Today was the oral argument for Northwest v. Ginsberg.
See my post TALKING POINTS: Justices Hear Arguments In “Frequent Flier Complainer” Case Today! for my review of the case.

Here are some of my favorite quotes (with MY emphasis in bold added) from the oral argument transcript found here.

  • JUSTICE KAGAN: I guess I don’t understand that, Mr. Clement [Northwest’s counsel], because I always thought that the way these agreements worked were there were agreements that if I flew a certain number of miles on your plan, I was going to get a free ticket. And –and it wasn’t a gift that I was getting a free ticket, it was because I did something, I flew a certain number of miles. So that there was an exchange with value on both sides.


  • JUSTICE KAGAN: I just don’t see why that would make sense. Because if I knew that it was really up to you to give me the free ticket, maybe I was willing to get it and maybe I wasn’t. I don’t think that I’d be spending all this time in the air on your planes. You know, I’d find another company that actually gave me the free ticket.


  • JUSTICE BREYER: That’s right. All right. But now the question I have, which is, I think, for anyone who wants to answer it, particularly the government. I absolutely agree with you that –that a free market in price is at the heart of the Deregulation Act. Given. I also think frequent flyer programs are simply price discounts. Given. I also think that if you don’t have contracts, you can’t have free markets. Given. But I also think the State cannot, under the guise of contract law, regulate the prices of airlines. If you allow that, you’re going to have worse than we ever had. It’ll be 50 different systems, all right?


  • JUSTICE SCALIA: But the whole purpose of the ADA was to preempt State laws. I mean, I can understand applying that presumption to other statutes which say nothing about preemption. The whole purpose of the ADA was to deregulate airlines, was to say there was going to be no Federal regulation. Let the free market handle it and there be will be no State regulation.


  • JUSTICE ALITO: May I ask you a question about something slightly different? An amicus brief submitted in support of your position by California and some other States points out at some length that there are now a lot of frequent flyer programs in which a lot of miles are earned by making purchases other than for –for flights and in which miles can also be spent for things other than flights. Do we have to worry about that in this case?


  • JUSTICE SCALIA: Why does –it relates to prices. Even if you get credit for miles from staying in certain hotels, it still has the effect of lowering the price for your airline ticket. And likewise, if you can use your frequent flyer miles to get cheaper hotel rooms, that effectively lowers the price of your airline ticket, doesn’t it? I mean, it doesn’t seem to me to make any difference whether the only thing you get from the frequent flyer mileage is, you know, is airfares or other goodies. They are all price.


  • JUSTICE GINSBURG: Your point is that you can get frequent flyer miles by purchases other than airplane transportation?
    • MS. ROSENBAUM [Ginsberg’s counsel]: Yes. And then also use them for purposes other than airline transportation. Reportedly, more miles are earned now on the ground than on flight, through means other than travel than actually through —
    • JUSTICE BREYER: I didn’t see anything in the complaint about anything other than airlines.


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