Case Tried By Twin Cities Firm Heads To U.S. Supreme Court

Case Tried By Twin Cities Firm Heads To U.S. Supreme Court

The U.S. Supreme Court will hear a case regarding whether airlines should be protected from lawsuits after reporting security threats that turn out to be false alarms; Fafinski Mark & Johnson represents the airline in the case.

While much attention is being given to the latest U.S. Supreme Court decisions regarding gay marriage and the Voting Rights Act, the high court also recently agreed to hear a case that was tried by Eden Prairie-based law firm Fafinski Mark & Johnson.

At the heart of the case is whether an airline should be protected from lawsuits after reporting a security threat that turns out to be a false alarm.

In 2005, William Hoeper, a former pilot for Air Wisconsin Airlines Corporation, sued his former employer, alleging defamation, among other things. Hoeper, after repeatedly failing a test required for him to fly a certain type of aircraft, was given a final opportunity to pass it, knowing he would likely lose his job if he failed, according to court documents. During the test, Hoeper allegedly grew angry and cursed at the assessment’s administrator.

Hoeper was then scheduled to take a passenger flight to Denver. He was trained to carry a firearm in the cockpit, and Air Wisconsin officials were unsure if he had a gun with him, according to court documents.

An Air Wisconsin official notified the Transportation Security Administration (TSA) that Hoeper might be a security threat, and TSA officials removed him from the plane, which was called back to the gate, and questioned him, according to court documents. Hoeper, who was released and took a different flight later that day, sued the airline for defamation.

The Aviation and Transportation Security Act, which was passed in the wake of the September 11, 2011 terrorist attacks, granted broad immunity to airlines from lawsuits when they voluntarily report suspicious activities, except for reports made with “actual knowledge” that they are false or made with “reckless disregard” for whether they’re true.

A Colorado court ruled in favor of Hoeper on his defamation claim, finding that Air Wisconsin made one or more statements “knowing that they were false, or so recklessly as to amount to a willful disregard for the truth,” and said that the company was not immune from the lawsuit. Hoeper was awarded more than $1 million in a jury trial.

Fafinski Mark & Johnson began representing Air Wisconsin in the case in 2007, first bringing it to the Colorado Court of Appeals, which upheld the original verdict, and then the Colorado Supreme Court, which also upheld the lower court's ruling.

When petitioning the U.S. Supreme Court, the firm brought on the help of Washington, D.C.-based Sidley Austin LLP, due largely to its “significant experience” arguing cases before the high court, Fafinski founding shareholder Donald Mark, Jr., told Twin Cities Business in a Wednesday phone interview.

Subsequently, the U.S. Solicitor General Donald Verrilli agreed to join Air Wisconsin in urging the U.S. Supreme Court to take up the case, and the high court decided last week that it will consider the case. Verrilli argued in court papers that the lower courts’ decision “may chill other air carriers from timely providing the government with critical information about threats to aviation security.”

To have a case heard before the U.S. Supreme Court is quite rare: The high court receives approximately 10,000 petitions each year and grants and hears oral arguments in only about 75 to 80 of them, according to its website.

Mark, who has worked on the case since 2007, said he believes a key reason the U.S. Supreme Court decided to hear the case is that it “affects anyone who has ever flown and has to do with anyone riding on a commercial aircraft.”

The firm will work on writing a brief over the summer while the court is in recess, and Mark said he expects the court to provide a schedule for oral arguments after it reconvenes in the fall. The timing of the Supreme Court’s decision is unknown, but “my sense is they’d want to decide sooner rather than later,” because “it’s a very important issue,” he added.