Aircraft Acquisition and Finance Transactions
We represent clients in a wide variety of aircraft acquisition and finance transactions, including:
- Aircraft leasing/finance. We have advised lessors and lessees on a variety of aircraft leasing arrangements, including both operating and finance leases.
- Aircraft acquisitions/sales. We have represented purchasers and sellers in transactions ranging in size from small-aircraft to billion-dollar, multiple-commercial-aircraft deals. The firm has experience in both the transactions themselves and the regulatory issues related to such transactions.
- Corporate aircraft. We routinely advise clients on the acquisition of corporate aircraft, covering both transactional and regulatory issues.
Aviation Litigation and Dispute Resolution
We represent airlines, airline alliances and airport operators in litigation and other types of dispute resolution. Some examples are:
- Appeal of passenger rights legislation. We successfully represented a US airline trade group in appealing a New York statute requiring airlines experiencing extended pre-departure ground delays to provide passengers with specified amenities. The appellate court agreed with our argument that federal law preempts state laws relating to the service of any air carrier.
- Appeal of Federal Aviation Administration (FAA) rule to establish slot auctions. We represented a US airline trade group in an appeal challenging a rule finalized by the FAA to conduct an auction of slot leases at New York–area airports.
- Skycap class action suit. We represented a US airline in a class action brought by a group of skycaps alleging that the fee revenue generated by the airline’s passenger fee for curbside baggage check-in services is payable to them under common-law principles and a Massachusetts state law governing tips for personal services.
- Los Angeles International Airport rates and charges dispute. We represented a US airline in a US Department of Transportation (DOT) adjudicatory proceeding in which a number of major airlines successfully challenged the rates and charges imposed by the city of Los Angeles for the use of Los Angeles International Airport. DOT’s final order in the proceeding is now under review in the US Court of Appeals for the District of Columbia Circuit.
- Air cargo rate investigation. We represented two major international airlines in connection with industry-wide investigations by antitrust/competition authorities in the US, Europe and elsewhere relating to the imposition of fuel and other surcharges on air cargo rates. We also represented the same airlines and their affiliates in related class action litigation with respect to passenger fares and cargo rates in the United States.
- Antitrust class action suit. We achieved an innovative and cost-effective settlement—opposed by the US Department of Justice—in a certified antitrust class action brought by a nationwide class of travel agents against the major airlines in which plaintiffs sought over $50 billion in damages.
- Overflight fee litigation. We represented a major foreign carrier in a series of court actions successfully challenging FAA regulations imposing fees on flights that "overfly" US controlled airspace without taking off or landing in the United States.
- September 11 compensation litigation. We represented a US cargo carrier in litigation challenging the methodology used by the DOT to determine the amount of compensation a carrier may receive for losses incurred as a result of the September 11 terrorist attacks.
- Predatory pricing litigation. We represented a leading international airline in litigation before a Court of Appeals concerning predatory pricing allegations, including the negotiation of a settlement with the competent authority.
- Landing fee litigation. We represented a number of airlines in several landmark litigations before a Court of Appeals and a regional court concerning landing fees at an international airport in Germany.
- Dispute on use of airspace. We represented an international hub airport before the European Commission and the German courts, including the German Supreme Court for administrative matters, in a dispute on the use of the airspace of a European country for approaches to and departures from a neighboring country's largest airport, including advice on negotiations on a bilateral treaty and on strategic options.
Distribution and E-commerce
WilmerHale has substantive experience in legal issues related to the distribution of aviation services and products. We have particular experience with electronic distribution and electronic commerce issues, having helped clients found online distribution networks and business-to-business exchanges. Some projects include:
- Merger of global distribution systems. We have provided US and European antitrust and regulatory advice regarding the proposed merger of two of the four leading global distribution systems.
- Creation of CRS systems. On behalf of several major airlines, we developed the legal framework for Europe’s largest computer reservations system (CRS). Apart from a variety of corporate, tax and regulatory matters, the work included negotiation of agreements with hardware and software suppliers and CRS participants and advice on regulatory and strategic matters in Europe and the United States.
- Regulation of CRS practices. We have represented some of the world’s largest airlines in administrative proceedings convened to determine how CRS and internet travel distribution practices should be regulated in the United States and Europe.
- Internet distribution. We have provided advice on the creation of a website sponsored by a number of the world’s leading airlines for passenger ticket sales to the public, as well as technology contracts for a discount ticket sales website.
- Creation of a B2B platform. We advised one of the world’s leading cargo carriers in the creation of a B2B platform for international air cargo shipments and in the subsequent merger clearance process before the European Commission.
- Online electronic marketplace. We represented a European commercial holding company and a cargo carrier on their investment in and strategic partnership with an online electronic marketplace for trading cargo capacity.
- Common IT systems platform. We advised members of a leading airline alliance concerning their joint investment in the development of a common IT systems platform.
We counsel international and domestic airlines, airports, and other aviation businesses on a wide range of economic, safety and other aviation-specific regulations, and on compliance with competition laws in the United States and the European Union. We represent parties before regulators in the United States and Europe in rulemaking, licensing, certification and enforcement proceedings. The team has broad experience in:
- Licensing and certification proceedings. We handle licensing and certification matters before the US Department of Transportation (DOT) and Federal Aviation Administration (FAA) for established and new entrant airlines. We have advised US and foreign air carriers regarding the “open skies” air service agreement between the United States and the European Union and assisted clients in applying to the DOT for additional and streamlined operating authority available under that agreement.
- International route proceedings. We routinely represent airlines as well as other interested parties in international route allocation proceedings. We have successfully represented major US carriers in obtaining highly sought after authority to serve important international destinations, including China and Mexico, in contested proceedings before the DOT.
- Enforcement proceedings. We represent airlines, shippers and indirect air carriers in enforcement proceedings before the DOT and FAA. We have successfully defended a broad range of aviation enterprises in proceedings involving allegations of unfair competition, the use of unfair and deceptive advertising practices, and violations of agency rules and regulations, including hazardous materials regulations and safety and security regulations.
- Rulemakings. We routinely represent interested parties in administrative rulemaking proceedings.
- US International Air Transportation Fair Competitive Practice Act (IATFCPA). We have represented complainants in proceedings under the IATFCPA charging foreign airlines with unfair competitive practice, and we have defended non-US airlines in such proceedings.
- Antitrust immunity for airline cooperation. We have secured approval of numerous applications for antitrust immunity before the DOT, including significant dealings with the US Department of Justice, and the European Commission to facilitate airline alliances.
- Slot proceedings. We have represented a major US carrier in successfully obtaining highly sought-after exemption slots at Washington DC’s Ronald Reagan Washington National Airport in a contested proceeding before the DOT.
- Aviation safety and security matters. We have counseled airlines, airports and indirect cargo carriers on a wide range of aviation safety and security matters.
- Airport regulations. We have counseled clients with respect to airport privatizations, user fees and charges, airspace reclassifications, and revenue diversion matters. We have also advised airport users on matters including environmental liability issues and often-complex legal and regulatory issues relating to federal grant–funding programs for US airport operators.
- Foreign investment in US carriers. We have advised foreign investors, US airlines, investment banks, venture capital and private equity funds on US regulatory requirements associated with investments in US airlines, including regulations limiting foreign ownership and control over US carriers.
- Air traffic control (ATC). We have advised a number of European governmental and multilateral institutions in their efforts to reform ATC systems. For example, we advised the European Bank for Reconstruction and Development on the modernization and reorganization of the Russian air traffic management system. We also completed a comprehensive study for the European Commission on European air space management and design. The recommendations of the study laid the ground for and are reflected in the new EU regulatory framework for the creation of a single European sky.
- Regulation of aircraft repair services. We represented a foreign carrier’s repair station with respect to changes in FAA regulations governing repair of US-registered aircraft and the effect of such changes on the US legal status of particular repair work.
Joint Ventures and Other Transactions
Our team has a broad understanding of and experience in the creation of domestic and international strategic alliances involving aviation concerns. We represent clients in a wide range of transactions, including mergers and acquisitions, joint ventures, hostile and friendly takeovers, securities offerings, and asset purchases/sales. Some examples are:
- Airline alliances. The firm has been intimately involved in the creation of airline alliances that have fundamentally altered the industry’s competitive landscape. We have advised clients in the negotiation, drafting and implementation of global passenger and cargo alliance agreements; secured regulatory and antitrust clearances in both the United States and Europe for such alliances; and advised airline clients on their ability to undertake cooperative ventures consistent with the competition laws of the United States and the European Union and its member states.
- Joint ventures. The firm has assisted clients in establishing and obtaining approval for a wide variety of domestic and international joint ventures. We have negotiated and drafted joint venture agreements to provide maintenance, repair and overhaul services, cargo services, and computer reservations services worldwide. We have advised an airport client on developing a joint venture with an airline to provide contract fueling services. We have also provided regulatory, corporate and tax counseling to an air cargo joint venture among three major international air carriers.
- Airline transactions. We advise investment banks, airlines and other clients on the proper structuring of cross-border airline transactions, including providing advice on regulatory restrictions on foreign ownership of airlines and on the aviation regulatory issues arising from proposed joint ventures, and monitoring of policy developments regarding airline acquisitions. Specifically, we have advised a major EU airline on its proposed tie-up with a non-EU airline, including comprehensive analysis of competition approval, foreign ownership and control issues, domestic political issues, and retention of international traffic rights. We have also advised a foreign government with respect to the sale of a substantial minority interest in its flag carrier, including advising on corporate, international regulatory and other aspects of the transaction.
- Restructuring. We have advised a significant international courier and express network on a variety of corporate and tax issues arising out of a major restructuring of its worldwide operations.
- Airport development/operation. We have represented and counseled airport authorities and private-sector operators/managers of airports in conjunction with several airport projects in the United States and elsewhere. We have also helped negotiate and obtain regulatory clearances for a first-of-its-kind public-private partnership for the operation of a major passenger terminal at an airport in Florida. We also advise airport proprietors on compliance with federal laws.
- Airport acquisition/investment. We have advised on airport acquisition and investment transactions in the United States and overseas.
- European acquisition of US assets. We represented a European airline in its acquisition of facilities and services from a major US airline in connection with that airline's discontinuation of service between Berlin and points in the Federal Republic of Germany after the reunification of Germany.
- “Going private” transactions. We assisted a major regional courier and express delivery company listed on NASDAQ in connection with a “going private” tender offer transaction.
- International joint venture. We advised a leading international aircraft maintenance and service provider with regard to the structuring and implementation of several joint ventures with aircraft or engine manufacturers in Germany, Malaysia and the United Kingdom, including advising on relating technology, service and supply agreements and antitrust issues.
- Structuring and consolidation of purchase and supply conditions. We advised a leading international aircraft maintenance and service provider with regard to the structuring and consolidation of purchase and supply conditions and with regard to specific issues arising in its relationships with customers, suppliers and sub-contractors in Germany, Europe and the United States.
- Aircraft maintenance and repair operations. We have assisted a leading provider of international aircraft maintenance and repair services in acquiring a US company that maintains and repairs VIP and business jets, and in establishing a joint venture in the Philippines. We have also assisted a maintenance, repair and overhaul provider with a number of new aircraft maintenance agreements with airlines in Europe, the United States and the Middle East.
- Light-aircraft manufacturing. We have advised a foreign client on the Federal Aviation Administration (FAA) regulations, other legal requirements and product liability issues relating to the establishment of a light-aircraft manufacturing facility in the United States.
- Catering. We represented the catering subsidiary of a major European carrier in connection with the acquisition of a US airline catering business.
- Slot exchange. We advised a major US carrier in negotiating an exchange of peak-time landing slots at a major EU hub airport.
- Strategic investment. We have advised a major EU carrier in its strategic investment in another EU airline and in the expansion of its stake and provided advice with regard to ongoing strategic and management decisions, including possible cooperation with a third airline.
- Acquisition of cargo airline. We advised the purchasers of a US airline that provides cargo services for a major international express delivery company.
- Transfer of aviation assets. We have advised on multiple transactions involving the transfer of aviation assets regulated by the FAA (e.g., aircraft manufacturers, aircraft repair stations, type certificates, supplemental type certificates and parts manufacturer approvals). We have handled both the corporate/transactional and aviation regulatory aspects of these transactions.
- Collateral for secured financings. We have advised investment banks and lenders regarding the use of international routes and airport takeoff and landing slots as collateral for secured financings.
- Negotiations for airlift. We represented an international courier and express network in negotiating an agreement with a US airline to provide airlift and related services for the transportation of air express packages throughout North America.
Policy and Legislation
We have broad experience representing clients in the policymaking and legislative processes in the United States, Europe, Latin America and Asia. We routinely advise clients before the executive and legislative branches of government. Some examples of activity in this area include:
- Congressional relations. We advocate before members of Congress and their staffs on behalf of a number of US and foreign firms. Projects range from opposing potential legislation limiting US market access, to gaining support for specific transactions, to counseling clients asked to testify before congressional committees.
- Intergovernmental negotiations. We have advised airlines with respect to the negotiation of air service agreements and resolution of intergovernmental disputes. We have advised airlines and trade associations on the EU-US negotiations to liberalize the transatlantic aviation market.
- Amendment of regulations. We advised major US and European airlines on the implications of the European Commission proposal for amending the EU slot regulation, particularly with regard to the ability of airlines to trade airport landing and take-off slots.
- Trade association policy. We advised a major European airline association concerning the implications of the European Court of Justice's “open skies" judgments and prepared a report and paper outlining the association's position on key competition law aspects of the proposed EU-US Transatlantic Open Aviation Area.
Represented partners of a global commercial airline alliance in applying to the DOT for expansion of a grant of immunity from US antitrust laws for the addition to the alliance of a major US airline. We also represented a US airline in connection with a review of the proposed alliance expansion by the US Department of Justice and a European airline in connection with a parallel review by the European Commission's Directorate-General for Competition.
Advised a European airline on corporate, antitrust and aviation regulatory law aspects of its recent acquisition of a substantial minority ownership interest in a US airline. The transaction represented the first major investment by an EU airline in a US airline following the signing of the US-EU "open skies" air transport agreement in 2007.
Provided US and European aviation regulatory and antitrust advice to a leading European airline in connection with the acquisition of another European airline.
Advised a foreign government with respect to the privatization, via asset sale, of its flag air carrier. We had primary responsibility for all corporate, international regulatory and other aspects of this complex transaction, which involved separate tenders for the airline and its ground handling and maintenance/repair businesses.
Assisted carriers in negotiating slot exchange agreements at London's Heathrow Airport.
Represented a US airline and a foreign air carrier in successfully appealing decisions by the Transportation Security Administration requiring the carriers to pay millions of dollars in additional Aviation Security Infrastructure Fees.
Successfully represented a US airline trade group in appealing a New York statute requiring airlines experiencing extended pre-departure ground delays to provide passengers with specified amenities. The appellate court agreed with our argument that federal law preempts state laws relating to the service of any air carrier.
Advised on numerous business jet aircraft transactions for various of the firm’s corporate and private clients (including transactions involving the purchase or sale of companies or assets, including aircraft, the purchase and sale of individual aircraft, and fractional aircraft interests). We also advised clients on compliance with tax, US Securities and Exchange Commission, and FAA regulatory requirements associated with the ownership and operation of corporate aircraft.
- Chambers USA: America’s Leading Lawyers in Business – Consistently recognizes our aviation group with a nationwide ranking. In 2014, clients praised the group for its ability to “identify the risks and opportunities so that we are ahead of the game.”
- Chambers UK – Consistently ranks WilmerHale in the aviation (regulatory) category. Comments about our practice have included “expertise ranges from ‘open skies’ agreements and cartel investigations to issues surrounding airline privatisations and mergers.”
- Legal 500 UK 2012 ranked our aviation practice, and individually recognized Duncan Speller as “highly recommended” in the sector.