Adina Rosenbaum ’03 argues before SCOTUS in Northwest, Inc. v. Ginsberg

Earlier in December, Adina Rosenbaum ’03 went before the Supreme Court to argue Northwest, Inc. v. Ginsberg. Rosenbaum was arguing on behalf of Rabbi S. Binyomin Ginsberg, who sued Northwest Airlines after his “platinum elite” frequent flyer status was revoked. Ginsberg contended that Northwest’s termination of his membership was a breach of contract committed in an attempt to reduce the cost of the expensive frequent flyer program before the airline merged with Delta Air Lines. Northwest claimed that they had cancelled his status due to his frequent complaints and other abuses of the program.

Adina Rosenbaum '03

The arguments before the Supreme Court addressed the question of whether the Airline Deregulation Act (ADA) of 1978 preempts Ginsberg’s contract claim based on an implied covenant of good faith and fair dealing. The ADA, which removed governmental control of airline fares and routes, thus allowing for market competition, pre-empts government laws and policies related to fares and routes.

Rosenbaum argued that Ginsberg’s claim was not preempted by the ADA because a covenant of good faith claim is about seeking to give effect to the parties’ bargain, and the Court had already held (in an earlier case) that cases seeking to give effect to contract terms were not preempted. Additionally, Rosenbaum argued that cases just about membership in a frequent flyer program do not relate to prices, routes, or services because people can both earn and spend miles in ways besides flying.

Paul Clement, a partner at Bancroft and former solicitor general under President George W. Bush, argued for the airline. Although Rosenbaum was going up against one of the most experienced Supreme Court litigators currently active, SCOTUSblog described Rosenbaum’s brief in the case as a “masterful defense” that was “powerfully argued.” A ruling in the case is expected in June.

This is not the first time Rosenbaum has argued before the Supreme Court; in 2008, Rosenbaum appeared before the Court to argue Taylor v. Sturgell. In that case Rosenbaum argued that her client's request under the Freedom of Information Act could not be denied simply because an earlier request for disclosure of the same documents by a different party had been unsuccessful in court. Rosenbaum, who had argued against the doctrine of preclusion by “virtual representation,” won the case in a rare unanimous decision from the Supreme Court. 

Posted on December 20, 2013