US Supreme Court Takes Flight - to Hear Airline Deregulation Act Case

Aviation cases brought before the United States Supreme Court are infrequent, but on December 3, 2013, the high court will hear argument in a case styled Northwest, Inc. v. Ginsberg, which USA Today reports this way:

The airline revoked Rabbi Binyomin Ginsberg's membership in the WorldPerks Platinum Elite program in June 2008. He had complained 24 times in eight months about Northwest's service and sought "compensation over and above (Northwest's) guidelines," according to the airline's written argument.

Ginsberg, who flies 75 times a year as a lecturer, filed a federal class-action lawsuit seeking $5 million, saying he was dropped without adequate cause. He acknowledged complaining about getting bumped from flights, but not every time.

"Rabbi Ginsberg appealed solely with respect to the claim for breach of the implied covenant of good faith and fair dealing," Ginsberg's written argument said.

But Northwest, which is now part of Delta Air Lines, argued that the Airline Deregulation Act of 1978 prevents lawsuits governing "price, route or service of an air carrier."

It is true that the Airline Deregulation Act preempts state law claims that "relate to" airline prices, routes, or services.

What will be interesting in this case is whether the Supreme Court determines, as it has in the past, that frequent flyer programs represent contract rights and voluntary airline undertakings that are not preempted under the federal deregulation act, or whether the passenger's particular claim here (including "bumping"), falls within the "price, route, or service" an air carrier offers so as to be preempted. 

New Round of Passenger Rights on the Horizon

The United States Department of Transportation enacted airline passenger consumer rights rules in 2010 and 2011 and is now reportedly scheduled to release a third round of rules in Fall 2014.

Likely among the new rules:

• The requirement that small airlines report on-time performance and mishandled baggage data, in the same way that large carriers already do;
• An expansion of the existing performance reporting requirements to include not only airlines’ own flights but those of their code-share partners;
• The requirement that airlines provide real-time information on fees for optional services to travel agents, so that consumers will be able to compare the fees among carriers and pay for optional services when they book flights through them; and
• Requiring ticket agents to adopt minimum customer service standards, such as providing refunds and timely responses to consumer complaints in a timely manner.