Where a passenger sued an airline, alleging its environmental impact initiatives mislead customers, his claims under the Virginia Consumer Protection Act and for breach of contract were preempted by the Airline Deregulation Act.
Background
Koninklijke Luchtvaart Maatschappij NV, or KLM, operates KLM Royal Dutch Airlines. In support of its “Fly Responsibly” initiative, “KLM entices customers to ‘offset’ and ‘reduce’ the environmental impact of flying through its CO2ZERO program.” The CO2ZERO program includes reforestation projects in Panama as well as the use of sustainable aviation fuels. Plaintiff avers, however, that these initiatives are wholly insufficient for KLM to meet its stated environmental goals. As a result, plaintiff contends that KLM’s “Fly Responsibly” marketing misleads consumers.
Plaintiff asserts two claims against defendant: (1) a putative class action claim for violations of the Virginia Consumer Protection Act, or VCPA and (2) an individual breach of contract claim. Defendant has moved to dismiss both claims, arguing they are preempted by the Airline Deregulation Act, or ADA.
The ADA’s preemption clause reads as follows: “[A] State … 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 that may provide air transportation under this subpart.” The Supreme Court has interpreted this clause broadly, holding that the ADA preempts any “actions having a connection with or reference to airline rates, routes, or services.”
VCPA
Defendant notes that courts “routinely preempt claims asserting violations of state consumer statutes and other claims — like the VCPA — that sound in fraud [and] relate to airline rates or services.” Defendant therefore argues that because plaintiff’s VCPA claim sounds in fraud and relates to defendant’s rates and services, it is preempted by the ADA.
Plaintiff maintains that his allegations relate only to “voluntary practices,” which have no impact on defendant’s “ability to set its rates, routes, or services.” Plaintiff further argues that he “is not ‘attempting to use the [VCPA] to impose’ anything ‘not required by the [ADA],’” but “merely ‘to enforce a … general duty not to mislead or deceive customers.’” Plaintiff’s arguments, while clever, do not carry the day.
The ADA operates to preempt a state law claim where such claim (1) relies upon the enforcement of state law and (2) “relates to” an airline’s “rate, route, or service in more than an overly tenuous, remote, or peripheral a manner.” Plaintiff’s VCPA claim for false, misleading, and deceptive practices explicitly “rel[ies] upon the enforcement of a state law” — the VCPA. Indeed, the complaint itself concedes as much.
Regarding the second element, the crux of plaintiff’s claim is that defendant’s sustainability-related advertisements are misleading, insofar as the services defendant provides do not boast the level of sustainability plaintiff perceived defendant’s advertisements to tout. The ADA therefore preempts plaintiff’s VCPA claim with respect to defendant’s advertisement of such services.
The court’s conclusion on this issue is further bolstered by the District of Maryland’s recent persuasive holding in Zajac v. United Airlines, Inc. There, the court was presented with a set of facts nearly identical to those here, albeit with respect to a different airline. The court ultimately held that the plaintiff’s claim under the Maryland Consumer Protection Act was preempted by the ADA.
Contract
Defendant acknowledges that the Supreme Court has “recognized a single, narrow exception to ADA preemption” for “breach of contract claims that enforce an ‘airline’s alleged breach of its own, self-imposed undertakings.’” However, defendant notes that “[t]o avoid preemption,” a plaintiff’s breach of contract claim “must be limited to ‘the parties’ bargain, with no enlargement or enhancement based on state laws or policies external to the agreement.’” Defendant argues that, because plaintiff’s breach of contract claim does not fit within this exception, it must be dismissed as preempted.
The court agrees. Plaintiff’s breach of contract claim is a thinly veiled repackaging of his VCPA claim, through which he attempts to hold defendant liable for its allegedly misleading advertising. Because plaintiff’s breach of contract claim is therefore “an obvious attempt to have [Virginia] ‘impos[e] [its] own substantive standards’” with respect to how airlines advertise their services, it is preempted by the ADA.
Defendant’s motion to dismiss granted.
Long v. Koninklijke Luchtvaart Maatschappij N.V, Case No. 3:23-cv-435, Aug. 26, 2024. EDVA at Richmond (Young). VLW 024-3-456. 15 pp.