States may enforce laws prohibiting deceptive trade practices through tort actions for fraudulent misrepresentation because such actions coexist with the Federal Aviation Act.
A passenger brought a common-law action for fraudulent misrepresentation against an air carrier after being denied boarding due to overbooking. The Court of Appeals held that the action must be stayed pending a determination by the Civil Aeronautics Board as to whether the carrier's overbooking practices were deceptive under the Federal Aviation Act. The Supreme Court holds that a stay is inappropriate because the statutory scheme preserves common-law remedies unless they are repugnant to the statute. Because the Board lacks the power to immunize carriers from common-law liability, and the standards for misrepresentation are within the conventional competence of the courts, the case may proceed.
At page 305 Court competence to adjudicate fraudulent misrepresentation claims24 citing cases“the standards to be applied in an action for fraudulent misrepresentation are well within the conventional competence of the courts, and the judgment of a technically expert body is not likely to be helpful in the application of these standards_”
- United States v. Philip Morris USA, No. 1999-2496 (D.D.C. June 1, 2011).published (The standards to be applied in an action for fraudulent misrepresentation are within the conventional competence of the courts . . . .)
- United States v. Guillermo A. Alemany Rivera, United States of Am. v. Edgar M. Stella Perez, 781 F.2d 229 (1st Cir. 1985).published (The standards to be applied in an action for fraudulent misrepresentation are well within the conventional competence of the courts, and the judgment of a technically expert body is not likely to be helpful in the appl…)
- Blue Cross of California, Inc. v. Superior Court, 180 Cal. App. 4th 1237 (Cal. Ct. App. 2010).published(Farmers, supra, 2 Cal.4th at p. 390 , quoting Nader v. Allegheny Airlines (1976) 426 U.S. 290, 305-306 [ 48 L.Ed.2d 643 , 96 S.Ct. 1978 ].) By failing to say which issues the trial court purportedly should have referred to the DOI and DMH…
- Vill. of Itasca v. Vill. of Lisle, 817 N.E.2d 160 (Ill. App. Ct. 2d Dist. 2004).published Ed. 2d 643, 656 , 96 S. Ct. 1978, 1987 (1976).
- Adams v. Liberty Mut. Ins., 799 N.E.2d 130 (Mass. App. Ct. 2003).published“The standards to be applied in an action for fraudulent misrepresentation are within the conventional competence of the courts, and the judgment of a technically expert [administrative] body is not likely to be helpful…”
- Crain v. Lucent Tech., Inc., 739 N.E.2d 639 (Ill. App. Ct. 5th Dist. 2000).published Ed. 2d 643, 655 , 96 S. Ct. 1978, 1987 (1976).
- Debruce Grain, Inc., a Missouri Corp. v. Union Pac. R.R. Co., a Utah Corp., 149 F.3d 787 (8th Cir. 1998).published(primary jurisdiction not applied because action for misrepresentation did not require expertise in the regulated industry)
- Sprint Corp. v. Evans, 846 F. Supp. 1497 (M.D. Ala. 1994).published(holding that referral of an action for fraudulent misrepresentation to the Civil Aeronautics Board was not required)
- Shaw v. Rolex Watch U.S.A., Inc., 776 F. Supp. 128 (S.D.N.Y. 1991).published(referral of misrepresentation issue to the administrative agency not justified by the interest in informing the court’s final decision with the expertise of that agency)
- Goya Foods, Inc. v. Tropicana Prods., Inc., 846 F.2d 848 (2d Cir. 1988).published
Show 12 more citing cases
- Gallipo v. City of Rutland, 2005 VT 83, 882 A.2d 1177.published
- Trans-Allied Audit Co. v. Ram Trans, Inc., 760 F. Supp. 848 (D. Colo. 1989).published
- Delta Traffic v. Transtop Inc., 776 F. Supp. 13 (D. Mass. 1989).published
- Halsey v. Fedcap Rehab. Servs., Inc., 95 F.4th 1 (1st Cir. 2024).published
- Stanley v. Capital One Fin. Corp., No. 7:19-cv-00337 (W.D. Va. Jan. 8, 2020).
- Levesque v. Cent. Maine Power Co., No. CUMbcd-cv-18-41 (Me. Super. Ct Feb. 22, 2019).unpublished
- In Re Long Distance Telecomm. Litig.. Charles Kaplan v. itt-u.s. Transmission Sys., Inc., Roger Lee v. W. Union Tel. Co., 831 F.2d 627 (6th Cir. 1987).published
- Dana Corp. v. Blue Cross & Blue Shield Mut. Of N. Ohio, 900 F.2d 882 (6th Cir. 1990).published
- In Re McLean Indus., Inc., 70 B.R. 852 (Bankr. S.D.N.Y. 1987).published
- Assiniboine & Sioux Tribes of the Fort Peck Indian Reservation v. Norton, 527 F. Supp. 2d 130 (D.D.C. 2007).published
- United States v. 43.47 Acres of Land, 45 F. Supp. 2d 187 (D. Conn. 1999).published
- Dana Corp. v. Blue Cross & Blue Shield Mut. of N. Ohio, 900 F.2d 882 (6th Cir. 1990).published
At page 304 Determining primary jurisdiction based on technical expertise18 citing cases“raises a question of the validity of a rate or practice included in a tariff filed with an agency”
- Silva v. Todisco Servs., Inc., 34 Mass. L. Rptr. 167 (Suffolk Mass. Super. Ct. 2017).publishedThis doctrine “has particular applicability when ‘an action raises a question of the validity of an agency practice ... or when the issue in litigation involves ’’technical questions of fact uniquely within the expertise and experience of…
- Murby v. Child.'s Hosp. Corp., 33 Mass. L. Rptr. 335 (Mass. Super. Ct. 2016).publishedThis doctrine “has particular applicability when ‘an action raises a question of the validity of an agency practice ... or when the issue in litigation involves ’’technical questions of fact uniquely within the expertise and experience of…
- Fernandes v. Attleboro Hous. Auth., 20 N.E.3d 229 (Mass. 2014).publishedMurphy v. Administrator of the Div. of Personnel Admin., supra at 221, quoting Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 304 (1976).
- Tierney v. John Hancock Mut. Life Ins., 791 N.E.2d 925 (Mass. App. Ct. 2003).publishedCompare Murphy v. Administrator of the Div. of Personnel Admn., 377 Mass. 217 , 221 (1979), quoting from 3 Davis, Administrative Law § 19.01, at 5 (1958) (the court “should not act upon subject matter that is peculiarly within the agency’s…
- Farmers Ins. Exch. v. Superior Court, 826 P.2d 730 (Cal. 1992).published Like the statute at issue in Abilene, supra, 204 U.S. 426 , the relevant section of the Federal Aviation Act ( 49 U.S.C. § 1381 ) provided, "`[n]othing contained in this chapter shall in any way abridge or alter the remedies now existing a…
- Leahy v. L. 1526, Am. Fed. of St., Cnty., & Mun. Emp., 504 N.E.2d 602 (Mass. 1987).published
- Nelson v. Blue Shield of Massachusetts, Inc., 387 N.E.2d 589 (Mass. 1979).published
- People v. Port Distrib. Corp., 114 A.D.2d 259 (N.Y. App. Div. 1986).published
- Leahy v. Local 1526, Am. Fed'n of State, Cnty., & Mun. Employees, 504 N.E.2d 602 (Mass. 1987).published
- Shell Oil Co. v. Nelson Oil Co., 627 F.2d 228 (Temp. Emerg. Ct. App. 1980).published
Show 8 more citing cases
- Carriers Traffic Serv., Inc. v. Anderson, Clayton & Co., & United States of Am. & Interstate Com. Comm'n, Inman Freight Sys., Inc. & Jim S. Green, Tr. v. Boise Cascade Corp., & United States of Am. & Interstate Com. Comm'n, Orscheln Bros. Truck Lines, Inc., Barry S. Schermer, Tr., Assignor, & Carriers Traffic Serv., Inc., Assignee,plaintiffs/petitioners-Appellants v. Cooper Indus., Inc., & United States of Am. & Interstate Com. Comm'n, 881 F.2d 475 (7th Cir. 1989).published
- Carriers Traffic Serv., Inc. v. Anderson, Clayton & Co., 881 F.2d 475 (7th Cir. 1989).published
- West Coast Truck Lines, Inc., & Delta Traffic Serv., Inc. v. Weyerhaeuser Co. Marine Lumber Co., 893 F.2d 1016 (9th Cir. 1990).published
- Verizon New York, Inc. v. Global NAPS, Inc., 463 F. Supp. 2d 330 (E.D.N.Y. 2006).published
- Young Soon Oh v. AT & T Corp., 76 F. Supp. 2d 551 (D.N.J. 1999).published
- Heritage Healthcare v. Beacon Mut. Ins., 02-7016 (r.I.super. 2005), No. 02-7016 (Sup. Ct. R.I. Aug. 29, 2005).unpublished
- Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 562 F. Supp. 175 (N.D.N.Y. 1983).published
- CSX Transp., Inc. v. Atl. Kraft Corp., 680 F. Supp. 671 (S.D.N.Y. 1988).published
At page 303 Primary jurisdiction promoting agency uniformity and consistency15 citing cases“promoting proper relationships between the courts and administrative agencies”
- Quesada v. Herb Thyme Farms, Inc., 361 P.3d 868 (Cal. 2015).published(See generally Nader v. Allegheny Airlines (1976) 426 U.S. 290, 303-304 [ 48 L.Ed.2d 643 , 96 S.Ct. 1978 ]; Farmers Ins.
- Lumbermens Mut. Cas. Co. v. Workers' Comp. Trust Fund, 36 N.E.3d 594 (Mass. App. Ct. 2015).published“The doctrine of primary jurisdiction ... ‘is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.’ ” Murphy v. Administrator of the Div. of Personnel Admin…
- Staveley v. City of Lowell, 882 N.E.2d 362 (Mass. App. Ct. 2008).publishedWe note that both doctrines serve the same purpose, that is, ‘promoting proper relationships between the courts and administrative agencies.’ Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 303 (1976), quoting United States v. Western Pac.
- Molly A. v. Comm'r of the Dep't of Mental Retardation, 867 N.E.2d 350 (Mass. App. Ct. 2007).published“promoting proper relationships between the courts and administrative agencies”
- Lincoln v. Pers. Adm'r of the Dep't of Pers. Admin., 432 Mass. 208 (2000).published“promoting proper relationships between the courts and administrative agencies”
- Cohasset Heights, Ltd. v. Conservation Comm'n, 8 Mass. L. Rptr. 667 (Mass. Super. Ct. 1998).publishedCo., 392 Mass. 876, 879 (1984), quoting Nader v. Allegheny Airlines, 426 U.S. 290, 303-04 (1976).
- Weitzel v. Travelers Ins. Companies, 627 N.E.2d 926 (Mass. 1994).published Id. at 220-221 , quoting Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 303 (1976).
- Wiginton v. Pac. Credit Corp., 634 P.2d 111 (Haw. App. 1981).published
- Casey v. Massachusetts Elec. Co., 467 N.E.2d 1358 (Mass. 1984).published
- Murphy v. Adm'r of the Div of Pers. Admin., 386 N.E.2d 211 (Mass. 1979).published
Show 5 more citing cases
- Hartford Accident & Indem. Co. v. Comm'r of Ins., 551 N.E.2d 502 (Mass. 1990).published
- Talei v. Pan Am. World Airways, 132 Cal. App. 3d 904 (Cal. Ct. App. 1982).published
- Kartell v. Blue Shield of Massachusetts, Inc., 425 N.E.2d 313 (Mass. 1981).published
- Liab. Investigative Fund Effort, Inc. v. Med. Malpractice Jt. Underwriting Ass'n, 569 N.E.2d 797 (Mass. 1991).published
- Murphy v. Adm'r of the Div. of Pers. Admin., 386 N.E.2d 211 (Mass. 1979).published
At page 299 Conflict between statutory scheme and common law remedies15 citing cases“irreconcilable conflict between the statutory scheme and the persistence of common-law remedies.”
- Bradshaw v. Am. Airlines, 123 F.4th 1168 (10th Cir. 2024).published“[W]e are not faced with an irreconcilable conflict between the statutory scheme and the persistence of common-law remedies”
- FTC v. Credit Bureau Ctr., LLC, No. 18-3310 (7th Cir. Aug. 21, 2019).publishedCo. v. Abilene Cotton Oil Co., 204 U.S. 426, 446 (1907); accord Adams Express Co. v. Croninger, 226 U.S. 491, 507 (1913); Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 299 (1976); Am. Tel. & Tel.
- McCarthy Fin., Inc. v. Premera, 328 P.3d 940 (Wash. Ct. App. 2014).published Nader, 426 U.S. at 299, 305 .
- Beckermeyer v. AT&T Wireless, 69 Pa. D. & C.4th 225 (2004).publishedCf. Nader v. Allegheny Airlines, 426 U.S. 290, 299-300 (1976); (“There is no board requirement that air carriers engage in over booking or that they fail to disclose that they do so.”).
- Spielholz v. Superior Court of Los Angeles Cty., 86 Cal. App. 4th 1366 (Cal. Ct. App. 2001).published(See Nader v. Allegheny Airlines (1976) 426 U.S. 290, 299-300 [ 96 S.Ct. 1978, 1984-1985 , 48 L.Ed.2d 643 ], discussed post.) Based on the foregoing, we conclude that a claim that does not directly challenge the rate but directly challenge…
- Wise v. Pac. Gas & Elec. Co., 77 Cal. App. 4th 287 (Cal. Ct. App. 1999).published Exchange, supra, 2 Cal.4th at pp. 388-389, 401-402, citing Nader v. Allegheny Airlines (1976) 426 U.S. 290, 299, 302-304 [ 96 S.Ct. 1978 , 48 L.Ed.2d 643 ] (Nader); Nader v. Allegheny Airlines, Inc. (D.C.
- Farmers Ins. Exch. v. Superior Court, 826 P.2d 730 (Cal. 1992).published Like the statute at issue in Abilene, supra, 204 U.S. 426 , the relevant section of the Federal Aviation Act ( 49 U.S.C. § 1381 ) provided, "`[n]othing contained in this chapter shall in any way abridge or alter the remedies now existing a…
- People v. W. Airlines, Inc., 155 Cal. App. 3d 597 (Cal. Ct. App. 1984).published
- Am. Express Co. v. Teitel, 119 Misc. 2d 822 (N.Y. City Civ. Ct. 1983).published
- Baltimore Bank for Cooperatives v. Farmers Cheese Coop. & Commonwealth of Pennsylvania Milk Mktg. Bd., 583 F.2d 104 (3d Cir. 1978).published
Show 2 more citing cases
- In Re Long Distance Telecomm. Litig.. Charles Kaplan v. itt-u.s. Transmission Sys., Inc., Roger Lee v. W. Union Tel. Co., 831 F.2d 627 (6th Cir. 1987).published
- Crump v. Worldcom, Inc., 128 F. Supp. 2d 549 (W.D. Tenn. 2001).published
At page 300 Coexistence of common law claims and regulatory authority9 citing casesstating “any impact on rates that may result from the imposition of tort liability or from practices adopted by a carrier to avoid such liability would be merely incidental
- People Ex Rel. Harris v. Delta Air Lines, Inc., 247 Cal. App. 4th 884 (Cal. Ct. App. 2016).publishedApp. § 1506 [now 49 U.S.C. § 40120 (c)].)] As a result, the States were able to regulate intrastate airfares (including those offered by interstate air carriers) [(see, e.g., California v. CAB (1978) 189 U.S. App.D.C. 176, 178 [ 581 F.2d 9…
- Pac. Bell Wireless, LLC v. Pub. Utils. Comm'n, 140 Cal. App. 4th 718 (Cal. Ct. App. 2006).publishedWe thus do not agree with those commenters who allege that, for consumer protection claims, any damage award or damage calculation, including any refund or rebate, is necessarily a ruling on the reasonableness of the price or the functiona…
- Am. Tel. & Tel. Co. v. Cent. Off. Tel., Inc., 524 U.S. 214 (1998).published More akin to this case is Nader v. Allegheny Airlines, Inc., 426 U. S. 290, 300 (1976), in which we held that a common-law tort action for fraudulent misrepresentation against a federally regulated air carrier could "coexist" with the Fede…
- Vail v. Pan Am Corp., 616 A.2d 523 (N.J. Super. Ct. App. Div. 1992).published Id. at ___, 112 S.Ct. at 2034 , 119 L.Ed. 2d at 164 ; Nader v. Allegheny Airlines, Inc., 426 U.S. 290, 300 , 96 S.Ct. 1978, 1985 , 48 L.Ed. 2d 643, 652 (1976).
- Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992).published C. 176, 178, 581 F. 2d 954, 956 (1978), cert. denied, 439 U. S. 1068 (1979), and to enforce their own laws against deceptive trade practices, see Nader v. Allegheny Airlines, Inc., 426 U. S. 290, 300 (1976).
- Farmers Ins. Exch. v. Superior Court, 826 P.2d 730 (Cal. 1992).published Like the statute at issue in Abilene, supra, 204 U.S. 426 , the relevant section of the Federal Aviation Act ( 49 U.S.C. § 1381 ) provided, "`[n]othing contained in this chapter shall in any way abridge or alter the remedies now existing a…
- People v. W. Airlines, Inc., 155 Cal. App. 3d 597 (Cal. Ct. App. 1984).published
- Est. of Pearson v. Interstate Power & Light Co., 700 N.W.2d 333 (Iowa 2005).published
- Odynocki v. Delta Air Lines Inc, No. 2:24-cv-02341 (E.D. La. Feb. 11, 2025).
At page 298 Determining board's power versus common-law remedies5 citing cases“a common-law right, even absent a savings clause, is not to be abrogated 'unless it be found that the preexisting right is so repugnant to the statute that the survival of such right' would in effect deprive the subsequent statute of its efficacy”
- People of the State of Illinois v. Outboard Marine Corp., Inc., 680 F.2d 473 (7th Cir. 1982).published “a common-law right, even absent a savings clause, is not to be abrogated 'unless it be found that the preexisting right is so repugnant to the statute that the survival of such right' would in effect deprive the subsequ…”
- Hirsch v. Am. Airlines, 160 Misc. 2d 272 (N.Y. City Civ. Ct. 1993).published(Matter of Grand Jury Subpoenas, supra, 72 NY2d, at 311 ; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3211:ll.) The Federal Aviation Act of 1958, as amended (49 USC, Appendix § 1301 et seq.), conferred upon th…
- Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992).published C. 176, 178, 581 F. 2d 954, 956 (1978), cert. denied, 439 U. S. 1068 (1979), and to enforce their own laws against deceptive trade practices, see Nader v. Allegheny Airlines, Inc., 426 U. S. 290, 300 (1976).
- Farmers Ins. Exch. v. Superior Court, 826 P.2d 730 (Cal. 1992).published “`[n]othing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies”
- Krueger v. Mitchell, 332 N.W.2d 733 (Wis. 1983).published
At page 302 Board jurisdiction and consumer right to initiate proceedings4 citing cases[I]ndividual consumers are not even entitled to initiate proceedings under § [41712]
- Rudolph v. United Airlines Holdings, Inc., 519 F. Supp. 3d 438 (N.D. Ill. 2021).published([I]ndividual consumers are not even entitled to initiate proceedings under § [41712])
- S. California Chapter of Associated Builders & Contractor Inc. v. California Apprenticeship Council, 841 P.2d 1011 (Cal. 1992).published(fact that individual consumers not entitled to initiate proceeding before administrative agency not determinative)
- Farmers Ins. Exch. v. Superior Court, 826 P.2d 730 (Cal. 1992).published Like the statute at issue in Abilene, supra, 204 U.S. 426 , the relevant section of the Federal Aviation Act ( 49 U.S.C. § 1381 ) provided, "`[n]othing contained in this chapter shall in any way abridge or alter the remedies now existing a…
- Subramanyam v. KLM Royal Dutch Airlines, No. 2:20-cv-11296 (E.D. Mich. Apr. 23, 2021).
96 S. Ct. at 1984 Reviewing agency deference regarding rate reasonableness3 citing cases
- G. & T. Terminal Packaging Co., Inc. & Anthony Spinale v. Consol. Rail Corp., 830 F.2d 1230 (3d Cir. 1987).published
- Allnet Commc'n Serv., Inc. v. Nat'l Exch. Carrier Ass'n, Inc., a Delaware Corp., 965 F.2d 1118 (D.C. Cir. 1992).published
- Kaplan v. ITT-U.S. Transmission Sys. Inc., 589 F. Supp. 729 (E.D.N.Y. 1984).published
48 L. Ed. 2d at 655 cited at this page2 citing cases
- Crawford v. Univ. of North Carolina, 440 F. Supp. 1047 (M.D.N.C. 1977).published
- Feingold v. Bell of Pennsylvania, 383 A.2d 791 (Pa. 1977).published
At page 292 Whether tort action must stay pending board determination3 citing cases“We hold that under the circumstances of this case a stay pending reference is inappropriate.”
- Krukas v. Aarp, No. 2018-1124 (D.D.C. Mar. 17, 2019).publishedThe Supreme Court’s decision in Nader v. Allegheny Airlines, 426 U.S. 290, 292 (1976), well illustrates this point.
- Tenore v. AT&T Wireless Servs., 962 P.2d 104 (Wash. 1998).published Nader, 426 U.S. at 292-95, 304-05 .
48 L. Ed. 2d at 656 cited at this page1 citing case
- Casey v. Pub. Serv. Comm'n, 457 S.E.2d 543 (W. Va. 1995).publishedAfter all, as one court noted when discussing the jurisdiction of the FCC, courts defer to the administrative agency when “the disputed issue ‘involves technical questions of fact uniquely within the expertise and experience of an agency.’…
96 S. Ct. at 1988 cited at this page1 citing case
- Gelb v. Am. Tel. & Tel. Co., 813 F. Supp. 1022 (S.D.N.Y. 1993).publishedNader, 426 U.S. at 306 , 96 S.Ct. at 1988 (emphasis added).
96 S. Ct. at 1978 cited at this page1 citing case
- Walt Shinault v. Am. Airlines, Inc., 936 F.2d 796 (5th Cir. 1991).publishedHingson v. Pacific Southwest Airlines, 743 F.2d 1408, 1411-12 (9th Cir.1984); Nader v. Allegheny Airlines, 512 F.2d 527, 537 (D.C.Cir.1975), rev’d on other grounds, 426 U.S. 290 , 96 S.Ct.1978, 48 L.Ed.2d 643 (1976).
At page 293 time. He was informed that all seats on the flight were occupied and that he, like several other passengers who had arrived shortly before him, could not be…1 citing case
- Stone v. Cont'l Airlines, 10 Misc. 3d 811 (N.Y. City Civ. Ct. 2005).publishedThe United States Supreme Court, addressing an instance in which consumer advocate Ralph Nader was “bumped” from a flight, described overbooking as “a common industry practice, designed to ensure that each flight leaves with as few empty s…
At page 306 “within the conventional competence of the courts, and the judgment of a technically expert body is not likely to be helpful in the application of these standards to the facts of the particular case,”1 citing case
- Porr v. NYNEX Corp., 230 A.D.2d 564 (N.Y. App. Div. 2d Dep't 1997).publishedIndeed, the PSC’s rate-approving procedures and the resulting tariffs are matters of public record, so that the consumers’ "knowledge of the lawful rate is conclusively presumed” (Kansas S. Ry. v Carl, 227 US 639, 653 ; see also, Maislin I…
Other citing cases
- Skoller v. Blue Cross-Blue Shield of Greater New York, 584 F. Supp. 288 (S.D.N.Y. 1984).published
v.
Allegheny Airlines, Inc.
Lead Opinion
delivered the opinion of the Court.
In this case we address the question whether a common-law tort action based on alleged fraudulent misrepresentation by an air carrier subject to regulation by the Civil Aeronautics Board (Board) must be stayed pending reference to the Board for determination whether the practice is “deceptive” within the meaning of § 411 of the Federal Aviation Act of 1958, 72 Stat. 769, 49 U. S. C. § 1381. We hold that under the circumstances of this case a stay pending reference is inappropriate.
I
The facts are not contested. Petitioner agreed to make several appearances in Connecticut on April 28, 1972, in support of the fundraising efforts of the Connecticut Citizen Action Group (CCAG), a nonprofit public interest organization. His two principal appearances were to be at a noon rally in Hartford and a later address at the Storrs campus of the University of Connecticut. On April 25, petitioner reserved a seat on respondent’s flight 864 for April 28. The flight was scheduled to leave Washington, D. C., at 10:15 a. m. and to arrive in Hartford at 11:15 a. m. Petitioner’s ticket was purchased from a travel agency on the morning of the flight. It indicated, by the standard “OK” notation, that the reservation was confirmed.
Petitioner arrived at the boarding and check-in area approximately five minutes before the scheduled depar[*293]ture time. He was informed that all seats on the flight were occupied and that he, like several other passengers who had arrived shortly before him, could not be accommodated. Explaining that he had to arrive in Hartford in time for the noon rally, petitioner asked respondent’s agent to determine whether any standby passengers had been allowed to board by mistake or whether anyone already on board would voluntarily give up his or her seat. Both requests were refused. In accordance with respondent’s practice, petitioner was offered alternative transportation by air taxi to Philadelphia, where connections could be made with an Allegheny flight scheduled to arrive in Hartford at 12:15 p. m. Fearing that the Philadelphia connection, which allowed only 10 minutes between planes, was too close, petitioner rejected this offer and elected to fly to Boston, where he was met by a CCAG staff member who drove him to Storrs.
Both parties agree that petitioner’s reservation was not honored because respondent had accepted more reservations for flight 864 than it could in fact accommodate. One hour prior to the flight, 107 reservations had been confirmed for the 100 seats actually available. Such overbooking is a common industry practice, designed to ensure that each flight leaves with as few empty seats as possible despite the large number of “no-shows” — reservation-holding passengers who do not appear at flight time. By the use of statistical studies of no-show patterns on specific flights, the airlines attempt to predict the appropriate number of reservations necessary to fill each flight. In this way, they attempt to ensure the most efficient use of aircraft while preserving a flexible booking system that permits passengers to cancel and change reservations without notice or penalty. At times the practice of overbooking results[*294] in oversales, which occur when more reservation-holding passengers than can be accommodated actually appear to board the flight. When this occurs, some passengers must be denied boarding (“bumped”)- The chance that any particular passenger will be bumped is so negligible that few prospective passengers aware of the possibility would give it a second thought. In April 1972, the month in which petitioner’s reservation was dishonored, 6.7 confirmed passengers per 10,000 enplanements were denied boarding on domestic flights.[1] For all domestic airlines, oversales resulted in bumping an average of 5.4 passengers per 10,000 enplanements in 1972, and 4.6 per 10,000 enplanements in 1973.[2] In domestic operations respondent oversold 6.3 seats per 10,000 enplanements in 1972 and 4.5 seats per 10,000 enplanements in 1973.[3] Thus, based on the 1972 experience of all domestic airlines, there was only slightly more than one chance in 2,000 that any particular passenger would be bumped on a given flight.[4] Nevertheless, the total number of confirmed ticket holders denied seats is quite substantial, numbering over 82,000 passengers in 1972 and about 76,000 in 1973.[5]
Board regulations require each airline to establish priority rules for boarding passengers and to offer “denied boarding compensation” to bumped passengers. These “liquidated damages” are equal to the value of the passenger’s ticket with a $25 minimum and a $200 maximum. 14 CFR §250.5 (1975). Passengers are free to reject the compensation offered in favor of a common -[*295] law suit for damages suffered as a result of the bumping. Petitioner refused the tender of denied boarding compensation ($32.41 in his case) and, with CCAG, filed this suit for compensatory and punitive damages. His suit did not seek compensation for the bumping per se but asserted two other bases of liability: a common-law action based on fraudulent misrepresentation arising from respondent’s alleged failure to inform petitioner in advance of its deliberate overbooking practices, and a statutory action under § 404 (b) of the Act, 49 U. S. C. § 1374 (b),[6] arising from respondent’s alleged failure to afford petitioner the boarding priority specified in its rules filed with the Board under 14 CFR § 250.3 (1975).
The District Court entered a judgment for petitioner on both claims, awarding him a total of $10 in compensatory damages and $25,000 in punitive damages. Judgment also was entered for CCAG on its misrepresentation claim, with an award of $51 in compensatory damages and $25,000 in punitive damages.
The Court of Appeals for the District of Columbia Circuit reversed. 167 U. S. App. D. C. 350, 512 F. 2d 527 (1975). A number of its rulings were not presented to this Court in the petition for certiorari. The award of damages to CCAG was reversed on the ground that the organization was too “remote from the transaction” to fall “within the class of persons who may recover.” Id., at 372, 512 F. 2d, at 549. The merits of petitioner’s statutory claim were remanded for fur[*296]ther findings. The award of punitive damages to petitioner on the statutory claim was reversed on the ground that respondent’s conduct contained no “elements of intentional wrongdoing or conscious disregard for” petitioner’s rights. Id., at 373, 512 F. 2d, at 550. The question of punitive damages for the common-law claim was remanded for further findings on respondent’s good faith. In particular, the trial court was to consider “whether Allegheny reasonably believed that its policies were completely lawful and in fact carried the approval of the Board.” Id., at 374, 512 F. 2d, at 551. None of these rulings was presented to this Court in the petition for certiorari.
The only issue before us concerns the Court of Appeals’ disposition on the merits of petitioner’s claim of fraudulent misrepresentation. Although the court rejected respondent’s argument that the existence of the Board’s cease-and-desist power under § 411 of the Act eliminates all private remedies for common-law torts arising from unfair or deceptive practices by regulated carriers, it held that a determination by the Board that a practice is not deceptive within the meaning of § 411 would, as a matter of law, preclude a common-law tort action seeking damages for injuries caused by that practice.[7] Therefore, the court held that the Board must be[*297] allowed to determine in the first instance whether the challenged practice (in this case, the alleged failure to disclose the practice of overbooking) falls within the ambit of § 411. The court took judicial notice that a rulemaking proceeding concerning possible changes in reservation practices in response to the 1973-1974 fuel crisis was already underway and that a challenge to the carriers’ overbooking practices had been raised by an intervenor in that proceeding.[8] The District Court was instructed to stay further action on petitioner’s misrepresentation claim pending the outcome of the rulemaking proceeding. The Court of Appeals characterized its holding as “but another application of the principles of primary jurisdiction, a doctrine whose purpose is the coordination of the workings of agency and court.” 167 U. S. App. D. C., at 367, 512 F. 2d, at 544.
[*298] II
The question before us, then, is whether the Board must be given an opportunity to determine whether respondent’s alleged failure to disclose its practice of deliberate overbooking is a deceptive practice under § 411 before petitioner’s common-law action is allowed to proceed. The decision of the Court of Appeals requires the District Court to stay the action brought by petitioner in order to give the Board an opportunity to resolve the question. If the Board were to find that there had been no violation of § 411, respondent would be immunized from common-law liability.
A
Section 1106 of the Act, 49 U. S. C. § 1506, provides that “[n]othing contained in this chapter shall in any way abridge or alter the remedies now existing at common law or by statute, but the provisions of this chapter are in addition to such remedies.” The Court of Appeals found that “although the saving clause of section 1106 purports to speak in absolute terms it cannot be read so literally.” 167 U. S. App. D. C., at 367, 512 F. 2d, at 544. In reaching this conclusion, it relied on Texas & Pacific R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426 (1907). In that case, the Court, despite the existence of a saving clause virtually identical to § 1106, refused to permit a state-court common-law action challenging a published carrier rate as “unjust and unreasonable.” The Court conceded that a common-law right, even absent a saving clause, is not to be abrogated “unless it be found that the preexisting right is so repugnant to the statute that the survival of such right would in effect deprive the subsequent statute of its efficacy; in other words, render its provisions nugatory.” 204 U. S., at 437. But the Court found that[*299] the continuance of private damages actions attacking the reasonableness of rates subject to the regulation of the Interstate Commerce Commission would destroy the purpose of the Interstate Commerce Act, which was to eliminate discrimination by requiring uniform rates. The saving clause, the Court found, “cannot in reason be construed as continuing in shippers a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself.” Id., at 446.[9]
In this case, unlike Abilene, we are not faced with an irreconcilable conflict between the statutory scheme and the persistence of common-law remedies. In Abilene the carrier, if subject to both agency and court sanctions, would be put in an untenable position when the agency and a court disagreed on the reasonableness of a rate. The carrier could not abide by the rate filed with the Commission, as required by statute, and also comply with a court's determination that the rate was excessive. The conflict between the court’s common-law authority and the agency’s ratemaking power was direct and unambiguous. The court in the present case, in contrast, is not called upon to substitute its judgment for the agency’s on the reasonableness of a rate — or, indeed, on[*300] the reasonableness of any carrier practice. There is no Board requirement that air carriers engage in overbooking or that they fail to disclose that they do so. And any impact on rates that may result from the imposition of tort liability or from practices adopted by a carrier to avoid such liability would be merely incidental. Under the circumstances, the common-law action and the statute are not “absolutely inconsistent” and may coexist, as contemplated by § 1106.
B
Section 411 of the Act allows the Board, where “it considers that such action . . . would be in the interest of the public,” “upon its own initiative or upon complaint by any air carrier, foreign air carrier, or ticket agent,” to “investigate and determine whether any air carrier . . . has been or is engaged in unfair or deceptive practices or unfair methods of competition . . . .” Practices determined to be in violation of this section “shall” be the subject of a cease-and-desist order. The Court of Appeals concluded — and respondent does not challenge the conclusion here — that this section does not totally preclude petitioner’s common-law tort action. But the Court of Appeals also held, relying on the nature of the airline industry as “a regulated system of limited competition,” American Airlines, Inc. v. North American Airlines, Inc., 351 U. S. 79, 84 (1956), aiid the Board’s duty to promote “adequate, economical, and efficient service,” § 102 (c) of the Act, 49 U. S. C. § 1302 (c), “at the lowest cost consistent with the furnishing of such service,” § 1002 (e)-(2) of the Act, 49 U. S. C. § 1482 (e) (2), that the Board has the power in a § 411 proceeding to approve practices that might otherwise be considered deceptive and thus to immunize carriers from common-law liability. 167 U. S. App. D. C., at 366, 512 F. 2d, at 543.
[*301] We cannot agree. No power to immunize can be derived from the language of § 411. And where Congress has sought to confer such power it has done SO' expressly, as in § 414 of the Act, 49 U. S. C. § 1384, which relieves those affected by certain designated orders (not including orders issued under § 411) “from the operations of the 'antitrust laws.’ ” When faced with an exemptive provision similar to § 414 in United States Navigation Co. v. Cunard S. S. Co., 284 U. S. 474 (1932), this Court dismissed an antitrust action because initial consideration by the agency had not been sought. The Court pointed out that the Act in question was “restrictive in its operation upon some of the activities of common carriers . . . , and permissive in respect of others.” Id., at 485. See also Far East Conference v. United States, 342 U. S. 570 (1952). Section 411, in contrast, is purely restrictive. It contemplates the elimination of “unfair or deceptive practices” that impair the public interest. Its role has been described in American Airlines, Inc. v. North American Airlines, Inc., supra, at 85:
“ ‘Unfair or deceptive practices or unfair methods of competition/ as used in § 411, are broader concepts than the common-law idea of unfair competition. . . . The section is concerned not with punishment of wrongdoing or protection of injured competitors, but rather with protection of the public interest.”
As such, § 411 provides an injunctive remedy for vindication of the public interest to supplement the compensatory common-law remedies for private parties preserved by § 1106.[10]
[*302] Thus, a violation of § 411, contrary to the Court of Appeals5 conclusion, is not coextensive with a breach of duty under the common law. We note that the Board’s jurisdiction to initiate an investigation under § 411 is expressly premised on a finding that the “public interest” is involved. The Board “may not employ its powers to vindicate private rights.” 351 U. S., at 83. Indeed, individual consumers are not even entitled to initiate proceedings under § 411, a circumstance that indicates that Congress did not intend to require private litigants to obtain a § 411 determination before they could proceed with the common-law remedies preserved by § 1106. Cf. Rosado v. Wyman, 397 U. S. 397, 406 (1970).
Section 411 is both broader and narrower than the remedies available at common law. A cease-and-desist order may issue under § 411 merely on the Board’s conclusion, after an investigation determined to be in the public interest, that a carrier is engaged in an “unfair or deceptive practice.” No findings that the practice was intentionally deceptive or fraudulent or that it in fact has caused injury to an individual are necessary. American Airlines, Inc. v. North American Airlines, Inc., supra, at 86. On the other hand, a Board decision that a cease-and-desist order is inappropriate does not represent approval of the practice under investigation. It may merely represent the Board’s conclusion that the serious prohibitory sanction of a cease-and-desist order is inappropriate, that a more flexible approach is necessary. A wrong may be of the sort that calls for compensation to an injured individual without requiring the extreme remedy of a cease-and-desist order. Indeed, the Board,[*303] in dealing with the problem of overbooking by air carriers, has declined to issue cease-and-desist orders, despite the determination by an examiner in one case that a § 411 violation had occurred.[11] Instead, the Board has elected to establish boarding priorities and to ensure that passengers will be compensated' for being bumped either by a liquidated sum under Board regulations or by resort to a suit for compensatory damages at common law.[12]
In sum, § 411 confers upon the Board a new and powerful weapon against unfair and deceptive practices that injure the public. But it does not represent the only, or best, response to all challenged carrier actions that result in private wrongs.
C
The doctrine of primary jurisdiction “is concerned with promoting proper relationships between the courts and administrative agencies charged with particular regulatory duties.” United States v. Western Pacific R. Co., 352 U. S. 59, 63 (1956). Even when common-law rights and remedies survive and the agency in question lacks the power to confer immunity from common-law liability, it may be appropriate to refer specific issues to an agency for initial determination where that procedure would secure “[ujniformity and[*304] consistency in the regulation of business entrusted to a particular agency” or where
“the limited functions of review by the judiciary [would be] more rationally exercised, by preliminary resort for ascertaining and interpreting the circumstances underlying legal issues to agencies that are better equipped than courts by specialization, by insight gained through experience, and by more flexible procedure.” Far East Conference v. United States, 342 U. S., at 574-575.
See also United States v. Western Pacific R. Co., supra, at 64.
The doctrine has been applied, for example, when an action otherwise within the jurisdiction of the court raises a question of the validity of a rate or practice included in a tariff filed with an agency, e. g., Danna v. Air France, 463 F. 2d 407 (CA2 1972); Southwestern Sugar & Molasses Co. v. River Terminals Corp., 360 U. S. 411, 417-418 (1959), particularly when the issue involves technical questions of fact uniquely within the expertise and experience of an agency — such as matters turning on an assessment of industry conditions, e. g., United States v. Western Pacific R. Co., supra, at 66-67. In this case, however, considerations of uniformity in regulation and of technical expertise do not call for prior reference ;to the Board.
Petitioner seeks damages for respondent’s failure to disclose its overbooking practices. He makes no challenge to any provision in the tariff, and indeed there is no tariff provision or Board regulation applicable to disclosure practices.[13] Petitioner also makes no chal[*305]lenge, comparable to those made in Southwestern Sugar & Molasses Co. v. River Terminals Corp., supra, and Lichten v. Eastern Airlines, Inc., 189 F.. 2d 939 (CA2 1951), to limitations on common-law damages imposed through exculpatory clauses included in a tariff.
Referral of the misrepresentation issue to the Board cannot be justified by the interest in informing the court’s ultimate decision with “the expert and specialized knowledge,” United States v. Western Pacific R. Co., supra, at 64, of the Board. The action brought by petitioner does not turn on a determination of the reasonableness of a challenged practice — a determination that could be facilitated by an informed evaluation of the economics or technology of the regulated industry. The standards to be applied in an action for fraudulent misrepresentation are within the conventional competence of the courts, and the judgment of a technically[*306] expert body is not likely to be helpful in the application of these standards to the facts of this case.[14]
We are particularly aware that, even where the wrong sought to be redressed is not misrepresentation but bumping itself, which has been the subject of Board consideration and for which compensation is provided in carrier tariffs, the Board has contemplated that there may be individual adjudications by courts in common-law suits brought at the option of the passenger. The present regulations dealing with the problems of overbooking and oversales were promulgated by the Board in 1967. They provide for denied boarding compensation to bumped passengers and require each carrier to establish priority rules for seating passengers and to file reports of passengers who could not be accommodated.[15] The order instituting these regulations contemplates that the bumped passenger will have a choice between accepting denied boarding compensation as “liquidated damages for all damages incurred ... as a result of the carrier’s failure to provide the passenger with confirmed reserved space,” or pursuing his or her common-law remedies.[16] The Board specifically pro[*307]vided for a 30-day period before the specified compensation need be accepted so that the passenger will not be forced to make a decision before “the consequences of denied boarding have occurred and are known.” [17] After evaluating the consequences, passengers may choose as an alternative “to pursue their remedy under the common law.”[18]
III
We conclude that petitioner’s tort action should not be stayed pending reference to the Board and accordingly the decision of the Court of Appeals on this issue is reversed. The Court of Appeals did not address the ques[*308]tion whether petitioner had introduced sufficient evidence to sustain his claim. We remand the case for consideration of that question and for further proceedings consistent with this opinion.[19]
It is so ordered.
Brief for Civil Aeronautics Board as Amicus Curiae filed in Court of Appeals, App. B, p. 58.
Id., at 50
Id., at 51.
On any given flight, of course, the chance that a passenger will be bumped may be higher or lower than the overall average.
Id., at 50.
Section 404 (b) provides:
“No air carrier or foreign air carrier shall make, give, or cause any undue or unreasonable preference or advantage to any particular person, port, locality, or description of traffic in air transportation in any respect whatsoever or subject any particular person, port, locality, or description of traffic in air transportation to any unjust discrimination or any undue or unreasonable prejudice or disadvantage in any respect whatsoever.”
Section 411 provides in full:
“The Board may, upon its own initiative or upon complaint by any air carrier, foreign air carrier, or ticket agent, if it considers that such action by it would be in the interest of the public, investigate and determine whether any air carrier, foreign air carrier, or ticket agent has been or is engaged in unfair or deceptive practices or unfair methods of competition in air transportation or the sale thereof. If the Board shall find, after notice and hearing, that such air carrier, foreign air carrier, or ticket agent is engaged in such unfair or deceptive practices or unfair methods of competition, it shall order such air carrier, foreign air carrier, or ticket agent to cease and desist from such practices or methods of competition.”
The rulemaking proceedings were initiated in January 1974. Emergency Reservation Practices Investigation, 39 Fed. Reg. 823 (1974) (CAB Order 73-12-93, EDR-260). An opinion and an order were issued on April 13, 1976. Emergency Reservation Practices Investigation (CAB Order 76-4-55). The Board concluded that the questions raised by the Court of Appeals in this case were "outside the scope of [the] investigation.” Id., at 7. It specifically noted that “the question of whether intentional overbooking, in general, or nondisclosure of such practice, in particular, is a deceptive trade practice” was not at issue. Id., at 8.
In April 1976 the Board announced a proposed rulemaking proceeding with respect to deliberate overbooking and oversales. Priority Rules, Denied-Boarding Compensation Tariffs and Reports of Unaccommodated Passengers: Reexamination of thé Board’s Policies Concerning Deliberate Overbooking and Oversales, 41 Fed. Reg. 16478 (1976) (CAB Order EDR-296). The Board has decided to re-evaluate existing practices in light of a recent "trend toward a higher rate of oversales” and in fight of the fact that oversales “continue to be a significant cause of [consumer] complaints.” Ibid. Among the options to be considered is a requirement that the practice of deliberate overbooking, if allowed to continue, be disclosed to customers. Id., at 16479.
The Court later described the saving clause discussed in Abilene as follows:
“That proviso was added at the end of the statute, — not to nullify other parts of the Act, or to defeat rights or remedies given by preceding sections, — but to preserve all existing rights which were not inconsistent with those created by the statute. It was also intended to preserve existing remedies, such as those by which a shipper could, in a state court, recover for damages to property while in the hands of the interstate carrier; damages caused by delay in shipment; damages caused by failure to comply with its common law duties and the like.” Pennsylvania R. Co. v. Puritan Coal Mining Co., 237 U. S. 121, 129-130 (1915).
Cf. Federal Trade Comm’n v. Klesner, 280 U. S. 19, 25-26 (1929); Holloway v. Bristol-Myers Corp., 158 U. S. App. D. C. 207, 212, 485 F. 2d 986, 991 (1973) (both opinions discuss § 5 of the Federal Trade Commission Act, 38 Stat. 717, as amended, 15 U. S. C. § 45, which this Court, in American Airlines, Inc. v. North [*302] American Airlines, Inc., 351 U. S., at 82, described as the model for §411).
In the late 1950’s, § 411 investigations were initiated against two carriers charged with deliberate overbooking. One of these investigations was terminated on the ground that the record showed no deliberate overbooking by the carrier. Eastern Air Lines Overbooking Enforcement Proceeding, 30 C. A. B. 862 (1960). The other was terminated, after a finding by the examiner of a §411 violation, in favor of an industrywide investigation. National Airlines, Inc., Enforcement Proceeding, 31 C. A. B. 390 (1960).
See nn. 15-18 and accompanying text, infra.
In 1965, the Board proposed a rule requiring carriers to notify individual passengers of overbooked conditions 12 hours prior to the scheduled departure time. Passenger Priorities and Overbooked[*305] Flights: Notice of Proposed Rule Making, 30 Fed. Reg. 13236 (1965) (CAB Order EDR-95). This proposal subsequently was abandoned after industry opposition on the ground that it was excessively rigid and unworkable. Priority Rules, Denied Boarding Compensation Tariffs, And Reports of Unaccommodated Passengers: Notice of Proposed Rule Making, 32 Fed. Reg. 459, 460-461 (1967) (CAB Order EDR-109).
The Board’s abandonment of this proposal cannot be read as blanket approval of failure to make a public disclosure of overbooking practices. The cost of an individual notification program in terms of expense, public relations, and passenger confusion could be prohibitive. But alternative means of disclosure may be significantly less disruptive. Petitioner suggests, for example, that carrier overbooking practices be included in tariffs, which are required to be available for public inspection. And the Board has approved an innovative approach suggested by Eastern Air Lines, which provides for a system of limited overbooking in which passengers subject to possible denial of boarding are advised at the outset of their status. See Delta Air Lines, Inc. v. CAB, 147 U. S. App. D. C. 272, 455 F. 2d 1340 (1971) (aff’g CAB Order 71-6-120).
For example, if respondent’s overbooking practices were detailed in its tariff and therefore available to the public, a court presented with a claim of misrepresentation based on failure to disclose need not make prior reference to the Board, as it should if presented with a suit challenging the reasonableness of practices detailed in a tariff. Rather, the court could, applying settled principles of tort law, determine that the tariff provided sufficient notice to the party who brought the suit — as, indeed, petitioner suggests it would. Reply Brief for Petitioner 3-4, n. 3.
Priority Rules, Denied Boarding Compensation Tariffs and Reports of Unaccommodated Passengers, 32 Fed. Reg. 11939 (1967) (CAB Order ER-503). See 14 CFR §250.1 et seq. (1975).
CAB Order ER-503, supra, 32 Fed. Reg. 11943.
Id., at 11942.
Foreign Air Carriers: Priority Rules, Denied Boarding Compensation Tariffs and Reports of Unaccommodated Passengers, 38 Fed. Reg. 15083, 15084 (1973) (CAB Order EDR-248) (amending existing regulations to include foreign air carriers). See also testimony of Jerome F. Huisentruit, assistant general counsel for the Air Transport Association of America and respondent’s witness on Board jurisdiction, App. 72-73.
The contemplation that common-law remedies will continue to exist is in conformance with longstanding Board policy dating back at least to the Board’s approval in 1962 of an industry agreement covering trunk carriers and calling for ticketing time limits and reservation charges in combination with a provision for denied boarding compensation. See Domestic Trunklines, Tariff Agreement, 35 C. A. B. 881 (1962) (CAB Order E-18064). The Board specifically rejected the carriers’ proposal that the denied boarding compensation be made an exclusive remedy:
“[T]o the extent that the proposed tariff provision is designed to restrict a passenger from seeking damages to which he would otherwise be entitled under the common law, we find it to be adverse to the public interest. Accordingly, we shall condition our approval of the agreement to make clear that the prescribed penalty is a minimum obligation of the carrier which, only if accepted by the passenger, would terminate the carrier’s obligation.” Id., at 882-883.
The Court of Appeals specifically remanded for reconsideration of the award of punitive damages on petitioner’s claim of fraudulent misrepresentation. The propriety of that ruling was not challenged in this Court.
As the issues of ultimate liability and damages are not before us, we express no opinion as to their merits. We conclude above that mere compliance with agency regulations is not sufficient in itself under the Act to exempt a carrier from common-law liability. We make clear, however, that this conclusion is not intended to foreclose the courts on remand from considering, in relation to other issues in the case, evidence that the Board was fully advised of the practice complained of, and that the carrier had cooperated with the Board.
Concurrence
concurring.
I join the Court’s opinion with these additional words.
It may be that under its rulemaking authority the Board would have power to order airline overbooking and to pre-empt recoveries under state law for undisclosed overbooking or for overselling. But it has not done so, at least as yet. It is also unnecessary to stay proceedings on the present state-law claim pending Board action under § 411. Neither an order denying nor one granting relief under that section would foreclose claims based on state law; and there is not present here the additional consideration that a § 411 proceeding would be helpful in resolving, or affecting in some manner, the state-law claim for compensatory and punitive damages. Cf. Ricci v. Chicago Mercantile Exchange, 409 U. S. 289 (1973); Chicago Mercantile Exchange v. Deak[*309] tor, 414 U. S. 113 (1973). I seriously doubt that any pending or future § 411 case would reveal anything relevant to this case about the Board's view of the propriety of overbooking and of overselling that is not already apparent from prior proceedings concerning those subjects.