On March 9, 2023, the plaintiffs in Forman et al. v. Spirit Airlines, Inc. voluntarily dismissed their appeal of the trial court’s order granting Spirit Airlines’ motion to dismiss their putative consumer class action on the grounds that plaintiffs’ claims were preempted by the Airline Deregulation Act of 1978 (the “ADA”).1
Plaintiffs had filed a Class Action Complaint in the Circuit Court for Baltimore City alleging that Spirit Airlines’ email advertising violated the Maryland Commercial Electronic Mail Act (“MCEMA”). Plaintiffs sought to represent a class defined as all individuals located within Maryland to whom Spirit Airlines sent one or more of the subject emails.
MCEMA prohibits, among other things, the transmission of commercial emails containing “false or misleading information in the subject line that has the capacity, tendency, or effect of deceiving the recipient.”2 It is representative of State statutes prohibiting the transmission of commercial emails with false or misleading subject lines.3 Under the MCEMA statute, a plaintiff may recover reasonable attorneys’ fees, as well as the greater of statutory damages of $500 per violative email received or actual damages (if any).4 Notably, it does not expressly address airfare advertising, but rather is a general consumer protection statute.
This case involved an issue of first impression, as no Maryland Court had previously addressed whether the ADA preempts the attempt to use MCEMA to police allegedly misleading airfare advertising.
In their original Complaint, plaintiffs alleged that Spirit Airlines’ airfare marketing emails violated MCEMA because “the actual [airfare] discount is always, in every instance, less than the discount advertised in the subject heading of the emails.”5 Spirit Airlines filed a motion to dismiss on the grounds that plaintiffs’ allegations were preempted by the ADA. Rather than oppose the motion, plaintiffs filed an amended complaint in which they attempted to avoid ADA preemption by limiting their allegations to complain only of an alleged mismatch between the content of the email subject lines and the bodies of the emails sent by Spirit Airlines, rather than the prices charged for any particular flight.
In response, Spirit Airlines filed a (second) motion to dismiss arguing that plaintiffs’ claims were preempted by the ADA because, notwithstanding plaintiffs’ attempts to minimize their allegations, the core of their allegations remained about alleged false and misleading advertising, thus triggering ADA preemption.
The trial court held oral argument on Spirit’s motion in April of 2022. At the conclusion of the oral argument, the judge granted Spirit Airlines’ motion with prejudice, stating:
[A]t issue before the Court is what the case is really about. And if the case is about relating to all claims regarding rates, routes and services, which is extraordinarily broad, which it is in the view of this Court, then [the] Defense motion must and shall be granted. Because the party’s dispute and the nature of it, going to the content, the format and frankly the depth, which Plaintiffs seek remedy here, is a matter which is subject to federal law. And the complaint is one which would properly be before the Department of Transportation and not the State Court. The Court grants the Motion to Dismiss for the reasons just stated on the record.6
Plaintiffs appealed the dismissal to the Appellate Court of Maryland, arguing that the trial court had inappropriately decided the case at the motion to dismiss stage and that the trial court was required to conduct an analysis of MCEMA’s impact on Spirit Airlines’ operations—after a factual record of such impact had been developed—before the court could find that the ADA preempted plaintiffs’ claims. Plaintiffs further argued that the U.S. Supreme Court has recognized that “[s]ome state actions may affect [airline fares] in too tenuous, remote, or peripheral a manner to have pre-emptive effect”7 and any potential impact of MCEMA on Spirit Airlines was too tenuous to trigger ADA preemption. Plaintiffs attempted to minimize their portrayal of MCEMA’s impact on Spirit Airlines by arguing that Spirit Airlines would simply need to include an asterisk in its email subject lines to comply with the statute.
Spirit Airlines argued, among other things, that it was appropriate to decide the case at the motion to dismiss stage, as confirmed by Supreme Court precedent,8 and that the Supreme Court has noted the expansive preemptive scope of the ADA.9 In addition, Spirit Airlines argued that despite their attempts to manufacture tenuousness in their amended complaint to avoid ADA preemption, plaintiffs still impermissibly sought to apply a consumer protection statute to police allegedly deceptive and misleading airfare advertising, which triggered ADA preemption. Indeed, plaintiffs had admitted that including an asterisk would be insufficient to cure all of the allegedly misleading email subject lines and Spirit Airlines would be required to cease time-is-of-the-essence email advertising. Further, Spirit Airlines argued that the ADA clearly precluded plaintiffs from attempting to police “the selection and design of marketing mechanisms appropriate to the furnishing of air transportation services … .”10
Following extensive briefing, the parties appeared for oral argument in the Appellate Court of Maryland on March 3, 2023. During oral argument, the appellate panel repeatedly questioned plaintiffs about why their subject heading focused allegations were not fundamentally about allegedly misleading advertising, which would trigger ADA preemption. Six days after oral argument, plaintiffs voluntarily dismissed their appeal with prejudice and on March 15, the Appellate Court issued a Mandate dismissing the appeal with prejudice.11
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1 Forman et al. v. Spirit Airlines, Inc., No. CSA-REG-0417-2022, Notice of Dismissal (Md. App. Mar. 9, 2023).
2 Md. Code., Com. Law § 14-3002(b)(2)(iii).
3 See Wash. Rev. Code § 19.190.020; Ga. Code § 16-9-100; 815 Ill. Comp. Stat. § 511/10; Minn. Stat. § 325 F. 694; Tex. Bus. & Com. Code § 321.051; W. Va. Code § 46A-6G-2.
4 Md. Code, Com. Law § 14-3003.
5 Forman et al. v. Spirit Airlines, Inc., No. 24-C-21-005150, Dkt. 1 at 3 ¶ 6 (Md. Cir. Ct. Nov. 22, 2021).
6 Forman et al. v. Spirit Airlines, Inc., No. 24-C-21-005150, Dkt. 23 at 46:17 – 47:4 (Md. Cir. Ct. June 15, 2022).
7 Morales v. Trans World Airlines, Inc., 504 U.S. 374, 390 (1992).
8 See Nw., Inc. v. Ginsberg, 572 U.S. 273 (2014).
9 Morales, 504 U.S. at 384 (noting that the ADA’s preemption clause is “broadly worded” and “deliberately expansive”) (internal citations omitted).
10 Am. Airlines, Inc. v. Wolens, 513 U.S. 219, 228 (1995).
11 Forman et al. v. Spirit Airlines, Inc., No. CSA-REG-0417-2022, Mandate (Md. App. Mar. 15, 2023).