UPCOMING – Does the Federal Aviation Authorization Act of 1994 (“FAAA”) federally preempt state consumer fraud statute and negligence claims against towing company that moved plaintiff’s car during a snowstorm without his permission?

Before the U.S. Supreme Court

Dan’s City Used Cars, Inc. v. Pelkey 


On Writ of Certiorari from the Supreme Court of New Hampshire

Petitioner’s Brief on the Merits available here (subscription required).

Practical business take-away:

One lesson is to avoid questions about federal preemption by the Federal Aviation Authorization Act of 1994 if at all possible. Here a simple case of an unwanted towing of a car in a New England town is the subject of a petition for certiorari to the U.S. Supreme Court.

The wise executive and his / her counsel will think twice before bringing a lawsuit under state or local law where such federal preemption might be raised as a defense.
These doctrinal fun-and-games are one of the grave deficiencies of the U.S. legal framework governing transport business law. Neither the uncertainty they create nor the legal fees required to mitigate that uncertainty make a positive contribution to our economy.
The law should be practical and this aspect of federal preemption doctrine is anything but.

Basic question:

Does this FAAA apply to federally preempt a lawsuit against a local towing company? The FAAA is currently the subject of litigation about the scope of federal preemption before the U.S. Supreme Court in the context of the Port of Los Angeles’ regulation of trucking and drayage activities inside the boundaries of that port.

Discussion in petitioner’s brief:

“In this case, a vehicle owner whose car was towed from his apartment house’s parking lot without his knowledge or consent to allow for snow removal, and disposed of several months later by the towing company after towing and storage charges were not paid, sued the towing company in state court for damages, alleging negligence and consumer fraud. The New Hampshire Supreme Court reversed a trial court ruling that the claims against the towing company were preempted by the FAAAA, and interpreted § 14501(c)(1) to permit the vehicle owner to pursue both a statutory consumer fraud claim and a negligence claim against the towing company. The questions presented are as follows:

“1. Are the Respondent’s state-law consumer-fraud and negligence claims preempted because they are “related to” the “service[s]” provided by the tow truck company?

“2. Are the Respondent’s state-law consumer-fraud and negligence claims preempted because they are made “with respect to the transportation of property”?