United States: In Latest Massachusetts Skycap Case, First Circuit Holds That ADA Preempts Common Law Claims

Judy Nemsick is a Partner in our New York office

Resolving an issue of first impression, the U.S. Court of Appeals for the First Circuit in Brown v. United Airlines, Inc.1 affirmed the district court's holding that common law claims, like statutory claims, are subject to preemption under the Airline Deregulation Act (ADA).2 The ADA expressly preempts a state from enacting or enforcing a "law, regulation, or other provision having the force and effect of law related to a price route, or service of an air carrier..." In Brown, the court addressed whether the phrase "other provision having the force and effect of law" includes common law claims for unjust enrichment and tortious interference brought by a putative class of skycaps working at U.S. airports nationwide against airlines that had imposed a $2-per-bag fee for curbside check-in. The skycaps argued that the curbside fee improperly reduced their compensation because many passengers presumed the fee was a mandatory gratuity.

Previous Preemption Rulings

The opinion is the latest of multiple preemption decisions issued by various courts in the First Circuit, beginning with Travers v. JetBlue Airways, Inc., which had dismissed both state statutory and common law claims on preemption grounds.3 The Brown court recognized that a recent First Circuit opinion based on similar facts,DiFiore v. Am. Airlines, Inc.,4 had found preempted a group of skycaps' statutoryclaims under the Massachusetts Tip Law (Tip Law), but had not directly addressed the skycaps' common law claims.

The DiFiore court had determined that enforcement of the Tip Law "impermissibly regulate[d]" the airline's check-in baggage service along with the "price" it charges because the airline would have to alter the manner in which it provided and advertised curbside check-in to ensure that the baggage fee would not constitute a "service charge" owed to skycaps under the Tip Law.5 The DiFiore court, however, did not address preemption of the skycaps' common law tortious interference claim because the jury award on that claim was inherently premised on the jury's finding of a violation of the Tip Law.

Additionally, while the First Circuit's previous holding in Buck v. Am. Airlines, Inc.6 dismissed on ADA preemption grounds a variety of common law claims, including breach of contract and unjust enrichment, it made no distinction between claims rooted in statutory law and those in common law. As a result, the Brown court was left to squarely decide the issue.

First Circuit: Common Law, Like Positive Law, Sets Standards of Conduct

As a threshold matter, the First Circuit found "highly significant dictum" in Am. Airlines, Inc. v. Wolens,7 which recognized that the phrase "having the force and effect of law" was "most naturally read to refer to binding standards of conduct that operate irrespective of any private agreement." According to the court, state common law acts as a "set of binding standards of conduct" and, just like positive (i.e., statutory) law, it can "effectively strong-arm regulated entities to alter their business practices." Accordingly, following the expansive and pragmatic approach to ADA preemption advocated by the U.S. Supreme Court, most recently in Am.Trucking Inc v. City of Los Angeles,8 the First Circuit concluded that common law clearly has "the force and effect of law."

The purpose and history of the ADA preemption clause further supported the circuit court's ruling. Prior to amendments in 1994, the ADA preemption clause contained the terms "law, rule, regulation, standard or other provision" — terms that typically include the common law. With the amendment, Congress made clear that the revised language was not intended to effect any substantive change. Therefore, the First Circuit deduced that the "only plausible reading" is that the ADA continues to preempt common law rules and standards.

Common sense also mandated this result because common law claims create just as much uncertainty and inconsistency in the "carefully calibrated federal regulatory framework [of aviation] as can state legislatures enacting statutes or state agencies promulgating regulations." In affirmatively finding that "other provision" includes common law claims, the First Circuit joins the Seventh Circuit, which had squarely addressed the issue in United Airlines, Inc. v. Mesa Airlines,9 and is in accord with several other circuits that have found preemption of common law claims without expressly addressing the issue.10

Conclusion

The skycaps have moved for a stay of the First Circuit's mandate pending the decision by the U.S. Supreme Court in Northwest Airlines, Inc. v. Ginsberg, No. 12-462,11which will address whether a claim for breach of the implied covenant of good faith and fair dealing is preempted under the ADA. The skycaps contend that Ginsberg, like their case, hinges on whether common law claims are preempted by the ADA. A temporary stay was issued. United was permitted to, and did file, an objection to a longer stay, arguing that the decision in Ginsberg is unlikely to affect the skycaps' case and that a decision on whether the two cases are sufficiently related to warrant a delay here should be made by the Supreme Court, not the First Circuit. A ruling on the skycaps' motion is pending.

Footnotes

1 __ F.3d __, 2013 WL 3388904 (1st Cir. July 9, 2013).

2 49 U.S.C. §41713(b)(1).

3 No. 1:08-cv-10730-GAO, 2009 WL 2242391 (D. Mass. July 23, 2009); see also previous articles by us reporting on the skycaps cases: The Massachusetts Skycaps Cases: An Update on Recent Developments, Aviation Centerline, May 2010 at http://www.hklaw.com/publications/The-Massachusetts-Skycap-Cases-An-Update-on-Recent-Developments-05-10-2010/; District Splits on Express ADA Preemption in Massachusetts Skycap Cases, Aviation Centerline October 2009, at http://www.hklaw.com/publications/District-Splits-on-Express-ADA-Preemption-in-Massachusetts-Skycap-Cases-10-29-2009/.

4 646 F.3d 81, 82 (1st Cir.), cert. denied, 132 S. Ct. 761 (2011).

5 646 F.3d at 88.

6 476 F.3d 29, 32 (1st Cir. 2007).

7 513 U.S. 219, 229 n.5 (1995).

8 133 S. Ct. 2096 (2013).

9 219 F.3d 605, 607 (7th Cir. 2000).

10 Cf., e.g, Onoh v. Northwest Airlines, Inc., 613 F.3d 596, 599-60 (5th Cir. 2010); Weiss v. El Al Israel Airlines, Inc., 309 Fed. App'x 483, 484-85 (2d Cir. 2009) (per curiam); Koutsouradis v. Delta Air Lines, Inc., 427 F.3d 1339, 1344 (11th Cir. 2005) (per curiam).

11 See our July 30, 2013 article, U.S. Supreme Court Grants Certiorari on Significant Aviation Issues, at http://www.hklaw.com/publications/US-Supreme-Court-Grants-Certiorari-on-Significant-Aviation-Issues-07-30-2013/.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions