By Jennifer Archie and Kevin Boyle 

A California state judge has dismissed a state enforcement action against our client Delta Air Lines arising out of the alleged failure to timely post a privacy policy specific to its Fly Delta App in a manner that was reasonably accessible to smartphone users.

In what Law360 characterized as a “major blow to California’s attorney general in the first test of California’s Online Privacy Protection Act,” on May 9, 2013, Superior Court Judge Marla J. Miller concluded that Attorney General Kamala D. Harris’ complaint failed because the federal Airline Deregulation Act (“ADA”) completely pre-empts the State’s attempted consumer protection enforcement action against an air carrier.  The ADA provides that a State cannot “enact or enforce a law … related to a price, route, or service of an air carrier.”  49 U.S.C. §41713(b)(1).

Additional coverage on the decision is available from Bloomberg and Law360.

The key briefs in the matter are here, here and here.

The Attorney General’s press release announcing the lawsuit is available here

We will post the transcript and decision when available.