deposed, yet USAPA cancelled the deposition at the last moment. Why? They are the ones who subpoenaed. How could they not be ready or why would they have to suddenly cancel and reschedule? We invite the readers to make their own inference, as it is yet another brick in the USAPA wall. And we will also add that stalling is a very difficult tactic in federal court as there are fewer procedural tricks that can be utilized than in most state courts. The bottom line is that we are moving this process along and there is little USAPA can do to prevent the West from getting their day in court.
This brings us to the point we would like to drive home to all pilots this evening East and West. What is clear is that the current USAPA leadership is taking the entire pilot group over a cliff. As we near the one year point of USAPA (with more than one additional year to go for a decertification vote), the time is more than ripe for every East pilot to take stock of what has occurred and ask themselves whether a vote for those empty promises has been worth it. We would ask all East pilots to contemplate how much money each of you has left on the table for the company to keep. Sure Diorio is promising retroactivity, but anybody with a thread of common sense can fairly judge the efficacy of that promise. We in the West carry more than our fair share of East pilots across three time zones to work and we are more than happy to do that. But what is evident when we see these pilots is what appears to be the physical manifestations of those years of commuting has taken on physical manifestations of those years of commuting has taken on them. We also know that many of those same commuters voted for USAPA with the hope that a binding arbitration could be simply ignored and that USAPA would quickly obtain a joint contract with the company and then cram it down the Wests throats. Since we carry so many and we recognize the faces over time, we feel qualified to comment on the obvious and remarkable shift in these pilots. The signs of dejection and fatigue are understandable. They were promised so much at a time when years of commuting under the worst work rules for the worst pay had taken its toll. We in the West have had to endure our own hellish existence as we were and continue to be the targets of a malicious War Against The West, courtesy of the former East MEC and then USAPA. We have been forced to retain several expensive (but exceptional!) lawyers as a result. The worst part for all of us, East and West, is that there is no light at the end of the tunnel. Mind you, we say this with the confidence that our litigation will be successful. Even with that success, the cold facts are that both pilot groups are stuck with each other. As long as the East continues their War Against The West, then it should be quite obvious that nothing will improve for any pilot. To the East, you can look forward to LOA 93 ad infinitum. To the West, you can look forward to a never ending erosion of our superior CBA by those running the War Against The West, in addition to the necessity to keep funding expensive legal battles. At the same time, Northwest-Delta finished their seniority integration and received a pay raise. Of course, many of you also know that Southwest is getting yet another pay raise. We havent seen the numbers, but it is safe to say that Southwest copilots are now making more than East narrow body captains. All of this rancor, division, and emotional decisions made by the East pilots and USAPA were . . . for what? To keep perhaps 150 West pilots from moving East under Nicolau?
Please remember that we have furloughed pilots and downgraded captains in the West as a direct result of the Easts war against us. Our campaign to stop this aggression requires your continued financial support. If you have not donated already, then what are you waiting for?
