The Federal Aviation Act pre-empts state laws that "relate to a price, route, or service of an air carrier." The statute thus bars state law price-fixing claims against your American Airlineses, your U.S. Airwayses, your Virgin Americas, and — yes — even your Air Gumbos and your go!s.
But what about our foreign flying friends at the likes of Air France, British Airways, JAL, and Aeroflot? Do they count as "air carrier[s]" for which the FAA pre-empts those pesky indirect purchaser statutes in the Golden State, the Volunteer State, and others?
You would think "sure. They carry people through the air. Why not?"
But you said that before you knew that the FAA often treats "an air carrier" as a creature apart from "a foreign carrier". More often than not, in fact. Does that matter?
The Second Circuit today said no. The pre-emption provision's failure to distinguish between "an air carrier" and "a foreign carrier" made the statute unclear, and Their Honors consulted extra-textual signs of congressional intent and resolved the ambiguity in favor of pre-emption. They thus freed air cargo outfits, which did in fact fix prices, from a lawsuit seeking damages on behalf of people who indirectly overpaid for shipping services. In re Air Cargo Shipping Services Antitrust Litig., No. 11-5464 (2d Cir. Oct. 11, 2012).