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11th Circuit Says Not So Fast With This Whole Preemption Business!

I love how big corporations constantly use preemption as a lawsuit get-out-of-jail-free card; all those lackeys we put in Congress and those underfunded, understaffed agencies (with staffers we will be hiring shortly or who we temporarily loaned over there) all know better than anybody else and if they did anything involving our industry oh well no more lawsuits for you!

Hey, but what do I know?

Just ask the 11th, who decided that Judge Scola went a touch overboard with protecting Spirit Airlines from a RICO suit by using that dreaded "P" word :
Plaintiffs commenced this civil suit against Spirit Airlines, Inc. (“Spirit”) under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68, alleging that Spirit conducted an enterprise by means of racketeering activity -- here, two or more predicate acts of mail and wire fraud involving the concealment and misrepresentation of airfares and user fees. The district court dismissed the action, ruling that comprehensive federal regulation of the airline industry precluded Plaintiffs’ civil RICO claims. We disagree. Because federal laws do not preempt other federal laws, subsequent legislation could preclude Plaintiffs’ claims only if Congress had repealed the provisions of RICO, at least insofar as they authorized Plaintiffs’ actions. Congress did not do so expressly through the Airline Deregulation Act of 1978 (ADA), Pub. L. No. 95-504, 92 Stat. 1705. And we find no “repeal by implication” because Congress has not exhibited the requisite clear and manifest intent. E.g., Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497, 503 (1936). The ADA explicitly preempted state laws but, notably, said nothing about any federal cause of action. Moreover, a saving clause found in the ADA did not disturb any other remedies provided by law. Quite simply, the two laws are not irreconcilably in conflict, nor was the ADA clearly intended as a substitute for RICO. Applying the strong presumption against implied repeals, we are constrained to conclude that RICO supplements, rather than subverts, federal regulation of air carriers.
BTW, the facts of this case are self-evidently true to anyone who has ever flown on that carrier:
Plaintiffs’ second amended complaint alleged the following basic facts. Spirit holds itself out as an “Ultra Low Cost Carrier” offering airfares at rates far lower than other providers. These cheap fares disguise the total cost of travel because Spirit forces consumers to pay unbundled charges traditionally included in the price of an airline ticket. Specifically, Spirit charges a Passenger Usage Fee to all consumers who buy tickets through its website or call center. When searching for flights on Spirit’s website, a consumer sees only the base fares. Once he has selected a flight, a webpage directs him to “confirm” the flight on a page that displays both the base fare and an undifferentiated amount labeled “Taxes & Fees.” For a breakdown of these charges, the consumer then must click on an additional link, “more information,” which lists “Passenger Usage Fee” alongside government taxes and fees.
In other words, your fare winds up being about double what you thought it was when you bought the ticket.

Jeez, I'm starting to sound like Andy Rooney -- God bless America!


  1. It's shocking how often federal judges confuse preemption (federal law trumping state law) with repeal by implication (one federal law implicitly repealing another federa law). They're not even remotely the same thing.

  2. Those guys and gals are so overworked....who can blame them for wanting to kick every civil case?

  3. Please note Stanley Marcus's very clear language that he is not commenting on whether the allegations state a claim under RICO. I predict a decision affirming a dismissal for failure to state a claim in about two years' time.

  4. Actually, the problem with the courts, politicians, lawyers, law enforcement is all the same exact problem.

    When the American Bar Association presented the Rules of Professional Conduct to EVERY state supreme court to enact into law, they deliberately acted to undermine the integrity of the judiciary - presumably to protect the integrity of the judiciary.

    When an injustice or judicial misconduct occurs within a court by a judge, Rule 1.6 Confidentiality prevents it from any discussion and keeps the issue confidential - without mercy - even to the point where a litigant loses everything because of wehat the court cannot say.

    Enacted from 1984 (new Jersey) to 2009 (Maine), each states Rules of Professional Conduct were quietly enacted into law without explanation - considering they were not LAW for 200 years, one would expect a reason. That reason is being kept confidential under Rule 1.6.

    Confidentiality went from being a discretionary decision to a mandate which is aggressively enforced.

    The Courts knew. Over 40 million fraudulent foreclosures. Over 4000 kids and families in Kids for Cash scandal. Millions denied their constitutional rights without any recourse.

    A preemptive Constitutional Challenge was filed and served to every state attorney general. The federal courts dismissed based on their own fiction. On Appeal , it was affirmed. Each of those courts are required to follow Rule 1.6 - Fed Courts Local Rules.

    The Congress will not do anything, nor will the US Attorneys - The McDade-Murtha Amendment requires the US Attorneys to follow Rule 1.6 for the state where the case is located.

    They made it impossible for anyone in law, law enforcement, judiciary, at both state and federal levels to take any action to help address the loss of constitutional rights.

    They made it illegal for lawyers to expose the issue.

    I'm not a lawyer. It is not illegal for me. The Confidentiality Rule for Lawyers collaterally causes the constitutional crisis.

    I have been working the Rule 1.6 issue since July 2013.

  5. Just like Andy Rooney, but with much better eyebrows.


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