Passengers stranded by the July 2024 CrowdStrike outage are asking the Supreme Court to let them sue for their losses. Delta’s lawsuit against CrowdStrike was allowed to proceed. The passengers’ case was thrown out under the 1978 Airline Deregulation Act, even though CrowdStrike isn’t an airline.

The courts have decided that the Airline Deregulation Act blocks their state law claims over the disruption. The passengers want the justices to resolve a disagreement among federal appeals courts over how far that protection goes.

When I covered this case in June, they were asking the full Fifth Circuit to reconsider their loss. That request was denied June 15. They filed their Supreme Court petition September 14. The case is del Rio v. CrowdStrike, No. 26-355, and CrowdStrike’s response is due October 16.

CrowdStrike’s faulty software update crashed millions of Windows systems. Delta canceled 7,000 flights, affecting about 1.3 million passengers. The original lawsuit, filed August 5, 2024, argued that CrowdStrike failed to properly test and deploy its update. Lead plaintiff Julio del Rio said he spent about $1,200 on replacement tickets for himself and his wife, slept on airport benches or the floor during an 11-hour overnight delay in Kona, and got home 17 hours late.

7/20/2024 10:30 AM Travel Warning

Due to the global IT outage by @CrowdStrike on 7/19, my flight with @Delta at Hartsfield-Jackson Atlanta International Airport has been canceled twice (7/19 and 7/20). The airport is a ZOO, long lines at the lost baggage & customer service. pic.twitter.com/oGSolX74j5

— Ethan M. Cortazzo (@Ethan_Cortazzo1) July 20, 2024

I live at the airport now. Thanks, @Delta! ✈️ pic.twitter.com/x8F6MLTcso

— Liz Skalka (@lizskalka) July 20, 2024

The case alleges negligence in designing, testing and releasing the update, failure to warn, and public nuisance. Passengers sought compensation for extra expenses and injuries from their disrupted trips. But a federal judge dismissed the case in June 2025, and the Fifth Circuit upheld that dismissal in May.

- The Airline Deregulation Act prevents states from enforcing laws related to an airline’s “price, route, or service.” That includes schedules.

- And courts treat common law duties, such as the obligation to exercise reasonable care (as well as duties of good faith and fair dealing), as state law regulation too.

- A damages award can change how a company does business, so a negligence lawsuit can be preempted just like a state statute.

The district court’s reasoning was that these passengers were seeking damages for failures in airline services: canceled flights, reservations, rebooking and baggage handling. And that’s even though they were suing CrowdStrike and not Delta.

Meanwhile, Delta bought CrowdStrike’s product and has its own contract with the company. A Georgia judge allowed most of Delta’s claims to proceed, including contract and gross negligence claims.

Under American Airlines v. Wolens, courts can hold an airline to promises it voluntarily made. But these passengers don’t have their own CrowdStrike contracts to enforce. CrowdStrike made no promises to passengers. The split they’re asking the Supreme Court to resolve is over what counts as an airline “service.”

- The Fifth Circuit takes a broad view. Its decision in Hodges v. Delta Air Lines treats services as the things passengers bargain for when buying air travel: ticketing, boarding, baggage handling, food and drink, and transportation itself. Most circuits that have addressed the question take a broadly similar approach.

- The Ninth Circuit takes a narrower view. In Charas v. Trans World Airlines, it focused on the transportation the airline offers: prices, schedules, origins and destinations. Ordinary amenities and assistance to passengers don’t automatically qualify. The Third Circuit endorsed that approach in Taj Mahal Travel v. Delta Airlines, emphasizing whether a claim interferes with airline competition.

- The Eleventh Circuit adds limits to the broader view. Its cases, including Branche v. Airtran Airways and Amerijet International v. Miami-Dade County, ask whether the service is something airlines compete over, something bargained for, and something exchanged between an airline and its consumers. The passengers argue CrowdStrike’s behind-the-scenes software work doesn’t fit.

The split actually widened this month. On September 3, the Eighth Circuit adopted the broader interpretation in Pennsylvania Insurance Co. v. Federal Express which involved a lost package. There’s a real and persistent dispute about the meaning of a federal law.

But even the Ninth Circuit’s narrower definition includes scheduled transportation. These passengers are seeking money because their flights didn’t operate as planned. A court could adopt the Ninth Circuit’s approach in Charas and still conclude that claims for those losses are related to an airline service.

The current state of this case notwithstanding, it seems like stronger argument really is that the ordinary duties to develop and test software carefully are too far removed from airline pricing and schedules to count as airline regulation. CrowdStrike sells cybersecurity products across industries. The Supreme Court has recognized that some connections to airline services are too remote to trigger preemption.

But that also makes this a difficult case for getting Supreme Court review. The petition doesn’t identify another appeals court that allowed a comparable passenger lawsuit against a software vendor. So while there’s a circuit split on preemption, I’m not sure there’s a circuit split that matters here. And the justices have let the circuit split persist for decades: they declined to resolve it a quarter century ago.

I’d give it a 10% chance they take this case, which is more than the average petition but still quite low. The circuit split helps, but a case whose outcome might be the same under either interpretation isn’t a great vehicle to resolve it.

If they do hear it, I’d still give CrowdStrike the stronger legal case under existing precedent although I don’t think that’s the normatively better approach.

- Regular readers know that I support of airline deregulation, and that most critics don’t even know what it was. It’s meant lower prices and far more accessible air travel, while safety has even improved. And airlines remain one of the most heavily regulated industries.

- Congress wanted a national system in which airlines competed over prices and routes without states creating a patchwork of rules.

- But treating ordinary common law duties as the equivalent to state economic regulation doesn’t seem correct. I would treat common law duties as just as much a part of federal law.

- However, the way the law treats this isn’t dependent on whether the defendant is an airline, common law tort is preempted, and passengers are seeking damages over failed air travel.

The district court reasoned that liability could cause vendors to change their practices or raise their prices, affecting airline services. Almost any requirement to pay for harm a business causes can raise its costs. I don’t think all sales to an airline should come under a liability shield.

Congress should make clear that ordinary negligence claims survive. These passengers would still have to establish that CrowdStrike owed them a duty, that its conduct caused their losses, and that the law permits recovery for those losses. Passengers should be permitted to make that case.