The latest battles between the airlines and GDSs not only brought the two parties to unprecedented levels of acrimony, but also raised the very real possibility that their future relationships could hinge in part on court decisions.
"The concern I have is that this is what's going to lay the foundation for the future," said Henry Harteveldt, principal analyst with San Francisco-based Forrester Research. "Will future GDS contracts be negotiated more through the courts and a result of court action and not business negotiations? It certainly is a concern."
He added: "You have to wonder, is this the most effective method of reaching your objectives?"
Sabre Holdings and American Airlines filed suit against each other on June 1, even as the two companies continued negotiating a distribution agreement.
Later that day, a judge in Illinois ordered AA to reinstate its fares on Orbitz.com, granting parent company Travelport's request for injunctive relief against the airline, which pulled its content from Orbitz.com and Orbitz for Business in late December.
AA's full schedule of flights was made available on both sites by June 2.
Orbitz Worldwide called the reinstatement of AA's flights "a win for transparency, consumer choice and for all of our mutual customers."
AA spokesman Ryan Mikolasik said, "We fundamentally disagree with its conclusion. We want to underscore that this is the exact opposite conclusion than that of the judge who heard the evidence. We are evaluating our options, but in the meantime, we will, of course, comply with the judge’s order."
Analysts said the ruling would not necessarily have a great deal of impact on Travelport and AA’s negotiations.
"This does not change negotiation leverage, only the near-term circumstances," said Douglas Quinby, senior director of research for PhoCusWright. "Which, ironically, are probably better for both AA and Orbitz. Orbitz gets to offer AA sales, and AA gets to sell through Orbitz. So it's probably financially better for AA in the immediate term, although they would rather put the pressure on Travelport by withholding the content."
"It's not predictive of the ultimate outcome," said Paul Ruden, ASTA’s senior vice president for legal and industry affairs. "There are cases where preliminary injunctions are issued to preserve the status quo, and then the judge or jury decides that the other party wins after all."
Ruden added that the reversal was good for consumers and travel sellers.
"The loss of that data is very important to the public, and restoring it is very important to the public in the sense that they don't look at these major retailers and start asking, 'Do I have to worry about not getting the full array of choices?'" he said.
Sabre and AA filing suit against each other was the latest legal battle between GDSs and airlines. Other cases include Travelport v. AA and US Airways v. Sabre.
Harteveldt said AA's lawsuit signaled that the GDSs "should not underestimate the airlines' focus on bringing down their distribution costs. ... That is a primary reason why they are doing this."
In addition, he said AA was standing its ground on Direct Connect and to which parts of its products the airline is willing to give the GDS access.
"AA is being extremely aggressive in trying to make its case that it wants to have freedom and flexibility to distribute its product as it wishes," Harteveldt said.
AA added Sabre to the antitrust lawsuit it originally filed in April against Travelport, and Sabre filed a motion to intervene in AA's antitrust lawsuit against Travelport in federal court.
Each party accused the other of anticompetitive practices: AA said Sabre and Travelport control more than 90% of bookings made by U.S.-based travel agencies and dominate an essential link to agents and many consumers. Sabre charged that AA was engaging in "anticompetitive conduct to maintain its monopoly position over air transportation out of its hubs and between many U.S. and Caribbean cities, and to gain a monopoly position in air booking services for travel between those cities."
Chris Kroeger, senior vice president of Sabre Travel Network, said legal action was "not the pathway we wanted."
"We preferred to extend the legal stand-down," he said. "However, it is apparent based on AA's actions that Sabre has no choice but to pursue legal remedies."
Whether or not litigation was necessary, and regardless of the outcome, many industry leaders said the continued legal actions were not a positive development.
"Industries that are suing each other all the time don’t work well together," Ruden said. "We have here a challenge to the fundamental structure of the industry by at least one airline and perhaps many, a structure that not only travel agencies and GDSs depend upon, but that the traveling public is a beneficiary of."
Ruden was alluding to the widely shared assumption within the industry that American, while technically acting unilaterally, is in fact blazing a trail for airlines in general to use in negotiations with GDSs.
"I believe that AA is acting on its own but that the other airlines are cheering them on," Harteveldt said.
There is little doubt that a noisy public clash serves the airlines' interests.
Bill Carroll, a senior lecturer at Cornell University's School of Hotel Administration, observed: "It's useful for the airlines to be public about this. They create the discussion in the public forum and let the other airlines know publicly that they are unhappy with the GDSs and willing to argue with them and go to the brink. That gives greater strength to other airlines in bargaining with the GDSs."
But there is also inherent risk in that strategy, Ruden said. In adjudicating a private dispute, a judge or trial jury might make a decision "that impacts adversely the ways in which the data is going to be distributed," he said. "There is a risk."
He added that judges will look only at whether a contract has been breached, and will not make decisions based on what fares and ancillaries should be made available.
"This is a problem that needs to be fixed, and judges don't fix things like that. That's why you have entities like the DOT," Ruden said. "In our industry, that's where consumer protection has to reside."