American Airlines Sues Gailen David
Just days after American Airlines filed a memorandum with the court stating that many of the airline's flight attendants are "overweight", "inattentive", in a constant state of "unkempt sloppiness", and whom prefer "kibitzing" in the galley rather than attending to their in-flight safety and passenger service duties, American stepped it up a notch by filing a lawsuit against former MIA flight attendant Gailen David.
The lawsuit, filed in Tarrant County, TX, alleges that Mr. David committed a "Breach of the Duty of Loyalty", a "Breach of Fiduciary Duty", and a "Trade Infringement Under Texas Law" because of the websites associated with his video parodies. While AMR Spokesperson Bruce Hicks went to great lengths to assure the media that Mr. David was not terminated for violating American's Social Media Policy, the lawsuit alleges that Mr. David actions on his website "constitute common law infringement ... resulting in irreparable injury to American Airlines."
AMR spokesperson Bruce Hicks told that media that Gailen David was terminated for violating Rule 24 ("Consider the welfare of the Company and your fellow employees. Perform no act that is detrimental to either") while the original MIA Flight Service letter stated: "... you are directed to attend an investigatory meeting in accordance with the AA/APFA collective bargaining agreement, Article 31 R, involving possible violation of American Airline's Media Policy." As you can see, Mr. David was called into the office for a “possible violation of American Airline's Media Policy” yet he was terminated for performing acts that are considered “detrimental” to the company
When we consider the derogatory remarks found in the memorandum from the AMR Case Info website, and take note that one of AMR's board members was arrested last year over of allegations of insider trading, one can only ask what actually defines Rule 24. What is “detrimental”? If Mr. David's parodies were a violation of corporate policy, what would insider trading be considered? While Gailen David's videos are more in line with Mad TV, Rajat Gupta's insider trading allegations are compared to Michael Milken and Bernard Madoff — two of the most notorious white-collar criminals our country has seen in the last fifty years.
Mug shots of former AMR director Rajat Gupta
Clearly AMR's bankruptcy is going to get uglier before it gets prettier. Understanding that AMR "has asked the Bankruptcy Court to allow it to file its Section 1113 motions to reject its union contracts confidentially, stating that executives want "the information in the motions to remain confidential because it discusses the carrier's business dealings," one can only ask what so secret about AMR's business dealings? Whatever business dealings AMR may have had has led the airline to corporate failure and bankruptcy.
When we consider that employees are being forced to forfeit their pay, benefits, work rules and retirement without being presented with any tangible information as to what's needed, why it's needed, how the needs were determined, where the needs are going to be spent, or my favorite, where the $16 billion in employees contributions have gone so far, one can only ask: Why is everything so secret? Is it because employees are once again being bamboozled, only this time with the aid of the bankruptcy court system?
American Airlines announced an order for 460 new plans to be purchased from Boeing and Airbus in July of 2011 just one month before planning for its November bankruptcy filing. ("AMR Said to Have Begun Bankruptcy Contingency Plans in August")
Tom Horton and company easing employee concerns about bankruptcy at LAX
Having read recently that AMR finished January with more cash on hand than it had in January of 2011 ($4.14B) and taking into consideration that the company defaulted on an employee pension payment of $93.5 million, the logical question is why the payment wasn't made? The answer can be found when we discover that $100 million is being given to three law firms in an effort to help ease the company through bankruptcy.
In closure, there was a wonderful study done by UCLA Law School Professor Lynn M. LoPucki and Joseph W. Doherty, Director of the Empirical Research Group at the UCLA Law School, which outlines the problems plaguing the U.S. Bankruptcy court system. The study shows that "the United States bankruptcy courts routinely authorize and tolerate professional fee practices that violate the Bankruptcy Code and Rules. Some of the practices are such clear violations that the judges must be aware of their illegality. The practices are concentrated in the largest, most visible bankruptcy cases - cases like Worldcom, Kmart, US Airways, and Delta Airlines. The practices are promoted and taken advantage of by attorneys, investment bankers, accountants, consultants, and other professionals. Some of the firms involved are among the largest and most prestigious in the world. They include Skadden Arps, Weil Gotshal, Kirkland and Ellis, Jones Day, Fried Frank, Blackstone, Houlihan Lokey, and many others." (Those highlighted are assisting AMR with its bankruptcy.)
Please take a moment and read the Complaint against Gailen David and also to watch the following videos that support the belief that AMR's bankruptcy is a sham. There's too much cash, too many assets, and too much secrecy for even the media to believe.
In solidarity
Rock Salomon
BOS
+++++++++++++++++++++++++++++++++++++++++++++++++++++++++
CAUSE NO. 236 25878 1 12
AMERICAN AIRLINES, INC.,
Plaintiff,
v.
JOHN DOES 1-10 & GAlLEN DAVID,
Defendants.
JUDICIAL DISTRICT
PLAINTIFF'S ORIGINAL PETITION
Plaintiff American Airlines, Inc. ("American") brings this action against Defendants John Does 1-10 ("Doe Defendants") and Gailen David ("David") for damages. Based upon actual knowledge with respect to its own acts, and upon information and belief as to all other persons and matters, American respectfully alleges as follows:
Discovery Level
1. Based on the relief sought, discovery should be conducted under a level 2 plan pursuant to Texas Rule of Civil Procedure 190.3. Parties
2. American is a Delaware corporation with its headquarters in this County, at 4333 Amon Carter Boulevard, Fort Worth, Texas 76155.
3. Doe Defendants 1-10 are believed to be individuals whose identities are presently unknown but are believed to be residents of the state of Texas. They will be named in their individual capacities and served, once their identities are ascertained.
4. Defendant David is an individual, nonresident of the State of Texas who engages in business in the State of Texas, but does not maintain a regular place of business in the State of Texas and does not have a designated agent for service of process in the State of Texas. Pursuant to TEX. Cry. PRAC. & REM. CODE §§ l7.044(b) and 17.045, Defendant David may be served with process by serving Ms Hope Andrade, the Secretary of State of Texas, State Capitol, Room lE.8, Austin, Texas 78701, who then shall immediately mail a copy of the process by registered mail or certified mail, return receipt requested, to Defendant's principal place of business at: Gailen David, 3845 Coco Grove Ave., Coconut Grove, Florida 33133-6119.
Jurisdiction and Venue
5. This Court has subject matter jurisdiction over this case because the amount in controversy is within its jurisdictional limits.
6. This Court also has specific and general personal jurisdiction over Defendants (some of whom are believed to be residents of the State of Texas) who have committed torts, in whole or in part, in this state or have otherwise purposefully availed themselves of the privilege of conducting business in this state. The injuries inflicted and threatened to further inflict on American are felt in this State, and Defendants knew or should have known the serious harmful effects from their conduct will occur here.
7. Venue in this matter is proper in this County, pursuant to § 15.002 of the Texas Civil Practice and Remedies Code. A substantial part of the activities, events, and damages giving rise to this lawsuit occurred in this County. Facts Giving Rise to This Action
8. Over the last seventy-five years, Fort Worth-based American has become one of the world's largest commercial airlines. In the decades that American has been offering air transportation services under its name and related marks, it has developed substantial goodwill with its employees and customers by establishing itself as a professional company and reputable employer with reliable, high-quality customer service.
9. American has acquired a nationwide reputation for quality goods and services and has accumulated substantial goodwill with the general public. It has acquired extensive rights in a number of trade names, trademarks, and service marks including, but not limited to "AA" and "American Airlines," along with other names like AA vacations, AAdvantage and other similar usages (collectively, "American Marks").
10. American has invested hundreds of millions of dollars in worldwide advertising and marketing in order to build the fame, reputation and goodwill of American Marks. American advertises through a variety of media, including television, internet, radio, newspapers, direct mail and in telephone directories across the county.
11. Through American's actions, and because of widespread and favorable public acceptance and recognition, the American Marks have become distinctive designations of the source of origin of American's goods and services. The American Marks have become uniquely associated with, and hence identify, American. These marks are valuable assets of American, its quality goods and services and its goodwill.
12. In addition to creating American Marks, American also creates and maintains confidential business information including, but not limited to confidential passenger information, ticketing information, seat assignments, schedule and itinerary information and route information. This confidential internal business information is stored in a secure computer database named Sabre. American's proprietary electronic data is created and maintained on computer systems primarily located in the state of Texas. Confidential information is obtained through the Sabre system by accessing computers, hardware and servers primarily located in the state of Texas. American's electronic data in Sabre is stored primarily on computer systems, hardware and servers located in and maintained in the state of Texas.
13. Customer and passenger service employees and crews of American have access to and use of the Sabre system (including the confidential passenger information) to perform their jobs assisting customers and operating the airline in the normal and ordinary course of employment with American. American employees using the Sabre system are subject to American's Company Information System Policy and other electronic usage policies which prohibit using Sabre information for non-American business.
14. Defendant David is a former employee of American. During his employment with American, Defendant David made frequent, regular trips to the state of Texas as part of his employment. For example, Defendant David attended meetings as part of his employment with American in the state of Texas. During his employment, Defendant David was also subject to and agreed to comply with American's policies and procedures (including policies regarding the protection and confidentiality of American electronic computer systems and data). These policies and procedures were formulated in the State of Texas and communicated to the workforce from American's Corporate Headquarters in the State of Texas.
15. During his employment with American and up to the present, Defendant David published the website titled "The Sky Steward" (http://www.dearskysteward.com). Defendant David is the registered owner of the http://www.dearskysteward.com URL. Defendant David, individually and as Managing Member of The Sky Steward LLC1 is also the registered owner of http://www.theskysteward.com. http://www.saaveaa.com. http://www.savvystews.com. http://www.operationaluminum.com and http://www.dearskysteward.blogspot.com (collectively "Defendant David's websites").
***1 - Based on information and belief, Defendant David changed the name of The Sky Steward LLC to Ionosphere Media, LLC on or about December 5, 2011. Based on further information and belief, the websites are all registered to Defendant David.
16. Defendant David's websites are interactive web sites used for commercial purposes and for transacting business in the state of Texas. The web sites offer online email and purchasing capabilities to Texas consumers. Defendant David's websites allow customers, followers and friends who are Texas residents to submit comments and questions to Defendant David and receive feedback, comments and email from Defendant David in Texas. Through the operation of these commercial websites, Defendant David has purposefully availed himself of the jurisdiction of the State of Texas. The websites sponsor advertising directed to consumers in the state of Texas. Some of the advertising sponsored on Defendant David's websites includes advertising on behalf of air carriers that compete with American. Based on information and belief, Defendant David's advertising is directed to consumers in the state of Texas and includes advertising on behalf of Texas based air carriers that compete with American in Texas. Defendant David's websites also sponsor advertising directed to Texas consumers for other products and services in the State of Texas.
17. The Defendant David's websites also seek monetary donations to further causes supported by Defendant David from consumers of the State of Texas. The websites advocate a petition drive to consumers of the state of Texas requesting them to sign a petition asking a U.S. Bankruptcy Judge to make certain decisions with respect to American's parent company's bankruptcy proceeding.
18. Defendant David's websites offer online shopping directed to residents of the state of Texas and based on information and belief, products and services offered through the websites are shipped to or made available to consumers in the State of Texas.
19. Defendant David's web sites also market their products and services to residents of the State of Texas by improperly using American's Marks without its permission or authorization.
20. Defendant David's websites market the products it sells to Texas residents, in part, by publishing content about American, its management and operations. Recently, however, Defendant Does and David have become involved in a conspiracy to access and use confidential, proprietary, sensitive business information of American and its passengers in violation of Defendants ' fiduciary duties; their duties of loyalty to their employer; and in violation of state law.
21. On or about February 29,2012, one or more Defendant Does passed confidential, proprietary and internal business information and American passenger itineraries to Defendant David who posted the following information on http://www.dearskysteward.com:
Ex. A.
Special: Peter Dolara watch. On February 29th , keep an eye out for Peter Dolara on his way to Caracas according to my mole in Special Services.
22. On or about March 4, 2012, Defendant David wrote on http://www.dearskysteward.com that:
Ex. B.
The executives on flight 2598 were flying on A-passes which can actually bump revenue passengers. . . . Two AA elite AAdvantage passengers were denied upgrades in order to accommodate the AA executive jet-setters.
23 . On or about March 8, 2012, Defendant Does passed confidential, proprietary and internal business information regarding American and its passengers' upcoming itineraries to Defendant David who posted the following on http://www.dearskysteward.com: Don Carty and his lovely wife Ana will be on their way to Punta Cana . . . on March 9th through Miami according to my DFW mole . . . . AMR Board Member Judith Rodin will be traveling to Miami from Washington on the 9th according to my lAD mole .... Ms. Rodin uses American as her own private airline that won't fly until she's ready.. . The flight left over an hour late, causing scores of passengers to miss their connections to Europe.
24. Shortly thereafter on March 12, 2012, Defendant David commented that he obtained a copy of the flight 2598 passenger list. Ex. C. Passenger lists are internal, confidential business information of American available through American's Sabre system and it is a violation of American's policies and Texas law for Defendant Does to have accessed that information and passed it along to a third-party - namely Defendant David.
25. On March 14, 2012, Defendant David's employment with American was terminated. Since Defendant David's termination, based on information and belief, he continues to conspire with, and be aided and abetted by Defendant Does in accessing, using and disclosing American's confidential information from the Sabre system. As Defendant David boasted on his website, "Although I am not an employee of American Airlines - American will always be a part of me and my coworkers will always be my family. I will continue my work as The Sky Steward with a very special focus on what's happening at AA. My moles are still in place." Ex. D (Emphasis added).
26. Defendant David further admitted to publishing passenger travel plans In commenting on his termination of employment. Defendant David stated:
Ex. D.
The only travel plans mentioned on my site involved current and former American Airlines executives and board members traveling in first class with their spouses and bumping American's full fare first class passengers to coach in order to provide them with a first class seat.
27. On or about March 19, 2012, Defendant Does accessed, without American consent, American's confidential, proprietary and internal business information regarding passengers' itineraries and disclosed that information to Defendant David who posted the following information on http://www.dearskysteward.com:
Ex. E.
Another one of American's Executive Platinum AAdvantage passengers was uprooted and bumped to coach by the "talent"! This time it was on American's flight 1734 on the 13th of March according to one of my anonymous moles. (I just realized my phone still receives calls just fine following my termination from AA!)
Sherrill Reding, wife of retired American Airlines Executive Vice President of Operations, Bob Reding, sat in 6F on the 757 jet and even earned AAdvantage miles as it flew her from Dallas/Ft. Worth to Orlando.
... On this particular flight, an AAdvantage Executive Platinum Member was sent back to seat 12A in order to accommodate Mrs. Reding.
Information about passenger's seating assignments, AAdvantage status and seating priority is confidential, sensitive, internal business information of American and Defendant Does violated their fiduciary duties and duty of loyalty in passing such information along to Defendant David who disclosed it.
28. Based on information and belief, Defendant David's information was procured through Defendant Does (current American employees) through unauthorized use or access of American's Sabre system that details the type of tickets or passes on which American's passengers travel. Such information is confidential, proprietary internal business information of American and Defendant Does breached their fiduciary duties and duty of loyalty in passing that information along to a Defendant David who then disseminated it to the public.
29. On or about April 3, 2012, Defendant David posted prospective travel information of American passenger and American executive Lauri Curtis. Specifically, Defendant David posted on his internet site that Lauri Curtis was traveling to New York on April 11, 2012. According to Defendant David, the source of his information was an employee of American. Prospective travel information of passengers, whether American employees or not, is confidential, proprietary, internal information of American and current employees are prohibited by common law obligations, rules and policies of American against disclosing that information to third parties like Defendant David.
30. On or about April 10, 2012, Defendant David, with the assistance of Defendant Does, accessed and posted private, confidential information about a current American employee on one of Defendant David's websites. Defendant David posted that a current American employee was on voluntary overage leave as well as the dates that leave commenced and terminates. Such information is not made publically available and only American employees with a legitimate need to know can access it through American's password protected computer systems. Internal information regarding American and its employees is confidential and proprietary to American. American's policies regarding the protection of this confidential, proprietary and/or internal business information apply to the information accessed without authorization or excess of approved authorization by Defendant Does and published by Defendant David. In accessing American's internal computer systems, and alleged on information and belief, Defendants Does copied the American's employee file photograph without authorization, and passed that information along to Defendant David, who then posted it publically.
31. In addition to the use and disclosure of American's confidential, proprietary and internal business information, Defendant David is also improperly infringing on, diluting or tainting American Marks. Numerous postings on Defendant David's web sites use the famous and distinctive American Marks including the use of "AA." For example, Defendant David is improperly using American Marks in the following manner:
• http://www.sAAveAA.com;
• la vida LocAA;
• AA Sixth Floor Gossip Extra: Skiing with AA's Almost Rich and FAAmous in Vail!;
• This Just In: A Whole Lot of ShAAkin Going on at MIA;
• AA Sixth Floor Gossip: Stealing under the R-AA-Dar;
• Downright AAsinine!; and
• Operation AAluminum.
First Cause of Action (Breach of the Duty of Loyalty)
32. American re-alleges and incorporates herein the allegations of paragraphs 1 through 31 of this Petition as if fully set forth herein.
33. Defendant Does 1-10 are, based on information and belief, current employees of American. As current employees, Defendant Does owe common law duties to American including a duty of loyalty. Such duty of loyalty includes, but is not limited to, the duty to act in American's best interests and to not use or disclose American's confidential, proprietary or internal business information of it and of its passengers for any interest not directly related to the performance of their jobs with American.
34. Based on information and belief, Defendant Does have accessed American's confidential, proprietary and/or internal business information without American's consent or have exceeded any authorized access they had and have disclosed such information to third parties (including co-conspirator Defendant David).
35. As a result of these breaches, American has been damaged and seeks to recover those damages in an amount to be proven at trial.
Second Cause of Action (Breach of Fiduciary Duty)
36. American re-alleges and incorporates herein the allegations of paragraphs 1 through 35 of this Petition as if fully set forth herein.
37. Based on information and belief, Defendant Does are current employees of American. Based on further information and belief, Defendant Does have been provided access to American's confidential, proprietary and/or business information in the course and scope of their employment and for their use exclusively in carrying out American's business. As a result, Defendant Does owe fiduciary duties to American to act in its best interest and to refrain from using American's confidential, proprietary and/or business information except in American's best interest and in the course and scope of Defendant Does' employment.
38. Based on information and belief, Defendant Does have accessed American's confidential, proprietary and/or internal business information without American's consent or have exceeded any authorized access they had and have disclosed such information to third parties (including co-conspirator Defendant David).
39. As a result of these breaches, American has been damaged and seeks to recover those damages in an amount to be proven at trial.
Third Cause of Action (Texas Civil Practices & Remedies Code §§ 143.001 et seq.)
40. American re-alleges and incorporates herein the allegations of paragraphs through 39 of this Petition as if fully set forth herein.
41. Defendant David had access and use, during his employment, to American's confidential, proprietary and internal business information during his employment.
42. Based on information and belief, Defendant Does are current American employees who have access and use of American's confidential, proprietary and internal business information of American to carry out their employment duties for American.
43. As described more fully above, based on information and belief, Defendants' have retrieved, accessed and made use of American's computer resources and networks without American's consent or have exceeded any authorized access they had to American's computer systems and networks. American has been damaged as a result of this unauthorized access.
44. As a result of this wrongful conduct described above, American has been injured and its property and goodwill damaged as a result of Defendants' actions and American seeks actual damages, court costs and attorneys' fees to remedy these wrongful acts.
Fourth Cause of Action
(Trade Infringement Under Texas Law)
45. American re-alleges and incorporates herein the allegations of paragraphs 1 through 44 of this Petition as if fully set forth herein.
46. American Airlines has common law rights to the American Airlines Marks in Texas by virtue of the marks' eligibility for protection and American Airlines' status as senior user of the marks. Defendant David's acts as described above constitute common law infringement of the famous American Airlines Marks, resulting in irreparable injury to American Airlines. American Airlines has no adequate remedy at law for Defendant David's infringement of its common law trademark rights.
Fifth Cause of Action (Tex. Bus. & Com. Code § 16.29 Anti-Dilution)
47. American realleges and incorporates herein the allegations of paragraphs 1 through 46 of this Petition as if fully set forth herein.
48. American is the holder of common law trademarks in the name "American Airlines" and AA with and without a blue and red color scheme. The marks are distinctive, famous and widely recognized by the public throughout the state of Texas as the designation of course of the services of American.
49. Defendant David's commercial use of American Marks is likely to injure the business reputation or dilute the distinctive quality of American's registered and valid trademarks through at least tarnishment. American seeks to enjoin Defendant David from the manufacture, use, and display of American Marks; to enter judgment in American's favor for an amount not to exceed three times the amount of profit Defendant David has received or damages American has suffered from Defendant David's use of American Marks and for an award of reasonable attorneys' fees to American.
Sixth Cause of Action
(Conspiracy to Commit/Aiding and Abetting the Commission of Causes of Action 1-3)
50. American re-alleges and incorporates herein the allegations of paragraphs through 49 of this Petition as if fully set forth herein
51. By their conduct as described above, Defendants' have engaged in a civil conspiracy and have aided and abetted one another to access, use and disclose American's confidential, proprietary or internal business information for improper purposes.
52. Defendants' conduct as described above was willful, wanton, malicious and outrageous because of their evil motive or their reckless indifference to the rights of American and entitles American to punitive damages. Conditions Precedent
53. All conditions precedent to American's prayer for relief have been performed or occurred.
Attorneys' Fees
54. American hereby incorporates by reference the foregoing paragraphs as if set forth fully herein.
55. American seeks to recover its reasonable and necessary attorneys' fees in bringing this action against Defendants. As a result of Defendants ' conduct, American has found it necessary to retain the law firm of Kelly Hart & Hallman LLP to represent it in this matter. American seeks recovery from Defendants all of its reasonable and necessary attorneys' fees that have been and will be incurred through trial and entry of judgment in this matter, and any attorneys' fees for post-judgment activity or enforcement of the Court's rulings, including any appeal to the Court of Appeals or to the Texas Supreme Court. All conditions precedent to the recovery of attorneys' fees have been satisfied or waived by Defendants.
Prayer for Relief
56. American respectfully requests entry of judgment in its favor against Defendants' and that it recover its actual damages, consequential damages, attorneys' fees, court costs, prejudgment and post-judgment interest and any other damages permitted by law as well as such legal and equitable relief as to which it may be justly entitled
Dated: April 10, 2012.
Respectfully submitted,
Dee J. Kelly, Jr.
State Bar No.1 121 7250
Russell D. Cawyer
State Bar No. 00793482
KELLY HART & HALLMAN LLP
201 Main Street, Suite 2500
Fort Worth, Texas 76 1 02
(817) 332-2500
(817) 878-9280 (Fax)
ATTORNEYS FOR PLAINTIFF
AMERICAN AIRLINES, INC.
AMR spokesperson Bruce Hicks told ABCNews.com today that David did finally come in for a meeting and during the course of that meeting was handed a termination letter.
Gailen David's parody of the Minister of Flight Attendants
Bloomberg Law talks about how AMR practiced "venue shopping" to find a bankruptcy court that would be sympathetic to its needs.
Also, Ed Schultz of the Ed Show did a wonderful segment on AMR's bankruptcy filing and also questioned the math behind it. I urge everyone to watch it.
MSNBC's Lawrence O'Donnell explains how the bankruptcy of American Airlines shows us why voting for president is even more important than you think. Watch the video.
Labor Strategist Ray Rogers of Corporate Campaign, Inc. talks about AMR's sham bankruptcy filing and what the unions should do.