In my day job as an attorney, people often ask if they can sue for some wrong.  My stock answer is snarky.  “Of course you can!  The real question is if you can win!” Until recently, if you tried to sue an airline for a violation of state law (such as for consumer fraud), the case would be dismissed based on the doctrine of federal pre-emption.  That doctrine suggests that if the federal government has regulated an industry, the states cannot impose its own laws about it unless the federal law allows it.

The airlines have always argued that the airlines are exclusively regulated by the Department of Transportation, so you cannot sue in state court for consumer fraud.

The quirkiest appellate circuit (the Ninth Circuit located in San Francisco)  in the country has now said, “Not so fast!”  According to the San Francisco Chronicle,  Rabbi S. Binyomin Ginsberg, a Minneapolis clergyman sued his former hometown airline, Northwest Airlines, for breach of contract after the airline revoked his frequent flier status after nine years. The airline claimed it had the right to decide when a passenger was abusing its frequent flier program, but Ginsberg said he was being punished for criticizing the airline and its merger with Delta.  (One wonders how a passenger can abuse a frequent flier program).

The lower court determined that Ginsburg’s consumer fraud and contract claims were barred by federal pre-emption.  The appeals court disagreed.  There is no doubt that the airline will appeal, although there is a strong possibility that the United States Supreme Court will just scratch its collective head and say, for the billionth time, “That whacky Ninth Circuit!” and decline to take the case.

Back in law school, we learned that one of the reasons the Supreme Court takes a case is to resolve inconsistencies between appellate circuits.  However, when its the Ninth Circuit, us lawyers who don’t practice in the Ninth know that we should probably just assume the Ninth was wrong.

If you are itching to sue an airline, the Consumer Travel Alliance is monitoring the issue.

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