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Judge in airline merger gets high marks for impartiality

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By The Philadelphia Inquirer
Saturday, Aug. 24, 2013, 9:00 p.m.

The federal judge in Washington who will hear the high-stakes case of whether US Airways Group and American Airlines can merge to become the world's largest airline has a deep record on antitrust and national security law.

U.S. District Judge Colleen Kollar-Kotelly began her career as a law clerk for a Washington appeals court judge, worked as a prosecutor for three years in the criminal appeals division of the Justice Department, and spent more than a decade as chief legal counsel for Washington's St. Elizabeths Hospital.

She was nominated to the District of Columbia Superior Court by President Ronald Reagan in 1984 and appointed in 1997 by President Bill Clinton to U.S. District Court for the District of Columbia.

Kollar-Kotelly has experience with prominent cases. She oversaw a settlement in 2001 in the lawsuit brought by the Justice Department and 20 states that accused Microsoft Corp. of illegally thwarting competition and abusing its monopoly power on Intel-based computer operating systems.

In 2002, she was chosen by Chief Justice William H. Rehnquist Jr. to preside over the Foreign Intelligence Surveillance Court, a panel of federal judges that considers government applications for surveillance and searches in intelligence matters. She was on the court until 2009.

Lawyers who have appeared in her courtroom give Kollar-Kotelly high marks for legal ability, judicial demeanor and courtroom efficiency, and describe her as balanced and fair-minded.

“She has no leanings; she's very fair-minded. ... I don't always agree with every ruling, but she's balanced,” lawyers said of the judge in the annual Wolters Kluwer almanac of the federal judiciary. “She calls it down the middle.”

The Justice Department, six states — including Pennsylvania — and the District of Columbia have sued to block the $11 billion merger of American and US Airways, saying it would hurt competition and drive up prices for consumers.

The airlines intend to fight the lawsuit and have maintained that the merger would give customers more flight choices.

Kollar-Kotelly, born in 1943, went to college and law school at Catholic University of America in Washington.

She took over the Microsoft case in 2001 after Judge Thomas Penfield Jackson had ruled that Microsoft acted illegally. Kollar-Kotelly supervised a resolution and monitored Microsoft's compliance for a decade.

“She's very thorough. She's very careful. She's very respectful of lawyers and reads everything that is given to her,” said Stephen Houck, who was lead trial lawyer for 20 states in the government's lawsuit against Microsoft.

“She's very hardworking. When she writes an opinion, it's very long,” said Houck, an antitrust lawyer at Menaker & Herrmann L.L.P. in New York. “I think she'll give both sides a fair shake and listen carefully to what they have to say.”

In the mid-2000s, Kollar-Kotelly oversaw an antitrust lawsuit by the Federal Trade Commission that accused drug manufacturer Warner Chilcott Ltd. of colluding with generic drugmaker Barr Laboratories to keep a lower-price generic version of Warner Chilcott's Ovcon oral contraceptive off the market.

As a lawyer, Kollar-Kotelly didn't have an antitrust background, but as a judge she has “done a really good job of educating herself on antitrust issues and has the necessary background to handle” the American-US Airways case, said Michael McLellan, an antitrust lawyer in Washington who represented a health plan in litigation related to the Warner Chilcott case.

“She's smart. She has the chops to unravel it,” said McLellan, with Finkelstein, Thompson L.L.P. “It's going to be a really interesting case to watch.”

In 2009, Kollar-Kotelly ordered the release of a Kuwaiti man, Fouad Mahmoud al Rabiah, held at Guantanamo Bay, and rebuked the U.S. government for relying on scant evidence, witnesses who were not credible, and coerced confessions to hold him for more than seven years, the Associated Press reported.

The judge is overseeing the criminal case against Stephen Kim, a former National Security Agency official charged with leaking classified information about North Korea to a Fox News reporter. A trial is scheduled for April.

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