ContractsProf Blog

Reefer Brief: When the Montreal Convention Preempts State Law Claims

We CBD, LLC (We CBD) acquires and distributes legal hemp. Legal hemp, in case you were wondering, has a delta-9 tetrahydrocannabinol (THC) concentration of not more than 0.3 percent on a dry weight basis. If it has more than that, it is legally classified as marijuana, not hemp.  Through defendant Ed Clark and his firm, defendant Jet Northwest, LLC, We CBD chartered a flight through another company, Planet Nine, to send a shipment of hemp from Oregon to Switzerland. The price for the transport was $147,000.

Planet Nine either did not submit the proper paperwork to the federal authorities or that paperwork was incomplete, and there were other elements of the shipment that caught the attention of the federal authorities.  When the chartered flight landed in North Carolina for refueling, U.S. Customs detained the shipment. It tested positive for THC, and so U.S. Customs  sent the cargo back to San Francisco for further testing. There, most of the cargo, which was packed into duffel bags and garbage bags, was determined to be not hemp but marijuana, and so the authorities burned it in March, 2o21. We CBD challenged that action, but its suit against the United States was dismissed for lack of jurisdiction. When We CBD failed to respond to a forfeiture action, the authorities burned the rest.

In July, 2021, We CBD also sued Planet Nine and other defendants in North Carolina, claiming that the defendants’ conduct caused the authorities to burn the cargo. Planet Nine moved for summary judgment, and the district court agreed, finding that the Montreal Convention preempted We CBD’s claims. After some procedural confusion, because no Reefer Brief is complete without some idiosyncrasies, We CBD appealed to the Fourth Circuit.

In We CBD, LLC v. Planet Nine Private Air, LLC, the Fourth Circuit affirmed the district court’s judgment.  As relevant here, Article 18 of the Montreal Convention provides that carriers are strictly liable for “damage sustained in the event of the destruction or loss of, or damage to, cargo upon condition only that the event which caused the damage so sustained took place during the carriage by air,” and “carriage by air” is defined to include any time during which the cargo is “in the charge of the carrier.” However, carriers have a defense to liability if harm to the cargo is caused by "an act of public authority carried out in connection with the entry, exit or transit of the cargo.”  Liability under the Montreal Convention is exclusive and thus preempts causes of action arising under state law.

There is no real argument that the cargo in question was in international transit. We CBD did not provide any evidence suggesting that customs officials were incorrect in concluding that the cargo was marijuana, rather than hemp. However, We CBD raised interesting issues regarding whether the harm occurred while the cargo was “in transit.” It occurred either before transit, when Planet Nine neglected to fill out the proper paperwork, or afterwards, when customs officials destroyed the cargo.

The Fourth Circuit dispensed with these arguments fairly quickly. As to the latter argument, there is always a chain of events leading to harm. However, “Plaintiffs’ claims necessarily and inextricably arise from events that occurred during the carriage by air — namely the plane’s detention in Charlotte, followed by field testing of the Cargo and its seizure at the Charlotte-Douglas Airport.” As to the former argument, Planet Nine’s failure to fill out the proper paperwork would not have mattered were the goods not actually placed aboard an international flight. The Convention itself contemplates that events that precede international transit can cause harms covered by the Convention, which then preempt any competing state-law claims.

Finally, the Fourth Circuit supplies an interesting gloss on Article 18’s provision that airlines will only be liable if  "the event which caused the damage so sustained took place during the carriage by air.” The event which causes damage is different from the damage itself. Here, the event that caused the destruction of the cargo seven months after its interdiction was the detention of the cargo in North Carolina.

Ultimately, the Court was persuaded that the destruction of the cargo was inextricably linked to events that occurred during carriage by air. The Court thus affirmed the district court’s award of summary judgment to the defendant.

Friday Frivolity: Flair Airline Has to Reimburse Passenger for Spoiled Seafood in Lost Luggage

The case was decided in March, but I just learned of it on Wait, Wait, Don't Tell Me, so it's news to me. Jason Proctor brings us the full story on CBC News.

It turns out, the duty to read does not apply to people who pack their suitcase with crab meat, fish cakes, sea cucumbers and dandelion root before boarding a flight aboard a Canadian budget airline. Passengers are prohibited from packing such items in checked baggage. However, once the airline accepts checked baggage, it assumes liability for any damage to that baggage. Apparently, the rule in Canada is that "the law doesn't allow an airline to use a contract to get out of liability for bags frontline staff agree to put on an airplane — no matter how fishy the contents." Flair was ordered to pay the passenger $780 to cover the value of the seafood, baggage fees, and court costs.

I REALLY don't like this outcome. The proper solution, it seems to me, is that the airline should refund the baggage fee. Maybe that's enough to get the passenger his court costs as well. But all of his other losses are his fault. Don't pack perishables in a suitcase before flying. If you do so and the perishables perish, while permanently funkifying your suitcase, that's on you.

The last thing we need is to give airlines a reason to spend more time inspecting our checked luggage. Now, not only are we going to have to take off shoes and belts, pull out our large electronics (or not in OKC!), and pack our liquids separately (or not, TSA seems not to be obsessed with that anymore), but we will also have to stand in line while dogs trained to sniff out contraband adorably inspect our checked bags.

Court Orders Railway to Pay Swinomish Tribe $400 Million

Prior opinions in this case had already cleared away a number of issues.

Did BNSF Railway Company (BNSF) violate a Right-of-Way Easement Agreement (the Easement Agreement)?
Yes.

Were the claims of  the Swinomish Indian Tribal Community (the Tribe) barred under the Interstate Commerce Commission Termination Act?
No.

Did BNSF breach contractual obligations set forth in the Easement Agreement?
Yes.

Did the Tribe arbitrarily refuse to consent to BNSF's unilateral decision to increase rail traffic?
Not.

Did BNSF engage in conscious, willful, and knowing trespass from 2012 to 2021?
Yes.

So, in Swinomish Indian Tribal Community v. BNSF Railway Company, the only thing left to determine was damages. The proper remedy in this case was the disgorgement of net profits. Those profits amounted to about $450 million, but the court agreed to subtract about $50 million, representing one-third of long-term fixed costs associated with the trespassing shipments.  The court then discounted the damages by an addition $35 million, representing net profits that could have been realized on the legitimate use of the rail network. However, the court then calculated that the Tribe was entitled to an additional $32 million, representing additional after-tax profits that BNSF earned on the revenues it netted through its trespass.  That brought the total judgment to just under $400 million.

Liability Waiver on Charter Flight Unenforceable Under the Warsaw Convention

Image by DALL-E

On January 5, 2022, Richard C. Murphy III boarded a Cessna as the plane's sole passenger on a charter flight to the Bahamas. Mr. Murphy was injured when the plane ran out of fuel and crash landed in the ocean. Not surprisingly, Mr. Murphy and his wife sued the aircraft owner, two charter companies, and the pilot. After removal to the District Court of the Southern District of Florida, two defendants, the pilot and one of the charter companies, moved to dismiss the fourth amended complaint based on a liability waiver.

In Murphy v. Airway Air Charter, Inc., the district court denied defendants' motion to dismiss. The charter agreement included the following liability waiver:

EE. LIMITATION OF LIABILITY: CHARTER COMPANY SHALL NOT BE LIABLE FOR ANY INJURY, DAMAGE, LOSS, EXPENSE, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES . . . WHETHER IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY OR NEGLIGENCE)

In denying defendants' motion to dismiss based on this affirmative defense, the court first noted that defendants had waived the defense by not pleading it in their Answer to the second amended complaint. But that's not very interesting. More interestingly, the court also found that the affirmative defense was barred by the 1929 Warsaw Convention, as amended by the 1999 Montreal Convention (collectively, the Convention). Although the Convention allows parties to negotiate liability limits different from those provided for in the Convention, that only means that parties can provide for liability in excess of the amounts guaranteed under the Convention. They may not go below the required minimum of $75,000. 

As a result, defendants' liability waiver, even if not waived, was void. Defendants' motion to dismiss was denied.

Strike Averted in the Airline Food Industry

As Jerry Seinfeld (right, tapping on the window of the Oval Office) might ask, "What's the deal with airline food service workers?"  Well, the deal is that they agreed at the end of August to a contract, narrowly avoiding a strike, after negotiations stretching back to the 2017.  You can find the union's statement here.

Important excerpt:

Highlights include raising the minimum wage nationwide to $17 per hour, a new quality, affordable healthcare plan, a new wage structure that increases year to year and rewards both years of service and job skills.  Workers will also receive additional sick time and better equipment to keep them safe when working in extreme temperatures, from refrigerated food prep rooms to hot airport tarmacs.

Sounds like a win.

Second Circuit Upholds Time Charter Allowing for Viking River Cruises on the Mississippi

Viking River Cruises (Viking) is known for its excursions in Europe and Egypt. It wanted to expand operations into the United States, entering into an agreement through an American subsidiary for a charter though an American company, River 1, LLC (River 1). Viking worked with River 1 because provisions of the Jones Act prohibit Viking, a foreign corporation, from operating on its own. According to the Second Circuit, the deal with River 1 provided that "River 1 employees would manage the ship’s maritime activities, while Viking employees would manage the onboard entertainment operation." They applied to the United States Maritime Administration (MARAD) for approval of the time charter, which MARAD granted in March, 2022. The Viking Mississippi has been operating since September 2022, as you can see in the video below.

American Cruise Lines (ACL) challenged that decision, alleging that the agreement was a "bareboat charter," and that its approval would result in an impermissible transfer of control over the vessel to which the charter pertained to a non-citizen corporation.

The Administrative Procedures Act (APA) applied to ACL's petition for review.  In American Cruise Lines v. United States, the Second Circuit first noted that, under the APA, the Court could only reverse MARAD's determination if it were "arbitrary and capricious." According to the Second Circuit, it was not.

The issue was whether the agreement between Viking and River 1 established a time charter. Under a time charter, “the charterer engages for a fixed period of time a vessel, which remains manned and navigated by the vessel owner, to carry cargo wherever the charterer instructs.” A bareboat charter, by contrast, shifts "exclusive possession and control of the chartered vessel from the owner to the charterer during the charter period." The Court found reasonable MARAD's construction of the charter between Viking and River 1 as a time charter.

Among the features of the charter supporting MARAD's conclusion are the following:

• River 1 provided the crew and the vessel master, who oversees the ship's operations;
• Viking retains power to replace the vessel master, but only in the case of unsatisfactory performance and has not power to name the replacement; and 
•  River 1 maintains primary responsibility for the ship's maintenance and care.

No aspects of the transaction run afoul of the Jones Act or regulations. The regulations prohibit a foreign corporation from absorbing "all of the costs and normal business risks associated with ownership and operation of” the vessel. But here, Viking has not done so. MARAD did not behave impermissibly in finding that an American Fishing Act regulation did not apply to the transaction, perhaps because the cruise ship was not engaged in fishing.

The rest of the opinion has to do with proper procedures under notice and comment provisions. Ultimately, the Second Circuit's decision was a narrow one. Future charters will require independent review, but MARAD's finding that this agreement created a time charter was not arbitrary and capricious.

Now I'm thinking of doing some follow-up research on the next available cruise.

Divided Ninth Circuit Panel Sends Claims Against Airline to Arbitration

In 2019, Winifredo and Macaria Herrera (the Herreras) purchased international round-trip flights on Cathay Pacific Airways, Ltd. (Cathay Pacific) through a third-party booking website, ASAP Tickets (ASAP). In so doing the Herreras agreed to ASAP's terms, which included a $250/per ticket fee for refunds or exchanges and a clause providing for binding arbitration by the American Arbitration Association. 

While they were traveling, Cathay Pacific canceled their return trip. A Cathay Pacific employee advised them to book with another carrier, assuring them that they would receive a refund, and they did so. Through ASAP, the Herreras requested their refund, but they were offered only travel vouchers valid for a limited time. By then, because of the COVID pandemic, it was clear that the Herreras would not be able to use the vouchers.  Cathay Pacific maintains that it never received a refund request form the Herreras or ASAP.

The Herreras filed a class-action complaint alleging that Cathay Pacific was in breach of contract under the terms of its General Conditions of Carriage for Passengers and Baggage (GCC). The GCC provides for refunds in case of cancellations unless otherwise provided under the Montreal Convention or the GCC's Article 11.  The GCC contained no arbitration clause.

In response to the Herreras' complaint, Cathay Pacific moved to compel arbitration based on equitable estoppel, relying on ASAP's terms and conditions. The District Court denied the motion, as the Herreras' claims did not arise under their agreement with ASAP. Cathay Pacific took an interlocutory appeal.

In a split decision in Herrera v. Cathay Pacific Airways, Ltd., the Ninth Circuit reversed the District Court's denial of Cathay Pacific's motion to compel arbitration and remanded the case with instructions to dismiss or stay proceedings pending arbitration. I believe that under a recent SCOTUS decision, Smith v. Spizzirri, discussed here, the District Court can only stay, not dismiss the case.

The Court first addressed plaintiffs' tardy argument that Cathay Pacific could not compel arbitration because 14 C.F.R. § 253.10 provides:

No carrier may impose any contract of carriage provision containing a choice-of forum clause that attempts to preclude a passenger, or a person who purchases a ticket for air transportation on behalf of a passenger, from bringing a claim against a carrier in any court of competent jurisdiction, including a court within the jurisdiction of that passenger’s residence in the United States (provided that the carrier does business within that jurisdiction).

 The Majority rejected this argument because Cathay Pacific is not imposing a choice-of-forum clause on the Herrera's through the GCC.  It is doing so through "applicable law," and the regulation doesn't say anything to prevent a carrier for doing so. That would really annoy me as exhibiting the sort of "lawyerly" reasoning that allows smarmy well-resourced parties to evade the purpose of regulation. However, the dissenting opinion points out that the Department of Transportation has interpreted the provision as applying only to domestic flights. Fair enough.

Image by DALL-E

There is no arbitration agreement between the parties, so under California law, Cathay Pacific can only compel arbitration if the Herreras’ breach-of-contract claim against Cathay Pacific is “intimately founded in and intertwined with” ASAP’s Terms & Conditions containing the arbitration clause. The Majority reasoned that when Cathay Pacific directed the Herreras to make their refund request through ASAP, they made the latter a "middleman" for refund purposes. Cathay Pacific alleges that it never received a refund request from ASAP and thus never imposed any restrictions on the Herreras' refund.  ASAP may have done so in violation of its terms and conditions, and that is why any claim against Cathay Pacific is intertwined with those terms and conditions.  

Ultimately, estoppel comes down to fairness. The Herreras say it is not fair to compel arbitration in these circumstances, but the Majority disagrees. Article 11 of the GCC allows Cathay Pacific to reimburse ASAP and to direct the Herreras to recovery from ASAP. Cathay Pacific did indeed so direct the Herreras. The Herreras got discounted tickets through ASAP. In return they agreed to an arbitration clause. There is nothing unfair about giving them what they bargained for. 

The Majority thus found that the Herreras were equitably estopped from resisting Cathay Pacific's motion to compel arbitration. There is a strong dissent, questioning whether there are undisputed facts establishing that all aspects of the Herreras' claims are intimately founded in and intertwined with its agreement with ASAP. 

Guest Injured at Airbnb Not Bound by Airbnb's Arbitration Clause

Last week, we were all exercised over Disney's attempt to compel arbitration based on an agreement with a pretty attenuated relationship to the cause of action. Obviously Disney's officers and directors are avid readers of the blog, because, as Claire Fahy reports in The New York Times, the company reversed course and has abandoned its motion to compel arbitration.  Well, Disney is not the only entity trying to engage in this form of arbitration-clause bootsrapping.

Andrew Peterson was injured when a railing on an elevated porch gave way at an Airbnb venue rented by a friend.  His injuries were serious enough to necessitate the amputation of one of his legs below the knee. Peterson sued Airbnb and others, but Airbnb moved to compel arbitration.  Airbnb claimed that Peterson had agreed to Airbnb's terms of service years earlier when he created an Airbnb account, even though he never used the site.  The trial court denied Airbnb's motion and it took an interlocutory appeal.

In Peterson v. Devita, a split Illinois appellate court affirmed.  The majority found that courts, rather than arbiters, decide threshold issues of arbitrability and that Mr. Peterson's injuries are unrelated  to his use of the Airbnb and thus not governed by any arbitration agreement to which he agreed when he registered on the site.  Neither agency nor equitable estoppel principles apply.

In 2020, a Peterson's friend booked a house using Airbnb.  Peterson, not a listed guest at the house, attended a party at the home and sustained serious injuries. He sued Airbnb for negligence.  

Airbnb's arbitration provision provides that issues of arbitrability are to be determined by the arbiter.  However, under caselaw interpreting the Federal Arbitration Act (FAA), a court must first establish that the dispute is covered by an arbitration agreement between the parties.  The majority then reviewed case law, including a rich trove of Airbnb cases.  There is authority from SCOTUS (Henry Schein, Inc. v. Archer & White Sales, Inc.), that where, as here, the arbitration provision delegates questions of arbitrability to arbiter, such questions must go to the arbiter even if the arguments for arbitrability are "wholly groundless."  However, the majority concluded that the Henry Schein rule must be harmonized with common sense.  Disputes cannot be sent to the arbiter when the dispute between the parties is wholly independent of any agreement between the parties.

The majority also rejected Airbnb's argument that Mr. Peterson was bound because his friend acted as his agent when the latter booked the house through Airbnb.  No elements of an agency relationship were established.  Nor was the majority convinced by arguments sounding in equitable estoppel.

Image by DALL-E

The dissenting justice would have ruled for Airbnb on two grounds.  First, the dissenting Justice found that, by registering with Airbnb, Mr. Peterson bound himself to Airbnb's terms of service, including its arbitration provision.  According to the dissent, Mr. Peterson was also bound by Airbnb's terms because when he knowingly entered into an Airbnb rental as a guest, he did so through an agency relationship with his friend who made the booking.  The dissenting justice attributes to Mr. Peterson knowledge of Airbnb's terms of service that he agreed to in 2018 when he signed up on a website that he never subsequently used.  No doubt, his mind was thinking of nothing else between the time the railing gave way and the moment he hit the ground.  The matter should be referred to the arbiter, said the dissent, and the arbiter may then decide (in case it matters) whether Mr. Peterson is bound through his own agreement with Airbnb or derivatively through his agent's agreement with Airbnb.

The majority was concerned that giving effect to Airbnb's terms of service in cases like this "would lead to absurd consequences." The dissent thinks doing so is simply an application of existing caselaw interpreting the FAA.  I think both sides are correct.

News From New Zealand: Whan a Man Disappoints a Woman, Is It Breach?

Six years into their relationship, which included periods of co-habitation, a man promised to take his girlfriend to the airport and look after her dogs while she was on holiday.  When the day of travel arrived, he didn't show or return her calls.  She missed her flight, rescheduled, and paid to put her dogs in a kennel. 

Moreover, the two had planned to go on holiday together in December, 2023.  The woman had bought a ferry ticket for the man, but again, he had stopped taking her calls, and she was stuck with a presumably non-refundable ticket.

The dogs and the ferry ride complicate matters, of course, but airport rides are high-stakes promises. When I lived in Valparaiso, Indiana, airport rides could be at least two hours round trip (Midway) or three or more (O'Hare). One was lucky to have one friend willing to take you to the airport.  My beloved colleague, Rebecca Huss (right), treated airport driving as the highest level of friendship.  I can easily imagine that Rebecca would have treated a six-year relationship as a probationary period during which she still was not obligated to driver her partner to the airport.  That would be level-jumping. Once, when we thought our law school was going to relocate to Tennessee (long story), a bunch of us went down for a publicity shoot. I volunteered to use my car to ferry myself and some colleagues to O'Hare.  When Rebecca said that she would come with me, I said, "Okay, but now you owe me a ride to the airport!"  I did that because I knew that Rebecca would get steamed and shout "I'M NOT DRIVING YOU TO THE AIRPORT!!!" She didn't disappoint.

In the case at issue, the woman, identified as CL, decided to sue the man, identified as HG, for breach of contract in New Zealand's Disputes Tribunal.  In a charmingly poorly-written order, perfect for the first day of teaching, the tribunal found that CL had not stated a claim for breach of contract.  A good thing too, because had the tribunal found otherwise, it's not clear that anyone would have been able to reach HG to get him to pay up.  He was invited to participate in a hearing by telephone, but "HG sent an email that he would not attend the hearing by answering his phone." Subsequent calls from the tribunal went unanswered.  This man is one unfriendly ghost.

The tribunal found that there was no contract here because the parties never intended to be legally bound.  "Although a promise was made, it falls short of being a contract. It forms part of the everyday family and domestic relationship agreements that are not enforceable in the Disputes Tribunal."

That strikes me as all there is to say, at least with respect to HG's promise to take CL to the airport. Airport rides are an act of Grace.

The order does not separately address the ferry ticket, and there might be a viable claim of promissory estoppel there.  The tribunal's neglect of that issue may be a product of a pleading failure.  CL might not have known of the doctrine. In the alternative, it may be that New Zealand law does not award damages for breach of a social promise, regardless of reliance.  

Input on that last point would be welcome.

Friday Frivolity: John Oliver on FAA Oversight

John Oliver devoted a lengthy segment to Federal Aviation Administration (FAA) oversight of aircraft in the aftermath of a door falling off an Alaska Air plane.  The contracts angle on all this has to do with the Boeing/McDonnell Douglas merger and the FAA's relation to Boeing, which seems to involve a lot of delegation to Boeing of FAA oversight over Boeing.

John has a lot of say about Boeing's merger with McDonnell Douglas.  The argument is that Boeing built its reputation on the reliability of its planes.  Its culture was that the engineers, not the corporate executives, drove the company.  That all changed after the merger, as stock price, rather than rigorous focus on engineering challenges, came to dominate the company.  That corporate culture produced the 787 Dreamliner, which was quickly grounded, and the 737 Max, two of which crashed.  Those crashes were apparently due to problems with the aircraft's navigation (MCAS) system and inadequate pilot training, which involved no acknowledgment of the existence of the MCAS system.  The 737 Max was also grounded for two years.

So where does federal regulation fit in here?  Well, it turns out FAA inspectors were incapable of understanding what it was they were regulating.  Boeing engineers described the responses of FAA regulators to their presentations as like dogs watching television.  As a result, for five decades, the FAA has delegated its oversight to Boeing employees, and in 2005, Boeing successfully lobbied for less vigorous regulation of its aircraft.  Now, the Boeing employees who are seconded to the FAA increasingly complain that they are under pressure from the company to say that all is fine.

For those who want to learn more, and perhaps enjoy a few uncomfortable, gallows-humor type chuckles, and now, this . . . 

 

Air Canada Bound by Its Chatbot

Hooray for Canada!  First you gave us the emoji-as-signature case; now this!

Just last week, I was complaining to my students that I don't like the way the Restatement lays out the elements of misrepresentation.  It says that misrepresentation has to be either fraudulent or material, but it is hard to come up with a fact pattern in which a plaintiff could establish the requisite scienter for a misrepresentation that was not fraudulent.  Air Canada, can you prove me wrong?

Plaintiff Jake Moffat, who apparently uses "Mr." but also they/them pronouns, went onto Air Canada's website to book a flight.  They were looking for a bereavement fare, and Air Canada's chatbot told them not to worry.  They could get the ticket recategorized as a bereavement fare retroactively so long as they applied to do so within ninety days of travel.  Air Canada's human employees were less accommodating, and Mr. Moffat sued to recover the difference between the fare they paid and the bereavement fare; a difference of $880 (Canadian, I assume). 

In Moffat v. Air Canada, the Civil Resolution Tribunal (CRT) allowed Mr. Moffat's claim for negligent misrepresentation.  The claim is brought in tort, but that's only a product of a factual variable.  Mr. Moffat had paid for his ticket and was seeking a refund.  Had they not paid, Air Canada would be going after them for breach of contract, and they would be alleging negligent misrepresentation as an affirmative defense to their obligation to pay.  The elements of the claim seem to be same, except that Mr. Moffat had to establish that Air Canada owed him a duty.  No problem here.  In addition, Mr. Moffat had to show an untrue, inaccurate or misleading representation, negligence, reasonable reliance, and damages.  

The chatbot indicated that Mr. Moffat could fly first, provide evidence of bereavement later.  However, it also provided a hyperlink to Air Canada's bereavement policy, which does not allow for requests for bereavement fares after travel.  The rest follows as expected.  Mr. Moffat traveled.  Mr. Moffat sought a bereavement fare.  This being Air Canada, they said "sorry" about the misinformation provided by the chatbot and thanked Mr. Moffat for allowing them the opportunity to address the problem.  Air Canada did not offer a refund, instead it offered Mr. Moffat a $200 coupon towards future flights.  Mr. Moffat refused.

Mr. Moffat was able to how by a preponderance of the evidence that all elements of a claim for negligent misrepresentation were met.  The CRT rejected Air Canada's affirmative defense based on the terms and conditions of the applicable tariff because Air Canada described those terms and conditions but did not provide evidence of them.  Seems odd that Air Canada would bother to fight this claim but then not bother to provide evidence necessary to its defense.  as a result of Air Canada's half-hearted litigation strategy, we can't know whether other plaintiffs could follow in Mr. Moffat's path.  It may be that Air Canada has a powerful defense.  However, when a big corporation goes up against a pro se litigant, the CRT is not inclined to cut it any slack.  The CRT engaged in a careful and detailed calculation of damages and ordered Air Canada to pay Mr. Moffat $812.02, plus post-judgment interest.  

Now I know what you are thinking.  It's easy to blame the overworked chatbot for messing up.  But I asked a chatbot its opinion about what could have caused the negligent misrepresentation in question.  It sent me a before and after picture of the chatbot in question, who apparently started its career as "cht boot?" but then decided to take on the moniker "CHBoT?", which like BONG HiTs 4 JESUS, just seems right to me.  At left we have the Air Canada chatbot pictured the day that it started work.  At right, we have it three weeks into its new career.  Images generated by DALL-E.  As you can see, like most airline employees, it was attracted by the allure and mystique of air travel.  Like some, it quickly learned that it was a glorified server on a greyhound bus trip to hell.  I'm not saying that all of the airlines' customer service people end up hitting the sauce hard.  I'm just saying I would not blame them for doing so.

Hat tip to my former student, Don Dechert, who shared the case with me!

The No Responsibility Disclaimer

Contracts Prof Emeritus Royce de R. Barondes (right) brings us news of the latest liability dodge that Terms of Service designers have dreamed up.  Professor Barondes booked a hotel room through Priceline.  When he arrived, he was informed that the hotel had no vacancies and so his reservation had been canceled.  He then discovered the following language in Priceline's terms of service, which I quote in full because the sweep  is so breathtaking: 

To the extent permitted by law, in no event shall Priceline, including its respective officers, directors, employees, representatives, parents, subsidiaries, affiliates, distributors, suppliers, licensors, agents or others involved in creating, sponsoring, promoting, or otherwise making available the Site and its contents (collectively the "Covered Parties"), be liable to any person or entity for any direct, indirect, incidental, special, exemplary, compensatory, consequential, or punitive damages or any damages whatsoever, including but not limited to: (i) loss of goodwill, profits, business interruption, data or other intangible losses; (ii) your inability to use, unauthorized use of, performance or non-performance of the Site; (iii) unauthorized access to or tampering with your personal information or transmissions; (iv) the provision or failure to provide any service; (v) errors or inaccuracies contained on the ite or any information, software, products, services, and related graphics obtained through the Site; (vi) any transactions entered into through this Site; (vii) any property damage including damage to your computer or computer system caused by viruses or other harmful components, during or on account of access to or use of this Site or any Site to which it provides hyperlinks; or (viii) damages otherwise arising out of the use of the Site, any delay or inability to use the Site, or any information, products, or services obtained through the Site. The limitations of liability shall apply regardless of the form of action, whether based on contract, tort, negligence, strict liability or otherwise, even if a Covered Party has been advised of the possibility of damages.

One would hope that the extent to which such a clause is "permitted by law" would be most limited.  If the language were enforced, it suggests that there really is no contract at all, given that Priceline stipulates in advance that it will not be liable for breach.  Someone could perhaps test that by using Priceline's services and then not paying.  Somehow, I think Priceline would insist that users' liability is not cabined in the same way Priceline's is.  

Professor Barondes' experience got me to thinking about the complexities of using travel websites.  Pre-COVID, when I traveled more, I  joined rewards programs at a few hotel chains.  I  learned that I get no credit for my stay if I booked at such a hotel through a travel website.  Sometimes, the hotel has a hard time finding my reservation because the confirmation number I was given looks nothing like the hotel's reservation numbers.  They have no record for me, and they ask me accusingly, "Did you book through a website?"  "Well yes," I admit, and I think, "Doesn't everybody?"

When I do so, with whom am I in contractual privity and for what purposes?  Professor Barondes is a sophisticated traveler, but your ordinary user of a travel website might assume that they had a contract with a hotel when they booked a stay at that hotel through a website.  Not so, it appears.  The Seinfeld-inspired hotel is free to say, "you may have a reservation, but we did not hold the reservation."  But to the traveler, that's really the most important part of the reservation, the holding part.

It also occurs to me that Priceline is a clearinghouse.  You may find your hotel through Priceline, but Priceline may just link you to some other website which is the entity that has some sort of relationship with your hotel.  And that relationship may not be with your particular hotel but with the hotel chain's sub-contracted reservation service.  As the layers of contractual obligation accumulate, sorting out privity and knowing how to get a remedy can be quite complex.

Even if Priceline offers a refund, which would be a sound business practice regardless of their ridiculous "no responsibility disclaimer," that hardly suffices.  The price one pays for reserving a hotel may bear no relation to the price one pays to find a room at the last minute.  And then there are the added costs, frustrations and panics associated with actually finding that room.

China Southern Airlines Honors Tickets Sold for 10 Yuan ($1.37)!

Thanks to Wayne Barnes (below, demonstrating how one faces down an airline), we have another in our series of stories of people beating up on the airlines.  The others in this series include a couple that got a refund after being seated next to a gaseous, slobbering dog, a mother forced to sell her child into slavery when the airline would not allow the child to have a seat of her own (perhaps I exaggerate a bit), and a refund for a failed trip to Easter Island.

This time it was a simple website glitch.  For two hours, as reported on CNN, through a story provided by Reuters, China Southern advertised trips for 10, 20 or 30 yuan when they should have cost 400-500 yuan.  Passengers still had to pay airport fees, but the airlines otherwise swallowed the loss.  Perhaps this AI thing isn't all bad.

The story was reported by Sophie Yu and Casey Hall, with editing by Bernadette Baum.

Another Airline Settles With a Dissatisfied Passenger

Recently, we brought you a story of people who gave up their premium seats rather than share an aisle with  a gassy slobbering dog.  They recovered the difference between the premium seats and coach and, they say, donated to a charity that matches up people with presumably non-gassy service animals.  Today, thanks to OCU 1L Taysia Stephens (left), we bring you another story of a consumer victory over the airlines, this time in small claims court.

According to Kathleen Wong writing in USA Today, Erika Hamilton, an Oregon lawyer, purchased two seats on an American Airlines flight, one for her and her 18-month-old daughter, who would sit in her lap, and another for the daughter's twin.  How did Ms. Hamilton choose which child got the lap and which one got the seat?  Was one of her daughters more of a lapchild?  Ms. Wong's reporting is silent on the subject.

In any case, Ms. Hamilton's preferred arrangement  is allowed under the airline's rules and FAA rules. A flight attendant told Ms. Hamilton that her second child needed to be in a car seat, and the flight attendant was not persuaded when Ms. Hamilton pulled up the airline's and the FAA's relevant rules and shared them with the stubborn employee.  Another passenger offered to travel with Ms. Hamilton's second child in her lap, and Ms. Hamilton felt she had no choice but to agree to the arrangement, even though she believed it was safer for the daughter to sit in her own seat with a seat belt.  

The flight attendant eventually relented and apologized, but Ms. Hamilton sued in small claims court seeking $3500.  The case settled, with American agreeing to award Ms. Hamilton 4500 miles.  It is unclear whether that means 4500 miles of free travel or 4500 miles on American's frequent flyer program.  Either way, it seems odd that the reward for a terrible experience on the airline is more time spent on the airline.  

There is a New Yorker cartoon that would be the perfect accompaniment for this article, if only I could find it and it weren't subject to copyright protection.  It depicts a father telling a child, "One day, you will grow up to hate all of the major airlines."  One can imagine Ms. Hamilton preparing her twins for what lies ahead for them with the same sage prediction.

Good Boi Expels Gas (and Fancy People) from First Class

Thanks to Miriam Cherry for sharing with us this case that straddles contracts law and the law of noisome nuisances.  Although this story appears in People Magazine, the main character  is a gassy, slobbering bulldog.  

Kimberlee Speakman reports that a couple had purchased premium seats on Singapore Airlines.  After dinner, a bulldog mix seated in their row began breathing loudly and farting. The husband was wearing shorts and discovered that the dog was sharing its "saliva goo" with his leg.  

The couple did the only reasonable thing.  Change into long pants and enjoy the company of a darling creature not too uppity to indulge his earthy nature while seated among the plutocracy? 

No.  They switched to coach seats and then whinged until the airline refunded them the difference between the cost of their premium seats and the cost of the coach seats.  They did this because they are principled.  They were not after the money, which they are donating to an organization that matches up vision-impaired humans with non-gassy, non-drooling support animals.  The point is about airline accountability, according to the woman exposed to dog farts.  According to People's reporting, she noted, "I expect to see a baby. I expect young children. But I don't expect a dog."

She's quite right.  Airlines should also notify passengers if they are going to be seated next to a vegan.  Research shows that people who restrict themselves to plant-based diets fart seven times more per day than people who eat a more traditional western diet of hot dogs, pork rinds, three Red Bulls, and a Bud Light.

A spokesdog for the breed (above left) stresses that the dog in question very much regrets the inconvenience to the passengers and the airlines.  He has pledged in the future to be a very good boi.

The OceanGate Liability Waiver and Exculpatory Agreement

The five people who perished when their submersible imploded on its way to providing them a view of The Titanic's undersea remains signed an exculpatory agreement and liability waiver.  On the relationship between waivers and exculpatory agreement, see Nancy Kim's earlier post.  The passengers aboard the submersible acknowledged that they were aware that the vehicle was experimental and had not been approved or certified by any regulatory body.  They also acknowledged that they were aware that the vessel was constructed out of materials that had not been used in submersible vehicles occupied by human beings.   

Image by Steve Jurvetson,
CC BY 2.0, via Wikimedia Commons

This was a rather cryptic reference to criticisms of the OceanGate submersible leveled by Titanic director James Cameron (right), among others. According William J. Broad reporting in The New York Times, the vessel was constructed out of carbon fiber which is not designed to withstand the extreme pressures to which it would be subjected in the ocean deeps.  Although the vessel was equipped with a warning system, that system would be ineffective, according to Mr. Cameron.  By the time the warning light comes on, the vessel is about to implode, and there would be no time to surface.  

Notwithstanding these risks, before they could participate in the voyage, the passengers had to waive, on behalf of themselves and their heirs, all claims against OceanGate and its employees, discharging and releasing those persons and entities from any potential liability, including liability for harms caused by the negligence of OceanGate or its employees.  The document designates the Bahamas in both choice of law and choice of forum clauses.

Now, people are speculating as to whether this agreement is enforceable.  I am not familiar with the law of the Bahamas and so will not speculate about that, beyond noting that such agreements are pretty routine.  I have had my say about that here.  Jeff Sovern previously posted his thoughts on liability waivers, especially in the context of COVID.  I will note that, as with everything pertaining to these five tragic deaths, the attention devoted to the event seems disproportionate to its magnitude, when one considers other recent stories relating to deaths at sea.  For example, as Chantal Da Silva reported for NBC news, hundreds are missing and feared dead after a fishing boat crowded with migrants sank in Greek waters last week.  Earlier this month, about 300 people died in India's worst rail disaster in decades.  According to Sameer Yasir, Mujib Mashal and Hari Kumar writing in The New York Times, almost all of the dead were in the train's first three cars.  Those cars are packed with poor people who are not even recorded on the rail service's official register of passengers.  A week after the crash, one hundred bodies still lay in the morgue, unclaimed, unidentified.

It is not clear that the OceanGate exculpatory agreement will protect that company, given that the conduct of the company and its leadership may have been reckless and not merely negligent.  It is not clear to me that it matters much in this case.  Unlike the migrants who died in Greek waters and the Indian laborers, all of the people aboard the OceanGate vessel were very, very wealthy.  They have access to life insurance.  Their heirs will be well provided for.  As to OceanGate itself, it seems hard to imagine that the company will survive this catastrophe, and so suing a soon-to-be bankrupt entity seems like a fool's errand.  Regulatory bodies can do their work and hold any surviving entities and the natural persons involved in them to account.  The survivors of the victims of this tragedy may console themselves in the knowledge that their loved-ones died doing something they loved enough to do notwithstanding the disclosed risks.  In any case, adding to their wealth through litigation, if that is the result, will change very little.

This may cause some to wonder whether the survivors and surviving family members of voyagers on The Titanic (left) had recourse against the ship's owners and operators.  Susan Taylor provides some answers on the Library of Congress Blogs.  Apparently, the passengers on The Titanic were not required to sign exculpatory agreements.  Hundreds sued.  However, their claims may have been limited by operation of law.  After litigation that began in the New York's Southern District and was appealed to the U.S. Supreme Court, the parties settled for $664,000.  The shipping line had argued that damages should have  been capped at $91,000.  Plaintiffs had sought $16 million.  

Claim of Warranties Failing Their Essential Purpose in LOT v. Boeing

In August, 2021, Polskie Linie Lotnicze LOT S.A. (LOT) filed its 143-page complaint against The Boeing Company (Boeing).  There were twelve claims, most of which were dismissed on an earlier motion.  In February, the U.S. District Court for the Western District of Washington ruled on a motion to dismiss the claims relating to implied warranties of merchantability and fitness for a particular purpose. 

Image by Aka The Beav from Seattle, Washington, CC BY 2.0 via Wikimedia Commons

LOT leased fourteen Boeing MAX 737 aircraft.  Five were delivered before the Boeing MAX 737 was grounded because two of the jets crashed.  Boeing represented that the main advantage of the new jet was fuel efficiency.  According to the complaint, it failed to disclose that the new design would "change the aircraft's center of gravity; decrease aircraft stability; negatively affect flight handling characteristics to make the aircraft more susceptible to the catastrophic risk of aerodynamic stall; and create inherent safety risks."   There were allegedly faulty disclosures both to the FAA and to operators such as LOT relating to the aircraft's Maneuvering Characteristics Augmentation System ("MCAS"), problems with which may have contributed to the two crashes.  In a deferred prosecution agreement, Boeing admitted to having conspired to defraud the FAA.  The MAX 737 was not re-certified for flight until January 2021.

LOT claims that it suffered $250 million in damages due to the aircrafts' grounding.  It claims that the losses continue.

 The Aircraft General Terms Agreement  entered by Boeing and LOT's lessor, included an "exclusive" express warranty that the aircraft would be delivered free from defects in material or design. It appears that Boeing provided as the exclusive remedies available to the lessor the ability to return the planes for repair.  Boeing disclaimed consequential damages relating to warranties associated with the planes. 

LOT argued that the limitation caused the warranties to fail of their essential purpose because of how long the planes were grounded and because of Boeing's misrepresentations regarding MCAS.  In addition, LOT claimed that the limitations were unconscionable because Boeing's "gross negligence" caused the planes to be grounded for two years.  All of this follows from UCC §2-719(2) and (3), but the court mentions the UCC only in passing, and it doesn't mention §2-719(3) at all, which is troubling.   

There are some wrinkles here that the court does not acknowledge, perhaps because they are not relevant in this jurisdiction.  Some courts require that both tests in §2-719 be met -- that is, a warranty cannot be limited if the limitation both causes a remedy to fail of its essential purpose and enforcement would be unconscionable.  In addition, some jurisdictions treat §2-719 as relating to limitations on warranties but not to exclusions of consequential damages (see, e.g., Sheehan v. Monaco Coach Corp, footnote 4).  If that is true, a disclaimer of consequential damages can survive even if the warranty otherwise fails of its essential purpose.

The court rejected Boeing's argument that LOT should not be permitted to create a warranty claim by alleging fraud.  At this point in the litigation, it is unclear whether LOT will succeed on its warranty claim.  It ought be be permitted to plead in the alternative and retain its warranty action in case the fraud claim does not succeed. 

The court rejected LOT's unconscionability argument, finding that the parties engaged in extensive negotiations, and there were insufficient facts alleged t0 prove substantive unconscionability.  I find the court's discussion confusing, as the extent of the parties' negotiations has nothing to do with substantive unconscionability, but it would seem to negate any claim to procedural unconscionability.  The court defers judgment on the exclusion of consequential damages, which suggests that it may be open to an argument that the exclusion is unenforceable.  On what grounds?  

Well, perhaps on the ground that the remedy would fail of its essential purpose if Boeing were permitted to give operators such as LOT repeated assurances that the aircraft would soon be useable while disclaiming any damages resulting from any reliance of those assurances.  The court found the complaint's allegations "debatable but plausible" and allowed the warranty claims to go forward on that basis.  

While Boeing claimed that implied warranties did not run to LOT, Washington law "activates" implied warranties when an express warranty fails.  As a result, LOT's claims for breaches of implied and express warranties both survive.  The court does not detail the nature of the claim for a breach of an implied warranty of fitness for a particular purpose, and I would have been interested to see what about LOT's use of the planes was "particular" as opposed to ordinary.  

What It Takes to Get a Refund from an Airline

We posted last week about happy news for travelers seeking recovery from airlines over flight cancellation caused by the pandemic.  More legal action is in the offing against Southwest for its holiday meltdown this year.  I'm still hoping that Southwest will get ahead of this PR nightmare and offer frustrated travelers generous compensation.

Meanwhile, friend of the Blog Karen Halverson Cross alerted us to a feel sorta, kinda good story about about a $17,000 recovery from American Airlines.  The New York Times' Seth Kugel reports in the Tripped Up column about a traveler who, through no fault of her own, was unable to fly to Chile in time to meet up with her cruise to Antarctica.  The snafu was caused by American Airlines having provided the traveler with inaccurate information about what documents she needed in order to be able to fly Rapa Nui (Easter Island). 

The traveler did everything right: she researched travel requirements, she bought travel insurance, and ahw followed up aggressively when both American and the travel insurance company denied her claims.  American offered to refund the costs of her airline tickets, given that she was unable to fly due to her reliance on information provided to her by American, but they would not allow her to recover her consequential damages arising from her inability to meet up with her cruise ship.  The travel insurance company also refused a refund, on rather technical and shaky grounds. 

Seth Kugel put the screws to American, reading through the 299 pages of American's General Rules of the International Tariff, and he thought he had come up with a colorable argument for why American should have to cover the traveler's consequential harms and then . . .miraculously . . . American caved and paid.  

We should all be so fortunate.

But truth be told, applying ordinary principles of consequential damages, I'm not sure it would make sense to make the airlines cover the costs of a missed cruise.  How is American to know what the traveler had planned beyond Easter Island?  If they knew that $17,000 of additional liability awaited them on the other side of that flight, they might have upped their precautions against the provision of misinformation, but the more realistic course would be that the airline would make clear that they are not responsible for such consequential losses.  The traveler has to insure against the possibility of a missed connection.  The real problem here seems to lie with the limitations of travel insurance, which is really the only way for travelers to protect themselves against the unknown unknowns of air travel.

Airlines Required to Pay Refunds to Stranded Passengers

With my favorite airline, Southwest, in the news for a complete meltdown in the face of the Christmas blizzard, it is good to be reminded how much the other airlines suck.  We have two stories.  

First, Judge Jesse Furman approved a class-action settlement in which British Airways agreed to pay 100% refunds to over 26,000 class members whose flights were canceled due to COVID.  The settlement also included $1.26 million in attorneys' fees.  According to TopClassActions,

The settlement benefits consumers who purchased a ticket for a British Airways flight that was canceled between March 1, 2020, and Dec. 31, 2021, where the customer did not cancel the flight or fail to show up, the customer did not receive a refund or rebooking and the customer received a voucher from British Airways that they have not used.

Second, on November 14th, the U.S. Department of Transportation announced that airlines were required to refund $600 million to customers due to COVID cancellations.  In addition, six airlines had to pay fines of $7.25 million for their failure to provide timely refunds.  To nobody's surprise, Frontier Airlines led the way.

That Other SCOTUS Arbitration Case: Viking River Cruises

We were ever so happy to report on the first two Supreme Court cases this term interpreting the Federal Arbitration Act (FAA), Morgan v. Sundance, Inc., and Southwest Airlines v. Saxon.  They were short; they were unanimous; and they rejected motions by corporations to compel arbitration of their employees' claims.  The third, Viking River Cruises, Inc. v. Moriana, is more involved, generating a majority opinion from Justice Alito (left), a confusing flurry of concurrences, including one for the ages from Justice Barrett, and a quick dissent from Justice Thomas.  

The challenge in Moriana is the interaction between the FAA and California's Private Attorneys General Act (PAGA).  California's legislature determined that its Labor and Workforce Development Agency (LWDA) lacked resources necessary to enforce California's labor laws.  PAGA permits "aggrieved employees" to initiate  actions against former employers on behalf of themselves and other current or former employees.  They must first exhaust administrative remedies and give the LWDA an opportunity to act.  If it does not do so, they may bring their claims.  LWDA gets 75% of any award, and the employees split the remaining 25%.  PAGA operates like a qui tam action.  A PAGA suit is not a class action because the aggrieved employee is suing as an agent the state.

When Viking Cruises hired Moriana, you'll never guess what happened!  She signed an arbitration agreement that included a class action waiver.  After she left Viking, she sued under PAGA alleging that she had not received her final wages in a timely way but she also brought numerous PAGA claims on behalf of other current and former employees.  Viking moved to compel arbitration of Moriana's claim brought on her own behalf and to dismiss her PAGA claims.  The California courts refused to do so, relying on Iskanian v. CLS Transp. Los Angeles, LLC, in which California Supreme Court held that waivers of the right to bring "representative" PAGA claims violate public policy and are invalid.  The specific issue in Moriana is which of her claims count as "representative."  

As we have covered in earlier posts, the Supreme Court issued a number of pro-arbitration decisions, starting with Rent-A-Center and Stolt-Nielsen in 2010.  The upshot of those and other cases was that courts must enforce class action waivers in arbitration agreements on the ground that "a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so.”  Viking, citing those cases, argued that California courts cannot rely on Iskanian to force them into class litigation to which they have not consented.  The Court rejected that argument, because a PAGA claim is not a class claim.  It is a claim brought on behalf of one party, the state, via a proxy.

Still there is a problem, from the perspective of the Court's decisions interpreting the FAA as requiring enforcement of class-action waivers in employment agreements.  Iskanian does not permit the division of PAGA claims into individual actions (e.g., Moriana's claim brought on her own behalf) and non-individual claims (e.g., her claims brought on behalf of other current and former Viking employees).  Justice Alito resolves the tension between the FAA and Iskanian using the severability provision in Viking's arbitration agreement.  That agreement is invalid under Iskanian to the extent that it seeks to preclude Moriana's non-individual PAGA claims.  However, she must arbitrate her individual PAGA claim.

As they did with their SMUGLER episode a few weeks back, Will Baude and Dan Epps' Divided Argument has again provided some helpful insights about the toughest aspects of the Moriana case in their COBRA episode.  Justice Alito cannot cut through the Gordian knot that the case presents.  PAGA claims must be brought by an "aggrieved employee."  Once Moriana's individual claims are severed from her non-individual claims, she has no statutory standing to bring  her non-individual claims, because she is not "aggrieved" by Viking's alleged misconduct that did not affect her.  Not sure where to go from there, Justice Alito remands the case for "further proceedings not inconsistent with this opinion."  Sucks to be that court.

Justice Sotomayor offers a little help in her concurrence.  One option is that the California courts can offer a different interpretation of PAGA, perhaps somehow allowing non-individual PAGA claims to be brought after they have been severed from individual claims subject to arbitration.  I'm not sure how they get there.  The other option is that the state legislature can permit people other than "aggrieved workers" to bring PAGA claims.  That seems like the more workable solution, if the California legislature has the will to actually fix a faulty statute.

And then comes the fun stuff.  Justice Barrett wrote a concurrence, joined in full by Justice Kavanaugh.  She joined only in Part III of Justice Alito's majority opinion.  In her view, PAGA is just another means of aggregating claims, and those are all barred under the FAA if there is an arbitration agreement with a class action waiver.  Stolt-Nielsen is right so let's compel arbitration.  That's all the Court really needed to say.  As to Parts II and IV, she wrote the following: "The discussion in Parts II and IV of the Court’s opinion is unnecessary to the result, and much of it addresses disputed state-law questions as well as arguments not pressed or passed upon in this case."  Chief Justice Roberts joined up to there.  Then, she dropped a footnote, saying that the same was true of Part I.  That was too much for the Chief apparently, and it's quite comical, because Part I lays out the facts of the case.  Visions of the Marx brothers.

It seems like a snide dissent, but it might not be as bad as it looks.  If she were writing for herself, she could have just said that she signs on to Part III and nothing more.  But it's late in the term, and CJ Roberts didn't want to have to write a separate concurrence about how I and III are fine, so we get what looks like the ultimate mean girl footnote.  Justice Alito?  He doesn't even go here!

And finally, we get a lone dissent from Justice Thomas, who, as he has explained before, does not think the FAA applies in state courts.

On the whole, this strikes me as progress.  I would have predicted a 6-3 court reasoning along Justice Barrett's lines.  At best, even if this case came through a federal court, she only has four votes.  The Court seems willing to allow the people of California to rein in limitations on representative actions, and that seems to me a very good thing given the ubiquity of contracts of adhesion and gross disparities of bargaining power in the world of employment law.