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Kaye Scholer Represents The Port Authority in Successful Petition for Review in the D.C. Circuit

March 2, 2007

On March 2, 2007, the D.C. Circuit (Judges Brown and Tatel and Senior Judge Edwards) unanimously granted in part the Petition for Review of our client The Port Authority of New York and New Jersey. In February 2005, one domestic airline and 12 foreign airlines using the International Terminal B at Newark Liberty International Airport sued the Port Authority before the U.S. Department of Transportation, challenging new fees the Port Authority had imposed on them for their use of that terminal. DOT upheld nearly all of the challenged fee, and both the Port Authority and the airlines filed petitions for review in the D.C. Circuit. In the Port Authority's petition, we argued that DOT erred in permitting foreign airlines to participate in the proceeding, which we contended was contrary to the statutory language, and in disallowing two small costs from the Port Authority's rate base. In their petition, the airlines sought to set aside essentially all aspects of DOT's decision. In a detailed 42-page opinion, the Court granted the Port Authority's petition for review, holding that DOT erred in permitting the foreign carriers to participate and that DOT did not justify its exclusion of one of the two costs from the rate base. It also rejected the airlines' petition for review in all respects. Partner Jeffery Tomasevich (Washington, DC, Litigation) argued the case. Partner Steven Rosenthal (Washington, DC, Litigation) led the trial team that consisted of Mr. Tomasevich and Partner David Bickart (Washington, DC, Litigation) assisted on the appellate briefs. This success is also attributable to strong partnership with, and contributions of, Port Authority in-house counsel Carlene McIntyre and Arnold Kolikoff throughout the DOT trial and D.C. Circuit appeal.

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