On January 14th, the NAM filed an amicus brief urging the Fifth Circuit to reverse the lower court’s decision to certify a class of millions of uninjured individuals, endorsing a theory of standing that essentially monetized a risk of harm that never materialized as to those class members. The class in this case, Earl v. Boeing Co. and Southwest Airlines Co., consists of hundreds of millions of Southwest and American Airlines ticket purchasers who assert that they overpaid for tickets due to a concealed safety defect in Boeing’s 737 MAX 8. However, 95% of the class never boarded a 737 MAX airplane. And the remaining 5% that did travel on a 737 MAX did so safely—the alleged defect never manifested itself in those aircraft. In other words, the class members got the safe transportation that they paid for and therefore fail to assert any Article III injury in fact.
The NAM’s brief argues that Article III standing is a threshold requirement that must be established at the class certification stage. Plaintiffs should not be able to circumvent this requirement by asserting speculative pocketbook injuries—here, an “overcharge” theory supported only by dubious expert testimony. As manufacturers are acutely aware, the presence of millions of plaintiffs in a class can increase litigation risk and settlement pressure to the point at which defending against the claims becomes unrealistic.
Happily, on November 21, 2022, the Fifth Circuit held that the plaintiffs lack Article III standing, reversed the district court, and remanded the case to be dismissed for want of jurisdiction.