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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0299%3A16

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2008
- **Citation:** 552 U.S. 364

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0299%3A16. Public record. Not legal advice.