A Conversation with the Hon. Judge William Young: Process Lessons in DOJ v JetBlue Spirit
On February 13, 2025, the Antitrust Law Section hosted a webinar with Judge William Young of the U.S. District Court for the District of Massachusetts. The webinar, titled Process Lessons in DOJ v JetBlue Spirit, was moderated by Dr. Craig Malam, Partner at Edgeworth Economics, and Clotilde Le Roy, Associate at Cleary Gottlieb Steen & Hamilton LLP. During the hour, Judge Young discussed best practices for attorneys and expert witnesses in merger litigation, using the JetBlue/Spirit case as a springboard for the discussion. This case concerned JetBlue Airways’ proposed acquisition of Spirit Airlines, announced in July 2022. In March 2023, the Department of Justice and several state
Attorneys General sued to block the proposed acquisition in the District of Massachusetts. Plaintiffs alleged that the proposed transaction violated Section 7 of the Clayton Act, on the theory that it was likely to result in a substantial lessening of competition. Following a 17-day bench trial before Judge Young, the Court found in January 2024 that the proposed transaction was unlawful and permanently enjoined the parties from closing the transaction. During the conversation, Judge Young shared his perspectives on best practices to effectively persuade a judge or jury, hold a swift merger trial, and balance the litigants’ interests in protecting their proprietary information with the public interest of an open trial and the public administration of justice.
Dr. Malam began by recalling for attendees that Judge Young had remarked in his JetBlue/Spirit opinion very favorably about the practice of counsel from both sides in this case, quoting from the written opinion that “[t]heir forthrightness, civility, and zealous advocacy have immeasurably assisted the Court in reaching out for justice.” Judge Young was then asked to remark on the general approaches taken by both sides that were particularly beneficial to the court in terms of balancing the needs of the parties with the efficient movement of the case, and to contrast this with other cases his honor has presided over.
Judge Young, who has been on the bench since 1978, offered his perspective on previous instances where parties have directed a judge’s or jury’s attention to adjacent issues, distracting them from the disputes that will determine the case’s outcome. In Judge Young’s words: “I like to get to what really is the point of dispute,” rather than “adjudicate every disputed point on the theory that one side or the other is gaining an advantage. That's not the way to try a case. You want to [] educate the judge, but this judge, not some theoretical judge.”
Judge Young explained that moving swiftly to trial is both in the Court’s interest, given busy dockets and limited resources, and the merging parties’ interests, particularly when they have secured financing contingent on the deal closing within a limited window. To achieve a swift path to trial, Judge Young recommended skipping “side issues.” His honor reflected on prior litigants in a patent case who had filed “at least five, and sometimes ten, motions in limine every trial day.” Judge Young recommended parties instead finding agreement on “anything that will speed the process up,” such as expediting discovery and bypassing summary judgment motions, as the parties had agreed in JetBlue/Spirit.
Dr. Malam asked his honor whether a lack of candor by experts might be a cause of delay in some instances. Judge Young answered that he rarely sees an expert who is not candid. “Experts have their view of the underlying facts and the underlying appropriate analysis and their analysis differs,” his honor explained. “I see omissions”, but the burden is on the attorneys to highlight them: “And good cross-examination should bring out the omissions.”
Judge Young cautioned experts about testifying at trial without being deeply involved in the substance of the report, including its structure and the factual inputs used. Judge Young indicated that he counts on cross-examination to gauge how knowledgeable the expert is about their report, and whether the report reflects “the actual thoughts of the expert.” Opinions expressed at trial that are not in the report can be stricken from the record: “I don't expect the expert to testify [verbatim] as to what is said in the expert report. But I can read and I expect that every concept, every factual basis is there and if it isn't, I simply will not hear it. It's too late.”
Judge Young shared that he is skeptical of confidentiality claims that are so broad that “practically any document that is not an SEC filing” is asked to be sealed. His honor noted that ruling on sealing can be “a waste of time,” because “business moves so quickly.” In his view, information that parties deem confidential is truly confidential only for so long, and confidentiality claims must be balanced against the public’s interest in an open trial. According to Judge Young, “If you want confidentiality, arbitrate.” Judge Young praised the minimalist approach of both sides in the JetBlue/Spirit case, who redacted limited content in the documents (for example, a dollar figure, a particular sentence) that were displayed to the public in open court.
Judge Young expressed his openness to experimenting with process, “if it will aid the Court.” His honor was asked about the practice of a conclave (colloquially called “hot tubbing”), where two expert witnesses with adverse positions are instructed to reach agreement where possible to narrow the issues presented to the Court, or are instructed to present their views and question each other in the courtroom. Judge Young remarked, “I would want to see it in a jury-waived trial before I tried it before a jury. Though I truly think a jury would love it.”
Judge Young concluded his remarks with the following. “…I guess I would simply say this: I hope I've been full of praise for lawyers during this hour, and that has been my experience. And I would much prefer to work with lawyers and reach out for justice than have to adjudicate every disputed point on the theory that one side or the other is gaining an advantage. I had a colleague once tell me, ‘Why, in this case, they have an instinct for the capillaries, where they should have an instinct for the jugular.’ I believe that that's true. I like to get to what really is the point of dispute.”
This piece can also be read here on the ABA's website.
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