This week, on Wednesday, the Supreme Court of the United States will hear argument in Air Wisconsin Airlines Corp. v. Hoeper, a case involving the interpretation of a federal statute designed to encourage airlines to report suspicious behavior by immunizing them from civil liability for those reports unless they were made with actual malice under the First Amendment. The case touches on the Aviation and Transportation Security Act ("ATSA") and illustrates the ongoing tension between airline operations and post-September 11th safety concerns in our Constitutional Democracy.
Last week the Supreme Court of the United States heard oral argument of Northwest Airlines etc. v. Ginsberg. One observer remarked that
The most remarkable thing about the argument was the almost surreal similarity of the positions of the attorneys arguing for Northwest (former Solicitor General Paul Clement), the government (Assistant to the Solicitor General Lewis Yelin), and Ginsberg (Adina Rosenbaum of Public Citizen). All three agreed that some uses of an implied covenant are permissible, and not preempted. Thus, Clement readily conceded that when it is “just a rule of construction” that is “merely constructing the express terms of the contract,” the implied covenant should not be preempted.
A copy of the transcript appears here:
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.
