Federal Judge Guts Southwest Early Check-in Class Action

A class action lawsuit against Southwest Airlines Co., alleging that customers who participate in their “Early Bird Check-in” program aren’t getting what they pay for, was gutted by a California federal judge Wednesday.

U.S. District Judge Cormac Carney told plaintiffs Robert Zammetti and Michael Lowry that the charges in the Southwest class action lawsuit are largely preempted by the Airline Deregulation Act.

Zammetti and Lowry said in their false advertising class action lawsuit filed in November 2014 that Southwest charges a fee to customers who want a higher boarding priority for $12.50 one-way.

“The Early Bird Check-in option will ‘guarantee automatic check-in and assign a ‘priority’ position 36 hours before the flight’s departure time,'” Judge Carney explains.

However, the plaintiffs claimed that even though they paid for the Early Bird Check-in, they were given “a lower boarding assignment than other individuals who did not purchase the Early Bird Check-in for their non-Business Select tickets.”

The Southwest Airlines class action lawsuit alleges that the airline engaged in unfair or unlawful business practices in violation of California business law, it was guilty of false advertising according to California’s business law, breach of contract, fraudulent concealment, intentional misrepresentation, negligent misrepresentation, breach of the covenant of good faith, willful misconduct, and unjust enrichment.

Southwest argued that the class action lawsuit ought to be dismissed saying that the Airline Deregulation Act preempts such claims.

“The ADA seeks to promote ‘maximum reliance on competitive market forces’ and, to that end, includes a preemption provision to ‘ensure that the states would not undo federal deregulation with regulation of their own,'” the California federal judge explains.

“The preemption provision prohibits states from enforcing any law ‘related to a price, route, or service of an air carrier that may provide air transportation,'” he added.

Judge Carney says that because the allegations brought by Zammetti and Lowry are related to price and service “the court finds — and plaintiffs concede — that the unfair competition, false advertising, and unjust enrichment claims are preempted by the ADA.”

And even though the plaintiffs do not concede that the fraudulent concealment, intentional misrepresentation, negligent misrepresentation, and willful misconduct charges are preempted by the federal law, the federal judge says that “these common-law tort claims are all based on the same Early Bird Check-in and the allegation that Southwest misrepresented its benefits, thus deceiving plaintiff into purchasing the add-on.”

Therefore, these claims are also preempted by the ADA and are also “consistent with the ADA’s deregulatory aim,” Judge Carney explains.

However, the California federal judge kept the breach of covenant of good faith and fair dealing as well as the breach of contract claims.

As for good faith and fair dealing, Judge Carney says a breach of covenant is pre-empted, when a state “does not authorize parties to free themselves from the covenant.’

In California, “all contracts impose an implied covenant of good faith and fair dealing,” but the applicable parties are able to go around the implied covenant by contract and therefore “falls outside ADA preemption.”

The plaintiffs are represented by Kristopher P. Badame of Badame & Associates APC.

Southwest is represented by Jason Levin and Morgan Hector of Steptoe & Johnson LLP.

The Southwest Airlines Class Action Lawsuit is Robert J. Zammetti et al. v. Southwest Airlines Co. et al., Case No. 8:14-cv-01792, in the U.S. District Court for the Central District of California.