Reuters: Flying stinks. Could state courts make it better?

January 13, 2023 Media

When Oakland, California resident Mike Lawson, 41, showed up at his hometown airport the day after Christmas to catch a Southwest Airlines flight to Phoenix to visit his parents, he described the scene to me as “chaos.”

“People were so angry — they were just yelling into the wind.”


From Dec. 22 to Dec. 31, according to my Reuters colleagues, Southwest canceled more than 16,000 flights amid an operational meltdown following a fierce winter storm, disrupting the travel plans of hundreds of thousands of people.(Lawson included.)

Unsurprisingly, Southwest has already been hit with at least two class action lawsuits — one in New Orleans federal court, the other in San Diego state court– on behalf of passengers who had their travel plans upended.

Consumer advocate William McGee has another idea, one that appeals to my wonky legal heart: Get rid of federal preemption of laws covering “rates, routes, or services” of air carriers. Doing so, he said, would open the door to state courts, state legislatures and state attorneys general to go after airlines for consumer protection violations.

A senior fellow for aviation and travel at the American Economic Liberties Project, McGee explained that when Congress passed the Airline Deregulation Act of 1978, lawmakers tacked on a federal preemption provision. The idea was to prevent individual states from enacting laws that might undercut the policy rationale for deregulation.

But it also meant that state AGs — traditional champions of consumer protection — were sidelined against the airlines. Likewise, private litigants who attempt to invoke state laws are likely to run into preemption as a defense.

It’s “incredibly rare” for passengers to succeed in suing airlines, McGee’s colleague Lee Hepner, legal counsel with the project, told me.