Amicus Curiae Brief — Rowe v. New Hampshire Motor Transport Ass'n

J o| |o7

No. 06-457

In The

Supreme Court of the Bnited States

G. Sreven Rowe, In His Orpiciat Capacity as

ATrTorney GENERAL OF THE STaTE OF MAINE,

Petitioner,

v.

New Hampsuike Motor TRANSPORT ASSOCIATION, ET AL.,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF AMICI CURIAE OF FEDERAL EXPRESS

CORPORATION AND THE AIR TRANSPORT

ASSOCIATION OF AMERICA, INC.,

IN SUPPORT OF RESPONDENTS

Rosert K. Sporswooo Connig Lewis Lensinc

Counsel of Record R. Jerrery KELsey

Kennetu D. Sansom FEDERAL Express CORPORATION

Esay J. Tromore Lecat DEPARTMENT, LiIncaTion

Sporswoop Sansom & 3620 Hacks Cross Roap

Sanssury LLC Turd Foor, Buitpwc B

940 ConcorD CENTER Memptus, TN 38125

2100 Ture Ave. NortH (901) 434-8432

Birmincuasm, AL 35203

(205) 986-3620 Counsel for Amicus Curiae

Federal Express Corporation

Counsel for Amici Curiae

Federal Express Corporation and

the Air Transport Ass'n of America, Inc.

Becker Gallagher - Cincinnati, OH - Washington, D.C - 800 890.500!

i

QUESTION PRESENTED

Whether provisions of the Maine Tobacco Delivery

Law that regulate whether and how cargo carriers

may provide transportation and delivery services for

shipments of tobacco products are “law/s] related to a

price, route, or service” of such carriers and, therefore,

are preempted by the Federal] Aviation Administration

Authorization Act of 1994 (“FAAAA”), 49 USC

§§ 14501(c) & 41713(bM 4X A).

INTEREST OF AMICI CURIAE FEDERAL EXPRESS

CORPORATION AND THE AIR TRANSPORT

ASSOCIATION OF AMERICA, INC. ........... 1

SUMMARY OF THE ARGUMENT ............ 3

EE ob ore cecdvcnsctosresooseccsece a

I. THE COURT SHOULD DECIDE THIS

CASE WITH DUE CONSIDERATION OF

THE IMPACT THAT ITS

INTERPRETATION OF PREEMPTIVE

LANGUAGE THAT APPLIES EQUALLY

TO AIR CARRIERS WILL HAVE ON

AIRLINE OPERATIONS AND THE LAW

GOVERNING AIRLINES. .............. 4

A. Because the ADA and the FAAAA share

identical preemptive language, the

Court's decision regarding whether the

FAAAA preempts Sections 1555-C(3)(C)

and 1555-D will also determine whether

the ADA preempts those statutes. ..... 6

eee

B. Because the ADA and the FAAAA share

identical preemptive language, a change

in the interpretation of that language in

the context of the FAAAA will also alter

the established meaning of that language

in the context of the ADA, on which air

carriers substantially rely. ........... 9

Il. BECAUSE THE ADA AND THE FAAAA

SHARE IDENTICAL PREEMPTIVE

LANGUAGE, THE COURT - SHOULD

ADDRESS FAAAA PREEMPTION OF THE

MAINE STATUTES WITH AN EYE

TOWARD PRECLUDING THE TYPE OF

PATCHWORK REGULATION OF AIR

CARRIERS THAT THE ADA WAS

ENACTED TO PREVENT. ............ 14

Ill. BECAUSE THE ADA AND THE FAAAA

SHARE IDENTICAL PREEMPTIVE

LANGUAGE, THE PRESUMPTION

AGAINST PREEMPTION HAS NO

APPLICATION IN THIS CASE. ........ 21

IV. SECTIONS 1555-C(3)(C) AND 1555-D ARE

CLEARLY PREEMPTED BY THE PLAIN

LANGUAGE OF THE ADA AND THE

SEED canhntuvakacscudsve vavesuees 26

IED coc ne vetcusrecancdvcdncsies 28

iv

TABLE OF AUTHORITIES

CASES

American Airlines v. Wolens,

SEED 6 600 ve sctsceconcee passim

Botz v. Omni Air Int'l,

286 F.3d 488 (8th Cir. 2002) .............. 13

City of Columbus v. Ours Garage & Wrecker Serv., Inc.,

SUED cscscesesccccccescses 20

Deershin Trading Post, Inc. v. United Parcel Serv. of

Am., Inc.,

972 F. Supp. 665(N.D. Ga. 1997) ........... 8

Dep't of Transp. v. Pub. Citizen,

iE svdudeetoteccess6ess 11

Egelhoff v. Egethoff,

EERE ER ae 26

Federal Express Corp. v. Cal. Pub. Uti. Comm'n,

936 F.2d 1075 (9th Cir. 1991) ........ teeees 1

Flagg v. Yonkers Sav. & Loan Ass'n,

396 F.3d 178 (2d Cir. 2005) ............... 21

Hillsborough County v. Automated Med. Labs., Inc.,

SEE voncedeatudairsiasaes 25

Holloway v. United States,

EE cctvhosaebseedssteebees 26

Vv

Huntleigh Corp. v. Louisiana State Bd. of Private Sec.

Examiners

906 F. Supp. 357 (M.D. La. 1995) .......... 13

Lyn-Lea Travel Corp. v. American Airlines, Inc.,

283 F.3d 282 (5th Cir. 2002) .............. 13

Marlow v. AMR Servs. Corp.,

870 F. Supp. 295 (D. Hawaii 1994) ......... 13

Medtronic, Inc. v. Lohr,

PD cv cccpsctcansecestencs 21

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,

456 U.S. 353 (1982) .............. 020085. ll

Morales v. Trans World Airlines,

504 U.S. 374 (1992) ............00005. passim

N.H. Motor Transp. Ass'n v. Rowe,

377 F. Supp. 2d 197 (D. Me. 2005) ...... 15, 25

N.H. Motor Transp. Ass'n v. Rowe, ’

448 F 3d 66 (ist Cir. 2006) ................ 8

Northwest Airlines v. Minnesota,

NE ccd cbbedeuusecvicns 22

Pharm. Research & Mfrs. of Am. v. Walsh,

SEED os vabcdenetvedecesa . 25

Read-Rite Corp. v. Burlington Air Express, Ltd.,

186 F.3d 1190 (9th Cir. 1999) ............. 13

vi

Sam L. Majors Jewelers v. ABX, Inc.,

117 F.4d 922 (Sth Cir. 1997) .............. 23

Smith v. Comair, Inc.,

134 F.3d 254 (4th Cir. 1998) .............. 13

United Airlines, Inc. v. Mesa Airlines, Inc.,

219 F.3d 605 (7th Cir. 2000) .............. 13

United Parcel Serv., Inc. v. Flores-Galarza,

$18 F.3d 323 (1st Cir. 2003) .............. 24

United States v. Locke,

Ee passim

United States v. Turkette, 452 U.S. 576 (1981) .. 26

STATUTES

49 US.C. App. § 1305(aX1).......... 0.0.0.0. 5

49 USC. § 14501(CK1) 2... cee 2, 5,6

GED occcccccccccceccccccess 14

49 US.C. §4171%bM1) ............... 2, 5, 6, 23

49 US.C. §41713(DN4MA) 2.0... 0.08. 2, 5,6

Pub. L. No. 75-706, 52 Stat. 973 (1938) ........ 22

Pub. L. No. 95-504, 92 Stat. 1705 (1978) ........ 2

Pub. L. No. 103-272, 108 Stat. 745 (1994) ...... 11

Pub. L. No. 103-305, 108 Stat. 1569(1994) .... 2,7

720 Til. Comp. Stat. Ann. § 678/5 (West 2004) 16, 17

720 Ii. Comp. Stat. Ann. § 678/5(a) (West

nD a¢0 edaondisadbacndee eunbdddes chee 16,17

720 Ml. Comp. Stat. Ann. § 678/5(c) (West

DD isemeckanobededabdes eben dees os 16, 17

Idaho Code Ann. § 39-5704 (Supp. 2007) ....... 17

Idaho Code Ann. § 39-5705 (Supp. 2007) ....... 17

vii

Idaho Code Ann. § 39-5707(1) (Supp. 2007)... 17

Idaho Code Ann. § 39-5715 (Supp. 2007) ....... 17

Idaho Code Ann. § 39-5717 (Supp. 2007) ....... 16

Me. Rev. Stat. Ann. tit. 22, § 1555-C(3(C) .. passim

Me. Rev. Stat. Ann. tit. 22, § 1555-C(3'C)(1) ... 27

Me. Rev. Stat. Ann. tit. 22, § 1555-C(3XCX2) . 16, 27

Me. Rev. Stat. Ann. tit. 22, § 1555-C(3X'CX3) ... 27

Me. Rev.

Stat. Ann. tit. 22,§1555-D ....... passim

FREER CES 23

Mich. Comp. Laws Ann. § 205.431(4) (West Supp.

dul eni sadness eubusdbieeosaneaene 18

N.Y. Pub. Health Law §§ 1399-1/(1)(2) (McKinney

DE céictdbccendddeddunedesacscbciensed 16

Nev. Rev. Stat. § 370.329 (2005) .............. 19

R.L. Gen. Laws § 11-9-13.11(b) (2005) ......... 18

Tenn. Code Ann. § 67-4-1029 (2005) .......... 19

Wash Rev. Code Ann. § 70.155.105(1\(a) (West Supp.

PT a<cpaaduscadaseianabesmuimmumenenee 18

Wash Rev. Code Ann. § 70.155.105(1)(b) (West Supp.

ED catia dntg cauetine meaameeiiiiedaads 18

Wash Rev. Code Ann. § 70.155.105(2) (West Supp.

a a Ok a a 18

Wash Rev. Code Ann. § 70.155.105(4)(b) (West Supp.

Bh ARE RES FA Sere e ae 18

OTHER AUTHORITIES

Ann K. Wooster, Construction and Application of § 105

Airline Deregulation Act (49 U.S.C.A. 41713), Pertaining

to Preemption of Authority over Prices, Routes, and

Services, 149 AL.R. Fed. 299 (1998) ........... 12

FedEx Service Guide, available at

http://www fedex.com/us/services/terms/popup_tc_us

_body.htmi#tobaccoproducts ................. 27

viii

H.R. Rep. No. 103-677 (1994) (Conf Rep.), as reprinted

in 1994 US.C.CA.N.1715 ............. 7,11, 15

Paul Stephen Dempsey, Transportation: A Legal

History, 30 TRANSP. L.J. 235 (2003) ........... 23

AND THE AIR TRANSPORT ASSOCIATION

OF AMERICA, INC.’

Federal Express Corporation, which does business

as FedEx Express (“FedEx Express”), is a federally

certified, all-cargo air carrier that delivers packages

and other cargo in all fifty states and throughout the

world. See Federal Express Corp. v. Cal. Pub. Util.

Comm'n, 936 F.2d 1075, 1076 (9th Cir. 1991). FedEx

Express filed an amicus brief in support of

Respondents in the court below.

FedEx Express is now joined as amicus curiae by

the Air Transport Association of America, Inc. (the

“Airline Association”), an association of eighteen U.S.

cargo and passenger airlines and three foreign

airlines. The Airline Association's domestic airline

members are: ABX Air; Alaska Airlines; Aloha

Airlines; American Airlines; ASTAR Air Cargo; Atlas

Air; Continental! Airlines; Delta Air Lines; Evergreen

International Airlines; FedEx Express; Hawaiian

Airlines; JetBlue Airways; Midwest Airlines;

Northwest Airlines; Southwest Airlines; United

Airlines; UPS Airlines; and US Airways. These air

carriers operate within the United States, as well as

between the United States and foreign countries. The

Airline Association’s foreign airline members are: Air

' The parties have consented in writing to the filing of this brief,

which was authored in its entirety by counsel for amici curiae. No

person or entity other than amici curiae made a monetary

contribution to the preparation or submission of this brief.

2

Canada, Air Jamaica, and Mexicana. These foreign air

carriers operate between the United States and foreign

countries and are subject to suit in the United States.

A principal purpose of the Airline Association is to

support its air carrier members by promoting the cost-

effective delivery of air transportation services and

advocating common industry positions on important

policy and legal issues. Since its inception in 1936,

through both regulated and deregulated eras, the

Airline Association has been involved in the

development of the law governing the carriage of goods

and passengers by air.

A central feature of the law governing FedEx

Express and the other members of the Airline

Association is the Airline Deregulation Act of 1978

(“ADA”), Pub. L. No. 95-504, 92 Stat. 1705 (1978),

which has long prevented air carriers from being

subject to a complicated patchwork of state regulations

by prohibiting states from enacting or enforcing laws or

regulations “related to” the prices, rvutes, or services of

an air carrier. Id. § 4(a), 92 Stat. at 1708 (currently

codified at 49 U.S.C. § 41713(b)1)). The subsequently

Act of 1994 (“FAAAA”), Pub. L. No. 103-305, 108 Stat.

1569 (1994), which is at issue in this case, contains

preemptive language that is both identical to

preemptive language in the ADA and further addresses

preemption with regard to air carrier transportation of

property. Jd. tit. VI, § 601(b}{c), 108 Stat. at 1605-06

(currently codified at 49 U.S.C. §§ 14501(cX1),

41713(b4)(A)). FedEx Express and the Airline

Association therefore have an interest in this case

because the Court’s decision will affect the preemptive

scope of the ADA and the FAAAA.

3

SUMMARY OF THE ARGUMENT

The FAAAA, which applies to motor and other

carriers, and the ADA, which applies to air carriers,

share identical preemptive language and common

deregulatory purposes. The resulting interrelationship

between these two statutes therefore plays a vital role

in the Court's decision of this case, which will impact

air carriers as well as motor carriers. Because the

FAAAA and the ADA share identical preemptive

language, the Court's decision regarding whether the

FAAAA preempts the challenged sections of Maine's

Tobacco Delivery Law will apply with equal force to

any Airline Association members that qualify as

“delivery services” under Maine's law. Moreover, the

effects of the Court’s decision would be even more far-

reaching if it were to accept petitioner's invitation to

revisit its established interpretation of the preemptory

language contained in the ADA and the FAAAA. Such

a reexamination would introduce uncertainty into the

expansive body of ADA-preemption law that has

developed in accordance with this Court’s precedent

and on which air carriers, including FedEx Express

and the other members of the Airline Association, rely.

It is, therefore, both unwise and unwarranted.

The interrelationship between the FAAAA and the

ADA not only magnifies the implications of the Court’s

decision in this case, but also shapes its substantive

* resolution. Because Congress intended for the FAAAA

and the ADA to have the same preemptive effect,

what is true of the ADA should be true of the FAAAA

as well. State laws like Sections 1555-C(3XC) and

1555-D contribute to the type of patchwork that

Congress sought to prevent by enacting the ADA. A

4

finding that such laws are preempted therefore fulfills

Congress’ purpose for both the ADA and the FAAAA.

Likewise, because this Court's precedent shows that no

presumption against preemption by the ADA would

apply in this context, no presumption against

preemption by the FAAAA applies. Yet even if such a

presumption were to apply, the plain language of the

ADA would overcome it. Because Sections 1555-

C(3XC) and 1555-D “relate to” the services of air and

motor carriers, they fall within the express preemptory

language of both the ADA and the FAAAA.

Accordingly, this Court should affirm the First

Circuit’s holding that the FAAAA preempts Sections

1555-C(3)(C) and 1555-D of Maine’s Tobacco Delivery

Law. By so ruling, this Court will not only fulfill

Congress’ intent for the FAAAA, but also will reaffirm

the nationally uniform rules governing interstate

transportation by air that Congress envisioned, that

the lower courts developed in reliance on this Court’s

precedent, and on which air carriers routinely rely.

ARGUMENT

I. THE COURT SHOULD DECIDE THIS

CASE WITH DUE CONSIDERATION OF

THE IMPACT THAT ITS

INTERPRETATION OF PREEMPTIVE

LANGUAGE THAT APPLIES EQUALLY TO

AIR CARRIERS WILL HAVE ON AIRLINE

OPERATIONS AND THE LAW

GOVERNING AIP.LINES.

The Court should be cognizant of the impact its

decision in this case will have on air carriers and the

5

law governing their operations. Preemptive language

in the Federal Aviation Administration Authorization

Act of 1994 (“FAAAA”), currently codified at 49 U.S.C.

§§ 14501(cX 1), 41713{bX4XA), is the same as that of

the Airline Deregulation Act (“ADA”), currently

codified at 49 U.S.C. § 41713(b)(1), upon which FedEx

Express and the other members of the Airline

Association rely.’ This Court’s determination of

whether the FAAAA preempts the challenged portions

of Maine’s Tobacco Delivery Law, Me. Rev. Stat. Ann.

tit. 22, §§ 1555-C(3XC) and 1555-D, will therefore

apply with equal force to any members of the Airline

Association that qualify as “delivery services” under

Maine's law. Moreover, the phrase “related to a price,

route, or service” in the ADA has a settled meaning

around which the current landscape of air carriage law

has developed. Any change to the understanding of

that phrase in the context of the FAAAA will result in

a corresponding change to the ADA, which will disrupt

the established body of law under which FedEx

Express and the other members of the Airline

Association operate.

* The ADA’s preemption clause was originally codified at 49 U.S.C.

App. § 1305{a)(1). It was recodified at its current location, with

only technical changes that Congress intended to have no

substantive effect, in 1994. See American Airlines, Inc v. Wolens,

513 U.S. 219, 222-23 & n.1 (1995)

6

A. Because the ADA and the FAAAA share

FAAAA preempts Sections 1555-C(3)(C)

and 1555-D will also determine whether

the ADA preempts those statutes.

The Court's decision in this case will directly affect

air carriers who qualify as “delivery services” under

Maine’s law because the FAAAA, which applies to air

carriers as well as motor carriers and intermodal

carriers, has preemptive language identical to that of

the ADA, which applies specifically to air carriers.

The ADA preempts any “law, regulation, or other

provision having the force and effect of law related to

& price, route, or service of an air carrier,” 49 U.S.C.

§ 41713(bX1), while the FAAAA preempts, in relevant

part, any “law, regulation, or other provision having

the force and effect of law related to a price, route, or

service of any motor carrier,” id. § 14501(c)(1), or “air

carrier or carrier affiliated with a direct air carrier

through common controlling ownership,” id.

§ 41713(bX4\A) (hereinafter an “intermodal carrier”).

More importantly, Congress has made clear its

intent that the FAAAA and the ADA have equal

preemptive effect. One of Congress’ primary purposes

for enacting the FAAAA was to place motor and

intermodal carriers on equal footing with airlines.

Congress had established broad preemption of state

laws “related to a price, route or service of an air

carrier” in 1978, when it deregulated the airline

industry by passing the ADA. See Morales v. Trans

World Airlines, 504 U.S. 374, 378-79 (1992). Before

the passage of the FAAAA, however, there was nosuch

7

preemption for motor carriers. By 1994, Congress

recognized that state regulation of motor carriers not

only “impose[d) an unreasonable burden on imterstate

commerce,” “impede[d) the free flow of trade, traffic,

and transportation of interstate commerce,” and

“placeld) an unreasonable cost on the American

consumers,” Pub. L. No. 103-305, tit. VI, § 601(a\1),

108 Stat. 1569, 1605 (1994), but also resulted in an

uneven playing field between air carriers, who had the

benefit of a single federal regulatory scheme, and

motor and intermodal carriers, who did not.

Thus, Congress included in the FAAAA preemptive

language essentially identical] to the language included

in the ADA, noting that “[t]he central purpose of this

legislation is to extend to all affected carriers, air

carriers and carriers affiliated with direct air carriers

through common controlling ownership on the one

hand and motor carriers on the other, the identical

intrastate preemption of prices, routes, and services as

that originally contained in” the ADA. H.R. Rep. No.

103-677 at 84 (1994) (Conf. Rep.), as reprinted in 1994

US.C.CAN. 1715, 1755; see also id. at 85, as

reprinted in 1994 U.S.C.C.A.N. at 1757 (the FAAAA’s

preemption provision for motor carriers “is identical to

the preemption provision deregulating air

carriers .. . and is intended to function in the exact

same manner with respect to its preemptive effects”);

id. at 82-83, as reprinted in 1994 U.S.C.C.A.N. at 1754

(the FAAAA’s preemption provision for intermodal

carriers is intended to preempt state regulation “in an

identical manner to the preemption provision passed

in 1978 contained in” the ADA).’ Furthermore,

Congress specifically intended that both the FAAAA

and the ADA be given the expansive interpretation

this Court applied to the ADA in Morales v. Trans

World Airlines, Inc. See id. at 83, as reprinted in 1994

US.C.C.AN. at 1755 (“[T}he conferees do not intend to

alter the broad preemption interpretation adopted by

the United States Supreme Court in Morales. . . .”).

Because Congress intended the preemption

provisions of the FAAAA and the ADA to have equal

effect, those provisions have been construed

identically. The ADA therefore preempts Sections

1555-C(3)(C) and 1555-D to the same extent that the

FAAAA preempts those statutes, and vice versa.

Cases interpreting one statute's preemption provisions

apply with equal force to the preemption provisions of

the other statute. See, e.g., N.H. Motor Transp. Ass'n

v. Rowe, 448 F.3d 66, 75 (1st Cir. 200u) (“[I]n addition

te cases interpreting the FAAAA, we look to cases

interpreting the Airline Deregulation Act.”); Deerskin

Trading Post, Inc. v. United Parcel Serv. of Am., Inc.,

972 F. Supp. 665, 668 (N.D. Ga. 1997) (“[I]n

interpreting the preemption provisions of the FAAAA,

? This uniformity between the ADA and the FAAAA is crucial to

ensuring a seamless system of transportation in today’s world,

where cargo entrusted to an air carrier may be transported

“intermodally” by fluctuating combinations of truck, passenger

aircraft, and/or freighter aircraft, depending oo factors like the

size of the cargo, the day of the week, the time of day the cargo

was tendered to the carrier, security concerns, delivery

requirements, or unanticipated events like bad weather or

mechanical breakdowns

9

the Court is guided by cases interpreting the

preemption provision of the ADA.”). As a result, the

Court’s decision in this case regarding the FAAAA’s

preemption of Sections 1555-C(3XC) and 1555-D will

also determine the extent to which Maine’s laws, as

applied to any air carriers that qualify as “delivery

services” under Maine's definition, are preempted by

the ADA.

B. Because the ADA and the FAAAA share

identical preemptive language, a

change in the interpretation of that

language in the context of the FAAAA

will also alter the established meaning

of that language in the context of the

ADA, on which air carriers

substantially rely.

Since this Court's decisions in Morales, 504 U.S.

374, and American Airlines v. Wolens, 513 U.S. 219

(1995), a well-defined body of law governing air

carriage has developed in the lower courts. Together,

these many decisions form a nearly comprehensive

outline of the scope of ADA preemption, on which air

carriers and parties dealing with air carriers can

ground their expectations. And underlying all of these

decisions are the cornerstones of Morales and Wolens.

In the course of deciding whether Sections 1555-

C(3XC) and 1555-D are preempted, therefore, this

Court should reject the invitation of petitioner and its

amici States to revisit the Morales and Wolens

standard in favor of later developments in ERISA

cases. See Pet. Br. 29; States’ Amici Br. 22; Cert. Pet.

26-27 (citing two lower court decisions drawing on

aspects of ERISA preemption analysis to decide an

10

FAAAA preemption question). Such a departure from

the standard established by this Court in Morales and

Wolens would not only violate Congress’ intent that the

Morales standard apply, but would also cause

upheaval in this well-settled area of the law, leading to

questions about the continued viability of the lines

that have already been drawn, upsetting the

legitimate expectations of air carriers and those who

deal with air carriers, and, accordingly, modifying the

perceptions of risk underlying current airline price

structures.

In Morales, this Court recognized the expansive

scope of preemption under the ADA. The preemptive

language used by Congress in the ADA, this Court

held, “express|es) a broad pre-emptive purpose,” has a

“broad scope” and “expansive sweep,” and is both

“deliberately expansive” and “conspicuous for its

breadth.” Morales, 504 U.S. at 383-84. Given this

expansive language, the Court rejected the suggestion

that the ADA prevents states only from “actually

prescribing rates, routes, or services”; applies only to

laws specifically addressed to the airline industry, or

preempts only state laws that are inconsistent with

federal laws. Id. at 385-86. Instead, this Court held

in Morales that the ADA preempts any state law

having a connection with or reference to an airline’s

rates, routes or services, unless that connection or

reference is “too tenuous, remote, or peripheral .. . to

have preemptive effect.” Jd. at 390.‘

* Although the Court mentioned this limited exception, it

“expressled] no views about where it wou!d be appropriate to draw

that] line.” Morales, 504 U.S. at 390

ll

Two years later, Congress codified the Morales

decision when it reenacted Title 49 of the U.S. Code in

1994. Although it made technical amendments to the

ADA’s preemption provision, Congress stated that it

intended no substantive change in the statute. See

Pub. L. 103-272, § La), 108 Stat. 745 (1994). By

reenacting the ADA without change, Congress made

the broad preemption interpretation that this Court

had established in Morales part of the statute. See

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran,

456 U.S. 353, 382 n.66 (1982) (“Congress is presumed

to be aware of an administrative or judicial

interpretation of a statute and to adopt that

interpretation when it re-enacts a statute without

change.”); see also Dep't of Transp. v. Pub. Citizen, 541

US. 752, 770 n.4 (2004).

The following year, in Wolens, this Court reaffirmed

the far-reaching scope of ADA preemption. In Wolens,

the Illinois Supreme Court had held that general state

consumer protection laws, which affected “unessential”

matters like frequent flier programs, have too tenuous

an effect on airline prices, routes, or services to be

preempted. This Court rejected chat holding,

concluding that even state laws of general applicability

affecting “non-essential” airline matters—such as

frequent flier programs—are sufficiently “related to”

* Congress also specifically indicated its intention that the

Morales standard apply to the FAAAA. See H.R. Rep. No. 103-

677, at 83 (1994) (Conf Rep.), as reprinted in 1994 U.S.C.CAN.

1715, 1755 (“(Tihe conferees do not intend to alter the broad

preemption interpretation adopted by the United States Supreme

Court in Morales... .”).

12

air carriers’ prices, routes and services as to be

preempted by the ADA. Wolens, 513 U.S. at 226-28.

The Court also held that the ADA prevents states not

only from enacting statutes or enforcing state common

law in a way affecting an air carrier's prices, routes, or

services, but also from enforcing, in breach of contract

actions, anything other than the specific terms agreed

on by the parties. Jd. at 232-33 (the ADA “confines

courts, in breach-of-contract actions, to the parties’

bargain, with no enlargement or enhancement based

on state laws or policies external to the agreement”).

In sum, this Court held, states “may not seek to

impose their own public policies or theories of

competition or regulation on the operations of an air

carrier,” whether by statute or common law or

equitable contract doctrines. Id.

Since Morales and Wolens, an expansive body of

law has been built in the lower courts, lawsuit by

lawsuit, on the foundation laid by this Court in those

cases. This legal framework, which defines which

claims are not allowed in litigation involving air

carriers, provides the structure around which FedEx

Express and the other members of the Airline

Association order their relationships, including

relationships with each other, with customers, with

vendors, and with employees. The American Law

Report on ADA preemption demonstrates the

comprehensiveness of these cases. See Ann K.

Wooster, Construction and Application of § 105 Airline

Deregulation Act (49 U.S.C.A. 41713), Pertaining to

Preemption of Authority over Prices, Routes, and

Services, 149 A.L.R. Fed. 299 (1998) (hereinafter “the

ALR”). The ALR cites over 170 cases addressing the

scope of ADA preemption since this Court’s decisions

13

in Morales and/or Wolens. See id. Those cases

analyze ADA preemption in the context of 34 different

state law causes of action, including, among others,

antitrust, interference with contractual relations,

products liability, and fraud; in the context of 9 types

of state laws, rules, and regulations on various topics,

issues; and in the context of several other state law

issues, including the availability of punitive damages,

the application of various common-law doctrines, and

the availability of other miscellaneous causes of action.

See id.

Moreover, courts have addressed ADA preemption

in cases involving a variety of different parties:

passengers suing passenger airlines, see, e.g., Smith v.

Comair, Inc., 134 F.3d 254, 256 (4th Cir. 1998);

shippers suing cargo airlines, see, e.g., Read-Rite Corp.

v. Burlington Air Express, Ltd., 186 F.3d 1190, 1193

(9th Cir. 1999); employees suing airlines as ernployers,

see, e.g., Botz v. Omni Air Int'l, 286 F.3d 488, 492-97

(8th Cir. 2002); vendors suing airlines, see, e.g., Lyn-

Lea Travel Corp. v. American Airlines, Inc., 283 F.3d

282, 288 (5th Cir. 2002) (travel agent); airlines suing

airlines, see, e.g., United Airlines, Inc. v. Mesa Airlines,

Inc., 219 F.3d 605, 606-07 (7th Cir. 2000); and even

non-airlines suing non-airlines, see, eg., Lyn-Lea

Travel Corp., 283 F.3d at 287 n.8 (travel — se

non-air-carrier subsidiary); Huatleigh Corp. v.

Louisiana State Bd. of Private Sec. Examiners, 906 F.

Supp. 357, 362 (M.D. La. 1995) (corporation providing

pre-departure screening at airports suing state board

of security examiners); Marlow v. AMR Servs. Corp.,

14

870 F. Supp. 295, 297-98 (D. Hawaii 1994) (employee

suing jetbridge maintenance company).

This extensive body of law, which guides air

carriers and those who deal with air carriers as they

navigate the channels of ADA preemption, is drawn on

this Court's decisions in Morales and Wolens. This

Court should, therefore, reject Petitioner’s invitation

to import developments in ERISA law into this context

contrary to Congress’ intent and, instead, should

reaffirm the broad preemption interpretation that it

has already established, Congress has adopted, and on

which air carriers have relied.

Il. BECAUSE THE ADA AND THE FAAAA

SHARE IDENTICAL PREEMPTIVE

LANGUAGE, THE COURT SHOULD

ADDRESS FAAAA PREEMPTION OF THE

ENACTED TO PREVENT.

In 1978, Congress released the air transportation

industry from intensive federal regulation because it

determined that such deregulation would best further

“efficiency, innovation, and low prices,” as well as

“variety land] quality . of air transportation

services. " 49 USC. § 40101(a). Congress recognized,

however, that the states could easily undo its

deregulation efforts by enacting their own regulations

governing air carriers. See Morales, 504 U.S. at 378.

With fifty states in the union, plus the District of

Columbia, airlines could be subjected to fifty-one

{

'

if

2

+

He

it

#

age

i!

Congress’ purpose in relieving air carriers from

piecemeal state re-regulation will not be fulfilled,

however, if the FAAAA (and, thus, the ADA) do not

considered in isolation because Maine 1s not the only

state to have enacted provisions of this sort. To the

contrary, numerous other states have passed similar

laws pertaining to tobacco delivery, each with different

requirements. See N.H. Motor Transp. Ass'n v. Rowe,

377 F. Supp. 2d 197, 204-05 (D. Me. 2005) (“Although

16

these state tobacco delivery laws involve similar

limitations on tobacco shipments, the specific

requirements vary by state.”); see also States’ Amici

Br. 26-27 (noting that twenty-seven states require

tobacco products to be labeled as such, seven states

require delivery to a licensed entity, eighteen states

impose age-verification requirements but not directly

on the carrier, ete.); id. at 12 (“[S}tates differ in the

restrictions they impose .. . .”). Left undisturbed by

federal preemption, the Maine law—and other similar

state laws “related to” the prices, routes and services

of carriers—would create exactly the unmanageable

patchwork of state regulations that Congress sought to

avoid. This is amply illustrated by even a cursory

examination of the laws of several states.

For example, New York’s law on the delivery of

tobacco products imposes significantly different

requirements than Maine’s statutes. See N.Y. Pub.

Health Law §§ 1399-(/(1}(2) (McKinney 2002). It

requires carriers to consult New York’s own, unique

list of licensed tobacco retailers before delivering

tobacco products. Id. New York’s law also prohibits

the delivery of cigarettes to any home or residence, id.,

while Maine’s statutes permit delivery to a home but

require the carrier to deliver the package only to the

addressee himself, see Me. Rev. Stat. Ann. tit. 22,

§ 1555-C(3XC\(2).

Idaho law imposes very different restrictions. It

imposes no limitations on delivery to a home rather

than a licensed retailer, but it considers a carrier that

delivers a package labeled as containing tobacco

products to be a “distributor” of such products. Idaho

Code Ann. § 39-5717 (Supp. 2007). Thus, carriers who

17

wish to avoid liability in Idaho may have to comply

with a number of unique requirements, including

obtaining a tobacco permit, id. § 39-5704; verifying

that tobacco products are in “the federally required

sealed package provided by the manufacturer,” id.

§ 39-5707(1), which may require opening the shipping

packaging; requesting and examining photo

identification from the recipient, id. § 39-5705; and

ensuring that the entity selling the tobacco obtained

proof that the purchaser was at least 18 years old, the

credit or debit card was issued in the purchaser's

name, and the shipping address matched the credit

card company’s address for the cardholder, id. § 39-

5715.

Unlike Idaho and Maine, Illinois establishes

requirements only for cigarette deliveries, not for all

tobacco products. 720 Ill. Comp. Stat. Ann. § 678/5

(West 2004). Illinois law requires carriers to accept

cigarette deliveries only from licensed distributors,

which requires them to consult [linois’ individualized

list of such distributors. Jd. § 678/5(a). Likewise,

carriers may deliver cigarettes in [inois only to

licensed distributors, unless they obtain from the

purchaser proof of age and a signed certification

confirming a variety of specific information, including

that the cigarettes are not intended for consumption

by a minor; that the purchaser understands that

signing another person's name to the certification is

illegal; and that the purchase of cigarettes by a minor

is illegal under Illinois law. Id. § 678/5c).

Michigan law, on the other hand, does not require

carriers to obtain information regarding the

purchaser's age, but it does require them to review

18

official identification from the person signing for the

delivery confirming that he is the purchaser. Mich.

Comp. Laws Ann. § 205.431(4) (West Supp. 2007).

Rhode Island law is similar, but still different. Unlike

Michigan, Rhode Island requires carriers to obtain the

signature of the purchaser himself or the signature of

an adult at the purchaser’s address before delivering

tobacco products. RJ. Gen. Laws § 11-9-13.11(b)

(2005). Moreover, Rhode Island, unlike Michigan, does

not require carriers to verify the recipient's identity

through official identification. Jd.

Washington State imposes still different

requirements on carriers delivering cigarettes. Under

Washington law, carriers must verify the age of the

recipient upon delivery through official identification,

Wash Rev. Code Ann. §§ 70.155. 105( 1a), (4b) (West

Supp. 2007), and must obtain written certification

that, among other things, the receiver is not a minor

and has “the option to receive mailings from a tobacco

company about tobacco products,” id.

§ 70.155.105(1Xb). Washington law apparently also

requires carricrs to verify the information provided by

the consumer in the certification against a database or

obtain a photocopy of their official identification, and

to provide a detailed notice to the consumer regarding

the purchase of tobacco products in Washington. Id.

§ 70.155. 105(2).

As these examples show, the wide array of state

regulations relating to carriers’ delivery of tobacco

19

products are confusing at best. Moreover, as

petitioner and its amici States point out, states have

not stopped at regulating only delivery or only tobacco.

Instead, they have attempted to regulate both the

transportation and delivery of a variety of items. See

Pet. Br. 23 & nn.36-37 (citing Maine’s regulations on

the delivery of a variety of items); States’ Amici Br. 25

(Maine's Tobacco Delivery law is only one of “myriad

state laws regulating the transportation and delivery

of dangerous products”). As the amici States pointed

out in their brief to the First Circuit, “[t]he State of

New York alone has at least eleven provisions

regulating the transportation or delivery of harmful or

illicit items other than cigarettes,” and “[a)nalogous

laws in other States are too numerous to set forth

here.” States’ First Circuit Amici Br. 28-29. Without

preemption, air carriers that transport items colorably

subject to New York's existing regulations may have to

comply with eleven different state law provisions, each

of which may impose several individual requirements,

to ensure that they lawfully transport a single item by

air to New York. If all fifty states and the District of

Columbia had, like New York, eleven such provisions

regulating the delivery of certain items, air carriers

might be obligated to comply with 561 different state

laws just to provide their core service of interstate air

transportation.

* And the patchwork of laws is growing Michigan's law, for

instance, was enacted after the Respondents moved for summary

judgment in the district court. See also, eg., Tenn Code Ann.

§ 67-4-1029 (enacted in 2005), Nev Rev. Stat § 370.329 (enacted

mn 2005)

20

This is precisely the type of non-uniform regulatory

burden that Congress sought to eliminate with th:

expansive preemption clause it included in the ADA

and extended via the FAAAA.” Such an assortment of

inconsistent state laws will “impede the free flow of

trade, traffic and transportation in interstate

commerce” in violation of Congress’ intent, even if the

states had the best of motives in enacting them. Thus,

regardless of the worthiness of a state’s reason for

enacting it, the ADA and the FAAAA preempt any

state law “related to” the services of air, motor, or

intermodal carriers, including Sections 1555-C(3)(C)

and 1555-D of Maine’s Tobacco Delivery Law. To the

extent that state policy concerns about health, safety,

and welfare can be addressed only by regulation

“related to” the prices, routes, or services of air and

motor carriers, the states should ask Congress to

impose national requirements to protect the public’s

interest.

’ Petitioner insists that City of Columbus v. Ours Garage &

Wrecker Serv., Inc., 536 U.S. 424 (2002), shows that Congress was

not concerned about a patchwork of non-preempted state

regulations. See Pet. Br. at 33, 42. Im fact, as the City of

Columbus decision shows, Congress was worried about a

burdensome patchwork even with regard to regulations—unlike

those at issue here—that it had specifically exempted from

preemption Thus, although Congress had explicitly excepted

state safety regulations from preemption by the FAAAA, its

concern that such regulations would “cause an unreasonable

burden on interstate commerce” led it to empower the Secretary

of Transportation to invalidate loca! safety regulations whose

“multiplicity threatens to clog the avenues of commerce.” City of

Columbus, 536 U S. at 441-42.

21

Ill. BECAUSE THE ADA AND THE FAAAA

SHARE IDENTICAL PREEMPTIVE

LANGUAGE, THE PRESUMPTION

AGAINST PREEMPTION HAS NO

APPLICATION IN THIS CASE.

Petitioner and its amici wrongly assert that a

presumption against preemption arises in this case

simply because Maine enacted Sections 1555-C(3)(C)

and 1555-D pursuant to its police power. See Pet. Br.

25; States’ Amici Br. 7; Br. of the Nat’l Conference of

State Legislatures, et al. as Amici Curiae 4-10. While

this Court has applied a presumption against

preemption in certain circumstances, it has held that

such a presumption does not apply in every case where

a state has exercised its police power. See United

States v. Locke, 529 U.S. 89, 108 (2000) (refusing to

apply the presumption). Instead, whether a

presumption against preemption arises depends on the

field in which Congress has legislated and whether the

“state laws . .. in question bear upon” that field. Jd. at

108. When Congress has legislated in a field that it

(rather than the states) has historically regulated and

the state laws at issue “bear upon” that field, “an

assumption of nonpre-emption is not triggered.” /d.;

see also Flagg v. Yonkers Sav. & Loan Ass'n, 396 F.3d

178, 183 (2d Cir. 2005) (“The presumption against

federal preemption disappears . . . in fields of

regulation that have been substantially occupied by

*The Court's refusal to apply the presumption against preemption

in Locke demonstrates that its earlier comment that the

presumption applied in all cases, Medtronic, Inc. v. Lohr, 518 US

470, 485 (1996), was mere dicta.

22

federal authority for an extended period of time.”).

Because no presumption against preemption by the

ADA would arise in the context of Sections 1555-

C(3)(C) and 1555-D, there is likewise no presumption

against preemption by the FAAAA.

No presumption against preemption by the ADA

would arise with regard to the challenged provisions of

Maine’s Tobacco Delivery Law because, in enacting the

ADA, Congress legislated in the field of air

transportation, a field with a history of significant

federal presence. Congress’ involvement in the air

transportation industry began in 1938, with its

enactment of the Civil Aeronautics Act of 1938, Pub. L.

No. 75-706, 52 Stat. 973 (1938), which established a

scheme of comprehensive regulation of the airline

industry.’ In 1958, Congress adopted “a more

comprehensive regulatory regime” for the air

* Justice Jackson described the extent of federal control of air

[Planes| move only by federal permission, subject to

federal inspection, nm the hands of federally certified

personnel and under an intricate system of federal

commands. The moment a ship taxis onto a runway it is

caught up in an elaborate and detailed system of controls

It takes off only by instruction from the control tower, it

travels on prescribed beams, it may be diverted from its

intended landisy, and it obeys signals and orders. Its

privileges, rights and protection, so far as transit is

concerned, it owes to the Federal Government alone and

not to any state government.

Northwest Airlines v. Minnesota, 322 US. 292, 303 (1944)

(Jackson, J., concurring).

23

transportation industry, Sam L. Majors Jewelers v.

ABX, Inc., 117 F.3d 922, 927 n.7 (5th Cir. 1997), and,

in the early 1970s, engaged in even “greater

governmental involvement in the airline market,”

PAUL STEPHEN DEMPSEY, Transportation: A Legal

History, 30 TRANSP. LJ. 235, 313 (2003). And,

although Congress freed air carriers from much of this

control with the advent of deregulation and the

passage of the ADA in 1978, it did not open the field

for control by the states. Instead, Congress explicitly

prohibited states from exercising control in the field of

air transportation by enacting the ADA'’s broad

preemption clause, which is now codified at 49 U.S.C.

§ 41713(bX1). Thus, the field in which Congress acted

in enacting the ADA—air transportation—is one that

has long been occupied by the federal government,

rather than the states.

Sections 1555-C(3XC) and 1555-D of Maine’s

Tobacco Delivery Law “bear upon” this field of air

transportation. The very title of Maine's law—An Act

to Regulate the Delivery and Sales of Tobacco Products

and to Prevent the Sale of Tobacco Products to Minors,

2003 Me. Laws 444—indicates that it affects the

delivery of packages through air transportation, which

is the primary service offered by some members of the

Airline Association, such as FedEx Express. The

substance of Maine’s Jaw dictates which air carriers

tobacco retailers may use and regulates those air

carriers’ delivery of tobacco products. Petitioner even

admits that Maine’s Tobacco Delivery law “regulate(s}

carriers,” Pet. Br. i, and is “literally . . . related to

carrier services,” Pet. Br. 22-23. Since some members

of the Airline Association provide the kinds of services

Maine’s Tobacco Delivery Law seeks to regulate, the

24

Law clearly “bear|s) upon” air transportation. Thus,

Maine’s Sections 1555-C(3)(C) and 1555-D “regulate[]

in an area where there has been a history of significant

federal presence.” Locke, 529 U.S. at 108.

In this circumstance, it is immaterial that Maine

may have enacted Sections 1555-C(3)(C) and 1555-D

due, in part, to concern about the health of its citizens,

as petitioner end amici curiae in support of petitioner

contend. See Pet. Br. 25; States’ Amici Br. 8-9; Br. of

the Nat'l Conference of State Legislatures, et al. as

Amici Curiae 4-10. In Locke, the Court considered

whether federal statutes governing oil tankers

preempted laws enacted by Washington State,

pursuant to its police powers, to protect its local

environment from the damages of oil spills. Locke, 529

U.S. at 95-97. Although the Court recognized both the

“historic role of the States to regulate local ports and

waters” and that Washington's laws were enacted

under its police powers, the Court also determined

that Washington’s laws bore upon the historically

federal fields of national and international maritime

commerce. Jd. at 108-09. Because Washington's laws

impinged on those historically federal fields, whether

intentionally or not, no presumption against

preemption was triggered. Id.; see also, e.g., United

Parcel Serv., Inc. v. Flores-Galarza, 318 F.3d 323, 336

(1st Cir. 2003) (no presumption against preemption

arises where a state tax law bears on the field of air

transportation, even though taxation is a field

historically reserved to the states). In other words, no

presumption against preemption arises when state

legislation implicates two fields—one historically

25

subject to federal authority and one historically subject

to state authority.”

This principle applies with full force here.

Regardless of whether Maine specifically intended

Sections 1555-C(3XC) and 1555-D to bear upon air

transportation, the fact is that they do so (even if they

also implicate the field of public health). Because air

transportation is a field with a history of significant

federal presence, there is no presumption of non-

preemption of those laws by the ADA or, as the Court

put it in Locke, “there is no beginning assumption that

concurrent regulation by the State is a valid exercise

of its police power.” Locke, 529 U.S. at 108; see

Morales, 504 US. at 383-91 (ignoring the presumption

against preemption, over the dissent’s argument that

it should apply, in interpreting the ADA). Likewise,

because Congress intended the preemptive scope of the

FAAAA to be identical to that of the ADA, see supra,

the presumption also has no application in the context

of the FAAAA. See N.H. Motor Transp. Ass'n v. Rowe,

377 F. Supp. 2d 197, 206 (D. Me. 2005) (because the

presumption against preemption does not apply to air

transportation, it also does not apply to ground

transportation “because the purpose of the FAAAA’s

preemption provisions was to even the playing field for

air and ground transportation”).

The presumption against preemption will arse when both the

federai statute and the state legislation implicate only a field of

traditional state authority, such as puvhlic health See Pharm.

Research & Mirs. of Am. v. Walsh, 238 US 644, 666 (2003),

Hillsborough County v. Automated Med. Labs., Jnc., 471 U S. 707,

715-18 (1985).

IV. SECTIONS 1555-C(3)(C) AND 1555-D ARE

CLEARLY PREEMPTED BY THE PLAIN

LANGUAGE OF THE ADA AND THE

FAAAA.

No presumption against preemption is appropriate

in this case. See supra. Even if such an “assumption

of nonpre-emption” were to apply with regard to

Sections 1555-C(3)(C) and 1555-D, however, it would

make no difference because the express preemptory

language of the FAAAA would overcome it. See

Egethoff v. Egelhoff, 532 U.S. 141, 151 (2001) (any

presumption against federal preemption of state law is

overcome “where .. . Congress has made clear its

desire for pre-emption”). Congress has expressed its

desire for the preemption of laws like Sections 1555-

C(3XC) and 1555-D through the plain language of the

ADA. See Holloway v. United States, 526 US. 1, 6

(1999) (“{Tihe language of the statutes thai Congress

enacts provides ‘the most reliable evidence of its

intent.”) (quoting United States v. Turkette, 452 U.S.

576, 593 (1981)). And, because the FAAAA contains

preemptive language identical to that of the ADA, it

also overcomes any presumption against preemption

as to the statutory provisions at issue here.

Sections 1555-C(3C) and 1555-D are preempted by

the plain language of the ADA because they directly

relate to the services of any air carrier that might be a

“delivery service” under the Maine statute. Those

statutes purport to require air carriers to comply with

a number of requirements in the course of delivering

packages to recipients in Maine. Under Maine's law,

delivery services, including air carriers, who wish to

avoid penalties are asked, at the very least, to: (1)

27

inspect packages for markings indicating that they

contain tobacco products, 22 Me. Rev. Stat. Ann. tit.

22, § 1555-D; (2) examine lists provided by Maine's

Attorney General to determine if the sender is a

licensed tobacco retailer in Maine, id.; (3) refuse to

deliver packages from anyone listed as an unlicensed

tobacco retailer (unless the recipient is licensed), id.;

(4) deliver packages only to the specific addressee, id.

§ 1555-C(3C\(1); (5) obtain the age of the addressee

from the sender, id. § 1555-C(3)(CX 2); (6) require the

addressee to sign for the package, id.; and (7) verify, by

requesting to see government-issued, photo

identification, the age of any addressee under twenty-

seven years old, id. § 1555-C(3KCX3).

These types of activities—sorting and handling

packages, refusing delivery of packages, delivering

packages when the addressee is not available,

delivering packages with or without obtaining a

signature, etc_—comprise the heart of the services

provided by those Airline Association members that

provide delivery services. As such, Sections 1555-

C(3XC) and 1555-D are “related to” the services of an

air carrier within the meaning of the ADA.”

‘' Some carriers have voluntarily adopted policies limiting their

delivery of tobacco products FedEx Express, for example, delivers

tobacco products only from one licensed dealer or distributor to

another licensed dealer or distributor Sce FedEx Service Guide,

available at http://www fedex com/us/services/terms/popup_tc_

us_body html#tobaccoproducts. That is irrelevant to ADA

preemption analysis, however, because, as this Court has

recognized, the distinction between a self imposed limutation and

(continued...)

28

Accordingly, Sections 1555-C(3C) and 1555-D are

preempted by the plain language of the ADA and,

because the two statutes share identical preemptory

language, by the FAAAA.”

CONCLUSION

Because the ADA preempts Sections 1555-C(3XC)

and 1555-D of Maine’s Tobacco Delivery Law, the

FAAAA should preempt them as well. This is so even

if the presumption against preemption applies, which

it clearly does not. Accordingly, amici curiae FedEx

Express and the Air Transport Association of America,

“(..continued)

a legally imposed one is significant. See Wolens, 513 US at 221

(“We hold that the ADA’s preemption prescription bars state-

imposed regulation of air carriers, but allows room for court

enforcement of contract terms set by the parties themselves ”)

Moreover, FedEx Express’ Service Guide makes clear that the

shipper, while Maine's Tobacco Delivery Law attempts to impose

that responsibility on the carner

"= The “tenuous, remote, and peripheral” exception has no

application here. Under this exception, the ADA does not preempt

a state law whose connection with the prices, routes, or services

of an air carrier is simply too distant. See Morales, 504 U.S. at

$90. As discussed above, the requirements that Sections 1555-

Ci3MC) and 1555-D purport to impose affect core services that an

an air carrier's services, therefore, is anything but tenuous

remote, or peripheral.

Inc., urge the Court to affirm the grant of judgment in

favor of Respondents.

Respectfully submitted,

ROBERT K. SPOTSWOOD

Counsel of Record

KENNETH D. SANSOM

EMILY J. TIDMORE

SPOTSWOOD SANSOM & SANSBURY LLC

940 Concord Center

2100 Third Avenue North

Birmingham, AL 35203

(205) 986-3620

Counsel for Amici Curiae Federal

Express Corporation and the Air

Transport Association of America, Inc.

CONNIE LEWIS LENSING

R. JEFFERY KELSEY

FEDERAL EXPRESS CORPORATION

LEGAL DEPARTMENT, LITIGATION

$620 Hacks Cross Road

Third Floor, Building B

Memphis, TN 38125

(901) 434-8432

Counsel for Amicus Curiae Federal

Express Corporation