American Airlines Inc v. Travelport Limited et al

Filing 36

Appendix in Support filed by Travelport Limited, Travelport, LP re #35 Brief/Memorandum in Support of Motion or Transfer American Airlines' Complaint (Friedman, Walker) .

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION

AMERICAN AIRLINES, INC.,
Plaintiff,
TRAVELPORT LIMITED, a foreign
corporation, and TRAVELPORT, LP, a
Delaware limited partnership, d/b/a
TRAVELPORT;
And
ORBITZ WORLDWIDE, LLC,
a Delaware limited liability company,
d/b/a ORBITZ,
Defendants.

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Civil Action No. 4:11-cv-00244-Y

APPENDIX OF EXHIBITS
TO TRAVELPORT’S MEMORANDUM OF LAW IN SUPPORT
OF ITS FRCP 12(b)3 AND 28 U.S.C. §1406(a) MOTION TO DISMISS
OR TRANSFER AMERICAN AIRLINES’ COMPLAINT

Travelport
Appendix
Exhibit
(TP APX __)
A

B

C

Description

Page(s)

American Airlines’ Original Petition for Declaratory
Judgment, Excerpt from American Airlines, Inc. v.
Travelport, Inc., Cause No. 067-249214-10 (67th Dist.
Ct., Tarrant Cty. Tx Nov. 5, 2010).

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Excerpts from Travelport and American Airlines’
Galileo International Global Airline Distribution
Agreement (“GIGADA”), executed on December 15,
1993.
Order for Nonsuit Without Prejudice, Excerpt from
American Airlines, Inc. v. Travelport, Inc., Cause No.
067-249214-10 (67th Dist. Ct., Tarrant Cty. Tx Jan. 14,
2011).

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Declaration of Kurt Ekert.
Excerpts from Travelport and Orbitz’s Subscriber
Services Agreement.

Dated: May 25, 2011

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Respectfully submitted,
/s/ Walker C. Friedman
Walker C. Friedman
Michael L. Weiner
[e-mail]
DECHERT LLP
1095 Avenue of the Americas
New York, New York 10036-6797
212.698.3608
212.698.3599(Fax)
Mike Cowie
[e-mail]
Craig Falls
[e-mail]
DECHERT LLP
1775 I Street, NW
Washington, D.C. 20006-2401
202.261.3300
202.261.3333 (Fax)
Walker C. Friedman
State Bar No. 07472500
[e-mail]
Christian D. Tucker
State Bar No. 00795690
[e-mail]
FRIEDMAN, SUDER & COOKE, P.C.
Tindall Square Warehouse No. 1
604 East 4th Street, Suite 200
Fort Worth, Texas 76102
817.334.0400
817.334.0401 (Fax)
John T. Schriver
[e-mail]
Paul E. Chronis
[e-mail]
DUANE MORRIS LLP

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Suite 3700
190 South LaSalle Street
Chicago, Illinois 60603-3433
312.499.6700
312.499.6701 (Fax)
ATTORNEYS FOR DEFENDANTS
TRAVELPORT LIMITED and
TRAVELPORT, LP

CERTIFICATE OF SERVICE
I hereby certify that on the 25th day of May, 2011, I electronically filed the
foregoing document with the clerk of the court for the U.S. District Court, Northern
District of Texas, Fort Worth Division, using the electronic case filing system of the court.
The electronic case filing system sent a “Notice of Electronic Filing” to the attorneys of
record who have consented in writing to accept this Notice as service of this document by
electronic means.

/s/ Walker C. Friedman
Walker C. Friedman

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CUSTOMER PROFILE

CONTRACT NO. _________________________

HOME OFFICE LOCATION PSEUDO
____________________________________________________________________________________________
TO BE COMPLETED BY SUBSCRIBER:
Subscriber’s Official Name Orbitz Worldwide, LLC____________________________________________________
D/B/A (Doing Business As) ____________________________________________________________________
Address (Main Office) 500 W. Madison, 10th Floor ___________________________________________________
City, State, Zip Code Chicago, IL 60661____________________________________________________________
Country USA _________________________________

Email Address __________________________________

Phone Number 312-894-5000 ____________________

Fax Number 312-894-4856 ________________________

Business Entity:

_____ Corporation

__x___ Limited Liability Company

_____ Partnership

_____ Sole Proprietorship _____ Other (describe): _______________________________
State of Incorporation or Partnership Formation Delaware ______________________________________________
Tax I.D. Number: ________________________26-0331198____________________________________________________

BILLING ADDRESS

FINANCIAL ASSISTANCE PAYMENTS ADDRESS

X Check here if same address as Main Office above
and indicate contact name below.

X Check here if same address as Main Office above
and indicate contact name below.

Street Address: ____________________________________

Street Address: ___________________________________

City/State/Zip: ____________________________________

City/State/Zip: ____________________________________

ATTN: __________________________________________

ATTN:__________________________________________

Please provide Galileo written notice, as specified in
the notices section of the Agreement, of any changes to this information.

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SUBSCRIBER SERVICES AGREEMENT

This Subscriber Services Agreement ("Agreement") is entered into between the individual or entity specified on the
Customer Profile and Galileo International, L.L.C. (“GILLC”), a Delaware limited liability company, and Galileo Nederland
B.V. (“GNBV”), a company incorporated in The Netherlands (collectively, "Galileo").
1.

DEFINITIONS
A.

“Authorized User” means (i) an employee, agent or contractor of Subscriber who needs access to a System to
provide travel-related services for the primary benefit of Subscriber and not for their own benefit or for the benefit
of others or (ii) a Client User.

B.

Intentionally Omitted.

C.

“CCP” has the meaning as set forth in the Custom Terms and Conditions Attachment (Galileo Services) – North
America attached hereto.

D.

“Client User” means a customer of Subscriber that uses an Orbitz corporate online booking tool and whose use of
the Services is permitted and governed by this Agreement.

E.

“Content” means for a particular Vendor, all services and inventory of the Vendor offered through a Travelport
GDS, including, without limitation, fares, rates and classes of service.

F.

“Contract Effective Date” means the date that this Agreement has been fully executed by the Parties.

G.

“Contract Year” means each consecutive twelve month period, commencing from January 1, 2007.

H.

“Control” means, in relation to a body corporate, the power of a person to secure that the affairs of the body
corporate are conducted in accordance with the wishes of that person by means of the holding of shares, or the
possession of voting power, in or in relation to that or any other body corporate, or by virtue of any powers
conferred by the constitutional or corporate documents, or any other document, regulating that body corporate.

I.

“CRS” means computerized reservation system, and may also be referred to as a “GDS” in this Agreement.

J.

“CRS Regulations” includes Council Regulation (EEC) No 2299/89 of 24 July 1989 on a code of conduct for
computerized reservation systems, as amended and in force on the date hereof and as subsequently amended from
time to time during the Term of this Agreement, and any other regulations regarding the general operation of
CRSs enacted by any other governmental authority during the Term of this Agreement.

K.

“Data Protection Laws” means all applicable laws, regulations, regulatory requirements and codes of practice in
connection with the use, processing and disclosure of personal data or personally identifiable information.

L.

“Direct Connect” or “Direct Connection” means functionality that provides a connectivity pathway between the
technology platform for any Orbitz Worldwide Agency website and a Vendor’s host system for purposes of
making travel reservations directly in the Vendor’s host system.

M.

“Documentation” means all manuals, operating procedures, instructions, guidelines, policies and other written
materials, including electronic formats, provided by Galileo during the Term of this Agreement.

N.

“End-to-End Business” means TFB’s corporate travel solution that provides “end to end” (booking through
fulfillment) services.

O.

“Europe” means any country within the European Union (“EU”) together with any non-EU member state country
that the Parties may agree to include under the terms of this Agreement.

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11 by Subscriber, an Orbitz Worldwide Agency or Authorized User or by GILLC, GNBV or an NDC, as the case
may be.
12. GOVERNING LAW; JURISDICTION; ATTORNEYS’ FEES
This Agreement and any disputes arising under or in connection with this Agreement shall be governed by the internal
laws of the State of Illinois, without regard to its conflicts of laws principles. Subject to Section 13, all actions brought
by either Party to enforce, arising out of or relating to this Agreement shall be brought and tried exclusively in federal or
state courts located in Cook County, Illinois. The parties hereby consent to submit to the personal jurisdiction of and
venue in such courts. In the event of any proceeding, claim or action being filed or instituted between the Parties with
respect to this Agreement, the prevailing Party will be entitled to receive from the other Party all costs, damages and
expenses, including reasonable attorney’s fees, incurred by the prevailing Party in connection with that action or proceeding
upon the controversy being reduced to final judgment or award.
13. DISPUTE RESOLUTION
A. This Section 13 applies solely to the Parties’ obligations pursuant to Sections 2.F(ii), 4.G, 5.A.(ii), 5.C.(iii) and
Section 19 hereof.
B. In the event the Parties are unable to agree upon (i) terms and conditions regarding ePricing pursuant to Section
2.F(ii), (ii) a Segment Incentive payment and other related terms with respect to a new air Vendor that participates at
less than full service level or an air Vendor changing its System participation level to less than a full service level
pursuant to Section 5.A(ii) hereof, (iii) an economic apportionment with respect to a particular Vendor pursuant to
Section 5.C.(iii) hereof, (iv) determination of a Transaction Allowance and Transaction Fee for each region as
applicable under Section 4.G and (v) a Galileo Services Service Level Agreement or Worldspan Services Service
Level Agreement under Section 19, the CEOs of the Parties shall use good faith efforts to negotiate a resolution to
the applicable issue. If the CEOs of the Parties have been unable to agree on a resolution to an issue within 15 days
of identification and written notice to the other Party of an issue, such dispute (“Dispute”) shall be settled by
arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The
Parties agree that such arbitration shall take place in Chicago, Illinois. The arbitration shall be conducted by three
(3) arbitrators. Within five (5) days after the receipt by the other Party of a written notice of one Party’s desire to
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settle a Dispute by arbitration, each Party shall appoint an arbitrator, and within five (5) days of their appointment
the two (2) arbitrators so chosen shall nominate a third independent arbitrator. Such third arbitrator shall either be
an independent arbitrator, an attorney with at least ten years experience in the travel industry, or any other
professional with ten years experience in the travel industry. If within such five (5) day period the two (2)
arbitrators fail to nominate the third arbitrator, upon written request of either Party, the third arbitrator shall be
appointed by the American Arbitration Association and both Parties shall be bound by the appointment so made. If
either Party shall fail to appoint an arbitrator as required under this Section 13.B, the arbitrator appointed by the
other Party shall be the sole arbitrator of the Dispute. The decision of the arbitrators (or such single arbitrator) shall
be made within thirty (30) days of the close of the arbitration hearing, unless otherwise agreed by the Parties. The
decision of a majority of the panel (or such single arbitrator) shall be final, conclusive and binding upon the Parties
hereto, and may be enforced in any court having jurisdiction.
C. The arbitration proceedings shall proceed as soon as practicable following the selection of the arbitrators, and, if
practicable, commence within fifteen (15) following the written notice of one Party’s desire to settle a Dispute by
arbitration. Neither Party will take any action or fail to take any action to delay such proceedings. The arbitration
proceedings shall be conducted in the English language and any monetary award shall be in U.S. dollars. The
arbitrators (or such single arbitrator) shall not have the authority to award punitive, special, exemplary, incidental,
indirect or consequential damages, regardless of whether a claim is based on contract, tort (including negligence),
breach of fiduciary duty, strict liability, violation of any applicable deceptive trade practices act or similar law or
any other legal or equitable principle, and except as otherwise provided in the Agreement, each Party’s maximum
liability shall be limited to the lesser of any direct damages or $20 million, subject to the exceptions provided in
Section 8 (Limitation of Liability).
D. Use of the above dispute resolution procedures shall not constitute a waiver of any right of either Party.
E. All negotiations connected with any Dispute shall be concluded in confidence and without prejudice to the rights of
the Parties in any future proceedings.
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