Amicus Curiae Brief — Attorney General of California v. Trans World Airlines, Inc.

e Supreme Court, U.S. q

Nos. 90-1604 -- FILED

90-1606 | MAY 20 1991

In The OFFICE OF THE CLERK

Supreme Court of the United States

October Term, 1990

¢

DAN MORALES, ATTORNEY GENERAL

OF TEXAS, et al.,

Petitioners,

VS.

TRANS WORLD AIRLINES, INC., et al.,

Respondents.

-@

On Petitions For A Writ Of Certiorari To

The United States Court Of Appeals For

The Fifth Circuit

.

BRIEF AMICI CURIAE OF THE STATES OF

HAWAII, ALABAMA, INDIANA, LOUISIANA,

MISSISSIPPI, NEW JERSEY, NEW MEXICO,

PENNSYLVANIA, UTAH AND VIRGINIA

IN SUPPORT OF PETITIONERS

¢

WARREN Price, III*

Attorney General

State of Hawaii

*Counsel of Record

Girard D. Lau

Ropert A. Marks

STEVEN S. MICHAELS

Deputy Attorneys General

State of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1363

Counsel for Amicus

Curiae State of Hawaii

[Other Counsel of Record

Listed on Inside Cover]

COCKLE LAW BRIEF PRINTING CO., (800) 225-4964

OR CALL COLLECT (402) 342-2831

Hon. James H. Evans

Attorney General of

Alabama

Alabama State House

Montgomery, Alabama

36130

(205) 242-7300

Hon. LINtEY E. PEARSON

Attorney General of

Indiana

State House, Room 219

Indianapolis, Indiana 46204

(317) 232-6201

Hon. Wittiam J. Guste, Jr.

Attorney General of

Louisiana

State Capitol

Baton Rouge, Louisiana

70804-9005

(504) 342-7013

Hon. Mike Moore

Attorney General of

Mississippi

P.O. Box 22947

Jackson, Mississippi 39225

(601) 354-6018

Hon. Rosert J. Det Turo

Attorney General of

New Jersey

Richard J. Hughes

Justice Complex

CN112

Trenton, New Jersey 98625

(609) 984-9664

Hon. Tom UDALL

Attorney General of

New Mexico

P.O. Drawer 1508

Santa Fe, New Mexico

87504-1508

(505) 827-6014

Hon. Ernest PRreEatE, JR.

Attorney General of

Pennsylvania

16th Floor, Strawberry

Square

Harrisburg, Pennsylvania

17120

(717) 787-3391

Hon. Paut VAN Dam

Attorney General of Utah

236 State Capitol

Salt Lake City, Utah 84114

(801) 538-1015

Hon. Mary Suet Terry

Attorney General of

Virginia

101 North 8th Street

Richmond, Virginia 23219

(804) 786-3149

TABLE OF CONTENTS

Page

ne i

UIE EE” PERF RUUUME REED occ esc e ens c cane n ences ii

INTEREST OF THE AMICI CURIAE............... 2

BRAG Oho Choa can ckvadncessencse 2

I. The Fifth Circuit’s Holding that State False and

II.

III.

Deceptive Advertising Laws are Preempted is

Plainly Wrong as a Matter of Law and Conflicts

with Decisions of this Court, other Courts of

Appeals, a State Appellate Court, and

Numerous United States District Courts.......

Uncontroverted Case Law Clearly Establishes

that the District Court Had No Valid Basis for

Asserting Personal Jurisdiction Over any of the

State Attorneys General, other than Texas’, and

Thus Its Extension of Injunctive Relief to Those

Attorneys General Is Void ....................

Contrary to this Court’s Longstanding Refusal

to Allow Federal Courts to Issue Decisions in

Cases Not Involving Actual Cases or Controver-

sies, the District Court Improperly Extended Its

Injunctive Order to Cover 28 State Attorneys

General who had taken No Actions that Could

Create a Ripe Controversy....................

eee ek ekg AN Aca seeds aceacesss

ii

TABLE OF AUTHORITIES

CASES:

Air Transport Ass'n of America v. Public Utilities

Comm'n, 833 F.2d 200 (9th Cir. 1987), cert. denied,

OG DAR. Bee KUOe 66 6 i occ ei es Wanecncwcnewns

Alaska v. U.S. Dep't of Transportation, 868 F.2d 441

ee Gk. HUN 8 5 ten ene Chew bancasseeneseseus

Bjorgo v. Weerden, 342 F.2d 558 (7th Cir. 1965)...

Cactus Pipe & Supply v. M/V Montmartre, 756 F.2d

TOD Ge GR FO oh vc hacenevanesesenictess)

Grammenos v. C.M. Lemos, 457 F.2d 1067 (2d Cir.

International Shoe Co. v. Washington, 326 U.S. 310

Lo ee ee Pe eT oye ete er Tener ry ere

Kansas v. Trans World Airlines, 730 F.Supp. 366

RAD, WEED Sse c cew nts bbcnan puch ebene bases

Los Angeles v. Lyons, 461 U.S. 95 (1983)..........

Nader v. Allegheny Airlines, 426 U.S. 290 (1976)

(6446 CAR OAR AREEA RAE ROR ROKER ROE RAW eee ao &

New York v. Trans World Airlines, 728 F.Supp. 162

PME 0. WU Wks Kawacatbhnancctasecteumacess

People v. Western Airlines, 155 Cal.App.3d 597, 202

Cal. Rptr. 237, cert. denied, 469 U.S. 1132 (1985)...

Placid Investments, Ltd. v. Girard Trust Bank, 689

of Be: fF 8s Se Tree reer etree

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947)

Shaw v. Delta Air Lines, 463 U.S. 85 (1983). ......

Page

ween 9

oy

re

wens Y

re ey

ili

TABLE OF AUTHORITIES - Continued

Page

Trans World Airlines v. Mattox, 897 F.2d 773 (5th

AMI SU ra Tae a Oe a 7

West v. Northwest Airlines, 923 F.2d 657 (9th Cir.

Ree ee er a St 6

STATUTES:

Federal Aviation Act § 105(a)(1), 49 U.S.C.

I 5h GNANGUV lovin kann dceesceuscsaaas passim

Federal Aviation Act § 411(a), 49 U.S.C. § 1381(a) . . passim

Tex. Civ. Prac. & Rem. Code Ann. § 17.042 (Vernon

SR RMENA RSME UN aR en ce eee Cee R Oe eke ukb aaa wWhand 9, 13

RuLrs

ee a te ee un eben edbaeee cds’ 13

a NU a ca Sea uka bcs s cadeascoidwdds 11

ek te ee 13

nt RR Se SEP ae ee ee 13

MISCELLANEOUS:

H.R. Rep. No. 1211, 95th Cong., 2d Sess., reprinted

in 1978 U.S. Code Cong. & Admin. News 3737..... 7

5A Wright & Miller, Federal Practice and Pro-

I Se a a uwewkiee ao 11, 12

Nos. 90-1604

90-1606

>

In The

eee Court of the United States

October Term, 1990

*

DAN MORALES, ATTORNEY GENERAL

OF TEXAS, et al.,

Petitioners,

VS.

TRANS WORLD AIRLINES, INC., et al.,

Respondents.

¢

On Petitions For A Writ Of Certiorari To

The United States Court Of Appeals For

The Fifth Circuit

¢

BRIEF AMICI CURIAE OF THE STATES OF

HAWAII, ALABAMA, INDIANA, LOUISIANA,

MISSISSIPPI, NEW JERSEY, NEW MEXICO,

PENNSYLVANIA, UTAH AND VIRGINIA

IN SUPPORT OF PETITIONERS

¢

The amici States enumerated above, by their respec-

tive Attorneys General, submit this brief in support of the

petitions for certiorari to the United States Court of

Appeals for the Fifth Circuit filed by the Attorney Gen-

eral of Texas and the thirty-one other State Attorneys

General from the judgment entered in the proceeding

below on January 18, 1991.

INTEREST OF AMICI CURIAE

The amici States have a significant interest in seeing

that they have the right to enforce their own state false

and deceptive advertising laws against airlines that

engage in unfair and deceptive airline advertising prac-

tices in order to protect their citizens from the obvious

harm such advertising may bring. If the decision of the

Fifth Circuit is allowed to stand, the amici States, indeed

all States, may be barred from protecting their citizens

from deceptive airline advertising. Such an evisceration

of the States’ historic police powers to engage in con-

sumer protection cannot be upheld absent a clear and

manifest mandate of Congress to that effect, a mandate

that was clearly lacking in this case. Furthermore, the

amici States have a strong interest in seeing that they not

be subject in the future to the overreaching assertion of

jurisdiction by a single Federal District Court on the basis

of a mere special appearance, when there is no valid basis

for personal jurisdiction, and where there is also no ripe

controversy providing the court with subject matter juris-

diction to issue injunctive relief.

¢

ARGUMENT

I. The Fifth Circuit's Holding that State False and

Deceptive Advertising Laws are Preempted is

Plainly Wrong as a Matter of Law and Conflicts with

Decisions of this Court, other Courts of Appeals, a

State Appellate Court, and Numerous United States

District Courts.

In Nader v. Allegheny Airlines, 426 U.S. 290 (1976), this

Court held that § 411(a) of the Federal Aviation Act, 49

U.S.C. § 1381(a), authorizing the Civil Aeronautics Board

(CAB) to issue cease and desist orders against unfair or

deceptive practices or unfair methods of competition, did

not impliedly preempt state common-law tort actions

based on fraudulent misrepresentation by an air carrier.

In allowing state law causes of action to proceed, this

Court stated that Ҥ 411(a) confers upon the Board a new

and powerful weapon against unfair and deceptive prac-

tices that injure the public. But it does not represent the

only, or best, response to all challenged carrier actions

that result in private wrongs.” 426 U.S. at 303 (emphasis

added). By analogy therefore, § 411(a) does not impliedly

preempt State false and deceptive advertising laws. Even

if a particular airline advertising practice did not consti-

tute an unfair or deceptive practice under § 411(a), the

states would still be allowed to enforce their own state

false and deceptive advertising laws against the practice.

Cf. Nader, 426 U.S. at 301-02 (“No power to immunize can

be derived from the language of § 411. . . . Section 411 is

both broader and narrower than the remedies available at

common law.”).

Although the federal preemption provision,

§ 105(a)(1) of the Federal Aviation Act, 49 U.S.C.

§ 1305(a)(1), was not enacted at the time of Nader (being

added in the Airline Deregulation Act of 1978), § 411(a)

has remained essentially unchanged, except for the fact

that the Department of Transportation, and not the Civil

Aeronautics Board, is now the federal governmental body

responsible for monitoring unfair and deceptive practices

in the airline industry. Therefore, Nader's holding of no

implied § 411 preemption of state laws concerning unfair

and deceptive practices is still the law today.

Because any implied preemption argument was fore-

closed by Nader, the Fifth Circuit instead based its

decision on an erroneous interpretation of the § 105(a)(1)

preemption provision added by the Airline Deregulation

Act, which states:

[N]o state . . . shall enact or enforce any law,

rule, regulation, standard, or other provision

having the force and effect of law relating to

rates, routes, or services of any air carrier having

authority under subchapter IV of this chapter to

provide air transportation.

§ 105(a)(1) (emphasis added). Because the states in the

exercise of their police powers have historically and tra-

ditionally been the primary regulators in the area of

consumer protection, preemption of such matters will not

be found unless that is the “clear and manifest purpose”

of Congress. See Rice v. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947). Not only can no clear and manifest pur-

pose of Congress to preempt state regulation of false and

deceptive advertising practices be discerned in either the

plain language of § 105(a)(1) or its legislative history, but

in fact the plain language and history actually suggest the

exact opposite.

Section 105(a)(1), by its plain language, only pre-

empts laws directly relating to rates, routes, or services,

and not to laws controlling the advertising of rates, routes,

or services. See People v. Western Airlines, 155 Cal.App.3d

597, 600, 202 Cal. Rptr. 237, 238 (1984), cert. denied, 469

U.S. 1132 (1985); Kansas v. Trans World Airlines, 730

F.Supp. 366, 368 (D.Kan. 1990). Had Congress intended to

preempt State false and deceptive advertising laws, it

could have easily done so by simply adding the phrase,

“or the advertising thereof.” The States’ false and decep-

tive advertising laws are not intended to, and do not in

fact, determine anything at all with regard to what air-

lines charge, what routes they take, or what services they

provide. State false and deceptive advertising laws

merely ensure that whatever the rates, routes, and ser-

vices the airlines choose to have, which amici States

concede they may not regulate, that they are not decep-

tively advertised in the free market. See New York v. Trans

World Airlines, 728 F.Supp. 162, 176 (S.D.N.Y. 1989). The

Fifth Circuit’s attempt to construe “relating to rates,

routes, or services” to encompass advertising is thus

unwarranted.

The Circuit’s heavy reliance on Shaw v. Delta Air

Lines, 463 U.S. 85 (1983), is misplaced. In Skaw, this Court

held that a New York Human Rights Law forbidding

discrimination in employee benefit plans on the basis of

pregnancy was preempted by a federal ERISA provision

superseding all State laws “relat[ing] to any employee

benefit plan.” It was obvious in that case that the anti-

discrimination provision would directly affect the substan-

tive content of employee benefit plans and thus clearly

“related to” employee benefit plans. Employers subject to

the law would be substantively constrained in setting up

their benefit plans. Here, however, the regulation of the

advertising of rates does not directly affect the substan-

tive rates themselves. The airlines are free to charge

whatever they wish, regardless of any state deceptive

advertising restrictions. Thus, Shaw is wholly inapposite.

To the extent State penalties or injunctions on decep-

tive airline advertising or the adoption of practices by an

airline to avoid such state enforcement actions indirectly

affect rates, such an impact on rates would be merely

incidental. As this Court stated in the exactly analogous

situation in Nader, “any impact on rates that may result

from the imposition of tort liability or from practices

adopted by a carrier to avoid such liability would be

merely incidental.” 426 U.S. at 300; see also Western Air-

lines, 155 Cal.App.3d at 600, 202 Cal.Rptr. at 239.

There is, in fact, an important intercircuit conflict that

needs resolution here. The Ninth Circuit, for example, has

rejected the sort of overly expansionist reading of

§ 105(a)(1)’s “relating to” language at the root of the Fifth

Circuit’s decision. See, e.g., West v. Northwest Airlines, 923

F.2d 657, 660 (9th Cir. 1990); Air Transport Ass'n of America

v. Public Utilities Comm'n, 833 F.2d 200, 207 (9th Cir. 1987),

cert. denied, 108 S.Ct. 2904 (1988).

The legislative history also unambiguously supports

the position that § 105(a)(1) was only intended to pre-

clude state laws that directly impact rates, routes, or

services, and not the deceptive advertising of those mat-

ters. There is no reference in the legislative history to

§ 105(a)(1) that even mentions airline advertising. The

section was enacted with the intent of providing for

exclusive federal control of airline rates, routes and ser-

vices, with such federal control to be limited in the con-

text of deregulation. It would, of course, have been

inconsistent with deregulation to allow the states to sim-

ply fill the void left by federal deregulation. Hence,

§ 105(a)(1) was needed to prevent any attempts by the

states to regulate airline rates, routes, or services. But

state regulation of airline advertising, so long as the state

does not attempt to affect or determine the rates, routes,

or services themselves, does not in any way interfere with

Congress’ goal of deregulation of airline rates, routes,

and services.

In enforcing their deceptive advertising laws against

the airlines, the States have no interest in what the air-

lines charge, but only seek to ensure that they represent

their charges fairly and nondeceptively. The Fifth Cir-

cuit’s only other argument to support their overbroad

construction of § 105(a)(1), outside of the flawed Shaw

analogy, is essentially an implied § 411 preemption argu-

ment. It notes, for example, that the CAB’s § 411 powers

were not terminated under the Airline Deregulation Act,

but rather were eventually transferred by operation of

law to DOT, and somehow concludes that Congress

thereby intended to protect consumers by providing a

uniform system of federal regulation of unfair or decep-

tive practices by airlines. See Trans World Airlines v. Mat-

tox, 897 F.2d 773, 782-83 (5th Cir. 1990). This, of course, is

the very same implied preemption argument flatly

rejected by this Court in Nader. See supra pp. 2-3. The only

uniformity that Congress intended was in connection

with rates, routes, and services, see H.R. Rep. No. 1211,

95th Cong., 2d Sess., reprinted in 1978 U.S. Code Cong. &

Admin. News 3737, 3751-52, but with regard to deceptive

advertising, Congress allowed both a federal and state

presence. Cf. Nader (allowing state common law misrepre-

sentation claim to coexist with § 411).

In sum, not only was this Court’s stringent preemp-

tion standard of a “clear and manifest purpose” of Con-

gress not satisfied with regard to preemption of state

deceptive advertising laws, but if there was any clear

Congressional intent at all regarding airline advertising,

it was that the states should be free to enforce their

deceptive advertising laws.

Other conflicts also merit review here. The United

States Court of Appeals for the District of Columbia

implicitly rejected § 105(a)(1) preemption of state decep-

tive advertising laws in Alaska v. U.S. Dep't of Transporta-

tion, 868 F.2d 441 (D.C. Cir. 1989). The State of Alaska was

held to have standing to challenge various DOT airline

advertising rules (on the ground that the rules were not

adopted pursuant to proper notice-and-comment pro-

cedures) because the rules would conflict-preempt state

deceptive advertising laws. If § 105(a)(1) expressly or

impliedly preempted all state deceptive advertising laws,

then Alaska would not have had standing to challenge the

specific DOT rules, because Alaska’s injury, the inability to

enforce their deceptive advertising laws, would not be

redressed by a striking down of the DOT rules. In other

words, the Court’s holding was premised on the assump-

tion that only conflict preemption was at issue, and that

there was no express or implied preemption of all state

advertising laws under.§ 105(a)(1). 868 F.2d at 444 (“The

1988 [DOT] Orders . . .. provide the only possible basis for

preemption of state regulation. .. . ).

The California Court of Appeal in People v. Western

Airlines, 155 Cal.App.3d 597, 202 Cal.Rptr. 237 (1984), and

numerous United States District Courts, see, e.g., Kansas v.

Trans World Airlines, 730 F.Supp. 366, 368 (D.Kan. 1990);

New York v. Trans World Aliriines, 728 F.Supp. 162, 176

(S.D.N.Y. 1989), have also expressly rejected § 105(a)(1)

preemption of state deceptive advertising laws, in direct

contradiction to the Fifth Circuit’s decision.

In conclusion, this case presents an important ques-

tion of federal law that affects the ability of all the States

in the Union to protect their citizens from the direct

injury caused to consumers from deceptive advertising,

and the broader economic damage to the efficiency of a

marketplace forced to operate with deceived market par-

ticipants. If certiorari is not granted, there will be a

continued waste of judicial resources as courts through-

out the nation will be forced to resolve this issue. Further-

more, a definitive resolution by this Court will eliminate

the existing burdens on all parties concerned (both the

airlines, as well as the States) of having conflicting deci-

sions controliing different parts of the Union.

II. Uncontroverted Case Law Clearly Establishes that

the District Court Had No Valid Basis for Asserting

Personal Jurisdiction Over any of the State Attor-

neys General, other than Texas’, and Thus Its Exten-

sion of Injunctive Relief to Those Attorneys

General Is Void.

The 33 Attorneys General had no contacts at all, let

alone “minimum contacts,” with the State of Texas that

justified the Federal District Court in Texas’ exercise of

personal jurisdiction over them. International Shoe Co. v.

Washington, 326 U.S. 310 (1945). Similarly, the Texas Long-

Arm Statute, Tex. Civ. Prac. & Rem. Code Ann. § 17.042

(Vernon 1986), which goes to the limits of Due Process,

see Placid Investments, Lid. v. Girard Trust Bank, 689 F.2d

1218 (Sth Cir. 1982), does not provide for the exercise of

jurisdiction over these 33 wholly out-of-state attorneys

general who, from what is in the record, do not do any

10

business within the State of Texas, contract with Texas

residents, or commit torts in Texas.

The only conceivable underpinning for the assertion

of jurisdiction, and the one which formed the basis for

the Fifth Circuit’s decision, is the fact that those 33 Attor-

neys General entered a special appearance in the case in

order to protect themselves from being bound by a poten-

tially expansive reading of the District Court’s original

order. It is beyond dispute that those Attorneys General

did not intend nor expect that their special appearance

was to be deemed consent to the exercise of personal

jurisdiction over them. Their motion was unequivocal on

this point, stating:

Without admitting or submitting to the sub-

ject matter jurisdiction of this Court and without

admitting that this Court has personal jurisdiction

over them, the States of Kansas, Alaska, [etc.]

specially appear before this Court to move for an

order denying the plaintiffs’ motion for a tem-

porary restraining order... .

(emphasis added).

Existing precedent and traditional notions of fair play

and substantial justice do not allow such precautionary

measures on the part of the 33 attorneys general to

amount to consent to the exercise of personal jurisdiction.

The Fifth Circuit noted that the federal courts have

abolished the distinction between general and special

appearances but then drew the wrong conclusion. The

abolition of the distinction means that a party need not

insure that the proper procedures for a “special appear-

ance” are followed in order to preserve objections to

personal jurisdiction; what formerly would have been

11

called a “general appearance” will not even waive such

objections. See 5A Wright & Miller, Federal Practice and

Procedure § 1344. The use of the words “special appear-

ance,” however, do serve to emphasize that a party is not

waiving his objections to jurisdiction. See Bjorgo v. Weer-

den, 342 F.2d 558, 560 (7th Cir. 1965).

Waiver only occurs where a party files a Rule 12

motion and fails to include an objection to personal juris-

diction, or fails to include the defense in its responsive

pleading. See Fed.R.Civ.P. 12(h)(1); 5A Wright & Miller,

supra, § 1391 at 741-42. Since none of the 33 attorneys

general were even parties at the time they filed their

special appearance, no 12(h) waiver could occur.!

Therefore, the Fifth Circuit instead finds personal

jurisdiction, citing Cactus Pipe & Supply v. M/V Mont-

martre, 756 F.2d 1103 (5th Cir. 1985), and Grammenos v.

C.M. Lemos, 457 F.2d 1067 (2d Cir. 1972), by claiming that

the 33 attorneys general sought “affirmative relief” and

thereby waived objections to personal jurisdiction. But

Cactus Pipe and Grammenos do not support waiver under

the facts of our case. Those cases stand for the proposi-

tion that where a party enters a case, fails to object to

jurisdiction, and seeks affirmative relief, that party waives

objections to personal jurisdiction. See Cactus Pipe, 756

F.2d at 1108 (citing Grammenos, 457 F.2d at 1070). Contrary

' Moreover, the 33 attorneys general did effectively object

to personal jurisdiction by noting in their motion that they

were not admitting that the court had personal jurisdiction

over them, and by arguing at the TRO hearing that the court

had no personal jurisdiction over them.

12

to the Fifth Circuit’s summary conclusion, the 33 attor-

neys general did not seek any such affirmative relief.

The Fifth Circuit erroneously believed that the attor-

neys’ general request that the plaintiffs’ TRO be denied

was the equivalent of the seeking of affirmative relief. It

was not. It was merely a request that the plaintiffs’

demand for affirmative relief be denied. The affirmative

relief mentioned in Cactus Pipe and Grammenos refers to

counterclaims or other claims fer relief benefiting the

defendants, not the denial of relief to the plaintiff. See 5A

Wright & Miller, supra, § 1397.2 This distinction makes

sense because one who seeks to employ the court’s juris-

diction to achieve some affirmative relief for oneself

should not then be heard to deny the court's jurisdiction

as to the opposing party’s claim. See 5A Wright & Miller,

supra, § 1397 at 787-88.

In the case at bar, however, the 33 Attorneys General

never sought to benefit from the Texas District Court’s

jurisdiction by seeking affirmative relief, but merely

sought to ensure that the Court not grant relief for the

plaintiffs against them.? Unlike the counterclaim situa-

tion, it is perfectly consistent for a party to come into

court contending that the court has no jurisdiction over

that party, and at the same time argue that, if the court

2 And it is not even settled that the assertion of counter-

claims waives objections to personal jurisdiction. See 5A

Wright & Miller, supra, at 788-92.

3 Furthermore, even if the 33 attorneys general could be

deemed to have sought affirmative relief, Cactus Pipe and

Grammenos would still not suggest waiver because the attor-

neys general, as noted in footnote 1, did object to jurisdiction.

13

ultimately concludes that it does have jurisdiction, relief

should not be granted against it on the merits.

In sum, there is absolutely no basis in the law for the

Fifth Circuit’s conclusion that the 33 Attorneys General

waived their objections to personal jurisdiction by merely

filing a motion requesting that plaintiffs’ demand for

equitable relief be denied.

Despite the fatal absence of personal jurisdiction over

these attorneys general, the District Court invoked Rule

19 joinder, and the Fifth Circuit concocted a rule of “de

facto intervention.” None of these theories can overcome

the fundamental jurisdictional problem discussed above.

In any event, Rule 19 can only be employed to join a

“person who is subject to service of process.” Rule 19(a).

Because the 33 out-of-state attorneys general were not

subject to service of process, see Fed.R.Civ.P. 4(e) & Texas

Long-Arm Statute (there is no connection between these

33 attorneys general and the State of Texas), the District

Court had no authority to invoke Rule 19 joinder, and the

Fifth Circuit apparently agreed. Even if the Texas Long-

Arm Statute allowed service of process upon these attor-

neys general, the district court would still not have had in

personam jurisdiction over such attorneys general because

they lacked the constitutionally required “minimum con-

tacts” necessary to satisfy due process.

The Fifth Circuit, realizing the inapplicability of Rule

19, or Rule 24 intervention, resorted instead to the cre-

ation of a novel theory it dubbed “de facto intervention.”

There is simply no basis in the rules or in precedent for

such a doctrine. This Court should not tolerate a federal

court’s amendment of the rules to suit its own agenda.

14

Equally importantly, there is no good reason to create

such a fiction. The desire to render a “meaningful deci-

sion” surely cannot override the fundamental principles

of due process violated by the local federal district court’s

attempt to assert its power over sovereign States clearly

outside its jurisdictional reach. Moreover, it was unneces-

sary for the district court to extend its injunction beyond

Texas in order to render a “meaningful decision.” Fur-

thermore, given the fact that the district court’s conclu-

sion on preemption is contrary to other courts’ rulings on

the matter, the district court should have been more

reluctant, rather than less, te extend its controversial

ruling to other States.

Most significantly, if this doctrine is allowed to stand,

parties who fear being bound by pending court rulings

would be forced to just sit by and hope that the court does

not include them out of fear that any attempt they make to

convince the court not to include them would subject them

to that court’s in personam jurisdiction. The Federal rules

could hardly have intended such an absurd result.

The petition for certiorari should be granted in order

to ensure that the District Courts do not ignore the funda-

mental due process limitations on their power.

III. Contrary to this Court’s Longstanding Refusal to

Allow Federal Courts to Issue Decisions in Cases

Not Involving Actual Cases or Controversies, the

District Court Improperly Extended Its Injunctive

Order to Cover 28 State Attorneys Genera! who

had taken No Actions that Could Create a Ripe

Controversy.

None of the plaintiff airlines alleged, nor could they

allege, that any of the attorneys general, except those of

15

California, Kansas, Massachusetts, New York, Texas and

Washington, have threatened or initiated any legal

actions against any of the plaintiff airlines for violations

of their respective deceptive advertising statutes. Because

as to these 28 attorneys general there was thus no ripe

“case or controversy” under Article III of the Constitu-

tion, the District Court lacked subject matter jurisdiction

to include them within the scope of the injunction.

In order to meet the Article III “case or controversy”

requirement, plaintiffs must “show that [they have] ‘sus-

tained or [are] immediately in danger of sustaining some

direct injury’ as the result of the challenged official con-

duct and the injury or threat of injury must be both ‘real

and immediate,’ not ‘conjectural’ or ‘hypothetical.’ ” Los

Angeles v. Lyons, 461 U.S. 95, 101-62 (1983). In this case, it

is beyond dispute that it is merely conjectural and hypo-

thetical that any of the 28 attorneys general who have not

initiated or threatened to bring legal actions against the

plaintiff airlines will do so sometime in the near future.

This is especially so here, because, particularly if the

airlines have their way, it is far from clear that the various

state deceptive advertising statutes even prohibit any of

the current practices of the plaintiff airlines. The federal

courts cannot issue injunctive relief against purely spec-

ulative harm.

In order to ensure that this Court’s longstanding

adherence to Article IIl’s “case or controversy” require-

ment not be subverted, this Court should grant the peti-

tion and vacate the District Court’s overreaching

injunction.

16

CONCLUSION

For the foregoing reasons, the amici States

respectfully request that this Court grant the writs of

certiorari filed by the Attorneys General of Texas and the

31 other States.

Dated: Honolulu, Hawaii, May 20, 1991.

Respectfully submitted,

WARREN Price III*

Attorney General

State of Hawaii

*Counsel of Record

Girarp D. Lau

Ropert A. Marks

STEVEN S. MICHAELS

Deputy Attorneys General

State of Hawaii

425 Queen Street

Honolulu, Hawaii 96813

(808) 586-1363

Counsel for Amicus

Curiae State of Hawaii

{Other Counsel of Record

Listed on Inside Cover]