in re jetblue airways corp. privacy litigation · 2019-08-09 · in re jetblue airways corp....

299IN RE JETBLUE AIRWAYS CORP. PRIVACY LITIGATIONCite as 379 F.Supp.2d 299 (E.D.N.Y. 2005)

Accordingly, sentencing these defen-dants to a term of imprisonment that islengthier than the Guidelines recommenddoes not violate the due process or ex postfacto clause.

Conclusion

For the foregoing reasons, I will at sen-tencing consider a non-Guidelines sen-tence.

The Clerk is directed to furnish a filedcopy of the within to all parties.

SO ORDERED.

,

In re JETBLUE AIRWAYS CORP.PRIVACY LITIGATION.

No. 04–MD–1587 (CBA).

United States District Court,E.D. New York.

July 29, 2005.

Background: Nationwide class of airlinepassengers brought action against airlineand data mining company for alleged viola-tions of the Electronic CommunicationsPrivacy Act (ECPA), and violations ofstate and common law based on airline’stransfer of their personal information todata mining company. Defendants movedto dismiss.

Holdings: The District Court, Amon, J.,held that:

(1) airline’s on-line reservations systemdid not constitute an ‘‘electronic com-munication service’’ within the meaningof ECPA;

(2) airline, which operated a website andcomputer servers, was not a ‘‘remote

computing service’’ within the meaningof ECPA;

(3) passengers’ privacy claims under NewYork General Business Law and otherconsumer protection statutes were ex-pressly preempted by Airline Deregu-lation Act;

(4) passengers’ claims against airline forbreach of contract, trespass to proper-ty and unjust enrichment were not ex-pressly preempted;

(5) passengers’ alleged loss of privacy asresult of airline’s transfer of their per-sonal information to data mining com-pany was not a damage available inbreach of contract action;

(6) passengers did not establish an actualinjury sufficient to sustain a claimagainst airline for trespass to chattels;and

(7) passengers failed to state claim againstairline for unjust enrichment.

Motions granted.

1. Telecommunications O1440

National airline’s on-line reservationssystem did not constitute an ‘‘electroniccommunication service’’ within the mean-ing of Electronic Communications PrivacyAct (ECPA). 18 U.S.C.A. § 2510(15).

See publication Words and Phras-es for other judicial constructionsand definitions.

2. Telecommunications O1439

Airline, which operated a website andcomputer servers, was not a ‘‘remote com-puting service’’ within the meaning ofElectronic Communications Privacy Act(ECPA); no facts alleged indicated thatairline provided either computer process-

300 379 FEDERAL SUPPLEMENT, 2d SERIES

ing services or computer storage to thepublic. 18 U.S.C.A. § 2711(2).

See publication Words and Phras-es for other judicial constructionsand definitions.

3. Federal Courts O18Generally, where federal law claims

are dismissed before trial, the state claimsshould be dismissed as well; however, dis-missal of the pendent state law claims isnot absolutely mandatory. 28 U.S.C.A.§ 1367(a).

4. Federal Courts O18Factors that a district court should

consider when deciding whether to exer-cise supplemental jurisdiction after all fed-eral law claims have been dismissed froma case include: (1) whether state lawclaims implicate the doctrine of preemp-tion; (2) considerations of judicial econo-my, convenience, fairness, and comity, in-cluding the stage of proceedings when thefederal claims are dismissed; (3) the exis-tence of novel or unresolved questions ofstate law; and (4) whether the state lawclaims concern the state’s interest in theadministration of its government or re-quire the balancing of numerous importantstate government policies. 28 U.S.C.A.§ 1367(a).

5. Federal Courts O18Primacy of preemption questions

raised, combined with the objectives un-derlying multi-district litigation, made itappropriate to exercise supplemental juris-diction over state law privacy claims afterdismissal of Electronic CommunicationsPrivacy Act (ECPA) claims brought bynationwide class of airline passengersagainst airline; in addition, the case did notraise novel or unresolved questions of statelaw that would be best reserved for statecourts, nor did it implicate competing statepolicies or matters of state governance.28 U.S.C.A. § 1367(a).

6. Municipal Corporations O53

States O18.5

Under the doctrine of preemption, anystate or municipal law that is inconsistentwith federal law is without effect.U.S.C.A. Const. Art. 6, cl. 2.

7. States O18.3

There is a presumption against pre-emption. U.S.C.A. Const. Art. 6, cl. 2.

8. States O18.11

Congressional intent is the ultimatetouchstone of pre-emption analysis.U.S.C.A. Const. Art. 6, cl. 2.

9. States O18.3

Express preemption is achieved byway of an explicit statement in a statute’slanguage, or an express congressionalcommand, while implied preemption occurseither when state law actually conflictswith federal law (i.e., conflict preemption),or if federal law so thoroughly occupies alegislative field as to make reasonable theinference that Congress left no room forthe States to supplement it (i.e., field pre-emption). U.S.C.A. Const. Art. 6, cl. 2.

10. Aviation O101

Carriers O273.1

States O18.21

While Airline Deregulation Act pre-emption clause stops States from imposingtheir own substantive standards with re-spect to rates, routes, or services, it doesnot prevent them from affording relief to aparty who claims and proves that an air-line dishonored a term the airline itselfstipulated. 49 U.S.C.A. § 41713(b).

11. Aviation O101

States O18.17

For a state law claim to be preemptedunder Airline Deregulation Act, the under-lying state law need not expressly refer toair carrier rates, routes or services; rath-


er, a claim is preempted if application ofthe state rule of decision would have asignificant economic effect upon airlinerates, routes, or services. 49 U.S.C.A.§ 41713(b).

12. Aviation O101 States O18.17 Torts O104

Where a state law claim is said torelate to an airline service, courts apply atripartite test for preemption under AirlineDeregulation Act; court first determineswhether the activity at issue in the claim isan ‘‘airline service’’, if so, whether theclaim affects the airline service directly ortenuously, remotely, or peripherally, and,if the activity directly implicates a service,the court should consider whether the un-derlying tortious conduct was reasonablynecessary to the provision of the service.49 U.S.C.A. § 41713(b).

13. Consumer Protection O36.1 States O18.15

Passengers’ privacy claims under NewYork General Business Law and other con-sumer protection statutes, which werebased on airline’s transfer of their personalinformation to data mining company, wereexpressly preempted by Airline Deregula-tion Act; complained-of conduct occurredin the course of the provision of the serviceof reservations and ticket sales, and thecommunication of company policy with re-spect to collection and use of data obtainedin the course of that service was reason-ably related to the provision of that ser-vice. 49 U.S.C.A. § 41713(b); N.Y.McKin-ney’s General Business Law § 349.

14. Carriers O273.1 Implied and Constructive Contracts

O3 States O18.15 Trespass O16

Passengers’ claims against airline un-der New York law for breach of contract,

trespass to property and unjust enrich-ment, which were based on airline’s trans-fer of their personal information to datamining company, were not expresslypreempted by Airline Deregulation Act;breach of contract claim fell within theexception carved out in Wolens for theenforcement of selfimposed contractual un-dertakings, and neither of the tort claimssufficiently related to airline’s rates,routes, or services. 49 U.S.C.A.§ 41713(b).

15. States O18.7

Field preemption occurs if federal lawso thoroughly occupies a legislative field asto make reasonable the inference thatCongress left no room for the States tosupplement it; intent for the federal gov-ernment to exclusively occupy a field maybe inferred from a scheme of federal regu-lation so pervasive as to make reasonablethe inference that Congress left no roomfor the States to supplement it,’ or wherean Act of Congress touches a field in whichthe federal interest is so dominant that thefederal system will be assumed to precludeenforcement of state laws on the samesubject.

16. Federal Civil Procedure O1831

Determination of whether passengers’claims against airline under New York lawfor breach of contract, trespass to proper-ty and unjust enrichment, which werebased on airline’s transfer of their personalinformation to data mining company, wereimpliedly preempted under field preemp-tion theory involved factual question thatcould not be decided on motion to dismissand decision could not be made until dis-covery was completed with respect towhether aviation security was the relevantfield in which to ground implied preemp-tion analysis. 49 U.S.C.A. § 114(h).


17. Contracts O326An action for breach of contract under

New York law requires proof of (1) theexistence of a contract, (2) performance ofthe contract by one party, (3) breach bythe other party, and (4) damages.

18. Carriers O273.1Failure to specifically allege that all

passengers read airline’s privacy policy be-fore choosing to purchase air transporta-tion from airline did not defeat the exis-tence of a contract under New York lawfor purposes of motion to dismiss breach ofcontract claim, which was based on air-line’s transfer of their personal informa-tion to data mining company.

19. Carriers O273.1Airline passengers’ alleged loss of pri-

vacy as result of airline’s transfer of theirpersonal information to data mining com-pany was not a type of damage available inbreach of contract action under New Yorklaw.

20. Trespass O6To state a claim for trespass to chat-

tels under New York law, plaintiffs mustestablish that defendants intentionally, andwithout justification or consent, physicallyinterfered with the use and enjoyment ofpersonal property in plaintiffs’ possession,and that plaintiffs were thereby harmed.

21. Trespass O7Where the trespass alleged is to an

intangible property right arising under acontract, actual injury to the claimed prop-erty interest must be shown under NewYork law.

22. Trespass O7Even if passengers enjoyed a contin-

ued possessory interest in their personalinformation, which airline transferred todata mining company, passengers did notestablish an actual injury sufficient to sus-

tain a claim against airline under NewYork law for trespass to chattels; passen-gers did not allege that the quality orvalue of their personal information was inany way diminished as a result of airline’sactions. Restatement (Second) of Torts§ 218.

23. Implied and Constructive ContractsO3

In order to state a claim for unjustenrichment under New York law, a plain-tiff must prove that (1) the defendant wasenriched, (2) the enrichment was at plain-tiff’s expense, and (3) the circumstanceswere such that equity and good consciencerequire the defendant to make restitution.


Airline passengers failed to stateclaim against airline under New York lawfor unjust enrichment based on airline’stransfer of their personal information todata mining company at the request of theTransportation Security Administration(TSA); airline received no consideration,and the only benefit airline derived wasthe potential for increased safety on itsflights and the potential to prevent the useof commercial airlines, and circumstancesof the case were not such that equity andgood conscience require airline to makerestitution to passengers.


Under New York law, the granting ofequitable relief on a theory of unjust en-richment requires the indispensable ingre-dient of an injustice as between the twoparties involved.

Michael M. Buchman, Milberg Weiss,LLP, Ira Michael Press, Kirby Mcinerney& Squire, Robert Ira Harwood, WechslerHarwood LLP, Richard B. Brualdi, The


Brualdi Law Firm, Brian Phillip Murray,Murray, Frank & Sailer, LLP, Lee S.Shalov, Shalov Stone & Bonner LLP,David J. Bershad, Milberg, Weiss, Ber-shad, Hynes & Lerach, L.L.P., J. DouglasRichards, Milberg, Weiss, Bershad, Hynes& Lerach, LLP, New York City, David A.Rosenfeld, Geller Rudman, PLLC, RobertM. Rothman, Samuel H. Rudman, CauleyGeller Bowman & Rudman, LLP, Melville,NY, Paul J. Geller, Cauley Geller Bowman& Coates, LLP, Boca Raton, FL, Stuart A.Davidson, Cauley Geller Bowman & Rud-man, LLP, Boca Raton, FL, Christi A.Cannon, Holzer Holzer & Cannon, LLC,Corey D. Holzer, Atlanta, GA, M. Wites,Wites & Kapetan, P.A., Deerfield Beach,FL, Karen Hanson Riebel, LockridgeGrindal Nauen P.L.L.P. Minneapolis, MN,for Plaintiffs.

Christopher G. Kelly, Joanna Lynn Ger-aghty, Holland & Knight LLP, New YorkCity, for Jet Blue Airways Corporation.

Cheryl A. Heller, Ward Norris Heller &Reidy LLP, Michael D. Norris, Thomas S.D’Antonio, Jeremy Jay Best, Rochester,NY, Dominic M. Pisani, Lewis, Brisbois,Bisgaard & Smith, LLP, New York City,Erik D. Buzzard, Palumbo Bergstrom,LLP, Irvine, CA, David H. Kramer, Wil-son, Sonsini, Goodrich & Rosati, David L.Lansky, Shelby K. Pasarell, Douglas J.Clark, Palo Alto, CA, for Defendants.

MEMORANDUM & ORDER

AMON, District Judge.

INTRODUCTIONA nationwide class of plaintiffs brings

this action against JetBlue Airways Corpo-

ration (‘‘JetBlue’’), Torch Concepts, Inc.(‘‘Torch’’), Acxiom Corporation (‘‘Acxiom’’),and SRS Technologies (‘‘SRS’’) for allegedviolations of the Electronic Communica-tions Privacy Act of 1986 (‘‘ECPA’’), 18U.S.C. § 2701, et seq. (1986), and violationsof state and common law. Plaintiffs claimthat defendants violated their privacyrights by unlawfully transferring their per-sonal information to Torch for use in afederally-funded study on military base se-curity. Plaintiffs seek a minimum of$1,000 in damages per class member, orinjunctive relief to the extent that damagesare unavailable, as well as a declaratoryjudgment. Defendants have moved to dis-miss the Amended Complaint pursuant toRule 12(b)(6) of the Federal Rules of CivilProcedure on the grounds that plaintiffshave failed to state a federal cause ofaction under the ECPA, that plaintiffs’state law claims are federally preempted,and that plaintiffs have failed to state anyclaim under state law.

PROCEDURAL HISTORY

This case is a multidistrict consolidatedclass action. Initially, a total of nine puta-tive class actions were brought, eight inthe Eastern District of New York and onein the Central District of California,1 onbehalf of persons allegedly injured by Jet-Blue’s unauthorized disclosure of personal-ly identifiable travel information. OnFebruary 24, 2004, the Judicial Panel onMultidistrict Litigation ordered, pursuantto 28 U.S.C. § 1407, that the action pend-ing in the Central District of California be

1. The cases filed in the Eastern District ofNew York were: Florence v. JetBlue AirwaysCorp., et al., 03–CV–4847; Richman v. JetBlueAirways Corp., et al., 03–CV–4859; Hakim v.JetBlue Airways Corp., et al., 03–CV–4895;Seidband v. JetBlue Airways Corp., 03–CV–4933; Block v. JetBlue Airways Corp., 03–CV–

4963; Singleton v. JetBlue Airways Corp., 03–CV–5011; Fleet v. JetBlue Airways Corp., 03–CV–5017; and Mortenson v. JetBlue AirwaysCorp., et al., 03–CV–5209. The case filed inthe Central District of California was Turrettv. JetBlue Airways Corp., 03–CV–6785.


transferred to this Court for coordinatedor consolidated pretrial proceedings withthe actions already pending in this district.Since that time, five more cases have beenjoined in the action.2 The consolidatedclass filed its Amended Complaint in thisCourt on May 7, 2004.

STATEMENT OF FACTS

Unless otherwise indicated, the followingfacts set forth in plaintiffs’ Amended Com-plaint are presumed to be true for pur-poses of defendants’ motions to dismiss.JetBlue has a practice of compiling andmaintaining personal information, knownin the airline industry as Passenger NameRecords (‘‘PNRs’’), on each of its adult andminor passengers. Information containedin PNRs includes, for example, passengernames, addresses, phone numbers, andtravel itineraries. (Am. Compl. ¶ 38; Pl.’sMem. at 4–5.) The PNRs are maintained,or temporarily stored, on JetBlue’s com-puter servers, and passengers are able tomodify their stored information. (Am.Compl.¶ 39.) Acxiom, a world leader incustomer and information management so-lutions, maintains personally-identifiableinformation on almost eighty percent ofthe U.S. population, including many Jet-Blue passengers, which it uses to assistcompanies such as JetBlue in customerand information management solutions.(Id. ¶ 22; Pl.’s Mem. at 4.)

The personal information that forms thebasis of JetBlue’s PNRs is obtained fromits passengers over the telephone andthrough its Internet website during theselection and purchase of travel arrange-ments. In order to encourage the provi-sion of personal information in this man-ner, JetBlue created a privacy policy which

provided that the company would use com-puter IP addresses only to help diagnoseserver problems, cookies to save consum-ers’ names, e-mail addresses to alleviateconsumers from having to re-enter suchdata on future occasions, and optional pas-senger contact information to send theuser updates and offers from JetBlue.(Am.Compl.¶ 36.) The JetBlue privacypolicy specifically represented that any fi-nancial and personal information collectedby JetBlue would not be shared with thirdparties and would be protected by secureservers. JetBlue also purported to havesecurity measures in place to guardagainst the loss, misuse, or alteration ofconsumer information under its control.(Id. ¶ 37.)

In the wake of September 11, 2001,Torch, a data mining company similar toAcxiom, presented the Department of De-fense (‘‘DOD’’) with a data pattern analysisproposal geared toward improving the se-curity of military installations in the Unit-ed States and possibly abroad. Torch sug-gested that a rigorous analysis of personalcharacteristics of persons who sought ac-cess to military installations might be usedto predict which individuals pose a risk tothe security of those installations. (Id.¶ 42.) DOD showed interest in Torch’sproposal and added Torch as a subcontrac-tor to an existing contract with SRS sothat Torch could carry out a limited initialtest of its proposed study. The SRS con-tract was amended to include airline PNRsas a possible data source in connectionwith Torch’s study. (Id. ¶ 43.) BecauseTorch needed access to a large national-level database of personal information andbecause no federal agencies approached byTorch would grant access to their owngovernmental databases, Torch indepen-

2. These cases include: Bauman v. JetBlue Air-ways Corp., et al., 03–CV–5091; Lee v. JetBlueAirways Corp., et al., 03–CV5330; Wites v.JetBlue Airways Corp., 03–CV–5629; Howe v.

JetBlue Airways Corp., et al., 03–CV–5633;and Unger v. JetBlue Airways Corp., 04–CV–2094.


dently contacted a number of airlines insearch of private databases that mightcontain adequate information to serve itsrequirements. (Id. ¶¶ 43–46.) These air-lines declined to share their passengers’personal information unless the Depart-ment of Transportation (‘‘DOT’’) and/orthe Transportation Security Administra-tion (‘‘TSA’’) were involved and approvedof such data sharing. (Id. ¶ 46.)

Unable to obtain the data through itsown devices, Torch asked members ofCongress to intervene on its behalf withthe airlines or federal agencies. (Id. ¶ 47.)Torch also contacted the DOT directly.(Id. ¶ 48.) Following a series of meetings,the DOT and the TSA agreed to assistTorch in obtaining consent from a nationalairline to share its passenger information.(Id. ¶ 51.) On July 30, 2002, the TSA sentJetBlue a written request to supply itsdata to the DOD, and JetBlue agreed tocooperate. (Id. ¶¶ 53–54.) In September2002, JetBlue and Acxiom collectivelytransferred approximately five millionelectronically-stored PNRs to Torch inconnection with the SRS/DOD contract.(Id. ¶¶ 53, 55.) Then, in October 2002,Torch separately purchased additionaldata from Acxiom for use in connectionwith the SRS contract. This data wasmerged with the September 2002 data tocreate a single database of JetBlue passen-ger information including each passenger’sname, address, gender, home ownership orrental status, economic status, social secu-rity number, occupation, and the numberof adults and children in the passenger’sfamily as well as the number of vehiclesowned or leased. (Id. ¶ 56.) Using thisdata, Torch began its data analysis andcreated a customer profiling scheme de-signed to identify high-risk passengersamong those traveling on JetBlue. (Id.¶¶ 57–58.)

In or about September 2003, govern-ment disclosures and ensuing public inves-tigations concerning the data transfer toTorch prompted JetBlue Chief ExecutiveOfficer David Neelman to acknowledgethat the transfer had been a violation ofJetBlue’s privacy policy. (Id. ¶¶ 63, 65–66.) A class of plaintiffs whose personalinformation was among that transferrednow brings this action against JetBlue,Torch, Acxiom, and SRS, seeking mone-tary damages, including punitive damages,and injunctive relief. (Id. ¶ 5.) Plaintiffsassert five causes of action against all de-fendants: (1) violation of the ElectronicCommunications Privacy Act of 1986(‘‘ECPA’’), 18 U.S.C. § 2701, et seq., (2)violation of the New York General Busi-ness Law and other similar state consumerprotection statutes, (3) trespass to proper-ty, (4) unjust enrichment, and (5) declara-tory judgment.3 In addition, plaintiffsbring a sixth claim for breach of contractagainst JetBlue. All defendants havemoved for dismissal pursuant to Rule12(b)(6) of the Federal Rules of Civil Pro-cedure. Defendants argue that plaintiffshave failed to state a claim under federalor state law and that the state law claimsasserted are expressly preempted by theAirline Deregulation Act, 49 U.S.C.§ 41713(b) (1997), or impliedly preemptedby the federal government’s pervasive oc-cupation of the field of aviation security.The federal government filed a statementof interest arguing that no defendant vio-lated the ECPA and urging dismissal ofthe federal claim.

DISCUSSION

I. Legal Standard for Rule 12(b)(6) Mo-tion to Dismiss

In deciding a motion to dismiss pursuantto Rule 12(b)(6) of the Federal Rules of

3. Plaintiffs initially brought an additionalclaim for invasion of privacy against all defen-

dants. That claim was withdrawn in re-sponse to defendants’ motions to dismiss.


Civil Procedure for failure to state a claimupon which relief can be granted, a courtmust accept the factual allegations in thecomplaint as true and draw all reasonableinferences in favor of the plaintiff. SeePress v. Chemical Inv. Servs. Corp., 166F.3d 529, 534 (2d Cir.1999). The Courtneed not accept general, conclusory allega-tions as true, however, when they are be-lied by more specific allegations in thecomplaint. Hirsch v. Arthur Andersen &Co., 72 F.3d 1085, 1092 (2d Cir.1995). Dis-missal is proper ‘‘only where it appearsbeyond doubt that the plaintiff can proveno set of facts in support of the claimwhich would entitle him to relief.’’ Scottov. Almenas, 143 F.3d 105, 109–10 (2d Cir.1998) (quoting Branham v. Meachum, 77F.3d 626, 628 (2d Cir.1996)). With thesestandards in mind, the Court turns to anal-ysis of the claims raised in plaintiffs’Amended Complaint.

II. Electronic Communications PrivacyAct

Plaintiffs allege that all defendants vio-lated § 2702 of the Electronic Communica-tions Privacy Act of 1986 (‘‘ECPA’’), 18U.S.C. § 2701, et seq. (1986), by divulgingstored passenger communications withoutthe passengers’ authorization or consent.4

(Am.Compl.¶¶ 74–84.) Section 2702 pro-vides, in pertinent part, that:

(1) a person or entity providing an elec-tronic communication service to the pub-lic shall not knowingly divulge to anyperson or entity the contents of a com-

munication while in electronic storage bythat service TTT

(2) a person or entity providing remotecomputing service to the public shall notknowingly divulge to any person or enti-ty the contents of any communicationwhich is carried or maintained on thatserviceTTTT

18 U.S.C. § 2702(a). The statute defines‘‘electronic communication service’’ as ‘‘anyservice which provides to users the abilityto send or receive wire or electronic com-munications.’’ 18 U.S.C. § 2510(15). Theterm ‘‘electronic communication’’ includes‘‘any transfer of signs, signals, writing,images, sounds, data, or intelligence of anynature transmitted in whole or in part bywire, radio, electronic, photoelectronic orphotoptical system that affects interstateor foreign commerce.’’ 5 18 U.S.C.§ 2510(12). ‘‘[R]emote computing service’’refers to ‘‘the provision to the public ofcomputer storage or processing servicesby means of an electronic communicationsystem.’’ 18 U.S.C. § 2711(2).

[1] Plaintiffs allege that the JetBluePassenger Reservation Systems 6 consti-tute an ‘‘electronic communication service’’within the meaning of the statute. (Am.Compl.¶ 76.) Plaintiffs argue that, on aRule 12(b)(6) motion to dismiss, this Courtshould not go beyond this allegation inevaluating the merits of their claim. (Pl.’sMem. at 12–13.) JetBlue, supported by aStatement of Interest filed by the federalgovernment, counters that plaintiffs havefailed to state a viable claim under the

4. Plaintiffs initially asserted a claim under§ 2701 of the statute as well, but later with-drew that claim at oral argument on defen-dants’ motions. (See Tr. of Oral Argument at65.)

5. The statute expressly excludes from the defi-nition of ‘‘electronic communication’’: (a)any wire or oral communication; (b) anycommunication made through a tone-onlypaging device; (c) any communication from a

tracking device; and (d) electronic fundstransfer information stored by a financial in-stitution in a communications system used forthe electronic storage and transfer of funds.18 U.S.C. § 2510(12)(A)-(D).

6. JetBlue maintains an Internet websitethrough which passengers can select and pur-chase travel itineraries.


ECPA, because § 2702 applies only to per-sons or entities providing a remote com-puting service or electronic communicationservice to the public and, as a commercialairline, it provides neither of these.Torch, Acxiom, and SRS argue that, forthe same reasons, they too are outside thescope of § 2702. Plaintiffs’ claim againstthose defendants rests on a theory of aid-ing and abetting or conspiracy with Jet-Blue. (See Tr. of Oral Argument at 65.)

The starting point for statutory analysisis the plain meaning of the language of thestatute. United States v. Ripa, 323 F.3d73, 81 (2d Cir.2003). ‘‘In ascertaining theplain meaning of the statute, [a] courtmust look to the particular statutory lan-guage at issue, as well as the language anddesign of the statute as a whole.’’ K MartCorp. v. Cartier, Inc., 486 U.S. 281, 291,108 S.Ct. 1811, 100 L.Ed.2d 313 (1988). Inthis case, the plain meaning of the statutesupports defendants’ interpretation. Theterm ‘‘electronic communication service,’’as defined, refers to a service that pro-vides users with capacity to transmit elec-tronic communications.7 Although JetBlueoperates a website that receives and trans-mits data to and from its customers, it isundisputed that it is not the provider ofthe electronic communication service thatallows such data to be transmitted over the

Internet. Rather, JetBlue is more appro-priately characterized as a provider of airtravel services and a consumer of electron-ic communication services.8 The websitethat it operates, like a telephone, enablesthe company to communicate with its cus-tomers in the regular course of business.Mere operation of the website, however,does not transform JetBlue into a providerof internet access, just as the use of atelephone to accept telephone reservationsdoes not transform the company into aprovider of telephone service. Thus, acompany such as JetBlue does not becomean ‘‘electronic communication service’’ pro-vider simply because it maintains a web-site that allows for the transmission ofelectronic communications between itselfand its customers.

This reading of the statute finds sub-stantial support in the case law. Althoughthe Second Circuit has not yet had occa-sion to construe the term ‘‘electronic com-munication service,’’ a number of courts inthis and other circuits have done so, somein cases factually similar to this case. Theweight of this persuasive authority holdsthat companies that provide traditionalproducts and services over the Internet, asopposed to Internet access itself, are not‘‘electronic communication service’’ provid-ers within the meaning of the ECPA.9 In

7. Oft-cited examples include internet serviceproviders such as America Online or Juno.See, e.g., In re DoubleClick Inc. Privacy Litiga-tion, 154 F.Supp.2d 497, 511 n. 20 (S.D.N.Y.2001).

8. JetBlue purchases its Internet access from athird party provider, a global distribution sys-tem called Open Skies. (See JetBlue ReplyMem. at 3–4 n. 2.)

9. Although plaintiffs cite potentially counter-vailing authority that either implies or as-sumes the applicability of the ECPA to entitiesother than Internet service providers, thecases to which plaintiffs refer do not provideanything but passing consideration of § 2702

liability or the meaning of term ‘‘electroniccommunication service.’’ See, e.g., In re Phar-matrak Privacy Litigation, 329 F.3d 9, 18 (1stCir.2003) (transmission of completed on-lineforms to pharmaceutical company websitesconstitutes an electronic communication);Lopez v. First Union Nat’l Bank of Florida,129 F.3d 1186, 1189–90 (11th Cir.1997), cert.denied, 531 U.S. 1052, 121 S.Ct. 656, 148L.Ed.2d 559 (2000) (reversing Rule 12(b)(6)dismissal of § 2702 claim against bank thatdisclosed contents of electronic wire transfer,because allegations in plaintiff’s complaintmust be accepted as true and defendant hadmerely denied the allegation that it was anelectronic communication service); UnitedStates v. Mullins, 992 F.2d 1472, 1474, 1478


Crowley v. Cybersource Corp., the courtheld that online merchant Amazon.comwas not an electronic communication ser-vice provider despite the fact that it main-tained a website and receives electroniccommunications containing personal infor-mation from its customers in connectionwith the purchase of goods. 166F.Supp.2d 1263 (N.D.Cal.2001). Similarly,in Andersen Consulting LLP v. UOP, thecourt drew a distinction between compa-nies that purchase Internet services andthose that furnish such services as a busi-ness, and found that a company that pur-chases Internet services, such as e-mail,just like any other consumer, is not anelectronic communication service providerwithin the meaning of the ECPA. 991F.Supp. 1041, 1043 (N.D.Ill.1998).

Relying on these authorities, a numberof courts have specifically addressed theapplicability of the term ‘‘electronic com-munication service’’ to national airlinesthat operate on-line reservations systemssimilar to that maintained by JetBlue. Al-most without exception,10 those courts haveconcluded that the term does not encom-pass companies that sell air travel over theInternet but are not in the business ofselling Internet access itself. See Cope-land v. Northwest Airlines Corp., No. 04–2156 M1/V (W.D.Tenn. Feb. 28, 2005)(agreeing with the reasoning of numerous

courts that have found that the ECPAdoes not apply to businesses selling theirproducts and services over the Internet);Dyer v. Northwest Airlines Corporations,334 F.Supp.2d 1196, 1199 (D.N.D.2004)(‘‘[B]usinesses offering their traditionalproducts and services online through awebsite are not providing an ‘electroniccommunication service’.’’); In re North-west Airlines Privacy Litigation, 2004 WL1278459, at *2 (D.Minn. June 6, 2004)(‘‘Defining electronic communication ser-vice to include online merchants or serviceproviders like Northwest stretches theECPA too far.’’). The facts underlyingthose cases are indistinguishable fromthose present here.

Plaintiffs argue that the decisions in theNorthwest Airlines cases are not persua-sive because they rely on questionable andinapposite authorities. Specifically, plain-tiffs observe that the cases rest heavily onCrowley, which in turn rests principally onAndersen. Because Andersen concerned acompany that only provided e-mail ser-vices to a hired contractor for use in con-nection with a specific project, and becausethat company did not provide the generalpublic with the ability to send or receivewire or electronic communications, plain-tiffs argue that the import of the case islimited to private communications loops

(9th Cir.1993), cert. denied 510 U.S. 994, 114S.Ct. 556, 126 L.Ed.2d 457 (1993) (referringto American Airlines’ computerized travel res-ervation system as an electronic communica-tion service in rejecting Fourth Amendmentchallenge to criminal conviction obtainedthrough monitoring of that system by Ameri-can Airlines personnel). Plaintiffs concede,as they must, that these cases are but ‘‘foot-prints in the sand.’’ (Tr. of Oral Argument at42.)

10. The only case to reach a different resultwas a criminal case that had cause to consid-er American Airlines’ status as a provider ofan electronic communication service insofaras such status pertained to the appellant’s

Fourth Amendment challenge to his convic-tion. See United States v. Mullins, 992 F.2d1472, 1474, 1478 (9th Cir.1993), cert. denied510 U.S. 994, 114 S.Ct. 556, 126 L.Ed.2d 457(1993) (finding American Airlines, through itscomputerized reservation system, which en-ables travel agents to gather flight informa-tion and directly input travel reservations ormake changes to existing reservationsthrough the use of PNRs, to be ‘‘a provider ofwire or electronic communication service’’).The case did not provide any explanation ofor legal support for its conclusion that Ameri-can Airlines is an electronic communicationservice provider. See id. at 1478.


and does not reach the JetBlue or Ama-zon.com models, which, through their web-sites, offer their products and services tothe public at large. However, apart fromconsidering the limited scope of the e-mailsystem at issue, the Andersen case alsoaddressed the significance under theECPA of the fact that Andersen, the hiredcontractor, could communicate with third-parties over the Internet using the e-mailcapabilities provided by the defendantcompany. The court held that ‘‘[t]he factthat Andersen could communicate to third-parties over the Internet and that third-parties could communicate with it did notmean that [the hiring company] providedan electronic communication service to thepublic.’’ Andersen, 991 F.Supp. at 1043.Indeed, as discussed, the hiring companywas not considered an independent provid-er of Internet services for the simple rea-son that, like any other consumer, it had topurchase Internet access from an electron-ic communication service provider. Id.This particular distinction did not turn onthe existence of there being a private com-munication loop.

Notably, the only court within the Sec-ond Circuit to have considered the mean-ing of the term ‘‘electronic communicationservice’’ reached a result similar to that inAndersen and Crowley without relying onthose cases. See In re DoubleClick Inc.Privacy Litigation, 154 F.Supp.2d 497(S.D.N.Y.2001). Grounding its analysis inthe wording of the statute itself, the Doub-leClick court began by identifying ‘‘Inter-net access’’ as the relevant ‘‘electroniccommunication service,’’ or ‘‘service whichprovides to users thereof the ability tosend or receive wire or electronic commu-nications.’’ Id. at 508. Examples of pro-viders in the Internet world, the courtdetermined, include such internet serviceproviders as ‘‘America Online, Juno andUUNET, as well as, perhaps, the telecom-munications companies whose cables and

phone lines carry the traffic.’’ Id. at 511n. 20; see also Dyer, 334 F.Supp.2d at1199 (‘‘The ECPA definition of ‘electroniccommunications service’ clearly includesinternet service providers such as AmericaOnline, as well as telecommunications com-panies whose cables and phone lines carryinternet traffic.’’). Websites, by contrast,were held to be ‘‘users’’ of the ‘‘electroniccommunication service’’ of Internet access.DoubleClick, 154 F.Supp.2d at 508–09.

Plaintiffs’ attempt to distinguish thecase law is unavailing. They contend thatDoubleClick and Crowley bear little if anyrelation to this case because the plaintiffsin those cases failed to allege that anyparty was a provider of an electronic com-munication service. (Pl.’s Mem. at 13; Tr.of Oral Argument at 40.) Although it istrue that the plaintiffs in Crowley initiallyfailed to make such an allegation, it is clearfrom the court’s opinion that they ulti-mately did argue that Amazon.com is anelectronic communication service provider.That argument was considered by thecourt and rejected on the merits. Crow-ley, 166 F.Supp.2d at 1270. And thoughthe plaintiffs in DoubleClick did not allegethat any party was an electronic communi-cation service provider, see DoubleClick,154 F.Supp.2d at 511 n. 20, the court hadcause to undertake a detailed analysis ofthe meaning of the term as set forth in§ 2510(15) of the ECPA. See id. at 508–12.As § 2510(15) contains the sole definitionof ‘‘electronic communication service’’ thatapplies throughout the statute, the Double-Click court’s analysis of that term is rele-vant to the instant case.

Based upon the foregoing, this Courtfinds as a matter of law that JetBlue is notan electronic communication service pro-vider within the meaning of the ECPA.The Court notes plaintiffs’ argument thatdismissal of the ECPA claim on a 12(b)(6)motion is premature because discovery is


needed to understand the flow of informa-tion between the potential airline customerand JetBlue but finds it unpersuasive.(Tr. of Oral Argument at 38, 42.) Regard-less of how the data is stored and trans-mitted, plaintiffs have not alleged factsthat could give rise to a finding that Jet-Blue is an electronic communication ser-vice provider within the meaning of theECPA.

[2] Plaintiffs have also failed to estab-lish that JetBlue is a remote computingservice. Plaintiffs simply make the allega-tion without providing any legal or factualsupport for such a claim. As discussed,the term ‘‘remote computing service’’ isdefined in the ECPA as ‘‘the provision tothe public of computer storage or process-ing services by means of an electroniccommunication system.’’ 18 U.S.C.§ 2711(2). The statute’s legislative historyexplains that such services exist to providesophisticated and convenient data process-ing services to subscribers and customers,such as hospitals and banks, from remotefacilities. See S.Rep. No. 99–541 (1986),reprinted in 1986 U.S.C.C.A.N. 3555, 3564.By supplying the necessary equipment, re-mote computing services alleviate the needfor users of computer technology to pro-cess data in-house. See id. Customers orsubscribers may enter into time-sharingarrangements with the remote computingservice, or data processing may be accom-plished by the service provider on thebasis of information supplied by the sub-scriber or customer. Id. at 3564–65. Al-though plaintiffs allege that JetBlue oper-ates a website and computer servers (Am.Compl.¶¶ 36, 39), no facts alleged indicatethat JetBlue provides either computer pro-cessing services or computer storage tothe public. As such, under the plainmeaning of the statute, JetBlue is not aremote computing service.

For the foregoing reasons, JetBlue as amatter of law is not liable under § 2702 ofthe ECPA. Because the sole basis forplaintiffs’ ECPA claim against Torch, Acx-iom, and SRS is an aiding and abetting orconspiracy theory, the claim against thosedefendants cannot stand absent liability onthe part of JetBlue. Accordingly, all de-fendants’ motions to dismiss are grantedwith respect to the ECPA claim.

III. Supplemental Jurisdiction

[3] In addition to the federal statutoryclaim, plaintiffs bring three state and com-mon law claims against defendants Torch,Acxiom, and SRS and four state and com-mon law claims against JetBlue. As ageneral rule, ‘‘where federal law claims aredismissed before trial, the state claimsshould be dismissed as well.’’ Marcus v.AT&T Corp., 138 F.3d 46, 57 (2d Cir.1998);see also Valencia ex rel. Franco v. Lee, 316F.3d 299, 305 (2d Cir.2003) (‘‘[I]n the usualcase in which all federal-law claims areeliminated before trial, the balance of fac-tors to be considered under the pendentjurisdiction doctrine—judicial economy,convenience, fairness, and comity—willpoint toward declining to exercise jurisdic-tion over the remaining state-law claims.’’).‘‘Dismissal of the pendent state law claimsis not, however, ‘absolutely mandatory.’ ’’Marcus, 138 F.3d at 57 (quoting Baylis v.Marriott Corp., 843 F.2d 658, 665 (2d Cir.1988)); see also United Mine Workers ofAmerica v. Gibbs, 383 U.S. 715, 726, 86S.Ct. 1130, 16 L.Ed.2d 218 (1966) (pendentjurisdiction is ‘‘a doctrine of discretion’’);Valencia, 316 F.3d at 305 (‘‘In providingthat a district court ‘may’ decline to exer-cise [supplemental] jurisdiction, [28 U.S.C.§ 1367(a)] is permissive rather than man-datory.’’). Though a district court’s discre-tion to exercise supplemental jurisdictionis ‘‘not boundless,’’ Valencia, 316 F.3d at305, the doctrine of pendent jurisdiction is‘‘designed to allow courts to deal with


cases involving pendent claims in the man-ner that most sensibly accommodates arange of concerns and values.’’ Carnegie–Mellon v. Cohill, 484 U.S. 343, 350, 108S.Ct. 614, 98 L.Ed.2d 720 (1988).

[4] In Valencia, the Second Circuit setforth factors that a district court shouldconsider when deciding whether to exer-cise supplemental jurisdiction after all fed-eral law claims have been dismissed from acase. See Valencia, 316 F.3d at 305–06;Drake v. Laboratory Corp. of AmericaHoldings, 323 F.Supp.2d 449, 453(E.D.N.Y.2004) (discussing Valencia ).These factors include: (1) whether statelaw claims implicate the doctrine of pre-emption; (2) considerations of judicialeconomy, convenience, fairness, and comi-ty, including the stage of proceedingswhen the federal claims are dismissed; (3)the existence of novel or unresolved ques-tions of state law; and (4) whether thestate law claims concern the state’s inter-est in the administration of its governmentor require the balancing of numerous im-portant state government policies. Id.;see also Baylis, 843 F.2d at 665 (‘‘Onefactor that may sometimes favor retainingpendent jurisdiction is when a state claimis closely tied to questions of federal policyand where the federal doctrine of preemp-tion may be implicated.’’).

[5] In this case, defendants advocatethe exercise of pendent jurisdiction on twogrounds. First, defendants note that fed-eral preemption doctrine is substantiallyimplicated in the resolution of any statelaw claims. Although not determinative,this is ‘‘an important factor supporting theexercise of supplemental jurisdiction.’’Drake, 323 F.Supp.2d at 454 (citing Valen-cia for the proposition that the SecondCircuit has upheld the retention of juris-diction where ‘‘the remaining state lawclaims implicate[d] the doctrine of pre-emption’’); Ghartey v. St. John’s Queens

Hosp., 869 F.2d 160, 167 n. 4 (2d Cir.1989)(‘‘While not determinative, the implicationof federal labor policy and preemption is-sues would lend support to a decision bythe district to exercise pendent jurisdic-tion over a state law claim.’’); Marcus,138 F.3d at 57 (‘‘Because the remainingstate law claims implicate the doctrine ofpreemption, we cannot say that the dis-trict court’s exercise of supplemental ju-risdiction in this case was an abuse of itsdiscretion.’’). Second, defendants contendthat a decision to decline supplemental ju-risdiction would frustrate the purpose ofmulti-district litigation to conserve re-sources by consolidating claims raised incourts around the country that addressthe same operative facts. This argumentobviously goes to the matter of judicialeconomy and counsels in favor of the exer-cise of supplemental jurisdiction. Plain-tiffs counter, citing basic principles of sup-plemental jurisdiction doctrine, that theCourt should decline to exercise jurisdic-tion in the event that the federal claim isdismissed. Plaintiffs do not analyze thequestion in terms of the factors set forthin Valencia.

The Court concludes that the primacy ofpreemption questions raised, combinedwith the objectives underlying multi-dis-trict litigation, make it appropriate to exer-cise supplemental jurisdiction in this case.In addition, the case does not raise novelor unresolved questions of state law thatare best reserved for state courts, nor doesit implicate competing state policies ormatters of state governance. Accordingly,the balance of factors set forth in Valenciacounsels in favor of this Court’s retentionof supplemental jurisdiction. The Courttherefore accepts supplemental jurisdictionover the question of preemption as well asall state and common law claims that arenot deemed preempted by federal law.See Axess Intern., Ltd. v. Intercargo Ins.


Co., 183 F.3d 935, 943 (9th Cir.1999) (adistrict court lacks the power to adjudicateaffirmative defense of preemption if it de-clines to exercise supplemental jurisdictionover state law claims).

IV. Federal Preemption of State andCommon Law Claims

[6–8] The Supremacy Clause of theUnited States Constitution provides thatfederal law ‘‘shall be the supreme Law ofthe Land; TTT any Thing in the Constitu-tion or Laws of any State to the Contrarynotwithstanding.’’ U.S. Const. Art. VI,cl. 2. Accordingly, ‘‘[u]nder the doctrine ofpreemption, a corollary to the SupremacyClause, any state or municipal law that isinconsistent with federal law is withouteffect.’’ Greater New York Metro. FoodCouncil, Inc. v. Giuliani, 195 F.3d 100,104–05 (2d Cir.1999) (abrogated on othergrounds); see also Cipollone v. LiggettGroup, Inc., 505 U.S. 504, 516, 112 S.Ct.2608, 120 L.Ed.2d 407 (1992) (‘‘state lawthat conflicts with federal law is ‘withouteffect’ ’’). In light of principles of federal-ism, there is, however, a presumptionagainst preemption. See New York StateConf. of Blue Cross & Blue Shield Plans v.Travelers Ins. Co., 514 U.S. 645, 654, 115S.Ct. 1671, 131 L.Ed.2d 695 (1995). ‘‘Con-sideration of issues arising under the Su-premacy Clause start[s] with the assump-tion that the historic police powers of theStates [are] not to be superseded by TTT

Federal Act unless that [is] the clear andmanifest purpose of Congress.’’ Cipollone,505 U.S. at 516, 112 S.Ct. 2608, 120L.Ed.2d 407 (1992) (quoting Rice v. SantaFe Elevator Corp., 331 U.S. 218, 230, 67S.Ct. 1146, 91 L.Ed. 1447 (1947) (internalquotation marks omitted)). Congressionalintent is therefore ‘‘the ultimate touch-stone of pre-emption analysis.’’ Id.; seealso FMC Corp. v. Holliday, 498 U.S. 52,56, 111 S.Ct. 403, 112 L.Ed.2d 356 (1990)(‘‘In determining whether federal law pre-

empts a state statute, we look to congres-sional intent.’’).

[9] There are two basic types of pre-emption, express and implied. See Cipol-lone, 505 U.S. at 516, 112 S.Ct. 2608. Ex-press preemption is achieved by way of anexplicit statement in a statute’s language,or an ‘‘express congressional command.’’Id. Implied preemption occurs either whenstate law actually conflicts with federal law(i.e., conflict preemption), or ‘‘if federal lawso thoroughly occupies a legislative field asto make reasonable the inference thatCongress left no room for the States tosupplement it’’ (i.e., field preemption). Id.(citations and internal quotation marksomitted). In this case, defendants arguethat plaintiffs’ claims are both expresslyand impliedly preempted. Each argumentis addressed in turn.

A. Express Preemption

[10] The Airline Deregulation Act of1978 (‘‘ADA’’) contains an express preemp-tion clause, which provides that states‘‘may not enact or enforce a law, regula-tion, or other provision having the forceand effect of law related to a price, route,or service of an air carrierTTTT’’ 49 U.S.C.§ 41713(b) (1997). In this case, plaintiffsallege that the collection of certain of theirpersonal information under a false promiseof privacy violated New York GeneralBusiness Law § 349 and other similarstate statutes, and that dissemination ofthe same information without their knowl-edge or consent amounted to breach ofcontract, trespass to property, and unjustenrichment. Defendants argue that plain-tiffs’ state and common law claims are allpreempted by the express preemption pro-vision of the ADA.

The Supreme Court has twice visited thequestion of express preemption by theADA clause. First, in Morales v. Trans


World Airlines, the Court determined thatfare advertising provisions of guidelinespromulgated by the National Associationof Attorneys General (‘‘NAAG’’), which ex-plained in detail how existing state lawsapplied to airline industry advertising andfrequent flyer programs, were preempted.504 U.S. 374, 379, 391, 112 S.Ct. 2031, 119L.Ed.2d 157 (1992). At issue in the casewas an effort by several states to applytheir general consumer protection laws tohalt allegedly deceptive airline advertise-ments that were inconsistent with stan-dards articulated in the guidelines. Id. at378–79, 112 S.Ct. 2031. In reaching itsdecision, the Court determined that thephrase ‘‘relating to’’ as used in the ADAclause means ‘‘having a connection with orreference to’’ such that the statute ex-pressly preempts state enforcement ac-tions having a connection with or referenceto airline rates, routes, or services. Id. at384, 112 S.Ct. 2031. Because ‘‘the obli-gations imposed by the [NAAG] guidelineswould have a significant impact upon theairlines’ ability to market their product,and hence a significant impact upon thefares they charge,’’ id. at 390, 112 S.Ct.2031, they were found to ‘‘relate to’’ airlinerates and therefore were deemed preempt-ed. Id. In so holding, the Court madeclear that it did not intend to preempt allstate laws as applied to airlines, as ‘‘[s]omestate actions may affect [airline fares] intoo tenuous, remote, or peripheral a man-ner’’ to have pre-emptive effect. Id.

Thereafter, in American Airlines, Inc.v. Wolens, the Supreme Court determinedthat the ADA clause also preemptedclaims under the Illinois Consumer Fraudand Deceptive Business Practices Act(‘‘Consumer Fraud Act’’), 815 Ill. Comp.State. § 505 (1992), concerning frequentflyer program modifications that devaluedcredits that members had already earned.513 U.S. 219, 228, 115 S.Ct. 817, 130L.Ed.2d 715 (1995). Calling the Illinois

law ‘‘paradigmatic of the consumer protec-tion legislation underpinning the NAAGguidelines’’ at issue in Morales, the Courtruled that those guidelines ‘‘highlight thepotential for intrusive regulation of airlinebusiness practices inherent in state con-sumer protection legislation typified by theConsumer Fraud Act.’’ Id. at 227–28, 115S.Ct. 817. Thus, ‘‘[i]n light of TTT theADA’s purpose to leave largely to the air-lines themselves, and not at all to theStates, the selection and design of market-ing mechanisms appropriate to the fur-nishing of air transportation services,’’ theCourt held the claims preempted. Id. at228, 115 S.Ct. 817. More generally, theCourt ruled ‘‘that the ADA’s preemptionprescription bars state-imposed regulationof air carriersTTTT’’ Id. at 222, 115 S.Ct.817.

The Wolens court drew a distinction,however, based upon the nature of theclaims advanced by the plaintiff. In con-cluding that a claim for breach of contractwas not preempted, the Court determined,as a general rule, that the ADA does notpreclude adjudication of a contractualclaim where the suit seeks recovery ‘‘solelyfor the airline’s alleged breach of its own,self-imposed undertakings’’ and does notallege violation of any state-imposed obli-gations. Id. at 228, 115 S.Ct. 817. Thus,while the ADA preemption clause ‘‘stopsStates from imposing their own substan-tive standards with respect to rates,routes, or services,’’ it does not preventthem ‘‘from affording relief to a party whoclaims and proves that an airline dishon-ored a term the airline itself stipulated.’’Id. at 232–33, 115 S.Ct. 817. Courts maytherefore be called upon to enforce theparties’ bargain ‘‘with no enlargement orenhancement based on state laws or poli-cies external to the agreement.’’ Id. at233, 115 S.Ct. 817. Where, however, theadjudication of a contract claim requires


reference to state laws or policies, thatclaim may be preempted. See id.

In its most thorough analysis to date ofthe ADA preemption clause, the SecondCircuit commented on the difficulty of ap-plying the clause, noting that it sets forthan ‘‘illusory test’’ that defies bright linerules and can only be applied on a case-by-case basis. See Abdu–Brisson v. DeltaAirlines, Inc., 128 F.3d 77, 85–86 (2d Cir.1997) (quoting California Div. of LaborStandards Enforcement v. DillinghamConst., N.A., Inc., 519 U.S. 316, 335, 117S.Ct. 832, 136 L.Ed.2d 791 (1997) (Scalia,J., concurring) (labeling the ERISA pre-emption clause an ‘‘illusory test’’)); seealso Travel All Over The World v. King-dom of Saudi Arabia, 73 F.3d 1423, 1433(7th Cir.1996) (‘‘Morales does not permitus to develop broad rules concerningwhether certain types of common-lawclaims are preempted by the ADA. In-stead, we must examine the underlyingfacts of each case to determine whetherthe particular claims at issue ‘relate to’airline rates, routes or services.’’). Ac-cording to Abdu–Brisson, a court mustinquire into the purpose, or objectives, be-hind the federal statute in question, herethe ADA. See Abdu–Brisson, 128 F.3d at82. ‘‘In possible preemption areas wherecommon federal and state interests exist,courts should seek, if possible, some rea-sonable and uniform accommodation whichdoes not frustrate either the full congres-sional purposes and objectives or state pol-icies TTT’’ Id. at 86. Where this is notpossible, and where the relation of statelaws to airline rates, routes and services isnot merely tenuous, remote, or peripheral,then federal law must prevail. Id. ‘‘Al-though the policies behind the ADA areseveral, the primary motivation for thereform—as the name of the statute indi-cates—was to deregulate the industry.’’Id. at 84. The statute ‘‘was based on aCongressional assumption that maximum

reliance on competitive market forceswould best further efficiency, innovation,and low prices as well as variety [and]quality TTT of air transportation ser-vicesTTTT’’ Id. (quoting Morales, 504 U.S.at 378, 112 S.Ct. 2031, and 49 U.S.C.A.§§ 40101(a)(6) & 40101(a)(12) (2000) (inter-nal quotation marks omitted)). Thus, thechief objective driving enactment of thestatute was competition among airlines.Abdu–Brisson, 128 F.3d at 84. And thepurpose animating the preemption clausewas ‘‘[t]o ensure that the States would notundo federal deregulation with regulationof their ownTTTT’’ Morales, 504 U.S. at378, 112 S.Ct. 2031.

This understanding led the Second Cir-cuit to reverse a district court determina-tion that the ADA preempted an age dis-crimination claim brought under state andcity human rights laws. See Abdu–Bris-son, 128 F.3d at 80. The district courtbelow had concluded that claims involvingmedical benefit and pay scale provisionssufficiently related to airline prices, andthat claims regarding the personnel se-niority list related to services inasmuch asthey would impact transportation itself bydisrupting flight deck relationships andcausing turmoil among the airline’s pilots.Id. at 81–82. Describing the districtcourt’s analysis as ‘‘not unreasonable con-sidering the difficulties inherent in apply-ing the imprecise ADA preemption stan-dard,’’ the Circuit held that ‘‘the districtcourt’s approach would sweep too manystate regulatory statutes under the rug ofADA preemption.’’ Id. at 82. In reachingits decision, the Circuit noted the SupremeCourt’s recent narrowing of the ERISApreemption provision and drew analogiesto the ADA provision based on similarlanguage. Id. ‘‘Related to,’’ the Circuitheld, ‘‘appears to be developing, to somedegree, to mean whether state law actually‘interferes’ with the purposes of the feder-


al statute, in this case airline deregula-tion.’’ 11 Id. (citing Travelers Ins. Co., 514U.S. at 655, 115 S.Ct. 1671).

[11] For a claim to be preempted, how-ever, the underlying state law need notexpressly refer to air carrier rates, routesor services. Rather, as established byWolens and Morales, a claim is preemptedif application of the state rule of decisionwould have a significant economic effectupon airline rates, routes, or services.United Airlines, Inc. v. Mesa Airlines,Inc., 219 F.3d 605, 609 (7th Cir.2000)(Easterbrook, J.); Travel All Over TheWorld, 73 F.3d at 1432.

1. New York General Business Lawand Other State Consumer Protec-tion Statutes

Plaintiffs claim that, in violation of theNew York General Business Law and oth-er consumer protection statutes,12 all de-fendants engaged in unfair or deceptiveacts and practices by knowingly and sur-reptitiously conspiring to obtain and byobtaining, maintaining, and manipulatingclass members’ personal data that was re-ceived in direct violation of JetBlue’s pri-vacy policy. (Am.Compl.¶¶ 93–94.) Thisclaim fits squarely within the range ofstate law actions that the Supreme Courtconcluded, in Wolens and Morales, are ex-pressly preempted by the ADA, because itrepresents a direct effort to regulate themanner in which JetBlue communicates

with its customers in connection with res-ervations and ticket sales, both of whichare services provided by the airline to itscustomers. See In re Northwest, 2004 WL1278459, at *4 (privacy policy-relatedclaims under the Minnesota DeceptiveTrade Practices Act ‘‘at least relate toNorthwest’s services’’); Copeland, No. 04–2156 Ml/v, at 8 (claims against Northwestunder the Tennessee Consumer ProtectionAct concerning disclosure of passengers’personal information are expresslypreempted by the ADA); Travel All OverThe World, 73 F.3d at 1434 (airline ‘‘ser-vices’’ include ticketing as well as thetransportation itself); Hodges v. DeltaAirlines, Inc., 44 F.3d 334, 336 (5th Cir.1995) (en banc) (ticketing is an element ofthe air carrier service bargain that Con-gress intended to deregulate and broadlyprotect from state regulation).

[12] Where a state law claim is said torelate to an airline service, courts in thisand other circuits apply a tripartite testfor preemption set forth in Rombom v.United Air Lines, Inc., 867 F.Supp. 214(S.D.N.Y.1994) (Sotomayor, D.J.). SeeDonkor v. British Airways, Corp., 62F.Supp.2d 963, 972 n. 5 (E.D.N.Y.1999)(collecting federal district court and appel-late cases that cite the Rombom test).First, a court must determine ‘‘whetherthe activity at issue in the claim is anairline service.’’ Rombom, 867 F.Supp.214 at 221. Second, ‘‘[i]f the activity impli-

11. Other courts have been understandablyreluctant to narrow the Supreme Court’spreemption analysis in Morales based uponsubsequent interpretations of the ERISA pro-vision. See United Airlines, Inc. v. Mesa Air-lines, Inc., 219 F.3d 605, 608 (7th Cir.2000)(Easterbrook, J.) (‘‘[I]f developments in pen-sion law have undercut holdings in air-trans-portation law, it is for the Supreme Courtitself to make the adjustment. Our marchingorders are clear: follow decisions until theSupreme Court overrules them.’’).

12. Plaintiffs raise claims under forty-ninestate statutes prohibiting unfair and deceptiveacts and practices. The New York GeneralBusiness Law is among them. Also cited isthe Minnesota Deceptive Trade Practices Act,which formed the basis of claims adjudicatedin In re Northwest, 2004 WL 1278459, and theIllinois Consumer Fraud and Deceptive Busi-ness Practices Act, which was the statute atissue in Wolens, 513 U.S. 219, 115 S.Ct. 817,130 L.Ed.2d 715. (See Am. Compl. ¶ 97.)


cates a service, the court must then deter-mine whether the claim affects the airlineservice directly or tenuously, remotely, orperipherally.’’ Id. at 222. If the effect isonly incidental, the state law claim is notpreempted. Id. Where the activity inquestion directly implicates a service, thecourt should proceed to the third prong ofthe preemption inquiry, ‘‘whether the un-derlying tortious conduct was reasonablynecessary to the provision of the service.’’Id. If the challenged conduct did not occurduring the course of the service in ques-tion or did not further the provision of theservice in a reasonable manner, then thereis no express preemption and the statecourt action should continue. Id. TheRombom court observed that this three-factor analysis is important because ‘‘[c]on-fining the question of whether the tasksimplicated in the complaint TTT are ser-vices under the [ADA] is inadequate.’’ Id.at 221. ‘‘The manner in which an TTT

activity is conducted also bears on thequestion of preemption.’’ Id.

[13] Applying the Rombom test to thefacts of this case, the first prong is clearlysatisfied. As this claim concerns the law-fulness of representations made by Jet-Blue in the course of communicating withpotential passengers, the relevant activityfor purposes of preemption analysis is theprovision of reservations and the sale oftickets to travel with JetBlue. In arguingthat the service in question is the disclo-sure of passenger data for use in a militarybase security study, plaintiffs misconstruethe issue. (See Pl.’s Mem. at 32–33.) Thesecond prong is also met, as an attempt toregulate the representations and commit-ments that JetBlue makes in connectionwith reservations and ticket sales directlyaffects the airline’s provision of those ser-vices. Finally, the third prong is satisfiedbecause the communication of companypolicy concerning data collection and dis-

closure is reasonably necessary to the fa-cilitation of reservations and ticket sales.In this regard, it is important to note thatalthough the unauthorized disclosure ofplaintiffs’ personal information is at issuein this § 349 claim, the principal focus ofthe claim is the allegedly deceptive stepstaken to obtain that information. Thus,the complained-of conduct did occur in thecourse of the provision of the service ofreservations and ticket sales, and as stat-ed, the communication of company policywith respect to collection and use of dataobtained in the course of that service isreasonably related to the provision of theservice. Because the Court finds that thisclaim is preempted based on its relation toJetBlue’s services, the Court need not ad-dress the argument that it is also preempt-ed by virtue of its relation to JetBlue’srates and routes.

2. Common Law Claims

[14] In addition to the state statutoryclaims, plaintiffs bring a claim for breachof contract against JetBlue and claims fortrespass to property and unjust enrich-ment against all defendants. As set forthbelow, none of these claims is preempted.The breach of contract claim falls withinthe exception carved out in Wolens for theenforcement of self-imposed contractualundertakings. Neither of the tort claimsrelates to JetBlue’s rates, routes, or ser-vices in the same way that the state statu-tory claim does.

a. Breach of Contract

The basis for plaintiffs’ breach of con-tract claim is the allegation that JetBlue’spublished privacy policy constitutes a self-imposed contractual obligation by and be-tween the airline and the consumers withwhom it transacted business, includingplaintiffs and the members of the class.(Am.Compl.¶ 88.) Plaintiffs further allege


that JetBlue breached this contract whenit disclosed its passengers’ personal infor-mation, without their consent, in violationof its privacy policy. (Id. ¶ 90.) JetBlueargues that this claim is preempted be-cause the Court will have to resort toexternal sources of law, including federalregulations,13 to determine if the privacypolicy became a term in the Contract ofCarriage. (JetBlue Reply Mem. at 18–19.)JetBlue also argues that, if that the priva-cy statement is determined to constitute acontract, the Court will have to look out-side the ‘‘terms’’ of that contract, to statelaw damages schemes, to determine recov-erable damages. (JetBlue Mem. at 22;JetBlue Reply Mem. at 19.) In JetBlue’sview, ‘‘even a self-imposed undertakingthat requires resort to state law to addressits breach is, by that resort to state law,preempted.’’ (JetBlue Mem. at 22.)

These arguments are misplaced. InWolens, the Supreme Court sought to pre-clude states from undoing federal deregu-lation of the airline industry. In carvingout the exception for the enforcement ofcontracts, the Court recognized that theapplication of state law to honor privatebargains does not threaten to underminefederal deregulation in the same way thatenforcement of state public policy would.See generally Fondo v. Delta Airlines,Inc., 2001 WL 604039, at *2 (S.D.N.Y. May31, 2001) (‘‘[P]rivate contractual agree-ments and common law remedies for theirbreach do not implicate state policies en-acted for the purpose of regulating air-lines.’’) This explains, for example, whythe ADA preempts many claims for puni-

tive damages, which tend to implicate pub-lic policies, see Travel All Over The World,73 F.3d at 1432 n. 8, and may not beawarded in New York breach of contractcases unless public rights are involved,Norman v. Trans World Airlines, Inc.,2000 WL 1480367, at *6, 2000 U.S. Dist.LEXIS 14618, at *19–20 (S.D.N.Y. Oct. 5,2000) (citing Durham Indus., Inc. v. NorthRiver Ins. Co., 673 F.2d 37, 41 (2d Cir.1982), cert. denied, 459 U.S. 827, 103 S.Ct.61, 74 L.Ed.2d 64 (1982)), but generallydoes not preempt claims for compensatorydamages.

JetBlue’s suggestion that courts maynever look to generalized canons of con-tract interpretation to determine the pa-rameters of private agreements withoutimplicating the doctrine of preemption isunsupportable. If JetBlue’s position werecorrect, there would be very little left ofthe Wolens exception, as most contractualarrangements that become the subject oflitigation present some question that re-quires resort to general principles of statecontract law. The critical distinction be-tween principles of contract law that fallwithin and without the Wolens exception iswhether they ‘‘seek to effectuate the intentof the parties rather than the State’s pub-lic policies.’’ See In re EVIC Class ActionLitigation, Inc., 2002 WL 1766554, at *9(S.D.N.Y. July 31, 2002) (quoting Wolens,513 U.S. at 233 n. 8, 115 S.Ct. 817).

The relief plaintiffs seek in connectionwith the breach of contract claim is limitedto actual damages.14 (See Am. Compl.

13. The federal regulations to which JetBluerefers concern incorporation by reference in acontract of carriage with an air carrier. 14C.F.R. § 253.4. Given that preemption doc-trine stands to guard against state regulationin an area reserved for federal law, it is un-clear to the Court how reference to federalregulations implicates questions of preemp-tion. See generally Travel All Over The World,

73 F.3d 1423, 1432 (‘‘The question of whethera State has ‘enacted or enforced a law’ cannotdepend on the existence of federal regulationsin the same area.’’).

14. Although the Amended Complaint includesa prayer for injunctive relief and punitivedamages, as well as a declaratory judgment,the section of the Amended Complaint dealing


¶ 91.) Resolution of this claim will requirethe Court to determine whether the priva-cy policy gave rise to a contractual obli-gation and, if so, what damages rules ap-ply. These determinations must be madewith reference to state law, but that statelaw does not impose any substantive stan-dards with respect to airline rates, routes,or services. See Wolens, 513 U.S. at 232–33, 115 S.Ct. 817 (holding that the ADApreemption clause ‘‘stops States from im-posing their own substantive standardswith respect to rates, routes, or services,but not from affording relief to a partywho claims and proves that an airline dis-honored a term the airline itself stipu-lated’’); see also Mesa Airlines, Inc., 219F.3d at 609 (‘‘When all a state does it use[rules against force and fraud] to deter-mine whether [a contractual] agreementwas reached, TTT it transgresses no federalrule.’’). Accordingly, plaintiffs’ breach ofcontract claim is not expressly preemptedby the ADA, and JetBlue’s motion to dis-miss this claim as preempted is thereforedenied.

b. Trespass to Property

Plaintiffs allege that the transfer by Jet-Blue of data containing passengers’ per-sonal information amounts to trespass toproperty. (Am.Compl.¶ 100.) To date, nofederal court has specifically addressed thepreemptive effect of the ADA clause onstate law claims for trespass to property.15

Defendants argue that ‘‘[t]he manner inwhich an airline handles and utilizes pas-

senger information is intimately inter-twined with its rates, routes, and servicesand is, in fact, regulated by federal law.’’ 16

(JetBlue Mem. at 19.)

The thrust of defendants’ argument withregard to rates and routes is that preven-tion of future terrorist attacks on militaryinstallations will protect the integrity ofroutes and avoid negative impacts on thefinancial prospects of air carriers. (See id.at 19–20.) More specifically, defendantsclaim that a successful military base secu-rity study could ultimately improve thesafety of commercial air travel and possi-bly reduce rates to the extent that JetBlueis able to transfer the costs of certainsecurity improvements to the federal gov-ernment. (See Tr. of Oral Argument at17–18.) Defendants further urge that ‘‘[i]norder for Plaintiffs to succeed in statingany common law claim, they must TTT

scrub historical context from all of Jet-Blue’s actionsTTTT’’ (JetBlue Reply Mem.at 13.) The historical context to whichdefendants allude begins, of course, withthe events of September 11, 2001.

Although defendants raise emotionallycompelling concerns about the potential ofstate tort liability to chill airline partic-ipation in security studies, they fail to es-tablish how a claim for trespass to proper-ty that pertains to the dissemination ofplaintiffs’ information directly relates toairline rates or routes. In pointing to thepotential economic and safety benefits of asuccessful security study, the connectionthat plaintiffs suggest to rates and routes

with the breach of contract claim asserts onlya prayer for actual damages. (See Am.Compl. ¶¶ 5, 91.)

15. At least one court that took a decidedlybroad view of the ADA clause in deeming aprivacy claim preempted proceeded to ad-dress the plaintiffs’ trespass to property claimon the merits, see In re Northwest, 2004 WL1278459, at *4, thereby lending some support

to the proposition that such claims are notexpressly preempted.

16. The federal law to which defendants referdoes no more than govern reporting on pas-senger manifests in the event of disasters, see49 U.S.C. § 44909; 14 C.F.R. Pt. 243, andcorrection of cargo manifests and air waybillsin the event of shortages and overages, see 12C.F.R. § 122.49(a) & (b).


is attenuated at best. The Second Circuithas held that indirect effects on an airline’scompetitive position do not meet the testfor preemption of state law claims. SeeAbdu–Brisson, 128 F.3d at 84 (indirecteffects of state law claims on an airline’scompetitive position do not warrant pre-emption). Here, it is nothing more thanconjecture that the security study couldactually have an effect on the integrity ofroutes or result in any reduction of Jet-Blue’s rates. Accordingly, the impact ofplaintiffs’ claim on JetBlue’s rates androutes is ‘‘too tenuous, remote or peripher-al TTT to have pre-emptive effect.’’ SeeMorales, 504 U.S. at 390, 112 S.Ct. 2031(citation and internal quotation marksomitted).

Defendants’ argument based on airlineservices also fails the Rombom test.Rombom, 867 F.Supp. at 221. With re-gard to the first prong of that test, wheth-er the activity at issue is an airline service,defendants claim that the assembly anduse of passenger information supplied dur-ing the purchase of air transportation con-stitutes an integral part of an airline’sservices. (JetBlue Reply Mem. at 16.) De-fendants further claim that compiling thedata into a PNR for the airline’s use re-lates to services because the PNR reflectsthe airline’s copy of the passenger’s travelarrangements and enables the airline todetermine flight capacity and schedulesand to define routes. (Id. at 16–17.) Theproblem with this argument is that plain-tiffs’ trespass to property claim concernsthe unauthorized disclosure of PNR datato a third party which has no role indetermining flight capacity, schedules, orroutes. Moreover, the disclosure of thisinformation is not alleged to have any rela-tion to JetBlue’s manipulation or use ofthe data to determine flight capacity,schedules, or routes. Thus, to the extentthat use of PNR data for these purposesconstitutes an airline service within the

meaning of the ADA, the trespass to prop-erty claim at issue in this case does notimplicate that service. As defendantshave not proffered any other basis uponwhich the Court might conclude that thetrespass to property claim implicates aservice, they have not met their burden ofestablishing that the claim is preemptedby the ADA.

As a final matter, the Court notes thatdefendants’ proffered justification for thedissemination of plaintiffs’ data is not theproper focus of preemption analysis underthe ADA clause. Preemption analysis isbased on the nature of the state law claimasserted by a plaintiff and its relation, ifany, to airline rates, routes, and services,not the answer or affirmative defense as-serted by the defendant. See Parise v.Delta Airlines, Inc., 141 F.3d 1463, 1466 n.3 (11th Cir.1998) (the only question rele-vant to preemption analysis is whether thebasis of a cause of action asserted by aplaintiff, without reference to the answeror any affirmative defense, relates to rates,routes, or services of an air carrier). Ac-cordingly, as understandable as defen-dants’ motivations may have been, it is notrelevant for purposes of express preemp-tion analysis that defendants disclosed thePNR data in response to changed marketconditions and security concerns occa-sioned by the events of September 11,2001.

c. Unjust Enrichment

Plaintiffs allege that all defendants inthis case were unjustly enriched by thedisclosure of confidential information con-cerning JetBlue passengers. (Pl.’s Mem.at 60.) Specifically, they claim that Jet-Blue received remuneration from Torch oranother party in exchange for disclosingPNR data, and that the other defendantsprofited as contractors or subcontractorson the Department of Defense study as a


result of JetBlue’s contribution of the data.(Id. at 60–61; Am. Compl. ¶¶ 107–108.)Defendants make the very same preemp-tion argument in connection with this claimas they make in connection with the tres-pass to property claim, that a successfulmilitary base security study could affectroutes by improving the safety of commer-cial air travel and rates by transferring thecost of certain security improvements tothe federal government.

Few federal courts have considered thepreemptive effect of the ADA clause onclaims for unjust enrichment. Of thosethat have, most found that the claims atissue directly related to air carrier rates orservices and held those claims preempted.See, e.g., Lehman v. USAIR Group, Inc.,930 F.Supp. 912, 915–16 (S.D.N.Y.1996)(claim expressly referred to the collectionof air transportation excise tax, which re-lates to rates because it directly impactsthe ticket price); All World ProfessionalTravel Services, Inc. v. American Airlines,Inc., 282 F.Supp.2d 1161 (C.D.Cal.2003)(claim premised on airline’s imposition of afee for processing refunds for tickets thatcould not be used in the days immediatelyfollowing September 11, 2001); Dugan v.FedEx Corp., 2002 WL 31305208 (C.D.Cal.Sept. 27, 2002) (claim challenged air carri-er’s contractual limitation of liability fordamage to contents of packages that oc-curred during shipment); Deerskin Trad-ing Post, Inc. v. United Parcel Service ofAmerica, Inc., 972 F.Supp. 665 (N.D.Ga.1997) (plaintiff alleged defendant inappro-priately based prices on the dimensionalweight of packages rather than the actualweight). But the nature of the claims atissue in those cases had quite a differentrelation to airline rates, routes, and ser-vices than the unjust enrichment claim inthis case. Unjust enrichment claimspremised on the imposition of fees or col-lection of taxes quite obviously relate toairline rates. In this case, the unjust en-

richment claim, like the trespass to prop-erty claim, seeks to remedy conduct with-out any cognizable relation to JetBlue’srates, routes, or services. Accordingly, itis not preempted by the ADA.

B. Implied Preemption

[15] Because the information at issuein this case was turned over for a securitystudy at the behest of a federal agency,defendants argue that plaintiffs’ claims areimpliedly preempted by the federal gov-ernment’s pervasive occupation of the fieldof aviation security. Field preemption oc-curs ‘‘if federal law so thoroughly occupiesa legislative field as to make reasonablethe inference that Congress left no roomfor the States to supplement it.’’ Cipol-lone v. Liggett Group, Inc., 505 U.S. 504,516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992)(citations and quotation marks omitted).Although in this case the state laws atissue are not specific to aviation security,and therefore in a strict sense do not fallwithin that field, the Supreme Court hasrecognized that field preemption analysismay be understood as a species of conflictpreemption, which exists where a state law‘‘stands as an obstacle to the accomplish-ment and execution of the full purposesand objectives of Congress.’’ English v.General Elec. Co., 496 U.S. 72, 79, 110S.Ct. 2270, 110 L.Ed.2d 65 (1990) (quotingHines v. Davidowitz, 312 U.S. 52, 67, 61S.Ct. 399, 85 L.Ed. 581 (1941)). Thus, tothe extent that plaintiffs’ state law claimswould have the effect of undermining fed-eral efforts in the field, field preemptionanalysis is properly implicated.

‘‘As is always the case in preemptionanalysis, Congressional intent is the ‘ulti-mate touchstone.’ ’’ Freeman v. BurlingtonBroadcasters, Inc., 204 F.3d 311, 320 (2dCir.2000) (quoting Cipollone, 505 U.S. at516, 112 S.Ct. 2608). Intent for the feder-al government to exclusively occupy a field


‘‘may be inferred from a ‘scheme of federalregulation TTT so pervasive as to makereasonable the inference that Congress leftno room for the States to supplement it,’or where an Act of Congress ‘touch[es] afield in which the federal interest is sodominant that the federal system will beassumed to preclude enforcement of statelaws on the same subject.’ ’’ English v.General Elec. Co., 496 U.S. at 79, 110 S.Ct.2270 (quoting Rice v. Santa Fe ElevatorCorp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91L.Ed. 1447 (1947)).

In practice, ‘‘[i]t is often a perplexingquestion whether Congress has precludedstate action or by the choice of selectiveregulatory measures has left the policepower of the States undisturbed except asthe state and federal regulations collide.’’Rice, 331 U.S. at 230–31, 67 S.Ct. 1146. Acourt’s analysis ‘‘must begin with the as-sumption TTT that the historic police pow-ers of the State are not preempted byfederal law unless that [is] the clear andmanifest purpose of Congress.’’ VangoMedia, Inc. v. City of New York, 34 F.3d68, 72 (2d Cir.1994) (citation and internalquotation marks omitted) (alteration inoriginal); see also Rice, 331 U.S. at 230, 67S.Ct. 1146. ‘‘Under well-established prin-ciples TTT state law should be displacedonly to the extent necessary to protect theachievement of the aims of federal law.’’Ray v. Atlantic Richfield Co., 435 U.S.151, 182–83, 98 S.Ct. 988, 55 L.Ed.2d 179(1978) (Marshall, J., concurring in part anddissenting in part) (citations and internalquotation marks omitted). As such, when-ever possible, courts ‘‘should reconcile theoperation of both statutory schemes withone another rather than holding [the statescheme] completely ousted.’’ Id. (altera-tion in original).

[16] Defendants contend that a ‘‘mosa-ic of federal laws and regulations’’ evincean intent on the part of Congress for the

federal government to completely occupythe field of aviation security and nationalsecurity as it relates to the disseminationof passenger information by commercialairlines for the prevention of terrorist at-tacks. (See JetBlue Mem. at 23; JetBlueReply Mem. at 23–24.) This mosaic beginswith the creation of the Federal AviationAgency, later renamed the Federal Avia-tion Administration (‘‘FAA’’), as an agencywithin the Department of Transportation.The FAA was created in the wake of a‘‘series of fatal air crashes between civilianand military aircraft operating under sepa-rate flight rules,’’ United States v. Chris-tensen, 419 F.2d 1401, 1404 (9th Cir.1969)(quoting H. Rep. No. 2360 (1958), reprint-ed in 1958 U.S.C.C.A.N. 3741, 3742), inorder ‘‘to provide for the safe and efficientuse of the navigable air space by both civiland military operations.’’ H. Rep. No.2360 (1958), reprinted in 1958U.S.C.C.A.N 3741, 3741. The Administra-tor was charged inter alia to prescriberules and regulations ‘‘necessary to pro-vide adequately for national security andsafety in air commerce.’’ Federal AviationAct of 1958 (‘‘FAA Act’’), Pub.L. No. 85–726, § 601(a)(6), 72 Stat. 731, 775 (1958).It is undisputed that FAA regulations havepreemptive effect in certain discrete fieldssuch as pilot certification, aircraft noise,airspace management and flight opera-tions.

Defendants posit that federal regulatorycontrol is particularly dominant in the areaof aviation security. (JetBlue Mem. at 25.)In support, they cite several legislativeenactments beginning with the 1961 pas-sage of a statute criminalizing air piracy.Enacted immediately after the first hijack-ing of a U.S. commercial aircraft, this stat-ute, combined with ‘‘related rules issuedunder the regulatory authority of the Ad-ministrator, provide[s] the basis for theantihijacking program.’’ United States v.


Davis, 482 F.2d 893, 898 (9th Cir.1973).This authority was supplemented by theAntihijacking Act of 1974, Pub.L. No. 93–366, 88 Stat. 409 (1974), which included theAir Transportation Security Act of 1974,Pub.L. No. 93–366, 88 Stat. 415 (1974), andthus provided ongoing authority for theFAA Administrator to regulate passengerscreening as well as research and develop-ment of systems, procedures, and facilitiesdesigned to guard against acts of aircraftpiracy. The FAA Act was subsequentlyamended by the International Security andDevelopment Cooperation Act of 1985,Pub.L. No. 99–83, 99 Stat. 190 (1985),which prescribes measures for improvingsecurity standards in foreign air transpor-tation.

After the bombing of Pan Am Flight 103over Lockerbie, Scotland, Congress againamended the FAA Act by enacting theAviation Security Improvement Act of1990, Pub.L. No. 101–604, 104 Stat. 3066(1990). This Act established a Director ofIntelligence and Security in the office ofthe Secretary of Transportation and pro-vided inter alia for security improvementsat airports. Id. §§ 101, 103. The Act alsocalled for the FAA Administrator to ‘‘es-tablish and carry out a program to acceler-ate and expand the research, development,and implementation of technologies andprocedures to counteract terrorist actsagainst civil aviation.’’ Id. § 107.

Following the terrorist attacks of Sep-tember 11, 2001, Congress passed twofree-standing statutes: the Aviation andTransportation Security Act, Pub.L. No.101–71, 115 Stat. 597 (2001), and theHomeland Security Act of 2002, Pub.L.No. 107–296, 116 Stat. 2135 (2002). Inaddition to broadening authority for avia-tion security measures, the Aviation andTransportation Security Act transferredresponsibility that previously fell upon the

FAA to a newly created administrativebody, the Transportation Security Admin-istration (‘‘TSA’’). See 49 U.S.C. § 114.The Homeland Security Act removed theTSA from the Department of Transporta-tion and placed it under the jurisdiction ofthe Department of Homeland Security, seeHomeland Security Act § 403, which indefendants’ view emphasizes the role ofthe commercial airline industry in therealm of national security. The TSA is theentity that requested JetBlue provide itsPNR data for use in the security study.

The TSA is specifically charged withmanagement of security information. 49U.S.C. § 114(h). Among its enumeratedpowers and responsibilities, it is tasked to‘‘identify and undertake research and de-velopment activities necessary to enhancetransportation security,’’ 49 U.S.C.§ 114(f)(8), and to establish policies andprocedures requiring air carriers to useinformation supplied by government agen-cies to identify high-risk passengers. 49U.S.C. § 114(h)(3)(A). Notably, it also hasspecific Congressional authorization to‘‘consider [in consultation with the Trans-portation Security Oversight Board] re-quiring passenger air carriers to sharepassenger lists with appropriate Federalagencies for the purpose of identifying in-dividuals who may pose a threat to avia-tion safety or national security.’’ 49U.S.C. § 114(h)(4). Presumably, after un-dertaking the appropriate consultative pro-cess, the TSA would have had authority torequire JetBlue to share its passenger listsfor use in the Torch security study. Itbears noting that the TSA did not exercisethat authority prior to the events at issuein this case and instead issued a requestwith which JetBlue voluntarily complied.The data transfer by JetBlue is thereforenot insulated from state law liability as aresult of any direct conflict with federal


regulatory action on this issue.17

Defendants cite a host of additionalfunctions entrusted to the TSA and otherfederal entities,18 as well as a litany ofsecurity-related regulations enacted by theTSA, to round out the argument that thefield of aviation security—particularly as itrelates to information sharing among aircarriers and federal agencies—is entirelypreempted by federal law. Though only asmall subset relates specifically to the col-lection and dissemination of passenger in-formation, the breadth of these regulationsand responsibilities is extensive.

Even if field preemption could be estab-lished in the area of aviation security—aquestion on which the Court expresses nofinal opinion at this time—it is at least anissue of fact, on the record now before theCourt, whether or not the actions com-plained of in this case properly implicatethe field of aviation security. Plaintiffsallege, and defendants do not dispute, thatthe purpose of the JetBlue data transferwas to support a study designed to preventattacks on military installations followingthe September 11, 2001 attack on the Pen-tagon. According to plaintiffs’ AmendedComplaint, Torch considered that data pat-tern analysis of personal characteristics ofpersons who sought access to military in-

stallations might help predict which per-sons pose a risk to the security of thoseinstallations. (Am.Compl.¶ 42.) Althoughdefendants suggest that the study specifi-cally aimed to identify potential terroristsarriving by air in areas near military bases(JetBlue Mem. at 3), the facts pled onlyestablish that a large, national level data-base was needed to assess the efficacy ofTorch’s data analysis tool for predictingterrorist behavior, not that the databasehad to concern commercial airline passen-gers in particular. (See Am. Compl. ¶ 43.)

Indeed, according both to plaintiffs’Amended Complaint and to an official re-port of the Department of Homeland Secu-rity (‘‘DHS’’) Privacy Office, Torch initiallyapproached a number of federal agenciesunrelated to aviation that operate govern-mental databases containing personal in-formation suitable for use in testing itsprogram. When each of those agenciesrefused to participate in the study, Torchturned its attention to commercial sourcesof personal information, including airlinesand data aggregators which were thoughtto maintain databases containing adequatecross-sections of personal characteristics.(Id. ¶¶ 44–45; Department of HomelandSecurity Privacy Office, Report to thePublic on Events Surrounding JetBlue

17. Regulations issued pursuant to Congres-sional authorization after litigation is com-menced are also relevant to preemptionanalysis because they bear upon the issue ofCongressional intent to occupy a field. SeeFrench v. Pan Am Express, Inc., 869 F.2d 1,5 n. 5 (1st Cir.1989). In that regard, theCourt notes that on November 15, 2004, theTSA issued a final order requiring aircraftoperators to provide certain specified PNRdata for use in testing the ‘‘Secure Flight’’system, an aviation passenger pre-screeningprogram designed to identify passengersknown or reasonably suspected to be en-gaged in terrorist activity. The final orderspecifically mentions 49 U.S.C. § 114(f)(8) asone of the bases for the TSA’s authority forrequiring the PNR data. See Notice of Final

Order for Secure Flight Test Phase, 69 Fed.Reg. 65,619 (Nov. 15, 2004).

18. In particular, defendants note that airlinesoperating flights to or from the United Statesmust provide U.S. Customs with electronicaccess to their PNR databases so that Cus-toms may obtain ‘‘any and all PNR data ele-ments relating to the identity and travel plansof a passenger.’’ 19 C.F.R. § 122.49b. PNRdata ‘‘that is made available to Customs elec-tronically may, upon request, be shared withother Federal agencies for the purpose ofprotecting national security.’’ Id. There is norequirement for air carriers to collect anyPNR information that they would not ordi-narily collect on their own. Id.


Data Transfer (‘‘DHS Report’’), Feb. 20,2004, at 4). Unable to obtain the neces-sary personal information, Torch thenturned to members of Congress, askingthem to intervene on the company’s behalfwith airlines or federal agencies. (AmCompl. ¶ 47.) Although the agency thatultimately became involved on Torch’s be-half was the TSA, and although the suppli-er of the database used happened to beJetBlue, the record before the Court doesnot establish that the study was inherentlyor necessarily focused on aviation-basedthreats to military base security or thatdata concerning commercial airline passen-gers was essential to advance the study’spurposes. Indeed, the official DHS Re-port found that ‘‘[w]hile one form of basesecurity may have included preventing ter-rorist attacks by air directed at militaryinstallations, the overarching purpose wasthe prevention of unauthorized or unwant-ed entry onto military bases via a varietyof forms of entry.’’ DHS Report at 5. Theprimary purpose of the study thus wassomething ‘‘other than transportation secu-rity.’’ Id. at 9.

The Court appreciates that JetBlue’s de-cision to cooperate with Torch was likelymotivated, at least in part, by a legitimateinterest in advancing efforts to reducethreats to aviation security. The fact thatthe TSA encouraged JetBlue’s involvementcould well have been persuasive, and in thewake of September 11, 2001, the potentialfor hijacked commercial airliners to beused as instruments of attack on militarybases can hardly be denied. Nonetheless,even if defendants were acting with thebest of intentions and an eye to aviationsecurity concerns, the record before theCourt does not establish as a matter of lawthat the data transfer at issue in this caseproperly implicates the field of aviationsecurity. At the very least, there is aquestion of fact about whether the com-plained of conduct implicates that field.

And as plaintiffs argue, the Court simplycannot assume that Congress intended torelieve airlines of the state law conse-quences of everything an airline might be-lieve it does for national security reasons,particularly where such conduct is neithermandated nor even permitted by any fed-eral law.

Discovery would be needed to establishwhether aviation security is the relevantfield in which to ground implied preemp-tion analysis. Accordingly, the issue of im-plied preemption cannot be resolved on aRule 12(b)(6) motion to dismiss, and allstate and common law claims other thanthat arising under the New York GeneralBusiness Law will be addressed on theirmerits.

V. Failure to State a Claim Under Stateor Common Law

In addition to arguing that plaintiffs’state and common law claims are preempt-ed, defendants argue that plaintiffs havefailed to state a cause of action for anyclaim under state law. The Court neednot address the merits of the claim raisedunder the New York General BusinessLaw and similar state statutes, as thatclaim is expressly preempted by the ADA.Each of the claims that survives preemp-tion analysis is addressed in turn below.For purposes of resolving this motion, allparties agree that New York law applies.(See Tr. of Oral Argument at 9.)

A. Breach of Contract

JetBlue is the only defendant chargedwith breach of contract in this case. Plain-tiffs allege that they made reservations tofly with JetBlue in reliance on expresspromises made by JetBlue in the compa-ny’s privacy policy. (Pl.’s Mem. at 50;Am. Compl. ¶ 93.) The substance of thecontract alleged is therefore a promise by


JetBlue not to disclose passengers’ person-al information to third parties. (Pl.’sMem. at 48.) Plaintiffs allege that JetBluebreached that promise, thereby causing in-jury. (Id. at 51.)

[17] An action for breach of contractunder New York law requires proof of fourelements: (1) the existence of a contract,(2) performance of the contract by oneparty, (3) breach by the other party, and(4) damages. Rexnord Holdings, Inc. v.Bidermann, 21 F.3d 522, 525 (2d Cir.1994).JetBlue contends that plaintiffs have failedto plead facts sufficient to establish theexistence of a contract or that they suf-fered damages. (JetBlue Mem. at 33.)

With regard to the existence of a con-tract, plaintiffs contend that JetBlue un-dertook a ‘‘self-imposed contractual obli-gation by and between [itself] and theconsumers with whom it transacted busi-ness’’ by publishing privacy policies on itswebsite or otherwise disclosing such poli-cies to its consumers. (See Am. Compl.¶ 88.) Plaintiffs maintain that ‘‘these self-imposed public assurances TTT created anobligation under the contract-of-carriageand a duty on the part of JetBlue and thepersons with whom it did business not toact in derogation of JetBlue’s privacy poli-cyTTTT’’ (Id. ¶ 38.) JetBlue counters thatits ‘‘stand-alone privacy statement’’—which‘‘could only be accessed and viewed byclicking on a separate stand-alone link’’ onthe bottom of JetBlue’s website—is not aterm in the contract of carriage. (JetBlueMem. at 32 n. 19 & 33.) It further notesin this connection that ‘‘the entire transac-tion of purchasing transportation can bedone on JetBlue’s website (or by phone orin person) without ever viewing, reading,or relying on JetBlue’s website privacystatementTTTT’’ (Id. at 32 n. 19.) Althoughplaintiffs do allege that the privacy policyconstituted a term in the contract of car-riage, they argue alternatively that a

stand-alone contract was formed at themoment they made flight reservations inreliance on express promises contained inJetBlue’s privacy policy. (See Am. Compl.¶ 38; Pl.’s Mem. at 50–51.) JetBlue positsno persuasive argument why this alterna-tive formulation does not form the basis ofa contract.

[18] JetBlue further argues that fail-ure to allege that plaintiffs read the priva-cy policy defeats any claim of reliance.(See JetBlue Reply Mem. at 25.) Al-though plaintiffs do not explicitly allegethat the class members actually read orsaw the privacy policy, they do allege thatthey and other class members relied onthe representations and assurances con-tained in the privacy policy when choosingto purchase air transportation from Jet-Blue. (Am.Compl.¶ 93.) Reliance presup-poses familiarity with the policy. It maywell be that some members of the class didnot read the privacy policy and thus couldnot have relied on it, but the issue of whoactually read and relied on the policywould be addressed more properly at theclass certification stage. For purposes ofthis motion, the Court considers an allega-tion of reliance to encompass an allegationthat some putative members of the classread or viewed the privacy policy. TheCourt recognizes that contrary authorityexists on this point, but considers the hold-ing in that case to rest on an overly nar-row reading of the pleadings. See In reNorthwest, 2004 WL 1278459, at *6 (‘‘[A]b-sent an allegation that Plaintiffs actuallyread the privacy policy, not merely thegeneral allegation that Plaintiffs ‘relied on’the policy, Plaintiffs have failed to allegean essential element of a contract claim:that the alleged ‘offer’ was accepted byPlaintiffs.’’). Accordingly, failure to specif-ically allege that all plaintiffs and classmembers read the policy does not defeat


the existence of a contract for purposes ofthis motion to dismiss.

[19] JetBlue also argues that plaintiffshave failed to meet their pleading require-ment with respect to damages, citing anabsence of any facts in the Amended Com-plaint to support this element of the claim.Plaintiffs’ sole allegation on the element ofcontract damages consists of the statementthat JetBlue’s breach of the company pri-vacy policy injured plaintiffs and membersof the class and that JetBlue is thereforeliable for ‘‘actual damages in an amount tobe determined at trial.’’ (Am.Compl.¶ 91.)In response to JetBlue’s opposition on thispoint, plaintiffs contend that the AmendedComplaint is ‘‘replete’’ with facts demon-strating how plaintiffs were damaged (Pl.’sMem. at 47), but cite to nothing more thanthe boilerplate allegation referenced aboveand another allegation in the AmendedComplaint that they were ‘‘injured’’ (seeAm. Compl. ¶ 5). At oral argument, whenpressed to identify the ‘‘injuries’’ or dam-ages referred to in the Amended Com-plaint, counsel for plaintiffs stated that the‘‘contract damage could be the loss of pri-vacy’’ (Tr. of Oral Argument at 52), ac-knowledging that loss of privacy ‘‘may’’ bea contract damage. The support for thisproposition was counsel’s proffer that hehad never seen a case that indicates thatloss of privacy cannot as a matter of lawbe a contract damage. In response to theCourt’s inquiry as to whether a furtherspecification of damages could be set forthin a second amended complaint, counselsuggested only that perhaps it could bealleged or argued that plaintiffs were de-prived of the ‘‘economic value’’ of theirinformation. Despite being offered the op-portunity to expand their claim for dam-ages, plaintiffs failed to proffer any otherelement or form of damages that theywould seek if given the opportunity toamend the complaint.

The parties argued the issue of the suffi-ciency of damage allegations under NewYork state law. Based on this Court’sreview of the cited state authorities, itseems plain that had supplemental juris-diction been declined and had the casesbrought in New York proceeded in statecourt, the contract actions would havebeen dismissed based upon state pleadingrules. See Smith v. Chase ManhattanBank, USA, N.A., 293 A.D.2d 598, 600, 741N.Y.S.2d 100 (2d Dep’t 2002) (allegation ofcontract damages consisting solely of ‘‘allto the damage of the class’’ is insufficientto support a claim for breach of contract);Gordon v. Dino De Laurentiis Corp., 141A.D.2d 435, 436, 529 N.Y.S.2d 777 (1stDep’t 1988). Neither side has addressedwhether the result would be the same ordifferent under the pleading requirementsof Rule 8 of the Federal Rules of CivilProcedure, which in fact applies to thisproceeding. See Charles A. Wright & Ar-thur R. Miller, Federal Practice and Pro-cedure § 1204 (3d ed. 1998 & Supp.2005).Even if federal pleading rules require lessspecification, the result should not be dif-ferent.

It is apparent based on the briefing andoral argument held in this case that thesparseness of the damages allegations is adirect result of plaintiffs’ inability to pleador prove any actual contract damages. Asplaintiffs’ counsel concedes, the only dam-age that can be read into the presentcomplaint is a loss of privacy. At least onerecent case has specifically held that this isnot a damage available in a breach ofcontract action. See Trikas v. UniversalCard Services Corp., 351 F.Supp.2d 37, 46(E.D.N.Y.2005). This holding naturally fol-lows from the well-settled principle that‘‘recovery in contract, unlike recovery intort, allows only for economic losses flow-ing directly from the breach.’’ Young v.U.S. Dep’t of Justice, 882 F.2d 633, 641 (2d


Cir.1989) (citations omitted); see Katz v.Dime Savings Bank, FSB, 992 F.Supp.250, 255 (W.D.N.Y.1997) (non-economicloss is not compensable in a contract ac-tion).

Plaintiffs allege that in a second amend-ed complaint, they could assert as a con-tract damage the loss of the economic val-ue of their information, but while thatclaim sounds in economic loss, the argu-ment ignores the nature of the contractasserted. Citing the hoary case of Hadleyv. Baxendale, the Second Circuit remindedthe parties to the case before it that ‘‘dam-ages in contract actions are limited tothose that ‘may reasonably be supposed tohave been in the contemplation of bothparties, at the time they made the con-tract, as the probable result of the breachof it.’ ’’ Young, 882 F.2d at 641 n. 9 (quot-ing Hadley v. Baxendale, 9 Ex. 341, 156Eng.Rep. 145 (1854)). A similarly basicprinciple of contract law is that the ‘‘pur-pose of contract damages is to put a plain-tiff in the same economic position he orshe would have occupied had the contractbeen fully performed.’’ Katz, 992 F.Supp.at 255. Plaintiffs may well have expectedthat in return for providing their personalinformation to JetBlue and paying the pur-chase price, they would obtain a ticket forair travel and the promise that their per-sonal information would be safeguardedconsistent with the terms of the privacypolicy. They had no reason to expect thatthey would be compensated for the ‘‘value’’of their personal information. In addition,there is absolutely no support for the prop-osition that the personal information of anindividual JetBlue passenger had any val-ue for which that passenger could haveexpected to be compensated. It strainscredulity to believe that, had JetBlue notprovided the PNR data en masse to Torch,

Torch would have gone to each individualJetBlue passenger and compensated himor her for access to his or her personalinformation. There is likewise no supportfor the proposition that an individual pas-senger’s personal information has or hadany compensable value in the economy atlarge.

Accordingly, plaintiffs having claimed noother form of damages apart from thosediscussed herein and having sought no oth-er form of relief in connection with thebreach of contract claim, JetBlue’s motionto dismiss the claim is granted.

B. Trespass to Property

[20, 21] Plaintiffs allege that defen-dants committed trespass to property byparticipating in the transfer of data con-taining their personal and private informa-tion. (Am.Compl.¶ 100.) Because theirclaim concerns an alleged trespass tosomething other than real property, it ismost accurately treated as a claim fortrespass to chattels.19 See generally Kro-nos, Inc. v. AVX Corp., 81 N.Y.2d 90, 95,595 N.Y.S.2d 931, 612 N.E.2d 289 (1993).To state a claim for trespass to chattelsunder New York law, plaintiffs must estab-lish that defendants ‘‘intentionally, andwithout justification or consent, physicallyinterfered with the use and enjoyment ofpersonal property in [plaintiffs’] posses-sion,’’ and that plaintiffs were therebyharmed. School of Visual Arts v. Kuprew-icz, 3 Misc.3d 278, 771 N.Y.S.2d 804, 807(N.Y.Sup.Ct.2003); see also Register.com,Inc. v. Verio, Inc., 356 F.3d 393, 404 (2dCir.2004) (‘‘A trespass to a chattel may becommitted by intentionally TTT using orintermeddling with a chattel in the posses-sion of another, where the chattel is im-paired as to its condition, quality, or val-ue.’’) (quoting Restatement (Second) of

19. Plaintiffs do not oppose this construction,as evidenced by their Corrected Omnibus Op-

position to Defendants’ Motions to Dismiss.(See Pl.’s Mem. at 51.)


Torts §§ 217(b), 218(b) (1965)) (internalquotation marks omitted); City of Amster-dam v. Daniel Goldreyer, Ltd., 882F.Supp. 1273, 1281 (E.D.N.Y.1995) (‘‘Atrespass to chattel occurs when a partyintentionally damages or interferes withthe use of property belonging to anoth-er.’’). Where the trespass alleged is to anintangible property right arising under acontract, actual injury to the claimed prop-erty interest must be shown. Kronos, 81N.Y.2d at 95, 595 N.Y.S.2d 931, 612 N.E.2d289.

[22] Preliminarily, in order to sustainthis cause of action, plaintiffs must estab-lish that they were in possession of thePNR data that was transferred to Torch.Kelman v. Wilen, 283 A.D. 1113, 131N.Y.S.2d 679, 680 (2d Dep’t 1954) (posses-sion is an essential element of a cause ofaction in trespass). Plaintiffs argue thatthe limitations placed on the use of PNRdata by the JetBlue privacy policy grantedthem continued possessory interests overtheir personal information, entitling themto pursue legal action if ever those limitsare exceeded.20 (Pl.’s Mem. at 53.) Plain-tiffs provide no legal support for this argu-ment, and the Court has serious doubts asto its validity. Although defendants raiseseveral arguments in response, none isdirectly responsive to plaintiffs’ position.In any event, the Court need not deter-mine whether plaintiffs enjoy a continuedpossessory interest in their personal data,because even assuming arguendo that theydo, plaintiffs have not established an actualinjury sufficient to sustain a claim for tres-

pass to chattels. See Kronos, 81 N.Y.2d at95, 595 N.Y.S.2d 931, 612 N.E.2d 289.

Under New York law, liability only ob-tains on this cause of action if a defendantcauses harm to ‘‘the [owner’s] materiallyvaluable interest in the physical condition,quality, or value of the chattel, or if the[owner] is deprived of the use of the chat-tel for a substantial time.’’ Kuprewicz,771 N.Y.S.2d at 807–08 (quoting Restate-ment (Second) of Torts § 218, com. e(1965)); City of Amsterdam v. Daniel Gol-dreyer, Ltd., 882 F.Supp. 1273, 1281(E.D.N.Y.1995) (‘‘A trespass to chattel oc-curs when a party intentionally damagesor interferes with the use of property be-longing to another.’’). In addition, ‘‘thedefendant must act with the intention ofinterfering with the property or withknowledge that such interference is sub-stantially certain to result.’’ Kuprewicz,771 N.Y.S.2d at 808. In this case, plain-tiffs allege rather generically that theyhave suffered ‘‘actual damages’’ or, in thealternate, ‘‘an irreparable injury for whichthere is no adequate remedy at law’’ as aresult of the data transfer. (Am. Compl.¶ 101; see also Pl.’s Mem. at 53.) They donot, however, allege that the quality orvalue of their personal information was inany way diminished as a result of defen-dants’ actions, nor do they allege any factsthat could sustain such a showing. Theonly type of harm plaintiffs allege any-where in the Amended Complaint is harmto their privacy interests, and even if theirprivacy interests were indeed infringed by

20. This argument was rejected by the In reNorthwest court which held, as a matter oflaw, that the PNRs in question were not theproperty of the class action plaintiffs. In reNorthwest, 2004 WL 1278459, at *4. Thecourt observed that the plaintiffs had volun-tarily provided Northwest with some of theinformation that was included in the PNRs,and found that the information itself may bethe plaintiffs’ property. Id. But, the court

held, ‘‘when that information was compiledand combined with other information to forma PNR, the PNR itself became Northwest’sproperty.’’ Id. As Northwest could notwrongfully take its own property, the plain-tiffs’ claim for trespass to property failed. Id.As no party briefed this particular issue withreference to New York law, the Court declinesto rest its decision on this finding of the In reNorthwest court.


the data transfer, such a harm does notamount to a diminishment of the quality orvalue of a materially valuable interest intheir personal information. Plaintiffs alsohave not been deprived of the use of theirpersonal information at any point, let alonefor a substantial period of time. See Ku-prewicz, 771 N.Y.S.2d at 807–08. Thus,plaintiffs have not established that theysuffered the type of harm that may beredressed through a claim for trespass tochattels.

C. Unjust Enrichment

[23] Plaintiffs claim that ‘‘[e]ach defen-dant was unjustly enriched by the disclo-sure of confidential information concerningJetBlue passengers.’’ (Pl.’s Mem. at 60.)In order to state a claim for unjust enrich-ment under New York law, a plaintiff mustprove that (1) the defendant was enriched,(2) the enrichment was at plaintiff’s ex-pense, and (3) the circumstances were suchthat equity and good conscience requirethe defendant to make restitution. Dol-metta v. Uintah Nat. Corp., 712 F.2d 15,20 (2d Cir.1983); Violette v. Armonk Asso-ciates, L.P., 872 F.Supp. 1279, 1282(S.D.N.Y.1995).

As a threshold matter, the claim againstTorch, Acxiom, and SRS must be dis-missed for failure to allege a legally cogni-zable relationship between plaintiffs andthose defendants. Under New York law,the cause of action for unjust enrichmentfalls under the umbrella of quasi-contract,or contract implied-in-law. Michele Pom-mier Models, Inc. v. Men Women N.Y.Model Management, Inc., 14 F.Supp.2d331, 338 (S.D.N.Y.1998), aff’d, 173 F.3d845 (2d Cir.1999) (unpublished opinion).To recover under this theory, a plaintiff

must establish that it conferred a benefiton the defendant, thereby resulting in thatdefendant’s unjust enrichment. Id. Thisrequires proof of a legally cognizable rela-tionship between the parties. Id. Critical-ly, ‘‘[i]t is not enough that the defendantreceived a benefit from the activities ofthe plaintiff; if the services were per-formed at the behest of someone otherthan the defendant, the plaintiff must lookto that person for recovery.’’ Id. Plaintiffsin this case do not allege any facts tosupport a finding of ‘‘direct dealings or anactual, substantive relationship’’ betweenthemselves and any defendant other thanJetBlue.21 See In re Motel 6 SecuritiesLitigation, 1997 WL 154011, at *7(S.D.N.Y. April 2, 1997).

[24] As to the first element in theclaim against JetBlue, plaintiffs argue thatdefendants in this case engaged in thecomplained-of conduct for their own com-mercial benefit. (Am.Compl.¶ 107.) Plain-tiffs speculate that JetBlue ‘‘received someform of remuneration from Torch or an-other party as a result of its disclosure ofinformation.’’ (Pl.’s Mem. at 61.) Howev-er, according to JetBlue, the data wasmade available to Torch for no consider-ation at the request of the TransportationSecurity Administration (JetBlue ReplyMem. at 29), and the only benefit JetBluederived was ‘‘the potential for increasedsafety on its flights and the potential toprevent the use of commercial airlines asweapons that target military bases.’’ (Jet-Blue Mem. at 39). Plaintiffs do not allegeany facts to the contrary, and as JetBluecontends, plaintiffs may not create an issueof fact for purposes of surviving a motionto dismiss simply ‘‘by asserting a ‘belief’that is supported by no reasonable inquiry,

21. Plaintiffs merely claim, in their Memoran-dum of Law, that Acxiom, SRS, and Torch‘‘each took on a quasi-contractual relation-ship with JetBlue’s aggrieved passengers

based on their disclosure and receipt of theirpersonal information from JetBlue.’’ (Pl.’sMem. at 62.)


information or fact.’’ (JetBlue ReplyMem. at 29.) Thus, plaintiffs have failedto establish that JetBlue was enriched bythe complained-of conduct.

[25] In addition, the circumstances ofthis case are not such that equity and goodconscience require JetBlue to make resti-tution to this class of plaintiffs. UnderNew York law, the granting of equitablerelief on a theory of unjust enrichmentrequires the ‘‘indispensable ingredient’’ ofan injustice as between the two partiesinvolved. Banco Espirito Santo de Inves-timento, S.A. v. Citibank, N.A., 2003 WL23018888, at *18 (S.D.N.Y. Dec. 22, 2003)(citation omitted); see also Indyk v. HabibBank Ltd., 694 F.2d 54, 57 (2d Cir.1982)(the granting of equitable relief on a theo-ry of unjust enrichment requires that theenrichment have been unjust as betweenthe two parties to the transaction). Plain-tiffs have not alleged facts to suggest thatJetBlue obtained any benefit that rightful-ly belonged to them or that they wereotherwise subjected to any injustice byvirtue of JetBlue’s conveyance of their per-sonal data to Torch. See Bugarsky v.Marcantonio, 254 A.D.2d 384, 678N.Y.S.2d 737, 738 (2d Dep’t 1998) (appel-lant was entitled to dismissal of unjustenrichment claim ‘‘as there was no show-ing that he obtained any benefit that inequity and good conscience he should nothave obtained or possessed because itrightfully belonged to another’’). To thecontrary, as plaintiffs themselves acknowl-edge, the purpose of the data transfer wasto advance a project that ‘‘arose out of adesire to prevent attacks on military in-stallations.’’ (Am.Compl.¶ 42.) Thus,even assuming arguendo that JetBlue wasenriched at plaintiffs’ expense, plaintiffshave failed to demonstrate that equity and

good conscience require restitution by Jet-Blue. For these reasons, the unjust en-richment claim as against all defendants isdismissed.

D. Declaratory Judgment

Plaintiffs seek a declaratory judgmentstating that defendants violated the Elec-tronic Communications Privacy Act, theNew York General Business Law and oth-er similar statutes listed in connection withthe deceptive practices claims, as well asplaintiffs’ common law rights against tres-pass to property, invasion of privacy,22

breach of contract, and unjust enrichment.As plaintiffs have failed to state viableclaims against any defendant, this applica-tion is denied.

CONCLUSION

For the reasons set forth above, defen-dants’ Rule 12(b)(6) motions to dismiss aregranted. The Clerk of the Court is direct-ed to enter judgment in accordance withthis Order.

SO ORDERED.

,

Brandon CLEVELAND and IsiahJackson, Plaintiffs,

v.

CAPLAW ENTERPRISES, Defendant.

No. 05–CV–6016 CJS.

United States District Court,W.D. New York.

July 25, 2005.

Background: Prospective tenants broughtaction against landlord, landlord’s rental

22. Presumably, this request is now withdrawnwith respect to the invasion of privacy claim,

which plaintiffs voluntarily dismissed.

in re jetblue airways corp. privacy litigation · 2019-08-09 · in re jetblue airways corp....

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