The Massachusetts Skycap Cases: An Update on Recent Developments

In an article published in Centerline’s Fall 2009 issue,¹ we detailed the varying approaches toward express preemption under the Airline Deregulation Act (ADA) taken in several Massachusetts federal cases brought by skycaps against major airlines. In the intervening months, these cases have continued to develop in interesting, if divergent, substantive directions. As promised in our previous article, below is a brief update on recent key developments in these cases of industry interest.

Di Fiore Cases

Several notable developments have occurred in the two skycap cases pending against American Airlines. In December 2009, the judge in the DiFiore case denied American’s motion for reconsideration of the court’s prior preemption holding. American had sought reconsideration of the 2007 denial of its motion to dismiss on preemption grounds, and reversal of the jury verdict against the airline that ultimately ensued, citing the intervening favorable preemption decisions in the JetBlue, United and US Airways skycap cases.

The judge held that, notwithstanding the divergent views of ADA preemption expressed by his colleagues in these other cases, his view remained unchanged. He noted that his prior preemption holding was based not upon an implicit employment law exception to ADA preemption, but instead reflected a judgment that the ADA’s “significant effects” test should be applied with particular “sensitivity” in the area of employment law. Notably, the DiFiore judge – unlike his colleagues in companion skycap cases – credited the plaintiffs’ characterization of their claims as “employee claims,” and accepted the plaintiffs’ construction of their claims as challenges not to the airline’s curbside charge, but only to its “manner” of collection. The DiFiore judge observed that ADA preemption questions must be resolved on a case-by-case basis, and held that the DiFiore skycaps’ claims bore only a tenuous relationship to American’s prices or services. In short, the rift within the District of Massachusetts on the scope and application of express ADA preemption persists, and the issue is now ripe for appellate consideration.

Judgment in the DiFiore case was entered in January 2010 in favor of the nine named Massachusetts skycaps and in a total amount exceeding $765,000, inclusive of pre-judgment interest and attorneys’ fees. American has commenced its appeal to the First Circuit on, inter alia, ADA express preemption grounds. The DiFiore skycap plaintiffs have cross-appealed the court’s holding that they were not entitled to treble damages because the mandatory trebling provision of the Massachusetts Tips Law does not apply retroactively. Briefing on the appeal will commence in May and will be complete by the end of July. The judgment against American in DiFiore has been stayed pending the First Circuit’s decision.

Also, in February 2010, a companion skycap case against American Airlines – Overka v. American Airlines, Inc., which had long been stayed pending the outcome of DiFiore – emerged from its stay for just long enough to allow the judge to certify a nationwide opt-out class of American Airlines skycaps. As noted in our Fall 2009 article, the court in DiFiore previously had declined to certify a nationwide class, finding that differences in applicable state laws would make class-wide litigation difficult to manage. In the February 2010 Overka decision, however, the same judge concluded that management of a nationwide skycap class bringing state law claims would not pose insurmountable problems.

The judge found significant the Overka plaintiffs’ concession that they would pursue only common law claims of unjust enrichment and tortious interference with contract, that they would not be bringing any state statutory wage law claims, and that they would not base their common law claims on violations of statutory wage law standards. After conducting a nationwide survey of relevant state common law, the Overka judge acknowledged numerous substantive variations in the applicable laws of unjust enrichment and tortious interference. However, he decided that he would be able to craft viable jury instructions based upon the uniform legal elements common to all relevant states, with state-specific carve-outs to accommodate differing legal elements. Accordingly, the judge certified a Rule 23(b)(3) class of skycaps working at American Airlines’ U.S. terminals during the pendency of American’s curbside check-in charge. The nationwide class was certified “as to the issue of liability only,” with damages inquires to be reserved for individualized determination. After this decision on class certification was issued, the Overka case once again re-entered its longstanding stay, with further litigation to await the First Circuit’s determination of whether the DiFiore skycaps’ state law claims were preempted by the ADA.

Travers The recent path of the Travers case against JetBlue has been different. In November 2009, the Travers judge denied the skycap plaintiffs’ motion for “clarification” (effectively, for reconsideration) of his dismissal of all state law claims against JetBlue on ADA express preemption grounds. Also in November 2009, the Travers judge denied the skycap plaintiffs’ motion for certification of a Rule 23 nationwide skycap class, deeming the certification motion a “casualty of preemption” of all state law claims the putative class was to have pursued. JetBlue’s motion for summary judgment against the sole claim still extant against it – a federal claim under the Fair Labor Standards Act – is now pending.

Brown and Mitchell Little of substance has changed in the Brown case against United Airlines and in the Mitchell case against US Airways. The skycap plaintiffs’ motions for reconsideration of the judge’s dismissals of their state law claims on ADA express preemption grounds have now been fully briefed and remain pending as of the date of this update. US Airways has filed a summary judgment motion against the sole federal Fair Labor Standards Act still pending against it in Mitchell.

In future editions of Centerline newsletters and alerts, we will continue to keep our readers apprised of key developments in these significant cases.

¹ See “District Splits on Express ADA Preemption in Massachusetts Skycap Cases,” Aviation Centerline, October 2009, at http://www.hklaw.com/publications/District-Splits-on-Express-ADA-Preemption-in-Massachusetts-Skycap-Cases-10-29-2009/