247 Cal. App. 4th 884
Cal. Ct. App.2016Background
- California (Attorney General) sued Delta under the Unfair Competition Law (UCL) to enforce the Online Privacy Protection Act (OPPA) against Delta’s Fly Delta mobile app for failing to conspicuously post a privacy policy and disclose collection/sharing of personally identifiable information.
- OPPA requires operators of commercial websites/online services that collect PII from California residents to conspicuously post specified privacy-policy disclosures; OPPA itself contains no private-right-of-action but violations may be enforced via the UCL.
- The Attorney General notified Delta in October 2012 of alleged OPPA noncompliance; complaint filed December 2012 seeking injunctive relief and statutory penalties.
- Delta demurred, arguing the Airline Deregulation Act (ADA) preempts state enforcement that would regulate an air carrier’s ‘‘rates, routes, or services’’ — here, the mobile app used to access airline services.
- The trial court sustained the demurrer without leave to amend and dismissed with prejudice; the Court of Appeal affirmed, holding the ADA expressly preempted the State’s UCL/OPPA enforcement as applied to the Fly Delta app.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ADA expressly preempts the State’s UCL action enforcing OPPA against an airline mobile app | OPPA is a general disclosure law; it only requires posting a privacy policy and therefore does not regulate airline prices/routes/services | ADA preempts state laws "relating to" an air carrier’s rates, routes, or services; the Fly Delta app is a marketing/service mechanism tied to airline services and thus state enforcement would regulate airline services | ADA expressly preempts state enforcement of OPPA as applied to Delta’s Fly Delta app; dismissal affirmed |
| Whether the OPPA is a permissible law of general applicability that survives ADA preemption | OPPA is general consumer-protection disclosure law and should not be treated as aviation regulation | Morales and Wolens reject a safe harbor for generally applicable laws when they have a connection to airline prices/services; permitting state-by-state privacy rules would create a patchwork affecting airline service design | Rejected — general-applicability argument fails where the law would affect airline selection/design of marketing/service mechanisms |
| Whether leave to amend should be granted to plead narrower facts (non-ticketing PII) | Attorney General: amend to remove ticketing data claims and allege only non-ticketing PII collection (e.g., geo-location, photos) to avoid preemption | Delta: any OPPA enforcement that governs app design/communications with customers is preempted regardless of the specific PII alleged | Denied — any amended complaint seeking to enforce OPPA against the app would still be preempted by ADA |
Key Cases Cited
- Morales v. Trans World Airlines, 504 U.S. 374 (U.S. 1992) (ADA preempts state laws that have a connection with or reference to airline prices, routes, or services)
- American Airlines, Inc. v. Wolens, 513 U.S. 219 (U.S. 1995) (state consumer-protection claims that regulate airline marketing/service design are preempted by the ADA)
- Northwest, Inc. v. Ginsberg, 134 S. Ct. 1422 (U.S. 2014) (breach of covenant claim relating to frequent-flyer benefits preempted where it sought access to program benefits tied to airline rates/services)
- In re JetBlue Airways Corp. Privacy Litig., 379 F. Supp. 2d 299 (E.D.N.Y. 2005) (federal district court holding ADA preempts state-law privacy-based claims seeking to enforce airlines’ privacy policies)