barney captain
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 4:21 pm

flyingclrs727 wrote:
Had the pilot's union not need so adamant that there only be one pool of pilots, the 737-300 fleet would not have been retired en mass at the end of September 2017. It would have been possible to bring back some 737 classics stored in the desert to fill in temporarily while the MAX was grounded.


I have no idea where you're getting that, as nothing could be farther from the truth. SWA has operated separate pilot pools - first with the 727, and more recently with the draw-down of the -200. All of which happened with the blessing of SWAPA. The Classics were going away - period. They had a 65% dispatch reliability and then there was that pesky little issue about the AD for the fuel tank inerting system - that none of the Classics complied with. The FAA wouldn't grant authority to have the pilots fly all variants from Classic to MAX. If SWA wanted to once again have a separate pilot pool and keep the Classic's - fine, but that made zero economic sense.

SWA made the decision (correctly) to retire the Classics based on economics, not on some absurd notion of union pilot pressure.
Southeast Of Disorder
 
Phoenix757767
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 4:23 pm

oschkosch wrote:
LJ wrote:
Phoenix757767 wrote:
It’s a Force Majuere issue which is perfectly legal. I doubt the pilots win


We've discussion before, this is not Force Majeure as Force Majeure relates to events beyond someones (in this case Boeings) control. Delivering an airplane which has serious technical issues after which a regulator decides to ban it from the sky, is something the manufacturer could prevent. The fact that regulator provided approval is not relevant in detemining "Force Majeure".



Ah yes lol. I agree :checkmark:

The old force majeure trick is back :rotfl: We discussed that in detail in the grounding thread. The grounding is not an "act of god".


Force majeure meaning "superior force", is a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, or an event described by the legal term act of God (hurricane, flood, earthquake, volcanic eruption, etc.), prevents one or both parties from fulfilling their obligations under the contract. In practice, most force majeure clauses do not excuse a party's non-performance entirely, but only suspend it for the duration of the force majeure.

Force majeure is generally intended to include occurrences beyond the reasonable control of a party, and therefore would not cover:

Any result of the negligence or malfeasance of a party, which has a materially adverse effect on the ability of such party to perform its obligations.
Any result of the usual and natural consequences of external forces.

To illuminate this distinction, take the example of an outdoor public event abruptly called off.
If the cause for cancellation is ordinary predictable rain, this is most probably not force majeure.
If the cause is a flash flood that damages the venue or makes the event hazardous to attend, then this almost certainly is force majeure, other than where the venue was on a known flood plain or the area of the venue was known to be subject to torrential rain[.


https://en.wikipedia.org/wiki/Force_majeure

Neither was SARS or 9/11 an Act of God and force majuere was used and upheld. And in every airline labor contract a fleet grounding is listed as a way for a company to get around no layoff clauses etc.
 
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trpmb6
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 4:31 pm

The case will be dismissed by my estimate. They have no standing to sue Boeing for lost wages.

Now the issue of training, that's separate and I don't believe there is any way to show that it led to lost wages. So no money there either.
 
oschkosch
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 4:37 pm

Phoenix757767 wrote:
oschkosch wrote:
LJ wrote:

We've discussion before, this is not Force Majeure as Force Majeure relates to events beyond someones (in this case Boeings) control. Delivering an airplane which has serious technical issues after which a regulator decides to ban it from the sky, is something the manufacturer could prevent. The fact that regulator provided approval is not relevant in detemining "Force Majeure".



Ah yes lol. I agree :checkmark:

The old force majeure trick is back :rotfl: We discussed that in detail in the grounding thread. The grounding is not an "act of god".


Force majeure meaning "superior force", is a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, or an event described by the legal term act of God (hurricane, flood, earthquake, volcanic eruption, etc.), prevents one or both parties from fulfilling their obligations under the contract. In practice, most force majeure clauses do not excuse a party's non-performance entirely, but only suspend it for the duration of the force majeure.

Force majeure is generally intended to include occurrences beyond the reasonable control of a party, and therefore would not cover:

Any result of the negligence or malfeasance of a party, which has a materially adverse effect on the ability of such party to perform its obligations.
Any result of the usual and natural consequences of external forces.

To illuminate this distinction, take the example of an outdoor public event abruptly called off.
If the cause for cancellation is ordinary predictable rain, this is most probably not force majeure.
If the cause is a flash flood that damages the venue or makes the event hazardous to attend, then this almost certainly is force majeure, other than where the venue was on a known flood plain or the area of the venue was known to be subject to torrential rain[.


https://en.wikipedia.org/wiki/Force_majeure

Neither was SARS or 9/11 an Act of God and force majuere was used and upheld. And in every airline labor contract a fleet grounding is listed as a way for a company to get around no layoff clauses etc.



Actually the 9/11 attacks do fall under force majeure terminology! Force Majeure, may involve both acts of nature (floods and hurricanes) and acts of people (riots, strikes, and wars). Whereas the USA was not at war, the attacks are defined as acts of people upon the USA which were of unforeseeable nature.
 
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ODwyerPW
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 4:41 pm

Revelation wrote:
If you are Boeing wouldn't you pay $100M to make this go away, especially since you are already $billions in the hole due to MCAS already?


Would that set a precedent that every single pilot union that represents airline pilots that fly the max could sue Boeing directly... even those pilots that work for airlines that haven't received their MAXes, those pilots unions could sue too for lost wages? on top of all of the airlines that are Max customers suing as well?

These compounded lawsuits could just go on forever. wow...
learning never stops.
 
Northpole
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 5:11 pm

Amiga500 wrote:
Nice that they aren't really suing Boeing because the aircraft put them in danger.... they are suing because it deprived them of opportunity to make money.

I suppose its the way the world works these days.


Rather the U S of A perhaps ?
 
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flyingclrs727
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 7:36 pm

barney captain wrote:
flyingclrs727 wrote:
Had the pilot's union not need so adamant that there only be one pool of pilots, the 737-300 fleet would not have been retired en mass at the end of September 2017. It would have been possible to bring back some 737 classics stored in the desert to fill in temporarily while the MAX was grounded.


I have no idea where you're getting that, as nothing could be farther from the truth. SWA has operated separate pilot pools - first with the 727, and more recently with the draw-down of the -200. All of which happened with the blessing of SWAPA. The Classics were going away - period. They had a 65% dispatch reliability and then there was that pesky little issue about the AD for the fuel tank inerting system - that none of the Classics complied with. The FAA wouldn't grant authority to have the pilots fly all variants from Classic to MAX. If SWA wanted to once again have a separate pilot pool and keep the Classic's - fine, but that made zero economic sense.

SWA made the decision (correctly) to retire the Classics based on economics, not on some absurd notion of union pilot pressure.


Why don't you search the threads on this forum? They will document what I stated. The pilots' union at Southwest specifically did not want two pilot pools again as happened with the draw down of the 737-200. Instead of trying to renegotiate a new contract that would allow a separate pilot pool while the 737 Classics got drawn down, Southwest decided to just make a clean break and switch from Classic and NG to NG and MAX beginning at the start of the 3rd quarter of 2017.

Yes the FAA refused to allow pilots to be simultaneously licensed to fly all three variants of the 737. Had the pilot's union allowed two pilot pools to exist, Southwest could have been able to fly the 737 Classics while operating the MAX. They would not have had to draw down the Classic fleet so sharply in advance of taking in the MAX. Sure the least reliable airframes needed to be retired, but there were a number of 737-300's in Southwest's fleet that were younger than the oldest NG's. Yes there was an FAA fuel system inerting requirement, but Southwest originally intended to keep some of the Classics around, so there must have been a plan to install inerting systems on some portion of the 737 Classic fleet.
 
barney captain
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 7:55 pm

flyingclrs727 wrote:
barney captain wrote:
flyingclrs727 wrote:
Had the pilot's union not need so adamant that there only be one pool of pilots, the 737-300 fleet would not have been retired en mass at the end of September 2017. It would have been possible to bring back some 737 classics stored in the desert to fill in temporarily while the MAX was grounded.


I have no idea where you're getting that, as nothing could be farther from the truth. SWA has operated separate pilot pools - first with the 727, and more recently with the draw-down of the -200. All of which happened with the blessing of SWAPA. The Classics were going away - period. They had a 65% dispatch reliability and then there was that pesky little issue about the AD for the fuel tank inerting system - that none of the Classics complied with. The FAA wouldn't grant authority to have the pilots fly all variants from Classic to MAX. If SWA wanted to once again have a separate pilot pool and keep the Classic's - fine, but that made zero economic sense.

SWA made the decision (correctly) to retire the Classics based on economics, not on some absurd notion of union pilot pressure.


Why don't you search the threads on this forum? They will document what I stated. The pilots' union at Southwest specifically did not want two pilot pools again as happened with the draw down of the 737-200. Instead of trying to renegotiate a new contract that would allow a separate pilot pool while the 737 Classics got drawn down, Southwest decided to just make a clean break and switch from Classic and NG to NG and MAX beginning at the start of the 3rd quarter of 2017.

Yes the FAA refused to allow pilots to be simultaneously licensed to fly all three variants of the 737. Had the pilot's union allowed two pilot pools to exist, Southwest could have been able to fly the 737 Classics while operating the MAX. They would not have had to draw down the Classic fleet so sharply in advance of taking in the MAX. Sure the least reliable airframes needed to be retired, but there were a number of 737-300's in Southwest's fleet that were younger than the oldest NG's. Yes there was an FAA fuel system inerting requirement, but Southwest originally intended to keep some of the Classics around, so there must have been a plan to install inerting systems on some portion of the 737 Classic fleet.



I don't need to search the threads on this forum - I lived it, first hand, and have for nearly three decades.

Your assumptions are incorrect.
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HunterATL
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 8:38 pm

Phoenix757767 wrote:
oschkosch wrote:
LJ wrote:

We've discussion before, this is not Force Majeure as Force Majeure relates to events beyond someones (in this case Boeings) control. Delivering an airplane which has serious technical issues after which a regulator decides to ban it from the sky, is something the manufacturer could prevent. The fact that regulator provided approval is not relevant in detemining "Force Majeure".



Ah yes lol. I agree :checkmark:

The old force majeure trick is back :rotfl: We discussed that in detail in the grounding thread. The grounding is not an "act of god".


Force majeure meaning "superior force", is a common clause in contracts that essentially frees both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, or an event described by the legal term act of God (hurricane, flood, earthquake, volcanic eruption, etc.), prevents one or both parties from fulfilling their obligations under the contract. In practice, most force majeure clauses do not excuse a party's non-performance entirely, but only suspend it for the duration of the force majeure.

Force majeure is a contract law concept that relieves one party from performance. This lawsuit sounds in tort. Force majeure is not a defense to an intentional tort claim.
Force majeure is generally intended to include occurrences beyond the reasonable control of a party, and therefore would not cover:

Any result of the negligence or malfeasance of a party, which has a materially adverse effect on the ability of such party to perform its obligations.
Any result of the usual and natural consequences of external forces.

To illuminate this distinction, take the example of an outdoor public event abruptly called off.
If the cause for cancellation is ordinary predictable rain, this is most probably not force majeure.
If the cause is a flash flood that damages the venue or makes the event hazardous to attend, then this almost certainly is force majeure, other than where the venue was on a known flood plain or the area of the venue was known to be subject to torrential rain[.


https://en.wikipedia.org/wiki/Force_majeure

Neither was SARS or 9/11 an Act of God and force majuere was used and upheld. And in every airline labor contract a fleet grounding is listed as a way for a company to get around no layoff clauses etc.


Force majuere is a contract law concept that relieves one party from performance. This action sounds in tort. Force majuere is not an affirmative defense to an intentional tort claim, i.e. misrepresentation.
 
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fraspotter
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 8:48 pm

We all knew the lawsuits would be coming. Not sure why some of us seem to be surprised by it. Definitely not the last suit that Boeing will see on the matter of the 737MAX that's for sure and rightfully so. It's not everyday you buy a multi million dollar machine only to have them unusable for close to a year due to manufacturer error.
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HunterATL
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 8:50 pm

ODwyerPW wrote:
Revelation wrote:
If you are Boeing wouldn't you pay $100M to make this go away, especially since you are already $billions in the hole due to MCAS already?


Would that set a precedent that every single pilot union that represents airline pilots that fly the max could sue Boeing directly... even those pilots that work for airlines that haven't received their MAXes, those pilots unions could sue too for lost wages? on top of all of the airlines that are Max customers suing as well?

These compounded lawsuits could just go on forever. wow...


I think there is a lot of confusion regarding the underlying basis for liability asserted by the union. The Southwest pilots are claiming that Boeing intentionally misrepresented the safety/airworthiness of the MAX directly to the union, the need for additional training that Southwest pilots would need to fly the MAX, and that the use of the MAX would result in increased flying and wages for the pilots. The pilots further assert that they relied on these misrepresentations and that these misrepresentations were intentionally provided by Boeing in order to induce the union to amend its CBA to add the MAX and to cause the pilots to support an order for the MAX. The pilots claim that but for those misrepresentations, the union would not have agreed to amend its CBA, Southwest would not have ordered the MAX but instead other airworthy aircraft already covered by the CBA, and that Southwest pilots would not have lost any flying opportunities or wages if it had not been induced to amend the CBA by Boeing to permit MAX flying. The claim is not that Boeing made a bad plane and we deserve our lost wages because of the grounding. The asserted liability rests exclusively on Boeing's representations to the pilot union and the union's reliance thereon.

Unless other pilot groups at other airlines received the same representations from Boeing and relied thereon to amend their CBAs or other contracts, then any action by those groups would have to proceed under a different legal theory.
 
FLALEFTY
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 10:08 pm

LJ wrote:
Phoenix757767 wrote:
It’s a Force Majuere issue which is perfectly legal. I doubt the pilots win


You just gave a few lawyers an idea. I wouldn't be surprised if such a law suit is coming (though it would be more difficult to prove causal effect and thus substatiate a claim. Note that there is a causal effect between the pilots earn much less and the MAX grounding. Moreover, unlike in your example, a pilot cannot just switch jobs asap to mitigate the loss.


Agreed. Don't be surprised if some big class-action specialist law firm comes up with a C-A lawsuit to get passengers compensation for their cancelled/delayed trips due to the MAX groundings. Of course if the lawsuit prevails, then passengers will only get "diddly-squat", while the firm will reap a motherlode in legal fees. Generally speaking such a "pile-on", class-action lawsuit has a reasonable chance of success of from either a settlement, or the defendant losing a well-publicized jury trial. This is why you see so many billboards, web and TV ads for PI, product liability & class action-specialist lawyers jonesing for your business.
 
HunterATL
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 10:25 pm

FLALEFTY wrote:
LJ wrote:
Phoenix757767 wrote:
It’s a Force Majuere issue which is perfectly legal. I doubt the pilots win


You just gave a few lawyers an idea. I wouldn't be surprised if such a law suit is coming (though it would be more difficult to prove causal effect and thus substatiate a claim. Note that there is a causal effect between the pilots earn much less and the MAX grounding. Moreover, unlike in your example, a pilot cannot just switch jobs asap to mitigate the loss.


Agreed. Don't be surprised if some big class-action specialist law firm comes up with a C-A lawsuit to get passengers compensation for their cancelled/delayed trips due to the MAX groundings. Of course if the lawsuit prevails, then passengers will only get "diddly-squat", while the firm will reap a motherlode in legal fees. Generally speaking such a "pile-on", class-action lawsuit has a reasonable chance of success of from either a settlement, or the defendant losing a well-publicized jury trial. This is why you see so many billboards, web and TV ads for PI, product liability & class action-specialist lawyers jonesing for your business.


And what legal theory of recovery would apply? There is no privity of contract between Boeing and the passengers, and unidentified/unknown passengers are not third-party beneficiaries of Boeing's MAX contracts with carriers. Negligence does not apply because of the economic loss rule and because of a lack of proximate causation. Fraud does not apply because Boeing made no representations to passengers upon which they reasonably relied. Consumer protection statutes do not apply because the passengers did not purchase anything from Boeing. A lawsuit, even a class-action suit, must still have a viable theory of recovery.
 
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zeke
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 10:49 pm

HunterATL wrote:
Unless other pilot groups at other airlines received the same representations from Boeing and relied thereon to amend their CBAs or other contracts, then any action by those groups would have to proceed under a different legal theory.


Reading between the lines the misrepresentation they may rely on is the data supplied, and data not supplied (and subsequently found to be withheld) to the FAA to receive the amended TCDS.

I guess it is similar to a drug company not providing full disclosure when getting a drug approval from the FDA.
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TYWoolman
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 10:55 pm

I can understand on the surface the argument here, but suing the spoon that feeds you (or rather suing the wings that fly you) is not the best focus. Setting the major precedent for all MAX carriers to sue Boeing seems a bit awkward if the focus is on Boeing's focus on safety, which will take all the financial means necessary to accomplish. But then again I am sure Boeing is well insured.
 
HunterATL
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 11:09 pm

zeke wrote:
HunterATL wrote:
Unless other pilot groups at other airlines received the same representations from Boeing and relied thereon to amend their CBAs or other contracts, then any action by those groups would have to proceed under a different legal theory.


Reading between the lines the misrepresentation they may rely on is the data supplied, and data not supplied (and subsequently found to be withheld) to the FAA to receive the amended TCDS.

I guess it is similar to a drug company not providing full disclosure when getting a drug approval from the FDA.


The representations you identify were made to the FAA, not to some unknown, future, potential passengers and were not made to induce those passengers to do anything. Although that does not definitively defeat the claim, because the representations were not made to some unknown group of passengers, it would be very difficult to identify actual reliance by these unknown individuals. Specifically, when Boeing made the representations to the FAA, what action did the unknown, future, potential passengers take in reliance of the representations? They did nothing. They didn't purchase anything from Boeing or from anyone else because of those representations. Reasonable reliance is an essential element to the tort of misrepresentation.

Your drug example is not applicable. First, people who didn't purchase or use the drug have no claim regarding representations made to the FDA. Second, people who do, in fact, purchase the drug, would have to demonstrate that but for the incomplete disclosures, they would not have used the drug. This is a very high hurdle since few, if any, of the potential plaintiffs would have been aware of the information provided to the FDA and, thus, would not have made any decision based thereupon. Finally, any potential plaintiff would have to demonstrate that the lack of disclosure actually harmed them. If the drug is still safe, no lack of disclosure could have caused any harm and thus no claim is viable. Lack of disclosure, in and of itself, is not sufficient to state a claim.

Accordingly, in this scenario, most plaintiffs would sue principally for product liability and use the lack of candor as evidence that the product was defective. However, they would still have to show that the product caused actual harm to them; simple economic loss is not a sufficient harm.

Since no passenger purchased a MAX from Boeing and since no passenger was actually harmed, there is no products liability claim either unlike your hypothetical drug case.
 
HunterATL
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 11:17 pm

TYWoolman wrote:
I can understand on the surface the argument here, but suing the spoon that feeds you (or rather suing the wings that fly you) is not the best focus. Setting the major precedent for all MAX carriers to sue Boeing seems a bit awkward if the focus is on Boeing's focus on safety, which will take all the financial means necessary to accomplish. But then again I am sure Boeing is well insured.


That is one way of looking at it. Conversely, Boeing is completely dependent on the union in order to sell aircraft not covered by the CBA to Southwest. Boeing should have used more care to insure the information it provide was accurate in order not to anger an essential voice in any future aircraft order.

Boeing is likely self-insured with insurance/re-insurance policies that kick in at certain levels. However, those policies generally will not cover business losses such as this but are usually limited to product liability claims/negligence claims from crashes, etc. where there has been physical harm to individuals or property.
 
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zeke
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 11:29 pm

HunterATL wrote:
The representations you identify were made to the FAA, not to some unknown, future, potential passengers and were not made to induce those passengers to do anything.


The allegation from what I understand was the misrepresentation to the FAA in order obtain federal certification under false pretences. The misrepresentation that has been mentioned in other threads include the mechanics of the changes to MCAS that the FAA were not informed, and the technical documentation to pilots where MCAS was deliberately withheld from training and reference materials.

Passengers and pilots do not have the technical ability to determine if an aircraft is fit for purpose, they rely on that federal certification process.
Human rights lawyers are "ambulance chasers of the very worst kind.'" - Sky News
 
JAAlbert
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 11:33 pm

SuperGee wrote:
I am not an attorney but I wonder how much of a chance this suit really has. Again, I have no experience with the law but I would think that the pilots would only have standing to sue WN and for WN to sue Boeing. On the other hand, I'm sure the pilots would not have gone ahead with the suit unless they had some pretty good legal advice that it could succeed. It will be interesting to see what the attorneys on here have to say about this.


I'm an attorney and it sounds nuts to me. I read the complaint and it reads like a bad propaganda press release. Still, this (to my mind) is the paragraph that arguably gives the pilots a cause of action:

"Had SWAPA known the truth about the 737 MAX aircraft in 2016, it never would have approved the inclusion of the 737 MAX aircraft as a term in its CBA, and agreed to operate the aircraft for Southwest. Worse still, had SWAPA known the truth about the 737 MAX aircraft in 2016, it would have demanded that Boeing rectify the aircraft’s fatal flaws before agreeing to include the aircraft in its CBA, and to provide its pilots, and all pilots, with the necessary information and training needed to respond to the circumstances that the Lion Air Flight 610 and Ethiopian Airlines Flight 302 pilots encountered nearly three years later."

("Worse still? I've never seen an attorney use language like that in a complaint)

Perhaps those in the industry can explain what role a pilot's association plays when an airline orders new aircraft. My understanding is that the airline asks the union to approve a new aircraft type, rather than Boeing asking the union to approve the purchase. Unless Boeing specifically communicated with the pilots association with the intent of getting the association to agree to buy the plane, I don't see how it has a claim against Boeing. It will be interesting to see how Boeing responds. Usually, a motion to dismiss is filed, but we'll see what Boeing does.
 
HunterATL
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 11:35 pm

zeke wrote:
HunterATL wrote:
The representations you identify were made to the FAA, not to some unknown, future, potential passengers and were not made to induce those passengers to do anything.


The allegation from what I understand was the misrepresentation to the FAA in order obtain federal certification under false pretences. The misrepresentation that has been mentioned in other threads include the mechanics of the changes to MCAS that the FAA were not informed, and the technical documentation to pilots where MCAS was deliberately withheld from training and reference materials.

Passengers and pilots do not have the technical ability to determine if an aircraft is fit for purpose, they rely on that federal certification process.


Relying on the FAA to certify a plane is not the type of reliance required for a claim of misrepresentation. The passengers must have done something, i.e. changed their circumstances, because of Boeing's statements to the FAA. Flights being cancelled by American or any other MAX operator because of the grounding by the FAA, even if it somehow "harms" a passenger, is not a harm to passengers related to their reliance on statements made by Boeing.
 
HunterATL
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 11:39 pm

JAAlbert wrote:
SuperGee wrote:
I am not an attorney but I wonder how much of a chance this suit really has. Again, I have no experience with the law but I would think that the pilots would only have standing to sue WN and for WN to sue Boeing. On the other hand, I'm sure the pilots would not have gone ahead with the suit unless they had some pretty good legal advice that it could succeed. It will be interesting to see what the attorneys on here have to say about this.


I'm an attorney and it sounds nuts to me. I read the complaint and it reads like a bad propaganda press release. Still, this (to my mind) is the paragraph that arguably gives the pilots a cause of action:

"Had SWAPA known the truth about the 737 MAX aircraft in 2016, it never would have approved the inclusion of the 737 MAX aircraft as a term in its CBA, and agreed to operate the aircraft for Southwest. Worse still, had SWAPA known the truth about the 737 MAX aircraft in 2016, it would have demanded that Boeing rectify the aircraft’s fatal flaws before agreeing to include the aircraft in its CBA, and to provide its pilots, and all pilots, with the necessary information and training needed to respond to the circumstances that the Lion Air Flight 610 and Ethiopian Airlines Flight 302 pilots encountered nearly three years later."

("Worse still? I've never seen an attorney use language like that in a complaint)

Perhaps those in the industry can explain what role a pilot's association plays when an airline orders new aircraft. My understanding is that the airline asks the union to approve a new aircraft type, rather than Boeing asking the union to approve the purchase. Unless Boeing specifically communicated with the pilots association with the intent of getting the association to agree to buy the plane, I don't see how it has a claim against Boeing. It will be interesting to see how Boeing responds. Usually, a motion to dismiss is filed, but we'll see what Boeing does.


That is exactly what the complain alleges: Boeing spoke directly with the pilots union to get it to agree to add the plane. In those discussions, Boeing, inter alia, guaranteed that the MAX would not require more training for Southwest's pilots (or at least materially more training) and that the plane was airworthy.
 
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zeke
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 11:45 pm

HunterATL wrote:
Relying on the FAA to certify a plane is not the type of reliance required for a claim of misrepresentation. The passengers must have done something, i.e. changed their circumstances, because of Boeing's statements to the FAA.


If you as a passenger are faced with two choices when making a purchase decision

1) an aircraft with federal certification

2) an aircraft with federal certification and told that the certification was allegedly obtained under false pretences to cover a potentially fatal flaw

Which aircraft would you fly on ?

Your logic does not follow the standards a reasonable person would rely on.
Human rights lawyers are "ambulance chasers of the very worst kind.'" - Sky News
 
HunterATL
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 11:46 pm

zeke wrote:
HunterATL wrote:
Relying on the FAA to certify a plane is not the type of reliance required for a claim of misrepresentation. The passengers must have done something, i.e. changed their circumstances, because of Boeing's statements to the FAA.


If you as a passenger are faced with two choices when making a purchase decision

1) an aircraft with federal certification

2) an aircraft with federal certification and told that the certification was allegedly obtained under false pretences to cover a potentially fatal flaw

Which aircraft would you fly on ?

Your logic does not follow the standards a reasonable person would rely on.


Again, the ultimate issue is what harm is a passenger suffering related to Boeing's statements, when the plane is grounded. None.
 
User avatar
zeke
Posts: 13989
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Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Tue Oct 08, 2019 11:55 pm

HunterATL wrote:
Again, the ultimate issue is what harm is a passenger suffering related to Boeing's statements, when the plane is grounded. None.


Travel plans for thousands of people have been ruined when the grounding resulted in cancellations and many passengers will need to have booked tickets on other carriers not using the grounded equipment.

The grounding causes a restricted supply in seats available, demand increases on the remaining seats so prices across the board will have increased even at airlines not operating the MAX.

Again your logic fails to resemble what a reasonable person would have experienced. Like saying a robber used a fake gun, because the gun was fake the robber claiming the charge should not be armed robbery as no one could have been injured. What did the victim experience?
Human rights lawyers are "ambulance chasers of the very worst kind.'" - Sky News
 
TYWoolman
Posts: 105
Joined: Sat Jun 24, 2017 8:24 pm

Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Wed Oct 09, 2019 12:11 am

HunterATL wrote:
TYWoolman wrote:
I can understand on the surface the argument here, but suing the spoon that feeds you (or rather suing the wings that fly you) is not the best focus. Setting the major precedent for all MAX carriers to sue Boeing seems a bit awkward if the focus is on Boeing's focus on safety, which will take all the financial means necessary to accomplish. But then again I am sure Boeing is well insured.


That is one way of looking at it. Conversely, Boeing is completely dependent on the union in order to sell aircraft not covered by the CBA to Southwest. Boeing should have used more care to insure the information it provide was accurate in order not to anger an essential voice in any future aircraft order.


I agree with you. And think you would also agree we are dealing with a known safety issue that needs resolution. The horse is out of the barn. Get a Boeing solution in the cockpit first! A safe solution. One that wins the confidence of regulators, airlines and the most difficult of them all: CUSTOMERS!
Suing Boeing at this time is just not correct. Lawsuits do not seem to be a productive way to get this resolved when pilots or their representatives need to be at Boeing overseeing a solution. All airlines should have representatives there (including Delta and other non-MAX operators)!! Such technology or something like it may be in the 797.
 
MIflyer12
Posts: 5840
Joined: Mon Feb 18, 2013 11:58 pm

Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Wed Oct 09, 2019 12:14 am

HunterATL wrote:
zeke wrote:
HunterATL wrote:
Relying on the FAA to certify a plane is not the type of reliance required for a claim of misrepresentation. The passengers must have done something, i.e. changed their circumstances, because of Boeing's statements to the FAA.


If you as a passenger are faced with two choices when making a purchase decision

1) an aircraft with federal certification

2) an aircraft with federal certification and told that the certification was allegedly obtained under false pretences to cover a potentially fatal flaw

Which aircraft would you fly on ?

Your logic does not follow the standards a reasonable person would rely on.


Again, the ultimate issue is what harm is a passenger suffering related to Boeing's statements, when the plane is grounded. None.


And that's why SWAPA discusses foregone wages which would have been paid in dues: to demonstrate SWAPA was harmed and give them standing to sue.
 
superjeff
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Joined: Fri Feb 05, 2010 2:14 am

Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Wed Oct 09, 2019 12:21 am

Revelation wrote:
superjeff wrote:
I find this the most ridiculous of suits. Absent gross negligence on the part of Boeing (i.e., the people at Boeing KNEW that there was a major design flaw that WOULD cause the 737-Max to crash) case won't make it to trial. I agree that perhaps Boeing should have been more proactive about letting their customers know about a problem, but I doubt this rises to the level of gross negligence. (and I'm no Boeing fanboy)

Is gross negligence the standard to be applied to a civil lawsuit?

On this kind of case I think it is. The pilots were not directly harmed; the fact that they have fewer flights to fly doesn't change that. And, yes, I am a lawyer.
 
HunterATL
Posts: 21
Joined: Sat Apr 08, 2017 3:15 am

Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Wed Oct 09, 2019 12:31 am

superjeff wrote:
Revelation wrote:
superjeff wrote:
I find this the most ridiculous of suits. Absent gross negligence on the part of Boeing (i.e., the people at Boeing KNEW that there was a major design flaw that WOULD cause the 737-Max to crash) case won't make it to trial. I agree that perhaps Boeing should have been more proactive about letting their customers know about a problem, but I doubt this rises to the level of gross negligence. (and I'm no Boeing fanboy)

Is gross negligence the standard to be applied to a civil lawsuit?

On this kind of case I think it is. The pilots were not directly harmed; the fact that they have fewer flights to fly doesn't change that. And, yes, I am a lawyer.


The simple answer is no. There is no claim for negligence in the complaint because of the economic loss doctrine. In negligence, pure economic loss can only be recovered if the plaintiff can show a physical injury to himself or his property. Accordingly, the level of negligence by Boeing is irrelevant since no negligence claim in pled. The union did state a claim for negligent misrepresentation, i.e. Boeing knew (actual) or should have known (negligent) that the statements it made to the union were false. The claim is still rooted in misrepresentation, though, and the negligence is related not to what Boeing said or did, but to what Boeing should have known.
 
HunterATL
Posts: 21
Joined: Sat Apr 08, 2017 3:15 am

Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Wed Oct 09, 2019 12:32 am

MIflyer12 wrote:
HunterATL wrote:
zeke wrote:

If you as a passenger are faced with two choices when making a purchase decision

1) an aircraft with federal certification

2) an aircraft with federal certification and told that the certification was allegedly obtained under false pretences to cover a potentially fatal flaw

Which aircraft would you fly on ?

Your logic does not follow the standards a reasonable person would rely on.


Again, the ultimate issue is what harm is a passenger suffering related to Boeing's statements, when the plane is grounded. None.


And that's why SWAPA discusses foregone wages which would have been paid in dues: to demonstrate SWAPA was harmed and give them standing to sue.


Exactly
 
User avatar
hOMSaR
Posts: 2200
Joined: Tue Jan 19, 2010 4:47 am

Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Wed Oct 09, 2019 10:21 am

zeke wrote:
HunterATL wrote:
Again, the ultimate issue is what harm is a passenger suffering related to Boeing's statements, when the plane is grounded. None.


Travel plans for thousands of people have been ruined when the grounding resulted in cancellations and many passengers will need to have booked tickets on other carriers not using the grounded equipment.


Compensation for this would have been paid by the airlines from whom the passengers purchased the tickets.

The grounding causes a restricted supply in seats available, demand increases on the remaining seats so prices across the board will have increased even at airlines not operating the MAX.


By what measure does Boeing have any responsibility to passengers regarding airfares and seat availability? If 737MAX certification had been delayed by the equivalent duration of this grounding, to fix the same issue, meaning you still have a similar lack of capacity in the market (and some of the capacity that remains would be more expensive because airlines were forced to keep operating older, more expensive planes longer), would passengers have a case against Boeing? Do passengers have a case against Airbus or Pratt & Whitney because delivery delays on A321neo and A321LR planes mean there is less capacity on certain routes (or, said routes don’t exist)?

What if promised fuel burn was missed, and as a result, airfares are higher and/or fewer marginal flights are offered because airlines can’t recoup the costs? Is Boeing liable to passengers for that?

Passengers who bought tickets prior to the MAX grounding are either being accommodated by the carriers from whom they bought tickets, or they are being refunded/otherwise compensated per contract of carriage and/or other customer goodwill policies. Passengers who hadn’t yet bought tickets prior to the grounding, but are seeing hypothetically higher fares or fewer flights available on their routes...well, that’s tough. What does Boeing owe the person who didn’t even buy a ticket prior to the grounding? Why should Boeing owe them anything?
The plural of Airbus is Airbuses. Airbii is not a word.
There is no 787-800, nor 787-900 or 747-800. It's 787-8, 787-9, and 747-8.
A321neoLR is also unnecessary. It's simply A321LR.
Airplanes don't have isles, they have aisles.
 
LJ
Posts: 4852
Joined: Wed Nov 17, 1999 8:28 pm

Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Wed Oct 09, 2019 12:00 pm

Phoenix757767 wrote:
Neither was SARS or 9/11 an Act of God and force majuere was used and upheld. And in every airline labor contract a fleet grounding is listed as a way for a company to get around no layoff clauses etc.


Hence why they sue Boeing, not Southwest. It's "force majeure" for Southwest. However, not for Boeing, the company they sue.
 
JAAlbert
Posts: 1955
Joined: Tue Jan 31, 2006 12:43 pm

Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Wed Oct 09, 2019 2:39 pm

HunterATL wrote:
That is exactly what the complain alleges: Boeing spoke directly with the pilots union to get it to agree to add the plane. In those discussions, Boeing, inter alia, guaranteed that the MAX would not require more training for Southwest's pilots (or at least materially more training) and that the plane was airworthy.


Yes, the complaint does state in one paragraph that Boeing spoke directly with the pilot's union. It will be interesting to see how Boeing responds.

If I recall correctly, this is not the first law suit against Boeing by pilots re: the Max. I haven't heard what, if anything, is going on with the other litigation.
 
BravoOne
Posts: 3588
Joined: Fri Apr 12, 2013 2:27 pm

Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Wed Oct 09, 2019 3:02 pm

JAAlbert wrote:
HunterATL wrote:
That is exactly what the complain alleges: Boeing spoke directly with the pilots union to get it to agree to add the plane. In those discussions, Boeing, inter alia, guaranteed that the MAX would not require more training for Southwest's pilots (or at least materially more training) and that the plane was airworthy.


Yes, the complaint does state in one paragraph that Boeing spoke directly with the pilot's union. It will be interesting to see how Boeing responds.

If I recall correctly, this is not the first law suit against Boeing by pilots re: the Max. I haven't heard what, if anything, is going on with the other litigation.


So if the Boeing person that spoke was one in the same as the 737M Chief Technical Pilot who now works for SWA, how does that work out? I see why he might have invoked the 5th now.
 
oschkosch
Posts: 289
Joined: Mon Oct 29, 2018 3:41 pm

Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Wed Oct 09, 2019 5:57 pm

LJ wrote:
Phoenix757767 wrote:
Neither was SARS or 9/11 an Act of God and force majuere was used and upheld. And in every airline labor contract a fleet grounding is listed as a way for a company to get around no layoff clauses etc.


Hence why they sue Boeing, not Southwest. It's "force majeure" for Southwest. However, not for Boeing, the company they sue.
Perfectly explained!!

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freakyrat
Posts: 1739
Joined: Fri Aug 22, 2008 1:04 pm

Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Wed Oct 09, 2019 6:20 pm

barney captain wrote:
flyingclrs727 wrote:
barney captain wrote:

I have no idea where you're getting that, as nothing could be farther from the truth. SWA has operated separate pilot pools - first with the 727, and more recently with the draw-down of the -200. All of which happened with the blessing of SWAPA. The Classics were going away - period. They had a 65% dispatch reliability and then there was that pesky little issue about the AD for the fuel tank inerting system - that none of the Classics complied with. The FAA wouldn't grant authority to have the pilots fly all variants from Classic to MAX. If SWA wanted to once again have a separate pilot pool and keep the Classic's - fine, but that made zero economic sense.

SWA made the decision (correctly) to retire the Classics based on economics, not on some absurd notion of union pilot pressure.


Why don't you search the threads on this forum? They will document what I stated. The pilots' union at Southwest specifically did not want two pilot pools again as happened with the draw down of the 737-200. Instead of trying to renegotiate a new contract that would allow a separate pilot pool while the 737 Classics got drawn down, Southwest decided to just make a clean break and switch from Classic and NG to NG and MAX beginning at the start of the 3rd quarter of 2017.

Yes the FAA refused to allow pilots to be simultaneously licensed to fly all three variants of the 737. Had the pilot's union allowed two pilot pools to exist, Southwest could have been able to fly the 737 Classics while operating the MAX. They would not have had to draw down the Classic fleet so sharply in advance of taking in the MAX. Sure the least reliable airframes needed to be retired, but there were a number of 737-300's in Southwest's fleet that were younger than the oldest NG's. Yes there was an FAA fuel system inerting requirement, but Southwest originally intended to keep some of the Classics around, so there must have been a plan to install inerting systems on some portion of the 737 Classic fleet.



I don't need to search the threads on this forum - I lived it, first hand, and have for nearly three decades.

Your assumptions are incorrect.


The inerting issue is why the MD80's at other carriers are being retired.
 
JAAlbert
Posts: 1955
Joined: Tue Jan 31, 2006 12:43 pm

Re: Southwest Pilots Association Sues Boeing Re: 737MAX

Thu Oct 10, 2019 1:26 am

BravoOne wrote:
JAAlbert wrote:
HunterATL wrote:
That is exactly what the complain alleges: Boeing spoke directly with the pilots union to get it to agree to add the plane. In those discussions, Boeing, inter alia, guaranteed that the MAX would not require more training for Southwest's pilots (or at least materially more training) and that the plane was airworthy.


Yes, the complaint does state in one paragraph that Boeing spoke directly with the pilot's union. It will be interesting to see how Boeing responds.

If I recall correctly, this is not the first law suit against Boeing by pilots re: the Max. I haven't heard what, if anything, is going on with the other litigation.


So if the Boeing person that spoke was one in the same as the 737M Chief Technical Pilot who now works for SWA, how does that work out? I see why he might have invoked the 5th now.


Fascinating question the answer to which I have no idea! This little factual nugget is what makes being a lawyer so interesting. You just never know where the facts will take you.

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