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Aviation

Steptoe’s aviation practice focuses on the representation of domestic and foreign air carriers, their trade associations, and other aviation entities, in a variety of administrative, judicial, and commercial settings.  We are particularly noted for our representation of airlines and other aviation industry interests before federal agencies and involving airport matters, and our advice to clients on the legal issues associated with the increasing globalization of the airline industry, including representing the views of the foreign airline community on issues arising from US laws and policies that purport to have extraterritorial reach.  Our lawyers also have substantial experience in aircraft leasing matters, and the firm is equipped to handle any type of aircraft acquisition transaction.

We represent clients in a full range of matters that relate to air transportation of passengers and property, including matters arising before the Department of Transportation (DOT), Federal Aviation Administration (FAA), Department of Homeland Security (DHS), including the Transportation Security Administration (TSA), and the National Transportation Safety Board (NTSB); the taxation of air transportation services; airline alliances; enforcement proceedings; rulemakings; the acquisition of required economic and safety authorities; the regulation of global distribution systems; relationships with travel agents and other transportation intermediaries; immigration and customs matters; hazardous materials; and aviation safety and security issues. We also advise aviation clients on a variety of legal matters arising from their business operations in the US, such as airport and other property leases, arrangements with vendors, tax issues, and employment matters.

In the domestic arena, Steptoe’s aviation practice centers on US-based airlines and their trade associations in connection with the airlines’ efforts to ensure that decisions of the FAA, DOT, TSA, and local airport proprietors are lawful and reasonable.  We have represented several airlines in challenges to FAA, DOT, and TSA fees, rules, and regulations, and have pursued rates and charges litigation on behalf of airlines at airports across the country.  Steptoe attorneys have extensive experience representing airlines and other aviation entities in litigation where a key element of the defense is to claim that some or all of the causes of action are preempted by the Airline Deregulation Act. We have specifically handled litigation involving preemption of state and local claims regarding air carrier prices, routes, and services.

Internationally, we act for foreign airlines with respect to codeshare agreements and joint business alliances; activities to secure antitrust immunity or clearance in the US and jurisdictions worldwide; advertising law, patent, trademark, copyright and other intellectual property issues; and in matters pertaining to antitrust litigation in the US and Europe.

We also advise clients with respect to the commercial operation of unmanned aircraft.

In addition, we counsel aviation clients on a variety of legal matters arising from their business operations in the US, such as airport and other property leases, arrangements with service vendors and ground handling companies, tax issues, and employment matters.  We also advise clients with respect to travel distribution issues, including issues pertaining to computerized reservations services and travel agencies.

Our practice addresses areas such as hazardous materials transportation, US economic sanctions, and international trade regulations. Capitalizing on broad-based cross-practice capabilities, Steptoe provides its aviation clients with experienced tax and litigation counsel. Tax concerns are often addressed through the use of complex treaty provisions and reciprocity principles.  Steptoe lawyers have extensive experience in representing airlines and other aviation interests in complex antitrust cases and investigations, including matters concerning both passenger and cargo transportation.  The firm has also been at the forefront of advising clients on the legal issues associated with the increasing globalization of the airline industry.  We have counseled carriers on a broad range of aviation matters arising under international agreements and have advised with respect to international arbitration proceedings conducted under such agreements.  We have, for example, advised on the international law implications of US efforts to regulate matters such as security procedures applicable outside the US, drug and alcohol testing of foreign airline employees, taxation of the sale of frequent flyer mileage credits, and gambling on board foreign-flag aircraft operating outside US airspace.

Drawing on the resources of our prominent tax practice, Steptoe offers a full range of tax services on federal, state, and local tax matters to its aviation clients.  We also counsel clients on issues arising from the growing number of user fees imposed on airlines, as well as issues involving fees for over-flying the United States and other nations.  Steptoe lawyers represent their aviation clients in all types of commercial and transactional matters, including aircraft financing transactions, contracts with airframe and engine manufacturers and service vendors, commercial arrangements with consolidators and travel agents, trademark matters, relationships with software suppliers, cyber-law issues, and relations with airports and ground handling firms.  Steptoe lawyers have substantial experience in aircraft leasing matters, and the firm is equipped to handle any type of aircraft acquisition transaction. 

Domestic Aviation Representative Matters

  • Representing the City of Ontario in connection with its efforts to obtain the return of Ontario International Airport in order to reverse the serious decline in air passenger service that has occurred since 2008.
  • Representing airlines before DOT, FAA, and the US courts relating to airport access and gate accommodation issues.
  • Represented domestic carriers at Seattle-Tacoma International Airport in extensive sessions and negotiations leading up to the entry of a new use and lease agreement for landing fees and terminal charges.
  • Served as lead trial counsel for seven US airlines challenging millions of dollars in new airport terminal charges at Los Angeles International Airport. The US Department of Transportation ruled that the new charges unjustly discriminated against the air carriers and ordered the airport to refund all of the unlawful fees. The ruling sets important legal precedent, provides critical protections to air carriers against unjust discrimination by airports, and should result in more than $100 million in refunds and cost savings to the affected airlines at LAX. The case is highlighted in "A Tale of Two Airports: Why DOT Found Unjust Discrimination Against Airlines at LAX But Not at Newark," Issues in Aviation Law and Policy ¶ 20,431 (October 2007).
  • Represented the same seven US Airlines in the multiple challenges to the DOT LAX III decision filed in the US Court of Appeals for the DC Circuit. The DC Circuit issued its decision, affirming important aspects of the DOT decision and remanding other issues to the agency. Among other things, the Court agreed with the complainant airlines that DOT had improperly failed to explain why LAX could use fair market value to set terminal charges but not airfield fees. The Court also agreed with the airlines that LAX’s monopoly power was relevant to the issue of whether LAX’s terminal charges were lawful.
  • Represented several airlines in a DC Circuit Court challenge to the imposition by the US Transportation and Security Administration of hundreds of millions of dollars in additional "Aviation Security Infrastructure Fees" (ASIF) for screening passengers and property at US airports. The Court held that the fee increase was unlawful because TSA improperly included the cost of screening non-passengers in its calculations for the cost increase. Represented the Air Transport Association (ATA) and several major airlines in administrative litigation before the DOT and in federal court litigation challenging landing fee surcharges imposed by a local governmental entity (Tinicum Township) at Philadelphia International Airport. The DOT granted the ATA’s petition for an order declaring that the landing fees violate the Anti-Head Tax Act because the township does not own or operate the airport. We represented ATA as an intervenor in the township’s appeal of the DOT decision, and the US Court of Appeals for the Third Circuit denied the township’s appeal. 
  • Defended major US airlines in class actions alleging that the carriers improperly collected Mexican tourist taxes from exempt passengers. The US Court of Appeals for the Ninth Circuit affirmed the ruling of a federal court in San Francisco which had dismissed the class action complaint challenging improper collection of the tax. Successfully obtained dismissal of patent infringement claims pending in the United States against international air carriers.
  • Successfully represented a major Latin American airline sued in a class action for allegedly failing to comply with requirements for notifying passengers of their rights after being involuntarily denied boarding.
  • Successfully pursued cases on behalf of a coalition of international airlines that challenged air traffic control user fees imposed by the US Federal Aviation Administration on flights that do not take off or land in the US (overflights). These cases resulted in refunds of several millions of dollars plus cost savings in the hundreds of millions of dollars for the international aviation community. Our experience in these cases is detailed in the Spring 2006 edition of the Journal of Air Law and Commerce in an article entitled "Will it Happen Again? — FAA’s Disastrous Prior Experience with User Fees."
  • Represented the National Airline Council of Canada in negotiations with the FAA over FAA’s plans to increase the overflight fees.
  • Represented the Air Transport Association of Canada in challenging the US Department of Agriculture’s attempt to increase the fees charged for inspection of aircraft entering the US for compliance with the US laws regarding agricultural products.
  • Represented an airline challenging passenger facility charges imposed by the airports in Minneapolis-St. Paul and Memphis.

Preemption

  • Represented multiple airlines in federal and state court litigation where we have successfully obtained dismissal of putative class action claims on the ground that the allegations were preempted by the Airline Deregulation Act.
  • Represented airline sued in putative class actions with regard to early boarding program: 
    • Successfully moved to dismiss seven of nine claims for relief relating to EarlyBird Checkin program as preempted by the federal Airline Deregulation Act and successfully moved to strike complaint’s request for class certification,
    • Earned summary judgment against claims that EarlyBird Checkin program breached contractual rights or the implied covenant of good faith and fair dealing
    • Earned dismissal of putative class action claims against early boarding system as preempted by the Airline Deregulation Act
  • Represented airlines sued in connection with collection of Mexican tourism tax from allegedly exempt passengers. 
    • Earned a successful dismissal of putative class action regarding Mexican Tourism Tax because of preemption by the Airline Deregulation Act.
    • Represented Mexican airline in successful motion to dismiss claims by airline passenger alleging that carrier and other airlines had violated the Racketeer Influenced and Corrupt Organizations Act (RICO) in connection with airlines' charging and collection of the Mexican Tourism Tax from exempt passengers. The court found plaintiffs in putative class action failed to allege the existence of a RICO "enterprise" and to prove predicate acts of fraud with the requisite specificity.
  • Represented global distribution system in obtaining dismissal of state law claims in putative class action as preempted by the Airline Deregulation Act.
  • Represented airlines before DOT in administrative case challenging State of Hawaii law requiring airlines to collect and remit agricultural inspection fees. DOT in Hawaii Inspection Fee Proceeding issued a declaratory order finding that Hawaii's invasive species inspection fee statute as applied to air carriers is preempted by federal law.