Southwest Airlines Just Beat A Passenger Lawsuit Over 737 MAX Crashes — None Of The Plaintiffs Had Even Flown The Plane

Southwest Airlines won a very strange lawsuit. The opinion from the U.S. Court of Appeals for the Fifth Circuity begins,

In this class-action lawsuit, Plaintiffs sue Southwest Airlines Company (Southwest) on behalf of themselves and everyone who bought a Southwest plane ticket between August 2017 and March 2019.

Two Southwest flights crashed during that period, but Plaintiffs were not ticketed to fly on those flights.

This is a Boeing 737 MAX case. No Southwest Airlines 737 MAX – or any Southwest Airlines plane – crashed during that period.

In Monahan et al. v. Southwest Airlines Company (No. 6:21-cv-00887-ADA-JCM), Southwest Airlines passengers sought to bring a class action against the carrier for breach of contract. Southwest promised safe transportation, but they flew 737 MAXs. They sold tickets ‘at full price’ but did not deliver the promised safe flights on safe aircraft with properly trained pilots and regulatory compliance.

• The theory was that anyone who bought tickets on Southwest Airlines was defrauded, even if they did not fly on a Boeing 737 MAX, because Southwest can and does substitute aircraft. No one actually knows at the time of purchase what plane they’ll get.

• Southwest’s Customer Service Commitment promises that safety is Southwest’s first priority, that it would not compromise on safety, and that all Southwest pilots, flight attendants, and mechanics were trained and familiar with every airplane in the fleet.

• But Southwest broke those promises by operating the “unsafe,” “non-airworthy,” and “defective” 737 MAX, by not sufficiently training pilots on the MAX and the MCAS-related differences from earlier 737s, and by making misleading statements about the aircraft’s safety.

  The lawsuit alleged that Southwest helped push the FAA to approve the MAX without simulator training, including by keeping MCAS out of the flight manual. And that’s part of the story of the Lion Air flight 610 and Ethiopian Airlines flight 302 crashes.

No one suing was harmed in a crash. Everyone got the transportation that was promised. But the suit argued that Southwest didn’t fully deliver the promised product, since everyone rolled the dice on whether they’d get a MAX and whether that was actually safe. As a result, the ticket they bought was worth less than what they purchased.

That was never going to work, and it certainly wasn’t going to work in the 5th Circuit. And it definitely wasn’t going to work in the 5th Circuit against hometown Southwest Airlines.

• Named plaintiffs never even flew the MAX, had no physical or emotional injuries, and got transportation as purchased. Any overcharge theory was entirely speculative, and there was no standing to sue without injury.

• The contract of carriage saying that transportation is provided in accordance with “applicable laws” doesn’t make all FAA requirements private contract terms. And the boilerplate language Southwest uses to market its safety commitment isn’t concrete enough to be an enforceable promise.

• The case is about airline prices and services, so federal law preempts state claims under the Airline Deregulation Act. They can still be sued for violating their own contract terms, but the plaintiffs wanted to look at federal aviation law not the contract itself, which they argued was incorporated by reference.

• Plaintiffs bought tickets at Southwest.com which includes a class action waiver.

All the district court needed to get to was lack of standing. The Fifth Circuit doesn’t countenance lawsuits over risk of injury that never happened, and the plaintiffs never even flew a plane that had the alleged risks. The Fifth Circuit said the case wouldn’t have had standing if they’d flown the aircraft.