Jessica Karmasek Dec. 1, 2015, 1:56pm


NEWARK, N.J. (Legal Newsline) - A federal judge last week agreed to dismiss a class action lawsuit filed against United Airlines over its in-flight television and Wi-Fi services.

Judge Susan D. Wigenton asserted in her Nov. 24 order that federal law -- in particular, the Airline Deregulation Act -- preempted all of the claims made in the lawsuit.

Cary M. David, of West Orange, N.J., filed her lawsuit against Chicago-based defendants United Continental Holdings Inc. and United Airlines Inc. in the U.S. District Court for the District of New Jersey in March.

David filed her lawsuit on behalf of a nationwide class and a New Jersey sub-class under the New Jersey Consumer Fraud Act and state contract law.

She argued that United fails to disclose to passengers who purchase DirecTV and/or Wi-Fi on board planes equipped with a satellite connection that outside the continental United States, the service will not work.

“Instead of seeking to enforce Defendant’s obligation to provide those services over the continental U.S., Plaintiff requests this Court to find that United breaches its contracts when it acts precisely as it promises, by providing DirecTV and Wi-Fi services over the continental U.S.,” Wigenton wrote in her 10-page opinion.

“Therefore, this Court finds that Plaintiff’s breach of contract claim is preempted.”

The judge pointed to the ADA, which was enacted by Congress in 1978 based on the conclusion that “‘maximum reliance on competitive market forces’ would best further ‘efficiency, innovation, and low prices’ as well as ‘variety [and] quality… of air transportation services.’”

The statute sets forth that no state may “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.”

“It is well-settled that claims against airlines for unjust enrichment fall squarely within the ADA's preemption clause,” the judge wrote in her order.

The airline started to offer in-flight DirecTV and Wi-Fi in 2012. The services, streamed to United’s aircraft via satellite, are now offered on hundreds of United planes.

In order to use the service, consumers must pay a fee. According to David’s complaint, for flights two hours in duration or shorter, the fee for DirecTV is $4.99. For flights more than two hours, the fee is $7.99. The fee for Wi-Fi service ranges from $4.95 to $49.00, depending on the type of device used -- smartphone or computer -- and the duration of the flight.

However, the service only works when a plane is flying over the continental United States.

“Despite this known limitation, United sells these services to passengers on the flights and fails to disclose that the services will not work as advertised when the aircraft is outside the continental United States or is over water,” according to the plaintiff’s 16-page complaint.

“It is not until they have crossed U.S. borders or are over water, with no service, that customers learn that their DirecTV and/or Wi-Fi service will not work for all or part of the flight.”

David said she purchased in-flight DirecTV service with her credit card on Feb. 21 on a flight from San Juan, Puerto Rico, to Newark.

“At no time before or during the process of purchasing DirecTV service was Plaintiff informed that the DirecTV service Plaintiff purchased would not work during the flight,” according to her complaint.

“Because materially all of Plaintiff’s flight was over water and/or outside of the continental United States, Plaintiff was unable to use the service from the time of purchase until shortly before the flight landed in New Jersey.

“For a flight of over four hours, Plaintiff was able to use DirecTV for approximately 10 minutes.”

David sought class certification, compensatory damages, treble damages under the state’s Consumer Fraud Act and liquidated damages under other state consumer fraud laws, an order permanently enjoining United from engaging in such “unlawful practices” and an award of attorneys’ fees, costs and expenses.

United filed its motion to dismiss with the court in May. The airline countered that David’s lawsuit lacked any legal basis and her entire complaint was “based on a false premise.”

“Specifically, United tells its on-board passengers before they confirm their purchase that ‘Live DirecTV programming is not available while the aircraft is outside of the continental United States’ and that ‘Wi-Fi service is available over the continental United States,’” lawyers for United wrote in a May 1 memorandum.

“Plaintiff cannot avoid dismissal of her claims by failing to attach or quote in full these dispositive documents, which may properly be considered by this court in ruling on United’s motion to dismiss.”

Douglas Harry Amster, Peter Van Deventer Jr. and Gene Kyle Kaskiw of LeClairRyan’s Newark office represented the airline in the matter.

Mark C. Gardy and Jennifer Sarnelli of Englewood Cliffs law firm Gardy & Notis LLP represented David.

Neither side could be reached immediately for comment on the judge’s ruling.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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Organizations in this Story

Gardy & Notis LLP
440 Sylvan Avenue
Englewood Cliffs, NJ 07632

LeClairRyan
1037 Raymond Boulevard
Newark, NJ 07102

United Airlines
233 South Wacker Drive
Chicago, IL 60606

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