Flying Into Greater Uncertainty Of FAA Preemption

Law360, New York (March 27, 2013, 12:36 PM EDT) -- Announcing a “nuanced” approach to Federal Aviation Act of 1958 preemption, the Ninth Circuit has further narrowed the scope of federal preemption in the aviation field. In this article, we summarize the new framework articulated in Gilstrap v. United Airlines and discuss its implications on the litigation horizon.

We conclude that the new standard promotes more uncertainty than it resolves, vests plaintiffs with the strategic advantage of deciding when to invoke or avoid federal preemption of the standard of care and invites gamesmanship through artful pleading.

The Backdrop — Federal Preemption...
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