Has Your Charter Company Been Damaged by a Competitor Cutting Corners? Continued from page 33 information by a simple records request to the municipality. Do you know the N-number of the aircraft being used for illegal charter? With that information alone, you can identify the owner of the aircraft by searching the FAA’s aircraft records database. You may also be able to obtain publicly-filed records relating to that aircraft including leases. Once you have identified the entity and/or persons involved, you should deter- mine where they are doing business and/or are registered to do busi- ness. This information is critical to determining the jurisdiction in which you may be able to assert a claim. Collecting Proof that You Sustained a Business Loss What evidence do you have show- ing you lost business or are about to lose business to an illegal charter operator? In a perfect world, you would have a contract with a long- time charter client for a trip you have performed countless times— along with an email from the client advising you that it is cancelling the upcom- ing charter because it has decided to go with “Competitor X.” You know Competitor X does not have a Part 135 certificate and you have long sus- pected Competitor X of illegal charter. Few cases have perfect evidence. Instead, you may have a fact pattern comprised of circumstantial evidence. For example, you may have a long- time customer who routinely booked charter trips each Wednesday after- noon from destination A to destination B. Suddenly and without explanation, the long-time customer stops hiring you. You do some investigation and learn that the competitor, who does not have a Part 135 certificate, starts Aviation Business Journal | 3rd Quarter 2018 flying every Wednesday between destination A to destination B. This may be enough evidence to show that you are losing business to an illegal charter operator. Another scenario, your long-time customer stops book- ing charter with you and subsequently you see your former customer’s van pulling up to the corner-cutting illegal competitor’s aircraft. It is important to save all the documents, photos and video you have to support your claim and present it to your trusted counsel. If you seek to recoup compensa- tory damages for business losses, you will be required to share the documents and evidence during the course of discovery. After you assert a claim, the party against whom you filed suit will be entitled to discov- ery. This may be concerning to you because you want to make sure that this sensitive information does not fall into the hands of your competi- tor. Thus, you may need to ask the Court for a protective order for your most sensitive data and informa- tion. Assuming the Court agrees, a protective order may preclude your sensitive and confidential data from being shared with the illegal charter operator’s employees or in-house counsel and, further, have the persons with access to such sensitive materials and information enter into confiden- tiality agreements. Notwithstanding those remedies, you will invariably be confronted with the prospect of disclosing materials and information that you would prefer not to share. CONCLUSION If you believe that you have claims for tortious interference with busi- ness/contractual relations and/or unfair trade practices, you should take the evidence you have to sup- port your claim to your trusted counsel and present it to them to evaluate and advise whether you can state a claim, in what jurisdic- tion and the likelihood of success. When you meet with counsel, you should be prepared to discuss your motivations for wanting to pursue the claims. Specifically, are you primar- ily motivated by the possibility of restraining and thwarting the threat to your business caused by the illegal charter operator, or are you motivated by the prospect of recouping damages for the business losses you have sus- tained? If counsel does not address it, you should inquire whether your expectations for the lawsuit are reasonable. Lastly, you should be pre- pared to discuss the budget available for pursuing the claims. Discussing those topics will allow you and your counsel to evaluate your claims and your budget and determine what a win looks like to you. Armed with that critical information, your counsel can advise you as to the most pragmatic and cost-effective strategy that gives you the best chance of success. Alison L. Squiccimarro is an attorney with the Law Offices of Paul A. Lange, LLC with offices in New York and Connecticut. Alison’s nationwide practice focuses on aviation related commercial litiga- tion with an emphasis on FAA and DOT Regulatory Issues, Airports, Insurance Coverage and Employment matters. Alison can be reached at [email protected] or (203) 375-7724. 35
