California sued Delta Air Lines in San Francisco four years ago, alleging its Fly Delta app has collected millions of customers’ locations, photos, phone numbers, email addresses, credit and debit card numbers and expiration dates, gender and passport details.
Attorney General Kamala Harris said the state sent Delta a letter more than 30 days before filing the complaint, notifying it of its privacy violations.
But Delta allegedly never followed through on its reported promise to provide the requested information.
The state sought $2,500 for each violation of the unfair competition law proved at trial, and an injunction, attorney’s fees and costs.
Delta filed a demurrer, arguing that the Airline Deregulation Act of 1978 expressly preempted the lawsuit.
The superior court agreed, dismissing the complaint with prejudice.
The state appealed, but California’s First District Appeals Court affirmed the lower court’s ruling Wednesday.
The appeals court also rejected the attorney general’s claim that the OPPA would have a peripheral effect, at best, on ticket prices, routes, or airline services.
The 1978 law expressly preempts the state’s lawsuit, according to the ruling.
“To compel Delta to comply with the OPPA would effectively interfere with the airline’s ‘selection and design’ of its mobile application, a marketing mechanism ‘appropriate to the furnishing of air transportation service,’ for which state enforcement has been held to be expressly preempted by the [Airline Deregulation Act],” Jenkins wrote.
The court awarded Delta costs on appeal, and refused to let the attorney general amend the complaint.
“As explained by the high court, ‘the [Airline Deregulation Act’s] purpose … leave[s] largely to the airlines themselves, and not at all to states, the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services,'” Jenkins wrote, quoting the U.S. Supreme Court’s 1995 decision in American Airlines Inc. v. Wolens. (Emphasis in original).
Attorney General’s Office spokeswoman Rachele Huennekens said the state is reviewing the decision.
“The court didn’t find Delta was in compliance with CalOPPA, only that federal law preempts a state’s ability to hold an airline accountable for allegedly violating California law,” Huennekens wrote. “Attorney General Kamala Harris is committed to continuing to protect Californians’ rights to privacy online.”
Delta’s Latham & Watkins attorneys David Schindler in Los Angeles, and Jennifer Archie and Drew Wisniewski in Washington, D.C., as well as amicus curiae Robert Span with Steinbrecher & Span in Los Angeles, did not return requests for comment Thursday.
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