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

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