Two gay men filed invasion-of-privacy claims against an airline, alleging that the defendant company placed a sex toy on top of their luggage in an effort to humiliate them. A trial court dismissed their claims, but the U.S. Court of Appeals for the Fifth Circuit reversed that decision.

The background to the Fifth Circuit’s Nov. 4 per curiam decision in Christopher J. Bridgeman v. United Continental Holdings Inc. is as follows, according to the opinion.

Christopher J. Bridgeman and Martin A. Borger were returning to the United States from Costa Rica on a flight provided by United Continental Holdings Inc. and Continental Airlines Inc. (collectively referred to in the opinion as “United”). Upon arriving in Houston, the men went through U.S. Customs and rechecked their bags before boarding a connecting flight to Norfolk, Va.

At the Norfolk airport, the plaintiffs went to the baggage claim area, and “as Plaintiffs’ bags came around the carousel, they discovered, to their surprise and horror, that a sex toy had been removed from one of their bags, covered in a greasy foul-smelling substance, and taped atop the bag,” according to the opinion.

The plaintiffs filed claims against United in Texas state court, asserting infliction of emotional distress, invasion of privacy and negligence. They alleged the acts were directed towards them “because they are homosexuals and male,” according to the opinion.

United denied the allegations and removed the case to U.S. District Court in the Southern District of Texas. United also filed a motion to dismiss, arguing that the plaintiffs’ claims are preempted by Article 17 of the Montreal Convention, which defines conditions for carrier liability for injury to international passengers and damage to their baggage.

The district court granted United’s motion to dismiss, agreeing with the preemption argument, reasoning that “because the suit does not set out facts or conduct establishing a claim for an alleged tort apart from the handling of their baggage, the pleadings are insufficient to support a non-preempted cause of action.”

The plaintiffs appealed the dismissal to the Fifth Circuit, arguing that their claims do not fall within the provisions of the Montreal Convention. And the Fifth Circuit agreed.

“Whether Article 17 … preempts Plaintiffs’ claims boils down to whether they seek a remedy for ‘damage to checked baggage,’ ” the Fifth Circuit noted in a decision that reverses and remands the case to the district court. “ We hold that they do not and that, therefore, Article 17 … does not preempt Plaintiffs’ state-law claims. The alleged misconduct in this case simply does not relate to any damage to Plaintiffs’ duffel bag, which they admit is ‘just fine’ and undamaged; rather, Plaintiffs seek a remedy for the way in which their bag was utilized to inflict personal injury.”

Dax Faubus, a partner in Houston’s Faubus & Scarborough who represents the plaintiffs in the case, is pleased with the decision.

“It’s a huge opinion in the sense that the Fifth Circuit—one of our more conservative courts—has recognized this claim as not being preempted,” Faubus says. “The issue was whether or not we were making claim to a bag, as [the district court] found, or whether we were making a claim for the use of the bag, if you will, by airline employees to humiliate and embarrass our clients with this despicable act.”

Christen David, director of corporate communications for United Airlines, writes in an emailed statement: “United does not tolerate discrimination of any kind. After conducting a thorough investigation, we determined that there is no support for this allegation,” David wrote. “We are evaluating our options and will continue to vigorously defend ourselves and our employees.”