United States Court of Appeals

For the First Circuit

Nos. 10-1108, 10-1167, 10-1264 

DON DiFIORE; LEON BAILEY; RITSON DESROSIERS;

MARCELINO COLETA; TONY PASUY; LAWRENCE ALLSOP;

CLARENCE JEFFREYS; FLOYD WOODS; ANDREA CONNOLLY,

and all others similarly situated,

Plaintiffs, Appellees/Cross-Appellants,

v.

AMERICAN AIRLINES, INC.,

Defendant, Appellant/Cross-Appellee.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

Boudin, Lipez and Howard,

Circuit Judges.

Michael V. Powell with whom Locke Lord Bissell & Liddell LLP,

Amy Cashore Mariani, Michael A. Fitzhugh, David J. Volkin and

Fitzhugh & Mariani LLP were on brief for defendant,

appellant/cross-appellee.

Robert S. Span and Steinbrecher & Span LLP on brief for Air

Transport Association of America, Inc., Amicus Curiae.

Philip J. Gordon, President, Massachusetts Employment Lawyers

Association c/o Gordon Law Group, LLP, Audrey R. Richardson,

Greater Boston Legal Services, and Catherine K. Ruckelshaus, Nat'l

Employment Law Project, on brief for Massachusetts Employment

Lawyers Association (MELA), Greater Boston Legal Services (GBLS),

and the National Employment Law Project (NELP), Amici Curiae.
Shannon Liss-Riordan with whom Hillary Schwab and Lichten &

Liss-Riordan, P.C. were on brief for plaintiff, appellees/crossappellants. 

Scott L. Nelson and Allison M. Zieve, Public Citizen

Litigation Group, on brief for Public Citizen, Inc., Amicus Curiae.

May 20, 2011
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BOUDIN, Circuit Judge. In September 2005, American

Airlines, Inc. ("American") began charging passengers a fee of $2

for each bag checked with porters who provide curbside service

(called "skycaps") at Boston's Logan Airport. Arguing that

passengers mistook the fee for a mandatory gratuity for the skycaps

and stopped tipping, several porters brought suit against American;

the present appeal is a product of that litigation. The facts and

proceedings are as follows.

Some passengers at Logan carry their own luggage into the

airport and some have it brought inside to the counter by skycaps,

but a great many check their luggage onto flights at curbside;

ordinarily, the skycap will take the luggage from the curb, write

up the baggage tags, and place the luggage on a conveyer belt

destined for the airline cargo facilities. Prior to 2005, American

made skycap services available to its customers free of charge--

beyond the plane fare--with the airline bearing the cost of skycap

labor and other facilities involved in curbside check-in (conveyer

belts, rent for space).

American once itself employed skycaps to provide these

services to passengers but now, at least in Boston, relies

primarily on contractors--most recently, a company called G2 Secure

Staff, LLC ("G2"). Although all the American and G2 skycaps earned

an hourly wage, their main source of income was tips. The
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customary gratuity at Logan Airport was about $1 per bag, and

nearly all passengers tipped.

In early 2005, one of American's competitors began

charging a curbside check-in fee in Seattle. American tested the

idea there before expanding the practice to other cities across the

country. Separate charges for services that had once been bundled

together--for example, for in-flight meals or extra bags--were

becoming common in airline operations during this period. Due to

deregulation, airline fares had fallen on many major routes,

airlines were suffering low profits or losses, and separate charges

were one of the responses.

Like its competitors, American set the price for curbside

check-in at $2 per bag, with an initial goal of merely offsetting

the expense of providing skycap service. Revenues from the fee

proved more than enough to recoup those costs, and American netted

a substantial profit from the charge. In cities where American

relied on contractors to provide skycap services, the airline and

the contractor shared the proceeds from the new charge. At Logan,

sixty percent went to the airline and forty percent to G2.

As for the skycaps, American knew that the new fee would

lessen tip income from passengers at least temporarily; in fact,

some hourly salaries for the G2 skycaps at Logan airport were

raised to comply with minimum wage laws in light of reduced tips.

The skycaps were required to collect the $2 fee in cash to be
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turned over to the airline at the end of the business day; they

were not supposed to solicit tips, although some apparently did;

but they were free, if the customer inquired, to say that the fee

was not a gratuity.

When it instituted the fee at Logan in September 2005,

American notified its customers of the new charge on its website as

well as on three large, poster-size signs adjacent to the bag-check

podiums outside the airport terminal. A typical sign, in its

original format, read as follows:

Curbside

Check-In

U.S. Domestic Flights

$2 Per Bag

American Airlines

Within a week or two, skycaps had added notations to the

official signs saying "gratuity not included" or words to this

effect, and American then revised its standard posters to include

this caveat--placed in considerably smaller lettering immediately

below the fee itself. By October 14, 2005, American had ordered

several hundred signs with this revised language for use across the

country; the website, which referred only to the $2 per bag charge,

was not altered. In Boston, four of the modified signs were posted

at the skycap podiums and along the curbside.
Of the ten, one skycap was directly employed by American at 1

Logan, seven skycaps were employed by G2 at Logan, one skycap had

formerly been employed by G2 at Logan, and one skycap was employed

by American in St. Louis, Missouri.

-6-

The skycaps' tip income fell significantly once the new

charge began. Some passengers likely thought that $2 per bag was

enough to pay and chose not to tip, but others interpreted the $2

fee as a mandatory tip to the skycap rather than a charge paid to

the airline. Confusion persisted despite modification of the

signs: the curbside can be hectic at busy times; there were other

unrelated signs; and some luggage was collected far from the

signage, down the line of parked cars and taxis.

In December 2006, two skycaps at Logan, Don DiFiore and

Leon Bailey, brought a putative class action against G2 and

American in Massachusetts Superior Court, which the defendants

removed to federal district court on the basis of diversity

jurisdiction. The claims against G2 were dismissed in light of an

arbitration agreement, and class certification was denied. Eight

more skycap plaintiffs joined the suit against American, and the 1

complaint was twice amended.

By the time of the third amended complaint--now the

operative pleading--the claims against American were these: that

American's curbside check-in fee violated a Massachusetts statute

governing tips, Mass. Gen. Laws ch. 149, § 152A (2008); that the

airline's conduct created liability under state common law as
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tortious interference with advantageous relations, unlawful

conversion, and unjust enrichment; and that the skycaps were

entitled to restitution under principles of quantum meruit.

The tips law is the centerpiece of the appeal and its

pertinent language provides that "[n]o employer or other person

shall demand . . . or accept from any . . . service employee . . .

any payment or deduction from a tip or service charge given to such

. . . service employee . . . by a patron." Mass. Gen. Laws ch.

149, § 152A(b). The skycaps qualified as "service employees" for

purposes of the statute. Id. § 152A(a). The term "service charge"

is defined as

a fee charged by an employer to a patron in

lieu of a tip to any . . . service employee

. . . including any fee designated as a

service charge, tip, gratuity, or a fee that a

patron or other consumer would reasonably

expect to be given to a . . . service employee

. . . in lieu of, or in addition to, a tip.

Id. The gravamen of the tips law claim is that the $2 fee is a

"service charge" under state law (and must therefore go to the

skycaps) because customers "reasonably expect[ed]" it to be given

to the skycaps.

American moved to dismiss the complaint, or alternatively

for summary judgment, principally on the ground that the claims

were barred by the express preemption clause of the Airline

Deregulation Act: no state may "enact or enforce a law, regulation,

or other provision having the force and effect of law related to a
The district court permitted only seven of the nine Logan 2

skycaps to pursue both theories at trial. During discovery, two

skycaps asserted their privilege against self-incrimination to

withhold their tax records; those two skycaps were precluded from

presenting evidence of damages that would have been required to

make out a claim for tortious interference. The district court

also made clear to the jury that no duplicative recovery would be

permitted for skycaps who prevailed on both theories.

-8-

price, route, or service of an air carrier." 49 U.S.C. §

41713(b)(1) (2006). Judge Young denied the motion, DiFiore v. Am.

Airlines, Inc., 483 F. Supp. 2d 121, 128 (D. Mass. 2007), but later

granted summary judgment to American on the quantum meruit,

conversion, and unjust enrichment counts--theories not pursued on

appeal.

The claim for recovery under the tips law, Mass. Gen.

Laws ch. 149, § 152A(f), and the tortious-interference claim were

both tried to a jury in March and April 2008. The jury awarded

each Logan skycap plaintiff $2 per bag checked at curbside by that

skycap from September 2005 to the start of trial, "plus fees

collected in March and April 2008" during the trial. The St. Louis

skycap--not covered by the Massachusetts tips law and bringing only

a tortious-interference claim under Missouri law--was awarded

nothing and has not appealed.

For those Logan skycaps who claimed both tortious

interference and a violation of the tips statute, the jury awarded

identical damages on both theories. The district court construed 2

state law as permitting the jury to award treble damages, see Mass.
See Brown v. United Air Lines, Inc., 656 F. Supp. 2d 244, 3

249-51 (D. Mass. 2009) (Gertner, J.) (holding tips law preempted);

Travers v. JetBlue Airways Corp., No. 08-cv-10730, 2009 WL 2242391,

-9-

Gen. Laws Ann. ch. 149, § 150 (West 2004) (amended 2008); Wiedmann

v. Bradford Grp., Inc., 831 N.E.2d 304, 313 (Mass. 2005), but the

jury declined to award anything on this account.

Thereafter the district court temporarily set aside the

jury award but reinstated it after the state's highest court

answered a certified question--not germane to the disputed issues

on this appeal--involving the interpretation of the tips statute.

DiFiore v. Am. Airlines, Inc., 910 N.E.2d 889, 891 (Mass. 2009).

Further post-trial motions led to another opinion rejecting the

preemption claim, DiFiore v. Am. Airlines, Inc., 688 F. Supp. 2d

15, 23-24 (D. Mass. 2009), and determining damages for the period

of March and April 2008, id. at 25-26.

A final amended judgment gave the nine prevailing skycaps

$333,464 plus prejudgment interest; the court also awarded

attorneys' fees and costs. American now appeals on multiple

grounds; the successful skycap plaintiffs cross-appeal, arguing

that the tips statute award should have been trebled. The central

issue, federal preemption, is a question of statutory construction

that we review de novo. United Parcel Serv., Inc. v. FloresGalarza, 318 F.3d 323, 330 (1st Cir. 2003). That it is a difficult

one is confirmed by decisions conflicting with that of Judge Young

by two other judges in the same district court.3
at *2-3 (D. Mass. July 23, 2009) (O'Toole, J.) (same); see also

Thompson v. U.S. Airways, Inc., 717 F. Supp. 2d 468, 477-79 (E.D.

Pa. 2010) (finding no preemption of Pennsylvania tips statute and

common law claims); Jones v. Am. Airlines, Inc., No. 5:08-cv-236,

slip op. at 11-13 (E.D.N.C. Oct. 15, 2008) (same, for North

Carolina common law claims).

-10-

The Airline Deregulation Act was enacted in 1978 as part

of a wave of deregulatory measures adopted in the 1970s and 1980s.

Prior airline regulation based on a public utility model had

produced good service but at relatively high prices--high, at

least, compared to much lower fares that emerged under competition.

To assure that the new regime was not trammeled by state reregulation, the 1978 statute preempted state laws "relating to

rates, routes, or services." Pub. L. No. 95-504, § 4(a), 92 Stat.

1705, 1707-08 (1978) (codified at 49 U.S.C. app. § 1305(a)(1)

(1982)); see also New Eng. Legal Found. v. Mass. Port Auth., 883

F.2d 157, 173 (1st Cir. 1989).

When Congress later recodified Title 49, the 1978

preemption language was relocated in the same Title (to section

41713) and slightly rephrased to cover all state laws "related to

a price, route, or service," Pub. L. No. 103-272, § 1(e), 108 Stat.

745, 1143 (1994), but the changes were stylistic and "not

intend[ed] to impair the applicability of prior judicial case law

interpreting these provisions," H.R. Rep. No. 103-677, at 83 (1994)

(Conf. Rep.), reprinted in 1994 U.S.C.C.A.N. 1715, 1755. That

Conference Report concerned a new statute carrying over the same
Federal Aviation Administration Authorization Act of 1994, 4

Pub. L. No. 103-305, § 601(b)-(c), 108 Stat. 1569, 1605-06 (now

codified at 49 U.S.C. §§ 14501(c)(1), 41713(b)(4)). Courts have

construed the two statutes in pari materia and have cited

precedents concerning either act interchangeably, see United Parcel

Serv., 318 F.3d at 334-35 & n.17, as we do in this decision.

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preemption phrasing to apply it to motor carriers and certain air

carriers functioning as motor carriers.4

Case law is especially important in interpreting section

41713 because Congress' language in the preemption section--always

the first resort in construing a federal statute--is broad but

vague. A trio of Supreme Court cases have addressed and applied

the statutory provision in question: Morales v. Transworld

Airlines, Inc., 504 U.S. 374 (1992), American Airlines, Inc. v.

Wolens, 513 U.S. 219 (1995), and Rowe v. New Hampshire Motor

Transport Ass'n, 552 U.S. 364 (2008). Although helpful in marking

out results, none provides an easily applied test.

The difficulty is that the key connector in the statute--

"related to"--is highly elastic, Morales, 504 U.S. at 383-84, and

so of limited help, given that countless state laws have some

relation to the operations of airlines and thus some potential

effect on the prices charged or services provided. Equally general

is the gloss supplied by the cases of a "'significant impact'

related to Congress' deregulatory and pre-emption related

objectives," rather than one merely "tenuous, remote, or
Thus, the House Committee report on the 1978 statute said 5

that the preemption clause was drafted to eliminate "uncertainties

and conflicts" over federal and state rate-regulating authority,

including situations in which carriers had been forced to charge

different rates to passengers traveling between the same two

cities, depending on whether those passengers' entire itineraries

involved intrastate or interstate travel. H.R. Rep. No. 95-1211,

at 15-16 (1978), reprinted in 1978 U.S.C.C.A.N. 3737, 3751-52.

-12-

peripheral." Rowe, 552 U.S. at 371 (quoting Morales, 504 U.S. at

390).

The statutory preemption language might have been read to

target only state enactments focusing solely on airlines, but that

reading has been twice rejected by the Supreme Court. Wolens, 513

U.S. at 227-28; Morales, 504 U.S. at 386. Similarly, preemption

might have been confined to state laws that themselves aimed at

economic regulation as opposed to other state interests, but that 5

course too has been foreclosed. Rowe, 552 U.S. at 373-76. So we

are left to triangulate from the results in the leading Supreme

Court decisions--Morales, Wolens, and Rowe--with some limited

assistance from circuit court decisions.

All three of the major Supreme Court cases endorsed

preemption and read the preemption language broadly, e.g., Rowe,

552 U.S. at 370-71; Morales, 504 U.S. at 383-84, and none adopted

plaintiffs' position in this case that we should presume strongly

against preempting in areas historically occupied by state law, see

e.g., Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994).

The state laws preempted in Morales, Wolens, and Rowe involved
E.g., Wellons v. Nw. Airlines, Inc., 165 F.3d 493, 496 (6th 6

Cir. 1999) (race discrimination); Parise v. Delta Airlines, Inc.,

141 F.3d 1463, 1466 (11th Cir. 1998) (age discrimination); AbduBrisson v. Delta Air Lines, Inc., 128 F.3d 77, 83-84 (2d Cir. 1997)

(same); Aloha Islandair Inc. v. Tseu, 128 F.3d 1301, 1303 (9th Cir.

1997) (disability discrimination).

E.g., Gary v. Air Grp., Inc., 397 F.3d 183, 189 (3d Cir. 7

2005) (retaliation for reporting safety violation); Branche v.

Airtran Airways, Inc., 342 F.3d 1248, 1259-60 (11th Cir. 2003)

(same), cert. denied, 540 U.S. 1182 (2004); Anderson v. Am.

Airlines, Inc., 2 F.3d 590, 597-98 (5th Cir. 1993) (retaliation for

filing workers' compensation claim).

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(respectively) deceptive advertising, alleged consumer abuse, and

protection of health--areas historically regulated by states.

However traditional the area, a state law may simultaneously

interfere with an express federal policy--here, one limiting

regulation of airlines. 

The state regimes at issue in Morales and Wolens,

although based on generally applicable statutes, involved detailed

guidelines crafted by state authorities directed against airlines;

the statute in Rowe directly targeted carriers. But it is hard to

imagine that Congress would have been happier if, absent detailed

guidelines or a law targeting carriers, the states in Morales,

Wolens, and Rowe simply let the jury condemn the same carrier

conduct by applying broader statutory terms (e.g., "unfair"

competition or "deceptive" practices, Wolens, 513 U.S. at 227).

However, there also exists a set of circuit cases

declining to preempt state anti-discrimination and retaliation 6

laws, as well as one case declining to preempt state prevailing 7
E.g., Charas v. Trans World Airlines, Inc., 160 F.3d 1259, 8

1261-62, 1266 (9th Cir. 1998) (en banc) (various personal injuries

incurred onboard and while boarding); Hodges v. Delta Airlines,

Inc., 44 F.3d 334, 338 (5th Cir. 1995) (en banc) (injury by cargo

falling from overhead bin); cf. Wolens, 513 U.S. at 231 n.7 (noting

airline's concession at oral argument that torts arising from

negligent operations would generally escape preemption).

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wage laws, Californians for Safe & Competitive Dump Truck Transp.

v. Mendonca, 152 F.3d 1184, 1189 (9th Cir. 1998), cert. denied, 526

U.S. 1060 (1999). Negligence claims have been upheld against

airlines for injuries occurring during airline operations

themselves, and the Ninth Circuit has even held possible a claim 8

that might entail a rearrangement of cabin seating to reduce the

risk of deep vein thrombosis, Montalvo v. Spirit Airlines, 508 F.3d

464, 474-75 (9th Cir. 2007). But see Witty v. Delta Air Lines,

Inc., 366 F.3d 380, 383 (5th Cir. 2004).

These circuit cases confirm our view that the Supreme

Court would be unlikely--with some possible qualifications--to free

airlines from most conventional common law claims for tort, from

prevailing wage laws, and ordinary taxes applicable to other

businesses. Yet such measures must impact airline operations--and

so, indirectly, may affect fares and services. And the tips law,

like prevailing wage laws, is aimed at protecting employee

compensation.

The dividing line turns on the statutory language

"related to a price, route, or service." Importantly, the tips law

does more than simply regulate the employment relationship between
Compare Air Transp. Ass'n of Am. v. Cuomo, 520 F.3d 218, 222 9

(2d Cir. 2008) (per curiam) (defining "service" for purposes of the

preemption clause to "encompass[] matters such as boarding

procedures, baggage handling, and food and drink--matters

incidental to and distinct from the actual transportation of

passengers"), with Charas, 160 F.3d at 1261 (defining "service" as

"the prices, schedules, origins and destinations of the point-topoint transportation of passengers, cargo, or mail" but not "an

airline's provision of in-flight beverages, personal assistance to

passengers, the handling of luggage, and similar amenities").

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the skycaps and the airline; unlike the cited circuit cases, the

tips law has a direct connection to air carrier prices and services

and can fairly be said to regulate both. As to the latter,

American's conduct in arranging for transportation of bags at

curbside into the airline terminal en route to the loading

facilities is itself a part of the "service" referred to in the

federal statute, and the airline's "price" includes charges for

such ancillary services as well as the flight itself.

This view depends on reading "price" to include more than

the ticket price and "service" to include steps that occur before

and after the airplane is actually taxiing or in flight. On these

issues the lower court decisions have not been uniform. But this 9

dispute has been superceded by controlling Supreme court case law--

namely, by Rowe's expansive treatment of the term "service." Air

Transp. Ass'n, 520 F.3d at 223 (citing Rowe, 552 U.S. at 376). The

weight of circuit court authority now favors the broader

definition. See id. (collecting cases).
It is worth noting that, as the Supreme Court has repeatedly 10

emphasized, the federal Department of Transportation "retains

authority to investigate unfair and deceptive practices and unfair

methods of competition by airlines, and may order an airline to

cease and desist from such practices or methods of competition."

Wolens, 513 U.S. at 223 n.4; see also Morales, 504 U.S. at 390-91.

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Thus, the tips law as applied here directly regulates how

an airline service is performed and how its price is displayed to

customers--not merely how the airline behaves as an employer or

proprietor. To avoid having state law deem the curbside check-in

fee a "service charge" would require changes in the way the service

is provided or advertised. Much of the trial below turned on the

size of type stating the charge, the visibility of the posters,

what customers could and would be told by the skycaps, and whether

the airline should provide credit card machines that would more

clearly distinguish the charge as a payment to the airline.

Thus, in application, the Massachusetts tips statute,

although mediated by a jury, has the same potential impact on

American's practices as a guideline condemning the same conduct

explicitly. If anything, the problem of diverse regimes is even

greater than merely allowing fifty states to impose restrictions of

their own. In Massachusetts, individual juries would effectively

design their own detailed, ad hoc compliance schemes based on the

size, location and wording of the signs posted by the airline.10

The Supreme Court has also said that federal preemption

does not reach state laws that have only "tenuous, remote, or
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peripheral" impact. Rowe, 552 U.S. at 371 (quoting Morales, 504

U.S. at 390). The plaintiffs claim that the effect of the

Massachusetts tips statute on prices and services is tenuous in

this case, because the airline could comply with the state law

without incurring great expense or substantially altering the gist

of curbside check-in service. Their proposed remedies include:

• Posting more signs in more prominent places

• Using larger font on the signs

• Modifying the American website to mention tips 

• Permitting credit-card payments

• Installing a cash register at the curbside

• Re-bundling the cost of curbside check-in into

ticket prices

This, to borrow an apt airplane image, is walking into a

rotating propeller: the advertising and service arrangements are

just what Congress did not want states regulating, whether at high

cost or at low. When the Supreme Court invoked the rubric

("tenuous, remote, or peripheral"), it used as examples limitations

on gambling, prostitution, or smoking in public places--state

regulation comparatively remote to the transportation function.

See Morales, 504 U.S. at 390; Rowe, 552 U.S. at 371, 375.

Worse still, even if American took all of the steps

listed (save the last), it could hardly be sure that it would be

safe in imposing the $2 fee. A jury might still conclude that some

passengers would believe the $2, approximating what passengers

might expect to tip, was destined for the skycaps themselves. As

for the last suggestion, that step would raise American's ticket
-18-

fare and, even if sustainable, would change the price for customers

not using curbside check-in. In other words, the tips statute as

applied in this case could easily affect price and not just the

provision of the service.

We do not endorse American's view that state regulation

is preempted wherever it imposes costs on airlines and therefore

affects fares because costs "must be made up elsewhere, i.e., other

prices raised or charges imposed." This would effectively exempt

airlines from state taxes, state lawsuits of many kinds, and

perhaps most other state regulation of any consequence. Our view

that the tips statute is preempted, in its application to the

present circumstances, rests instead on the reasoning and results

in the three Supreme Court cases.

It is argued to us that American's conduct is no

different than if the airline put out a jar labeled "tips" at the

skycap counter and then appropriated the money dropped inside.

American, however, did not tell customers that they were paying $2

per bag as a tip to skycaps; it said on posters identifying

American Airlines as the patron that this was a charge for curbside

baggage service, adding (when prompted) that a "gratuity" was not

included. Whether or not some passengers ignored the sign,

property theft was not involved.

Nor is the outcome altered by the jury's alternative

basis for the verdict--interference with advantageous relations.
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To stand alone, the interference tort would require evidence that

American's motives or means were improper because unrelated to any

legitimate corporate interest. Blackstone v. Cashman, 860 N.E.2d

7, 12-13 (Mass. 2007); Brewster Wallcovering Co. v. Blue Mtn.

Wallcoverings, Inc., 864 N.E.2d 518, 531-32, 541 (Mass. App. Ct.

2007). Here, the jury instructions made plain that the improper

motive or means element--required to make out the tort claim--could

properly rest on the violation of the tips statute.

That the jury award on both claims did rest critically on

the tips statute is evident from the fact that the jury rejected

the tort claim of the sole plaintiff from Missouri, who was not

covered by the Massachusetts tips law and who could rest only on

the common law tort of interference with advantageous relations.

Although American made this point on appeal, the skycaps' brief did

not point to any material difference in the Massachusetts and

Missouri tort claims. See also DiFiore, 688 F. Supp. 2d at 19. On

this record, then, the jury concluded that the plaintiffs did not

prove an independent common law interference claim. 

The Massachusetts legislature, in amending the tips law

to cover employees like skycaps, could have made a reasonable

choice to favor local workers even at some cost and multiplication

of rules for national enterprises like American, operating in many

different states. But this kind of state-determined trade-off may

be just what concerned Congress when it framed the preemption
-20-

provision. In all events, Morales, Wolens, and Rowe appear to us

to dictate the outcome here.

The judgment of the district court granting recovery and

awarding attorneys' fees is reversed and the case is remanded for

entry of judgment in favor of American. Each side shall bear its

own costs on this appeal.

It is so ordered.