Airline Passenger Bill Of Rights Suffers Setback At State Level

Posted on April 15, 2008 by Bob Dennison

As recently discussed, numerous advocacy groups have joined together to attempt to create what has since become referred to as "Airline Passenger Bill of Rights." In response, a number of states have passed or are in various stages of implementing consumer protection laws directed to protect alleged "rights" for air travelers. At the state level these proposals have appeared in various "patchwork" forms. New York was the first such state to officially enact a passenger bill of rights consumer protection statute. Recently a federal appeals court has struck down that law ruling that while the goals of the law were "laudable" and the circumstances prompting its adoption "deplorable," only the federal government has the authority to enact such legislation.

Ironically, although those states that have under-taken measures to enact such laws have done so in effort to protect similar shared consumer interests, it is more than likely that their collective failures to enact identical measures have and/or may prove significant in their own undoing. Although addressing New York's view only regarding the scope of its regulatory authority, the Court noticed that if such a view were permitted to carry the day, other states could also enact laws that would/may impose different duties/obligations upon air carriers that ultimately would unravel the centralized framework for air travel.

This recent decision, although serving as a sort of set-back to the various advocacy groups at the state level, far precludes this issue from garnering additional attention. It remains to be seen whether interested groups will appeal the recent decision or consider other additional avenues that may remain available in light of the recent decision. For example, at the state level, new laws may be proposed. State coalitions may be established to unify proposed legislation thereby potentially alleviating the fear that such laws would erode the centralized framework for air travel. Ultimately, additional pressure upon the federal government to enact a bill of rights may yet yield the greatest likelihood of establishing such a consumer protection law. One thing that remains certain is that this issue will continue to remain a hot topic within the aviation industry for the indeterminate future.

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The Supreme Court Takes a Look at "Me Too" Evidence

Posted on April 15, 2008 by Richard Hackman

In an employment discrimination lawsuit, can a plaintiff offer the testimony of other current or former employees who believe that they too had been discriminated against? According to the United States Supreme Court in Sprint/United Management Co. v. Mendelsohn, (February 26, 2008), the admissibility of such evidence will depend on the circumstances of the plaintiff’s case and the plaintiff’s theory of liability. However, the Supreme Court largely avoided the tough issue before it, i.e., ruling on the per se admissibility of “me-too” evidence in discrimination cases.

Mendelsohn sued Sprint alleging a company-wide pattern of age discrimination. Mendelsohn sought to introduce testimony by five former Sprint employees who claimed that their supervisors had also discriminated against them because of their age. However, none of the witnesses had the same supervisor as Mendelsohn or reported hearing discriminatory remarks by Mendelsohn’s supervisor. In fact, none of the witnesses even worked in the same department as Mendelsohn. Essentially, Sprint asked the trial court to exclude the testimony because the other employees were not “similarly situated” to Mendelsohn.                                                 

The District Court excluded this evidence at trial, and Sprint prevailed. However, on appeal, the Tenth Circuit said the District Court was wrong to apply a blanket rule excluding the “me too” evidence. Subsequently, Sprint appealed the decision to the U.S. Supreme Court.

Sprint took the question to the Supreme Court, which reversed, sending the case back to the trial court for further explanation of its exclusion of the “me-too” evidence. The Supreme Court decided that “me too” evidence is neither per se admissible nor per se inadmissible. The Court held that the admission of such evidence “depends on many factors, including how closely related the evidence is to the plaintiffs circumstances and theory of the case.” Accordingly, trial courts must carefully weigh the facts and circumstances of each case in deciding if “me too” evidence is admissible. 

Employers should be cautioned by this decision. Based on this ruling, plaintiffs may be more inclined to allege company-wide discrimination in an effort to permit them the opportunity to offer “me too” evidence at trial. As a result, defense attorneys should seek to identify a plaintiff’s “me too” evidence as early as possible, and make every effort to demonstrate that the witnesses offering “me too” evidence are not similarly situated with respect to the plaintiff.

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