An Interview with David Berg

David Berg retired in 2018 after serving for 15 years as senior vice president, general counsel, and secretary of Airlines for America (A4A), the trade association of the leading U.S. airlines. He began working at the Association as an attorney in 1985, when it was known as Air Transport Association of America (ATA). In all, his career at ATA/A4A spanned 33 years. He is a past Chair of the ABA Forum on Air & Space Law and from 2019 to 2021, he was the Editor in Chief of The Air and Space Lawyer.

A&SL: You recently retired from your role as general counsel to Airlines for America (A4A), and from your role as Editor in Chief of The Air and Space Lawyer. Congratulations! Tell us a bit about how you got into this field and about your career as a lawyer in aviation.

DB: During law school at American University, I clerked for a small, local firm; after graduating I focused on commercial and bankruptcy matters, which also gave me some litigation experience. When I decided to do something different, I connected with Jim Landry, general counsel of A4A (then known as the Air Transport Association, or ATA) through someone I knew at United Airlines. This was in 1985, just after deregulation occurred, and while ATA’s legal team had plenty of Civil Aeronautics Board experience, I believe Jim recognized that a different perspective would be needed going forward. As it turned out, I had the skill set and experience Jim was looking for, and we hit it off personally. Jim was confident that I would pick up the necessary aviation and regulatory law principles along the way. Fortunately, I was part of a very experienced and talented team, and I benefited from their advice and mentoring.

My A4A career was truly fantastic—far more interesting and rewarding than I ever imagined it might be. Early on, I was tasked with managing litigation the Association brought on behalf of its members, and I quickly realized that I enjoyed the legal challenges and the opportunity to work with many talented lawyers from our member airlines and the law firms we retained. As a young lawyer, that experience was invaluable.

The substantive issues in these “industry” cases frequently involved federal preemption or the validity of federal or local regulations, but often in a high-profile social context, making them even more interesting. For example, one of my first projects was to write an amicus brief to the U.S. Supreme Court supporting DOT’s view of its limited authority, under section 504 of the Rehabilitation Act, to regulate services the airlines provided to persons with disabilities—not a popular public position. In another case in the 1990s, ATA challenged an ordinance passed by the City and County of San Francisco requiring businesses doing business with the City to provide domestic partner benefits. Challenging those requirements on preemption grounds was controversial and brought with it significant media attention, requiring both a litigation strategy and a detailed communications plan. I also worked on comments on a number of challenging rulemakings, such as drug and alcohol testing, the initial Air Carrier Access Act regulations, who can sit in emergency exit rows, and pilot flight time rules—again working closely with our member airlines to formulate consensus policy positions that still preserved their competitive or operational differences.

I was fortunate to gain deep experience in a wide variety of legal issues affecting aviation. I learned quickly that the airline industry is not monolithic and that I needed to pay careful attention to the competitive concerns of our members. Finding common ground in litigation and rulemaking was not always easy. Over time, I earned their trust and developed strong relationships with many attorneys serving our members, and, in part, because of that I was appointed ATA’s general counsel in 2003.

A&SL: Follow-on question: Would that be a way of becoming an aviation lawyer that would work today for a young lawyer interested in getting into this exciting field?

DB: As you can see, I landed at the Association through serendipity—knowing someone who knew someone, a classic D.C. story. But it illustrates how important it is for young lawyers to make, develop, and use their contacts, however remote, to uncover opportunities and to keep an open mind about what they may find interesting. I wasn’t looking for an aviation job—aviation found me. The work captured my interest and imagination; it led to a wonderful career.

A&SL: Looking back on your career, what do you consider was the most challenging?

DB: The most challenging aspect, over time, was finding ways to articulate industry positions when our members had differing views on a particular issue. This could occur in almost any context—proposed regulations or legislation, local ordinances, litigation, or airport development projects. Different airlines could have different perspectives or levels of interest in any one issue, and at times it could be a challenge to find a position, or a way to state a position, that could satisfy everyone’s concerns. Reaching “yes” sometimes took extensive negotiation and the goodwill of our members, who realized that they would want the support of their colleagues on a different issue at some point in the future. There is a lot of truth in the old adage “What goes around comes around.” Even so, in rare instances, the members remained so divided on an issue that A4A ultimately would have to stand down.

In terms of assignments, I would say serving on the DOT Advisory Committee for Aviation Consumer Protection was the most challenging activity. There were virtually no limits on what the Committee could look into, and its composition, naturally, was oriented toward consumers airing complaints against airlines and the nature of airline services in a deregulated market. Even in 2012, when Congress authorized the Committee, the goal of some consumer advocates was to reimpose service regulation, and the Committee provided a forum for those advocates. In nine meetings over three years, we covered a lot of consumer grievances, and I was responsible for ensuring the Committee received the facts, economic analyses, and academic studies to support balanced reports to the DOT Secretary, as well as advocating for the industry at public meetings and in conversations with Committee members.

A&SL: Looking back on your career, what do you consider was the most fulfilling?

DB: I would say the personal relationships I developed were the most rewarding aspect of my career. I got to know and develop close professional relationships with many good people at our member airlines. I worked with some terrific attorneys who mentored me along the way and who I considered to be both colleagues and friends. The personal relationships are what really made the job enjoyable. Similarly, I worked with several extraordinary attorneys at firms in D.C. and around the country—and even in other countries—who I admired tremendously. Earning their respect was very rewarding. Finally, developing solid professional relationships with several DOT general counsel and their teams across both Democratic and Republican administrations was very rewarding because I was trusted to convey our positions and concerns professionally and engage honestly on sometimes contentious topics.

A&SL: Looking back on your career, what do you consider was the most fun?

DB: Winning some cases was fun! I would put in that category convincing the Second Circuit to hold New York’s Passenger Bill of Rights preempted by the Airline Deregulation Act, convincing the D.C. Circuit that the FAA violated the APA when it adopted new civil penalty rules without an opportunity for notice and comment, and invalidating a GSA rule requiring airlines to automatically refund unused tickets.

A&SL: Is there someone in aviation law who has had particular influence over you during your career?

DB: This is a tough question because it’s hard to point to just one or two people.

Especially during my early years at A4A, there were several people who I would describe as influential. First, I would say Jim Landry. He opened my eyes to the aviation legal world, especially international aviation, and helped set me on my career path by putting me in a position where I could work hard and succeed. Second: a former Delta lawyer, Gerry Mayo. Gerry was a gifted trial attorney who helped school me about how airlines work and the preeminent importance of safety. He also excelled at working with his colleagues from other airlines to achieve consensus industry positions. Finally, I was privileged to work with Carl Vogt for a period of time when he was at Fulbright & Jaworski. As you know, Carl had been chairman of the NTSB. Carl exemplified professionalism, integrity, and grace. Being around Carl always made me a better lawyer and a better person.

I could go on naming people who influenced me, including many of the general counsel I worked with both before and after I became A4A’s general counsel—but I’ll stop there.

A&SL: If you had control over a crystal ball, what would you put in that ball as something that you would like to see happen in aviation law in the future?

DB: One area concerns use of airport revenue. Often, there is pressure on airports to use revenues for projects that aren’t truly for airports but instead support a general governmental purpose, such as transit or road construction. Clearer law from Congress on this point would benefit airports by ensuring revenues are kept for airports and not diverted. It would also benefit the FAA by shielding it from local government pressure to allow use of money for such projects.

Another area concerns DOT consumer protection enforcement. In general, DOT does a good job and should remain the exclusive consumer protection enforcement agency. However, a point sometimes overlooked that I believe merits formal recognition is that airlines have decentralized workforces. The consumer-facing employees, especially flight attendants, have attenuated contact with headquarters and senior supervisory personnel, and they operate in a time-sensitive environment. In consumer enforcement cases, DOT should recognize and consider this context when evaluating whether noncompliance with a regulatory standard merits a sanction or, if so, the severity of the sanction.

A&SL: What do you look forward to doing in retirement?

DB: Over the past year, with COVID-related quarantine, I have checked one box already—bingeing TV shows I missed out on, like The Sopranos and Westworld. Now I am looking forward to traveling (hopefully soon) to new places, seeing family and old friends, and experiencing some bucket-list golf courses here and abroad (there is little hope for actually improving my game). I’m also catching up on my reading list. So far, I have enjoyed David McCullough’s biography of Harry Truman; Ron Chernow’s biography of Alexander Hamilton; and Erik Larson’s book, The Splendid and the Vile, about Winston Churchill and the Blitz. I’ve also found I enjoy the creativity of authors David Mitchell, Neil Gaiman, and Haruki Murakami.