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Tortious Interference?

Discussion in 'Phantom 2 Vision + Discussion' started by CRankin, Jul 15, 2014.

  1. CRankin

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    OK, I've got a question for some of the lawyers on this board...

    Given the irresponsible manner in which the FAA is acting, and all the whining and blabbering it's doing about how it "rules the skies", would it be possible for a number of people who are operating aerial photography businesses to band together and file a class action suit against the agency for tortious interference with business?

    After all, the FAA is spewing complete nonsense when it comes to saying that they have the ability to regulate something that's done for commercial purposes with small unmanned craft flying below 400' within line of sight at all times.
     
  2. Werz

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    Certifying a class under the Federal Tort Claims Act would required everyone to first file an administrative claim with the FAA. If you feel like breaking the ice, knock yourself out.
     
  3. El_Flaco0525

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    There may be some basis for challenging the FAA on the basis that its rules/guidelines are beyond the scope of Congress' delegation of authority to it. Maybe. I'm a lawyer, but I don't specialize in administrative law, and I haven't researched the statutes on which the FAA relies for authority or the details of its regulations. So that isn't advice, just food for thought.

    But I'm pretty confident in stating that tortious interference is a non-starter. The law of tortious interference is a matter of state common law, and the details probably vary somewhat from state to state. But in my state, to prove tortious interference, a plaintiff has to prove: (1) a contract existed that was subject to the defendant's (in this case, the United States government's) interference; (2) the defendant willfully and intentionally committed acts that were calculated to cause damage to the plaintiff in its lawful business; (3) the defendant had actual knowledge of the existence of the contract and of the plaintiff's interest in it, or knowledge of facts and circumstances that would lead a reasonable person to believe in their existence; (4) the defendant's acts were the proximate cause of the harm (i.e., the harm was actually caused by the defendant and the harm was reasonably foreseeable); and (5) the plaintiff actually suffered damage and loss as a result.

    Even if the plaintiff proves each of those elements, the defendant has an affirmative defense (meaning that it's the defendant's burden to prove the defense) of privilege or justification. To prove that defense, the defendant must prove that either: (1) the interference results from the defendant's bona fide exercise of its own rights; or (2) the defendant possesses an equal or superior right in the subject matter of the contract.

    There are also issues of sovereign immunity that would likely come into play.

    Government at all levels makes laws or regulations that can impact a person's business negatively. That may suck, but it isn't tortious interference.

    Believe me, I'm sympathetic. But tortious interference won't work.
     
  4. kymedic121

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    Currently the FAA is operating under a Re-Authorization of law with an Initiative that supposedly allows them to make the rules as they go. There is NO legislative law on the books that deem "Commercial Use" or for it to be "Illegal". Nor, does it list any of the penalties of such. I am not an attorney, I am a Deputy Sheriff, Paramedic and I own farmland. I was told that it was against the FAA regs for me to use my Phantom to fly my agriculture fields and my neighboring farmers ag fields as this was to be considered Commercial Flight. I think its wrong for the FAA to tell a photographer that he cannot sell a photo or services to a real estate agency especially when he/she never exceeds the 400 altitude and never leaves LOS. I would be happy to join a Class Action.
     
  5. CRankin

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    First off, thank you very much for the information. I can see based upon your description that tortious interference wouldn't apply - though it still feels in my gut that the FAA is doing something similar. I'm sure you would agree that they're not operating in a vaccuum, and that their overreach through subpoena to a realty agency was intentionally designed to hurt those who are operating small businesses around aerial photography.

    You've given some good food for thought, indeed. Perhaps it's time to start speaking to attorneys who specialize in administrative law. (Sometimes the best defense is a good offense. :) )
     
  6. Werz

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    I was a bit brief in my earlier post, so maybe I should be more clear ...

    There is very definitely a sovereign immunity issue. The Federal Tort Claims Act is the statutory remedy (and to a large extent, the sole remedy) to what would otherwise be a bar under the sovereign immunity doctrine. However, a condition precedent to filing suit under the Act is first filing an administrative claim with the offending agency. That's why a class action is highly improbable; it is also why I referred the OP to the form for filing an administrative claim. If you think it will look silly to file that form, that should tell you something about the potential of a subsequent lawsuit.
     
  7. CRankin

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    I think it would look far less silly filing that form than it would for the FAA to implement all of its machinations. :)

    But seriously, I took a quick look at the form and am trying to figure out some angles on this. If there's a way to take on the FAA and prevent it from intentionally damaging millions of Americans, I'm interested.

    This is also an election year, and I'd suggest that anyone who's serious about this issue start pumping their legislators now. Show up at town hall meetings and debates. It doesn't hurt to ask loaded questions that make it look like supporting the FAA on this is a vote to destroy small businesses and hurt Realtors (and potentially affect real estate prices). The mere suggestion that someone is anti-job and anti-small business in this economy could damage their campaign - and that's precisely what needs to be done to anyone who would support the FAA.