CHICAGO — A federal judge clipped the wings of a class action in which Southwest Airlines flight attendants sued Boeing over the allegations it hid problems with its 737 Max aircraft.
In an opinion issued Jan. 11, U.S. Judge Robert Gettleman ended the six-count complaint in which eight named plaintiffs alleged fraud, negligence, misrepresentation and interference with contract rights and existing business relationships.
The plaintiffs first filed their complaint March 16, 2020, seeking to represent about 17,000 Southwest Airlines colleagues. Through their attorneys Miller Law, of Chicago, Burg Simpson Eldredge Hersh & Jardine, of Engelwood, Colo., and Irwin Fraley, of Centennial, Colo., the flight attendants alleged Boeing “used the 737 legacy to cloak the 737 Max in a fiction of familiarity” because it feared competition from rival aircraft maker Airbus. They further alleged Boeing lied to circumvent conventional regulatory evaluations, allegedly rushing the planes into production and service.
“In addition to concealing the known design and safety defects, Boeing doubled down by misrepresenting to the world that the 737 MAX was a safe aircraft,” the complaint alleged.
The plaintiffs noted the Federal Aviation Administration grounded all 737 Max planes after two fatal crashes. The plaintiffs claimed this adversely affected the flight attendants’ union by eliminating thousands of flights on short notice.
At the time of the FAA grounding in 2019, Southwest had 34 such airplanes in its fleet and about 20 more on order, plaintiffs alleged. The complaint said the grounding caused Southwest to cancel 330 flights per day. The chief technical issue allegedly was a choice of engines that changed the 737 Max’s center of gravity, decreasing stability and increasing the risk of aerodynamic stall, allegedly making this specific airplane a riskier proposition than traditional 737s, according to the plaintiffs.
After Boeing moved to dismiss the complaint, the plaintiffs voluntarily dismissed claims for tortious interference with contract and existing business relationship. Gettleman said the remaining four counts failed because the complaint didn’t adequately allege how the named plaintiffs were legally injured as a result of the alleged misrepresentations.
Notably, Gettleman wrote, the complaint contained “no allegations that any of the named plaintiffs were scheduled to work” the canceled flights, which means they didn’t demonstrate a loss of income linked to the grounded planes. Rather, he said, the claims are rooted in “certain misstatements made in 2012 and 2013” when the union was negotiating a new collective bargaining agreement.
“As the complaint makes clear, however, the negotiations and agreement occurred well before (Boeing) had even achieved a firm design configuration and more than a year before (Boeing) began ground testing of the engine,” Gettleman wrote in his opinion. “Nothing in the complaint suggests that the alleged misrepresentations made in 2012 or 2013 caused any damage to any named plaintiff or the flight attendants as a group.”
Boeing argued allowing the flight attendants to sue for lost income would make it liable for any financial loss connected to the FAA’s grounding decision, whether that be ground crew workers, or even companies that supplied items for passengers on the potential flights. Gettleman agreed that logic undercuts the plaintiffs’ proximate cause allegations and also said the complaint failed to show how any of the allegations against Boeing were made with the intent to induce the flight attendants to act, or that Boeing has a fiduciary duty to flight attendants.
“There is no allegation to even remotely suggest why (Boeing) had any interest in Southwest Airlines’ agreement with its flight attendants,” Gettleman wrote. “What the complaint does allege is that defendant made the representations and omissions for the purpose of getting the 737 MAX to market and into operation as quickly as possible."
Gettleman also said Illinois’ economic loss doctrine precedent barred the workers’ negligence and negligent misrepresentation claims, granting Boeing’s motion to dismiss the entire complaint.
Boeing has been represented in the action by attorney Michael B. Slade and others with the firm of Kirkland & Ellis LLP, of Chicago and Washington, D.C.