Covering the JetBlue-Spirit merger trial from federal court in Boston

Here's a bit of a behind-the-scenes of my reporting in recent weeks — and answers to some FAQs.

Good morning from my desk at home, for the first morning in a while.

If you follow me on Twitter (err…X?) or read my stories on The Points Guy, you know that I’ve been covering the JetBlue-Spirit antitrust trial from U.S. District Court in Boston. Opening statements were on Halloween, and the trial is slated to run during morning sessions for 20 business days.

I’ve been there for most of the trial, aside from one day this week and the first couple of hours last Friday. I saw the opening arguments, watched the CEOs of both airlines testify, saw other, arguably less prolific but equally important testimony, and had the chance to meet peers from other outlets.

Since there’s been more interest than I’d expected, I’m writing here to share a bit about the process of covering this trial, and hopefully answer some questions.

If you need a refresher on the Spirit-JetBlue merger and the antitrust trial, read my report from Day 1, which sets the scene nicely.

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Read on TPG: Fate of JetBlue-Spirit merger hangs in balance as antitrust trial begins in Boston

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Reporting from a federal courthouse is a whole thing. Bringing electronics inside is forbidden unless you’re a credentialed lawyer or journalist. Fortunately, I applied for credentials during last year’s Northeast Alliance trial, so I was all set there.

The courtroom is fairly similar to what you’d see on TV — the bench where the judge sits, a witness box, tables for both sides’ attorneys, and a few rows of benches in the back. There’s a jury box, but this isn’t a jury trial, so it sits unused. The key for me each day is getting a decent seat in those rows of benches — ideally near the wall if there’s an outlet handy — with enough elbow room to type on my laptop.

An outlet is far from a given, so I bring a large backup battery in my bag every day (I have an older version of this one — disclosure, that’s an affiliate link, because apparently I set that up on my Amazon account forever ago?) along with a smaller one for my phone. There’s no cell service, and Wi-Fi costs $19.48 per day, per device, which is obviously suboptimal. That’s on top of $42 per day for parking, since the mass transit options from where I live haven’t been viable for the days I’ve gone to court.

Last year, during the NEA trial, there was a remote feed that credentialed reporters could access. That meant that in addition to people on the antitrust and airline beats who went to attend for a few days in person — worth it for chats on the sidelines, if nothing else — reporters were able to watch the testimony remotely. It made for more overall coverage.

There’s no remote feed available this time. The court clerk cited a policy change to me, and JetBlue’s CEO Robin Hayes told me that he’d heard that remote viewing was a pandemic accommodation that’s been lifted. A few reporters have come up for parts of the trial, including the airlines’ CEOs’ testimonies, but overall, it’s been harder to cover consistently.

So for those who’ve wondered why there isn’t much live coverage, there’s your answer. The trial has also been rescheduled a few times, which made it hard for reporters to plan, and pushed it up against several conflicts on the airline beat. Individual observers who’ve traveled to watch the trial also aren’t able to share updates in real-time, since they have to check their electronics at the main entrance — unless they’re credentialed.

A lot of people have asked about the tone of the trial. Vibe in the courtroom, who seems happier, etc. The answer is: I can’t answer that.

This isn’t like a TV trial or a criminal case. There’s no jury, there’s no dramatic revelations, no shocks. Everyone is cordial, the witnesses answer clearly, the judge asks some clarifying questions here and there or for additional details, and that’s about it. Occasionally there’s a murmur of laughter in the gallery if someone on the stand or the judge makes a joke, but it’s an overall professional environment.

Both sides have presented their arguments, and are now presenting evidence and asking questions in support of that. You can read my article, above, or my live Twitter thread from the first day for more on the key arguments both sides are making.

It will be easier to get at least a bit of a sense after the closing arguments, looking back at the evidence that’s been presented, but that still won’t make it clear.

A key DOJ argument is that potential harm on any route or market would justify blocking the merger, which, from what I understand, is one of several interpretations of the relevant part of the Clayton Act. Can they convince the judge to accept that reading in this case?

The defense argues that in effect, what’s most important is the broader market, and a double-sized JetBlue can bring down fares across the board by better competing with the “Big 4” airlines. Does the judge agree that that outweighs potential harm on some specific routes? Can the defense show that divestitures, particularly in BOS/NYC/FLL, are enough to prevent the harms, and that ULCC competitors would pick up the mantle?

Both sides seem, in my limited experience covering antitrust trials, to be making good arguments, so we’ll see in the coming weeks.

I won’t be reporting live from court each day going forward, but will still try to be there for key witnesses, and plan to be there for closing statements.

In the meantime, if you’ve found my reporting from the trial to be helpful, please support me and justify the time I’m spending in court away from my desk: Read my coverage at TPG, and subscribe to our free biweekly aviation newsletter. I promise we don’t spam you; we only highlight the big news in aviation every other week.

And, of course, don’t forget to subscribe here! My Substack posts are few and far between, but as I’ve said before: I only write one when I have something worth saying.