When last we updated you here on the Hawaiian Airlines/Mesa trial — U.S. Bankruptcy Judge Robert Faris had ruled that Mesa Airlines did intentionally destroy evidence that could have been used by Hawaiian Airlines in the lawsuit against its competitor.

Faris also found that Mesa executives made their decision to start a their low fare airline in 2006 based on information they got while looking at Hawaiian’s books  — when the airline was still in bankruptcy protection. Mesa Air Group kept whatever information it got from Hawaiian Airlines during that period and did not return or destroy it as the confidentiality deal required.

Friday, the new trial started. This trial was centered around two issues. One, did Mesa actually receive “confidential information” that Hawaiian claims it did, and two, by receiving that confidential information and using that information to start up its own lowfare airline in Hawaii, what damages is Hawaiian Airlines entitled to receive from Mesa?

In looking over notes I’ve received from several folks who have been in the courtroom this week, I’d say that Hawaiian Airlines proved their point that Mesa received the documents. While the attorney for Mesa tried to make a case that the most important document was a different one from that which Mesa actually had access to — my take from reading the notes from the trial that documented how Hawaiian monitored access to their “data vault” was pretty straight forward. I don’t think there is any arguing that Mesa did, indeed, access the documents in question. And more than once.

This then left the issue of whether what they received was truly “confidential” and how much Hawaiian is due, in terms of damages.

Testifying on behalf of Hawaiian earlier this week was Samuel Engel of Simat, Helliesen & Eichner Inc., better known in airline circles as SH&E.

Engel testified that  a Mesa planning document showed that it would need to “unseat Aloha” within two years and then raise fares by 5 percent above pre-entry levels in order for its operations to be economically feasible.

Engel also said that he projected that Mesa would shut down the Hawaii operations of its interisland carrier go! by September 2009 if Hawaiian and Aloha were to remain in business.

“It’s unlikely each of the players would continue to lose money year after year,” he said.

Looking over the notes I received from the testimony, I thought Engel did a good job of fending off Mesa attorney Blecher’s questions. He answered directly, and his estimates in terms of how much Hawaiian is entitled to and why seemed fairly reasonable — not some pie in the sky figure.

As to Blecher’s attempt to show that the ultimate purpose of the lawsuit is to drive Mesa out of Hawaii as a part of Hawaiian’s desire to monopolize the market — there was too much evidence presented that this was simply not the case. One of the strongest being the fact that if Hawaiian had wanted to do this, it had its chance to do so before either airline filed for bankruptcy. However, both airlines, according to testimony provided by Hawaiian CEO Mark Dunkerly came to the conclusion that it was not a good idea.

Wednesday, consultant Michael Boyd took the stand in defense of Mesa’s argument that all the information they had accessed from Hawaiian is readily available publicly.

Why am I not surprised that Michael Boyd would testify on behalf of Mesa?

As we know, Mr. Boyd and Jonathan Ornstein have been chummy for a long time.  In fact, I’ll give a dollar to anyone who can send me a published quote from Mr. Boyd that is in any way shape or form negative to Mesa.

In his testimony, Boyd claimed that the information the airline used could have all been obtained through public means. But as one observer told me Wednesday, “I thought he came across as “too cute.” You know — like he was a bit snide when he answered some questions.” Michael Boyd? Snide?



Meanwhile, I did have a few pangs of deja vu all over again reading comments from Boyd’s testimony on Wednesday. Visions of Mark Hill, WestJet, Air Canada.…”The information was nothing more than anyone could access over the Internet.”

Uh-huh. Just not in a nice, easily accessible, blue-printed, ready-to-go package.

(No pun intended.)

I have to give Boyd credit for one thing. He did admit as to how raw DOT Form 41 data can be less than accurate.

“Hawaiian: Is it fair to say that not all available data from the DOT is accurate?

Boyd: That’s correct for raw data. In fact some raw data would have you believe that Hawaiian operates into Mississippi and North Dakota. We have software programs which removes the erroneous information.”

In looking over the notes from yesterday, I think Hawaiian’s attorneys did a pretty good job in making their case that there was information obtained that was not necessarily easily obtainable by other methods, while Boyd seemed to waffle on some responses.

Mesa’s last witness, economics consultant Robert Wunderlich, is scheduled to go on the stand today, in an attempt to rebut the $173 million in damages amount Hawaiian is seeking.

People we talked to on Wednesday do not see a decision coming from Faris this week, even if the trial is wrapped up late Thursday or early Friday.

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