Injunctive relief sought against "change of control"

[brokenwrench]

http://www.donlinrecano.net/dr201/mwc/04-1...004426-0000.pdf

Page 19 item 84.

If the IAM believed, as it asserts in the Grievance, that it had a right to wage increases as a result of the merger and the Plan, then it had an obligation to assert that right as part of the confirmation process, and make a timely claim to that effect before the Bar Date. Instead, the IAM affirmatively represented to US Airways, the other stakeholders, and this Court, that wages would remain at the reduced level following the merger and the Plan (if confirmed). The IAM’s failure to advise the Court and affirmative misrepresentation of its clandestine position that the wage reductions were only temporary until consummation of the merger constitutes a voluntary and intentional relinquishment of a known alleged right and therefore such is barred by the doctrine of waiver.

 

[700UW]

I have all ready posted this in the fleet thread before you made this topic.

He got that info from my post.

All ready being discussed here

 

[brokenwrench]

The reason for the new thread is to add some transparency to this new development. The news of the injunction is under a "fleet" negotiation thread and is buried around page 7. This affects M&R as well as fleet and as such seems to warrant a new thread. Would you not agree?

 

[700UW]

It can. But the last several pages of the fleet thread area all about it.

Just rhetoric and the grievance was not effective until the actual merger closed.

Pure BS on the company's part.

I heard from a little birdie that the Charlotte Observer and Pittsburgh Post Gazette have been notified about US Airways and its tactics.

This has Jerry Glass written ALL OVER IT!

 

[700UW]

I spoke with a GLR this morning, as soon as the IAM knows what direction they are going to take they will put something out.

 

[a320av8r]

"...The IAM’s failure to advise the Court ..."

So, I guess it is up to the unions to advise the Robber Barons about their respective contracts during a merger?
GO IAM!

America works best when you say "Union YES!".

 

[Tim Nelson]

I spoke with a GLR this morning, as soon as the IAM knows what direction they are going to take they will put something out.

Is there more than one direction to go on this?

regards,

here are two links that provide a pretty good explanation of the doctrine of waiver.

Doctrine of Waiver

More on Doctrine of Waiver
Based on a about a half hour of research this legal maneuver is NOT a 3rd and long "Hail Mary" exercise. It has IMO a good chance of working.

And the previous poster mentioned that this has "Jerry Glass written all over it" is correct in my opinion.

Whatever the case, it's awesome to see the IAM pursue this and 'force the company' to lay down its cards now. The IAM also has a good chance in winning this. The core seems to be in the definition of terms.

regards,

http://www.donlinrecano.net/dr201/mwc/04-1...004426-0000.pdf

Page 19 item 84.

If the IAM believed, as it asserts in the Grievance, that it had a right to wage increases as a result of the merger and the Plan, then it had an obligation to assert that right as part of the confirmation process, and make a timely claim to that effect before the Bar Date. Instead, the IAM affirmatively represented to US Airways, the other stakeholders, and this Court, that wages would remain at the reduced level following the merger and the Plan (if confirmed). The IAM’s failure to advise the Court and affirmative misrepresentation of its clandestine position that the wage reductions were only temporary until consummation of the merger constitutes a voluntary and intentional relinquishment of a known alleged right and therefore such is barred by the doctrine of waiver.

This isn't the movie, "Minority Report". Why is the IAM obligated to argue about a grievance that hasn't happened BUT all parties agreed to? If what you're saying is true then why didn't the company, who also signed off on the change of control grievance, argue at that time? Isn't the company obligated also if this is true? The only difference would be that the IAM's argument would have been that the members would be damaged, whereas the company's argument would be essentially what it is arguing 2 years after the fact,ie, that the stockholders would be damaged. Therefore if should naturally follow that if it was the responsibility of the IAM to argue something not violated but nonetheless in agreement, then the company had the same obligation. Looks like Jerry's kids didn't have all bases covered.

regards,

 

[Tim Nelson]

Tim,

Waiver of Doctrine as near as I can figure based on my limited knowledge is open to wide judicial interpretation based on the specifics of each case.

My thoughts are that IAM could introduce evidence regarding a pattern of contractural "abuse" by US Airways that IMO would blunt the argument that is apparently being offered.

What is unclear to me is whether Jerry Fumbled the ball or if this was planned from day one.

It will be interesting to see what happens and worthwhile for the employees regardless of outcome.

Also, the company's argument is twofold.
1. that the IAM should have introduced this future grievance while in bankruptcy.
2. that the judge should give the carrier relief if the former is argued successfully.

Number 2 seems more problematic IMO since the judge and US AIRWAYS agreed to keeping the 'change of control' article in the agreement as a way of coming out of bankruptcy. Why would the IAM have to clarify this 'future grievance' if it was already clear that the Judge and US AIRWAYS had knowledge, signed off, and agreed to 'include' the change of control article in the bankruptcy contract?

Hey, I'm not an attorney, but this makes for interesting discussion.
regards,

 

[barbeetantrums]

We must sqeeze the throat of the goose until she lays a golden egg. If the goose refuses to lay a golden egg, we must squeeze her throat until she dies. 😛h34r:

 

[insp89]

It will be interesting to see what happens and worthwhile for the employees regardless of outcome.

Also, the company's argument is twofold.
1. that the IAM should have introduced this future grievance while in bankruptcy.
2. that the judge should give the carrier relief if the former is argued successfully.

Number 2 seems more problematic IMO since the judge and US AIRWAYS agreed to keeping the 'change of control' article in the agreement as a way of coming out of bankruptcy. Why would the IAM have to clarify this 'future grievance' if it was already clear that the Judge and US AIRWAYS had knowledge, signed off, and agreed to 'include' the change of control article in the bankruptcy contract?

Hey, I'm not an attorney, but this makes for interesting discussion.
regards,

Tim.
You stated that the judge and company agreed to keep the 'change of control' article in the agreement.
I do not understand WHY the company would agree to do this.
Was the removal of the 'change of control' language just flat out missed by the company, or were they required to leave it in the agreement for some reason ?
One more question, How is it possible that the company is allowed to crawl back to the 'bankruptcy' judge with an injunction? This company is NOT in Bankruptcy !

 

[Tim Nelson]

Tim.
You stated that the judge and company agreed to keep the 'change of control' article in the agreement.
I do not understand WHY the company would agree to do this.
Was the removal of the 'change of control' language just flat out missed by the company, or were they required to leave it in the agreement for some reason ?
One more question, How is it possible that the company is allowed to crawl back to the 'bankruptcy' judge with an injunction? This company is NOT in Bankruptcy !

I'm not an attorney but a company is allowed back in bankruptcy court if there are matters dealing with that case. In this instance, the company's position has merit if the definition of 'claim' has merit. Secondly, if the judge rules that this should have been a claim, then it still doesn't necessarily follow that the judge will rule to throw out the 'claim'.

I'm not going to speak for the company b ut reading their court challenge I would assume they flat out missed it. My spin on it is that they allege they had no knowledge since the IAM didn't make this a 'claim'.

January or February of 2005, each party, The Judge, Company, and Union approved the contract after the ratification by the membership. Included was the change of control that each party was fully aware of....not just the IAM.

As a side, didn't your company admit in certain SEC filings that it was actually in 'full merger discussions' with America West prior to 2005 and the signing of the binding agreement????? That would also be an argument I would bring up if I were the IAM attorney.

regards,

 

[insp89]

I'm not an attorney but a company is allowed back in bankruptcy court if there are matters dealing with that case. In this instance, the company's position has merit if the definition of 'claim' has merit. Secondly, if the judge rules that this should have been a claim, then it still doesn't necessarily follow that the judge will rule to throw out the 'claim'.

I'm not going to speak for the company b ut reading their court challenge I would assume they flat out missed it. My spin on it is that they allege they had no knowledge since the IAM didn't make this a 'claim'.

January or February of 2005, each party, The Judge, Company, and Union approved the contract after the ratification by the membership. Included was the change of control that each party was fully aware of....not just the IAM.

As a side, didn't your company admit in certain SEC filings that it was actually in 'full merger discussions' with America West prior to 2005 and the signing of the binding agreement????? That would also be an argument I would bring up if I were the IAM attorney.

regards,

Tim,
Thanks for your Response,
Looks to me that the company is attempting to convince the judge that the IAM should of made them aware that they screwed up, and should of told them that they left the 'change of control' language in the agreement.
Hopefully, the Judge will look at this injunction for what it is, which is nothing more than a lame attempt to cover up their oversight.

 

[insp89]

This ought to be interesting,
Now we shall see if Judge Mitchell takes his job seriously, or if he is just a 'bought and paid for' puppet.
The judge is being asked by the company to reverse a decision that, he himself, the company, and the unions signed off on over 1.5 yrs. ago.
What a great country.

 

[barbeetantrums]

The judge is being asked by the company to reverse a decision that, he himself, the company, and the unions signed off on over 1.5 yrs. ago.
What a great country.

And your taxpayer dollars pay for the BK court to deal with this lunacy.

 

[delldude]

And your taxpayer dollars pay for the BK court to deal with this lunacy.

Ahh Dude....don't forget about your wage concessions paying the company Squire....