Excerpt from Doc 136
C. The MOU vote did not reflect support for, or opposition to, this litigation.
USAPA’s argument that the MOU ratification vote shows that most West Pilots take a different position than the named Plaintiffs on the Nicolau Award is fundamentally flawed. That is because USAPA conducted that vote with an express instruction that pilots should vote without regard to their position on the Nicolau Award. For one example, in a January 23, 2013, message to its members, USAPA stated that “no East pilot should vote against the MOU because they fear that ratifying the MOU will implement the Nicolau Award, and no West pilot should vote for the MOU because they believe the MOU will implement the Nicolau Award.” (Doc. 14 at ¶ 88; Doc. 14-3 at App. 389-90.) For another example, on February 7, 2013, USAPA stated that “West pilots should not vote in favor of the MOU because they believe it will revive the Nicolau Award, and the East pilots should not vote against it because they are concerned it will cause the Nicolau Award to be implemented.” (Doc. 14 at ¶ 90; Doc. 14-3 at App. 391.) It truly defies belief that USAPA now argues that the results of that vote reflect the West Pilots’ position on pursuing this litigation.
D. USAPA accepted the adequacy of the named Plaintiffs as representatives of the West Pilots when it sought to negotiate a settlement.
At the May 14, 2013 hearing, USAPA voiced no objection to negotiating a class- wide settlement with the named Plaintiffs. (Jacob Decl. at ¶ 7 [RT at 78:20 to 78:23 (Mr. Szymanski: “What would be helpful to get this process going on [sic] is for them to understand that they are supposed to sit down and talk with us about this rather than just simply insist on this one Nicolau Award. . . .”)].) Representatives chosen by the named
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Plaintiffs met with representatives chosen by USAPA but failed to reach a settlement. (Docs. 101, 103, 105.) By participating in that process, by accepting the named Plaintiffs as adequate representatives for purposes of settlement discussions, USAPA essentially waived objecting to their adequacy for purposes of this litigation.
III. Conclusion
This Court has ample discretion to certify the class on the current record before it. It, therefore, should reject USAPA efforts to delay class certification for the evident purpose of delaying the pending trial on the merits. Plaintiffs respectfully ask the Court to certify the class and, in so doing, to order that USAPA cannot conduct discovery into the adequacy of class representatives prior to the September 24, 2013, trial date.
Dated this 5th day of August, 2013.
