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...