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Supreme Court hears arguments on frequent flyer miles, false advertising

The US Supreme Court [official website] heard oral arguments [day call, PDF] Tuesday in two cases. In Northwest, Inc. v. Ginsberg [transcript, PDF; JURIST report] the court must decide on the scope of preemption under the Airline Deregulation Act of 1978 (ADA) [49 USC § 41713(b)]. Section 41713(b) provides that states "may not enact or enforce a law, regulation or other provision having the force and effect of law related to a price, route, or service of an air carrier." Respondent Ginsberg participated in Northwest Airlines' frequent flyer program and sued when he was removed from the program. Although the district court dismissed Ginsberg's implied covenant of good faith claim as preempted by the ADA, the US Court of Appeals for the Ninth Circuit reversed [opinion] as to the implied covenant claim, finding such claims categorically unrelated to a price, route or service.

In Lexmark International, v. Static Control Components [transcript, PDF; JURISTreport] the court will determine whether the appropriate analytic framework for determining a party's standing to maintain an action for false advertising under the Lanham Act [Cornell LII backgrounder] is (1) the factors set forth in Associated General Contractors of California v. California State Council of Carpenters (1983) [opinion] ...; (2) the categorical test, permitting suits only by an actual competitor ...; or (3) a version of the more expansive "reasonable interest" test. There has been a circuit split on the issue. In this case the US Court of Appeals for the Sixth Circuit applied [opinion] the "reasonable interest" test, reversing the dismissal of Static Control's counterclaims for false advertising.

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