In this appeal we hold that this lawsuit filed by the People, on behalf of the State of California (the State), under the unfair competition law (Bus. & Prof. Code § 17200 et. seq. (UCL)1 ), against Delta Air Lines, Inc. (Delta) is expressly preempted by the Airline Deregulation Act of 1978 (49 U.S.C. § 41713 (b)(1)) (ADA). By its complaint, the State seeks injunctive and monetary damages based on an allegation that Delta’s Fly Delta mobile application is in violation of the privacy policy requirements mandated by California’s Online Privacy Protection Act of 2003 (Bus. & Prof. Code, §§ 22575-22579; Stats. 2003, ch. 829, § 1). Agreeing with Delta that the State’s lawsuit was expressly preempted by the ADA, the superior court dismissed the complaint with prejudice after sustaining Delta’s demurrer without leave to amend.

It contains some additional information on the case. HT on the overlap to Andrew Kaufman.]The Supreme Court yesterday granted cert in Northwest, Inc. v. Ginsberg, a case about whether the Airline Deregulation Act's preemption provision, 49 U.S.C. 41713(b), preempts a consumer's state-law damages claim -- a claim alleging a breach of the implied covenant of good faith and fair dealing -- regarding his removal from an airline's frequent-flyer program. The Supreme Court has addressed the ADA's preemption provision in two cases.

[co-author: Stephanie Kozol]*The U.S. Department of Transportation (DOT) recently announced an Airline Passenger Protection Partnership with state attorneys general (AGs), marking a significant expansion of AGs’ regulatory reach. This partnership, formed in response to growing frustration among AGs over their limited ability to investigate passenger complaints and enforce state consumer protection laws against airlines, empowers AGs to investigate complaints against airlines and grants them access to complaints filed directly by consumers with the DOT.The Expanded AG AuthorityTraditionally, because the DOT is the primary regulator of the airline industry, federal preemption has shielded the airline industry from AG regulatory scrutiny. This preemption prevents state and local governments and private parties from bringing claims under state consumer protection statutes or other state laws “related to a price, route, or service of an air carrier.” 49 U.S.C. § 41713(b). This has historically limited the AGs’ ability to investigate consumer complaints against airlines.However, with the new partnership, 18 AGs have signed a memorandum of understanding (MOU) with the DOT, with seven more expressing interest in joining. The MOU encourages AGs to investigate consumer complaints about airlines and travel agencies, and effectively deputizes the AGs to make a preliminary determination as to whether the complaints indicate a potential violation of federal aviation consumer protection laws enforced by the DOT.Our State AG team has been monitoring AGs’ desire to become active in the airline industry for quite some time. In August 2022, 39 state and territorial AGs and the National Association of Attorneys General sent a letter to Congress asserting that there is a “vacuum of oversight” over the airline industry. Accordingly, they “urge[d] Congress to take meaningful action and pass legislation that would authorize state attorneys general to enforce our state a

ell as travel credits for certain consumers affected by a serious communicable disease; andenhanced transparency of airline ancillary service fees displayed in response to online flight searches. These final rules are in addition to ongoing DOT initiatives to eliminate so-called family seating fees and to specify amenities that must be provided by airlines during flight irregularities within their control. The expansion of state AG collaboration with federal co-enforcers is not new. As we have previously reported, AGs frequently partner with the FTC, CFPB, and DOJ, leveraging the force-magnifying effect of co-enforcement power to investigate and bring enforcement actions against businesses for a variety of consumer protection, antitrust, and data privacy violations. With AGs now having their hands on DOT’s regulatory steering wheel, airlines and travel agencies should expect increased regulatory scrutiny as AGs and DOT join forces on consumer protection issues in the aviation sector.1 49 U.S.C. § 41713(b).

few years. Federal action has come under increasing threat of courts that are hostile to broad exercises of agency authority, making suits brought under state law potentially pivotal for defining the future contours of greenwashing law.Notes 15 USC § 45.Id; 49 USC § 41712. See 49 USC § 41712 (DOT has plenary authority to "investigate and decide whether an air carrier ... has been or is engaged in an unfair or deceptive practice or an unfair method of competition in air transportation or the sale of air transportation"); Morales v. Trans World Airlines, Inc., 504 U.S. 374, 390-91 (1992) (recognizing that DOT retains power to address unfair advertising practices); In re Korean Air Lines Co., Ltd., 642 F.3d 685, 694 (2011) (citing H.R. Rep. 98-793, at 4 (1984) ("'[f]ederal regulation insures a uniform system of regulation and preempts regulation by the states' in a field where state-based variations 'would be confusing and burdensome to airline passengers, as well as to the airlines'")). 49 USC § 41713(b).

tandard that restrains the use of conventional vehicles, and will always affect air carriers’ services, routes, and prices. Responding to the District’s argument that the Rule is a valid ISR outside the scope of CAA preemption, the plaintiffs say an ISR is only authorized to regulate emissions when the regulation is site-based (whereas Rule 2305 is vehicle-based) and that even a valid ISR would be preempted by CAA Section 209(a) when it, like the Rule, is a vehicle emissions standard. Responding to the Defendants’ argument that the effects on carriers’ services, routes, and prices are too remote, A4A says that US Supreme Court precedent recognizes broad preemption under the ADA, including when a law’s effects are indirect.Latham & Watkins will closely follow the outcome of the plaintiffs’ motions for summary judgment.Endnotes Case No.: 2:21-cv-6341. CAA § 209(a), codified at 42 U.S.C. § 753(a). CTA’s Motion for Summary Judgment at p. 22.Id. at pp. 20-21.Id. at p. 1 (quoting the ADA at 49 U.S.C. § 41713(b)(4)(A)).Id. at p. 19.Id. at p. 17. District’s Opposition at p. 33, quoting Building Industry Association of Washington v. Washington StateBuilding Code Council, 683 F.3d 1144, 1145 (9th Cir. 2012). District’s Opposition at p. 68. NGO Opposition at p. 24.

e or online service is operated for commercial purposes. It does not include any third party that operates, hosts, or manages, but does not own, a website or online service on the owner's behalf or by processing information on behalf of the owner. Exempts small businesses (businesses with 10 or fewer employees).Exempts various entities and information types, including state government entities; nonprofit organizations; institutions of higher education; national securities associations registered under 15 USC 78o-3 of the Securities Exchange Act of 1934; financial institutions and data subject to GLBA; covered entities, business associates, and protected health information governed by HIPAA; information governed by the Fair Credit Reporting Act; information governed by the Driver’s Privacy Protection Act; personal data governed by the Family Educational Rights and Privacy Act (FERPA); personal data governed by the Farm Credit Act; personal data governed by the Airline Deregulation Act, 49 USC 41713; and personal data collected in relation to employment.Creates rights for individual consumers, including: the right to confirm whether a controller is processing personal data and to access that data; the right to delete personal data and correct inaccuracies; the right to obtain a portable copy of the consumer’s personal data; and the right to opt out of processing for the purposes of targeted advertising, the sale of personal data, or “profiling in furtherance of solely automated decisions that produce legal or similarly significant effects.”Requires that a controller provide notice in its customer agreement or incorporated addendum or on its website or online service which includes a description of the categories of personal information being processed and the categories of data shared with third parties and which third parties receive shared information. In addition, meaningful notice includes providing consumers with a description of the categories of personal information being

The ADA contains a preemption provision, which provides that “a State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.” 2022 WL 325242, at *5 (quoting 49 U.S.C. § 41713(b)(1)). While ADA preemption is broad, it does not preempt voluntary contractual commitments made by airlines or airline passengers.

Other exemptions include personal data maintained for employment records purposes, and customer data maintained by public utilities. Notably, the CPA has entity exemptions for financial institutions and their affiliates that are subject to the Gramm-Leach-Bliley Act, national securities associations registered pursuant to the Securities Exchange Act of 1934, and air carriers regulated under 49 U.S.C. § 40101, et. seq. and 49 U.S.C. § 41713. Finally, individuals acting in a commercial or employment context, as a job applicant, or as a beneficiary of someone acting in an employment context are excluded from the definition of a protected "consumer."

28See, e.g., Boswell v. Skywest Airlines, Inc., 361 F.3d 1263 (10th Cir. 2004); Love v. Delta Airlines, 310 F.3d 1347 (11th Cir. 2002).29See 49 U.S.C. § 41713(b)(1) ("[A] State . . . may not enact or enforce a law . . . related to a price, route, or service of an air carrier . . . ."); see alsoNorthwest, Inc. v. Ginsberg, 572 U.S. 273, 134 S. Ct. 1422 (2014); see also .30 Section 44902 authorizes an air carrier to refuse transportation to a passenger who the "carrier decides is, or might be, inimical to safety." 49 U.S.C. § 44902(b).31See, e.g., Lozada v. Delta Airlines, Inc., No. 13-cv-7388, 2014 WL 2738529, at *5 (S.D.N.Y. June 17, 2014) (finding claims related to removal of passenger preempted by the ADA); Weiss v. El Al Israel Airlines, Ltd., 433 F. Supp. 2d 361, 370 (S.D.N.Y. 2006) (holding that tort claims based on an airline's denial of transportation were "clearly preempted" by the ADA); Huggar v. Northwest Airlines, Inc., No. 98‑cv-594, 1999 WL 59841, at *9 (N.D. Ill. Jan. 11, 1999) (same).