Case of Kvetching Rabbi Closed by 9th Circuit

     PASADENA, Calif. (CN) – Heeding a Supreme Court reversal, the 9th Circuit refused Thursday to let a rabbi sue the airline that penalized him for complaining too much.
     Rabbi S. Binyomin Ginsberg had filed a class action against Northwest, which Delta acquired in 2009, after it dismissed him from the WorldPerks frequent-flier program.
     The airline justified its June 2008 expulsion of the rabbi based on his supposed “abuse” of frequent-flying perks.
     It wrote that the rabbi had complained 24 times in the last six months about supposed travel problems, including nine incidents of his bag arriving late at the luggage carousel.
     “Since December 3, 2007, you have continually asked for compensation over and above our guidelines,” the letter stated. “We have awarded you $1,925.00 in travel credit vouchers, 78,500 WorldPerks bonus miles, a voucher extension for your son, and $491.00 in cash reimbursements. … Due to our past generosity, we must respectfully advise that we will no longer be awarding you compensation each time you contact us.”
     Ginsberg claimed that the cancelation of his membership amounted to breach of contract, bad faith and misrepresentation.
     He sought $5 million in damages, but U.S. District Judge Janis Sammartino in San Diego dismissed the case, finding that the Airline Deregulation Act (ADA) pre-empted most of the rabbi’s claims. The remaining contract claim meanwhile failed under Federal Rule of Civil Procedure 12(b)(6).
     Though the 9th Circuit initially revived Ginsberg’s bad-faith claim in 2011, the Supreme Court deemed the case properly dismissed this past April.
     “When the application of the implied covenant depends on state policy, a breach of implied covenant claim cannot be viewed as simply an attempt to vindicate the parties’ implicit understanding of the contract,” Justice Samuel Alito wrote for the court.
     “For these reasons, the breach of implied covenant claim in this case cannot stand.”
     Alito had emphasized that a free-market economy protects the rights of consumers, who can always enroll in rival programs that they deem more favorable.
     Ginsberg’s breach-of-contract claim alone did not give rise to pre-emption issues, but the court said it could not consider that dismissal because the appeal concerned only the bad-faith count.
     Citing that reversal and “the resulting judgment,” the 9th Circuit affirmed dismissal of Ginsberg’s claim on Thursday.

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