Recent news headlines relating to air travel have demonstrated the aviation industry’s refocus on passenger experience and consumer protection issues. Airlines are working hard to address scenarios that may affect the passenger experience during air travel today, including remediating weather delays and personnel-related issues. The Biden Administration has made consumer protections in the aviation industry
In a New Jersey personal injury action, when a plaintiff alleges physical and/or mental injury as a result of the defendant’s negligence or other tortious conduct, the defendant is entitled to have the plaintiff examined by one or more medical experts pursuant to New Jersey Court Rule 4:19. The purpose of such examinations is for defense-retained medical experts to assess and offer opinions concerning the injuries the plaintiff is claiming in the lawsuit. Oftentimes, the plaintiff’s counsel will request that a third-party be present for the DME or that it be audio or video recorded. Such requests typically lead to disagreements between counsel and ultimately motion practice.
After 9/11, waves of lawsuits were filed seeking to hold those who sponsored and supported the al Qaeda terrorist organization accountable. For instance, insurance companies, who paid out hundreds of billions of dollars in compensation for property damage and personal injuries as a result of the 9/11 attacks, filed subrogation lawsuits against al Qaeda and a host of other terrorist organizations, individual terrorists, nation states[1], and financial institutions allegedly involved in providing support and financial assistance to certain 9/11 hijackers and plotters. In addition, family members of those killed in the attacks, as well as those injured, also filed lawsuits. These lawsuits, among others, were consolidated into a multi-district litigation captioned In Re Terrorist Attacks on September 11, 2001.
In the past week, the U.S. House and U.S. Senate separately proposed legislation to reauthorize and fund the Federal Aviation Administration (FAA). While there are similarities and overlapping provisions in the two bills, there are many differences. For example, while the House’s version provides great funding and revitalization of the general aviation community, the Senate’s version does not. By way of further example, the Senate’s version provides sweeping provisions for what it calls “consumer protections” which would drastically alter a commercial airline’s financial obligations in the event of a delayed flight and requires hotlines for the general public. The House version takes a softer stance on such issues.
The business, commercial, and general aviation communities should take note of our key takeaways from the two competing bills and monitor the developments in Congress over the summer as we approach the September 30 expiration deadline of Congress’ FAA authorization. Below we focus on certain highlights from the two pieces of legislation, including part 121 air carriers, advanced air mobility, general aviation, and consumer protections.
Continue Reading U.S. House of Representatives and U.S. Senate propose bills to reauthorize the FAA
The United States Department of Transportation (“DOT”) launched a new online dashboard in another step by the Biden Administration to strengthen aviation consumer protections.
Continue Reading U.S. Dept. of Transportation launches online dashboard to address airline family seating charges
Unruly passenger numbers have been on the rise, with many of these incidents related to compliance with COVID-19 mask-related regulations. There are concerns of further issues during the holiday period with Omicron on the rise and an increase in travel as people visit family.
Our U.S. litigation team have set out some of the considerations
According to the Centers for Disease Control and Prevention (CDC), those who are fully vaccinated with an FDA-authorized vaccine or a vaccine authorized for emergency use by the World Health Organization can now travel safely within the U.S. Face coverings, however, must still be worn at the airport and during flight.
Continue Reading FAA and Homeland Security issue warnings as unruly passenger incidents increase
On Monday May 3, 2021, the California federal district court judge handling the Kobe Bryant helicopter crash lawsuit denied the United States Government’s motion to dismiss claims made against it by Island Express Helicopters, Inc.—the helicopter charter company operating the fateful helicopter flight—for indemnity.
Continue Reading U.S. Court refuses to dismiss indemnity claims against U.S. Government in Kobe Bryant helicopter crash lawsuit
On March 25, 2021, the U.S. Supreme Court handed down a decision which rejected a narrow construction of specific personal jurisdiction under the Due Process Clause. In Ford Motor Co. v. Mont. Eighth Judicial Dist. Court, the Supreme Court clarified the limits of specific personal jurisdiction and litigants’ due process rights and held that Ford Motor Co. can be sued in Montana and Minnesota over accidents involving used cars in those states even though the cars were not designed, manufactured, or sold in those states. The decision has significant implications for the scope of personal jurisdiction under the Due Process Clause, including for aviation manufacturers in product liability actions that are filed outside of their home jurisdiction.
The court’s ruling was 8-0, with Justice Alito filing a concurring opinion and Justice Gorsuch filing a separate concurring opinion that was joined by Justice Thomas. Justice Barrett did not participate.
In 2017, the Supreme Court held in Bristol-Myers Squibb Co. v. Superior Court of California, 137 S. Ct. 1773 (2019), that specific personal jurisdiction can be exercised over a defendant pursuant to the Due Process Clause only when (1) a defendant “ha[s] purposefully availed itself of the privilege of conducting activities within the forum state” and (2) when the plaintiff’s claim “arise[s] out of or relate[s] to” the defendant’s forum conduct. The Supreme Court’s decision in Ford Motor Co. examined the limits of the second prong—that a plaintiff’s claim must “arise out of or relate to” the defendant’s forum conduct.
Continue Reading Aviation manufacturers take note as the U.S. Supreme Court rules on the extent of specific personal jurisdiction under the Due Process Clause and opens the door to future suits
After considering whether to implement a COVID-19 testing requirement for domestic travel, including air travel, the United States Centers for Disease Control and Prevention (“CDC”) recently stated that it is not recommending point of departure COVID-19 testing for U.S. domestic travel. Federal officials had indicated that the CDC was considering a rule that would require all U.S. domestic flyers to test negative for COVID-19 prior to boarding a domestic flight. However, following industry opposition, including opposition from U.S. based air carriers, the CDC stated that it was not recommending point of departure COVID-19 testing prior to domestic travel. The statement by the CDC follows its January 29, 2021 Order which requires the wearing of masks by travelers.
Continue Reading Masks but no tests: U.S. CDC requires masks but will not require COVID-19 testing for domestic travel
On January 13, 2021, the Department of Transportation (DOT) issued a new final rule amending its rules regarding oversales and compensation due to passengers who are denied boarding involuntarily — a practice known as “bumping”. The final rule was issued in accordance with the Transparency Improvements and Compensation to Keep Every Ticketholder Safe Act of 2018 (“TICKETS Act”)[1] which required the DOT complete a rulemaking to clarify that:
The final rule prohibits airlines from involuntarily denying boarding to a revenue passenger after the revenue passenger has checked-in for the flight and the passenger’s boarding pass has been collected or scanned and the passenger has been “accepted by the gate agent”, subject to safety and security exceptions that may require removal of the passenger. In addition, the final rule states that the passenger can be removed if the passenger is engaging in behavior that is “obscene, disruptive, or otherwise unlawful.” The final rule also makes clear that it does not limit the authority of the pilot of the aircraft provided for in 14 CFR 121.533.
Continue Reading U.S. DOT issues new final rule on bumping
On December 2, 2020, the U.S. Department of Transportation (“DOT”) announced its final rule revising its Air Carrier Access Act (“ACAA”) regulation on the transportation of service animals by air.[1] The final rule constitutes significant changes to the ACAA regulations regarding the transportation of service animals. Significantly, the final rule restricts the types of service animals allowed on U.S. flights to dogs and frees airlines from having to accommodate a variety of emotional support animals. However, the rule does not bar emotional support animals from traveling in passenger cabins.
Prior to the issuance of the final rule, the DOT published an Advance Notice of Proposed Rulemaking titled “Traveling by Air with Service Animals” on May 23, 2018. On February 5, 2020, the DOT issued a Notice of a Proposed Rulemaking providing notice of a proposed rule amending its ACAA regulation on the transportation of service animals by air.[2] The DOT then received more than 15,000 comments on the proposed rule before announcing the final rule on December 2, 2020.
Continue Reading DOT issues new rule addressing emotional support animals on flights
We have published our semi-annual update on developments in state and local tax affecting the aviation industry. In this update, we will focus on some noteworthy sales and use tax law changes, cases, rulings, and guidance from the second half of 2018.
Click here for a copy of the client alert.
In a very significant, closely watched aviation product liability preemption case in the U.S. Court of Appeals for the Third Circuit, Sikkelee v. Precision Airmotive Corp., et al., No. 17-3006, 2018 WL 5289702 (3d Cir. Oct. 25, 2018), the court recently held that state law claims against type certificate holders can go forward unless the defendant can show that the FAA would not have approved a plaintiff’s proposed change to the FAA type certificate. The court held that the plaintiff’s design defect claims against Lycoming, the type certificate holder for the engine on the accident aircraft, were not conflict preempted because Lycoming was in a position to make changes to its type certificate and was unable to show that the FAA would not have approved the alternative engine design the plaintiff proposed. The court emphasized that allowing state law claims to proceed against type certificate holders complemented the federal scheme and furthers its purpose of ensuring the safety of aircraft. Accordingly, under this ruling, it appears that the only time a type certificate holder can potentially succeed with a conflict preemption defense under these circumstances is if there is clear evidence establishing that the FAA would not have approved an alternative design proposed by the plaintiff.
The dissent held that the claims were preempted and pointed out significant issues with the majority’s decision. The majority relied primarily on a U.S. Supreme Court case which held that state law claims against brand name pharmaceutical manufacturers are not preempted because the manufacturer was able to implement changes prior to receiving FDA approval. The dissent pointed out the critical distinction between that case and Lycoming – unlike a brand name pharmaceutical manufacturer, an FAA type certificate holder cannot implement design changes without prior FAA approval. Thus, the dissent held that the majority’s analysis was flawed because it would be impossible for Lycoming to independently implement the changes that the plaintiff alleged state law required.
Continue Reading New Sikkelee decision from the U.S. Court of Appeals for the Third Circuit – state law claims against type certificate holders are not conflict preempted