On November 21, 2022, the Fifth Circuit reversed a class certification order in a case where plaintiffs failed to plausibly allege any cognizable injury in fact. The decision was a victory for WLF, which had filed an amicus curiae brief with the court urging reversal. The case arose from a putative class action against The Boeing Company and Southwest Airlines following two tragic overseas accidents involving Boeing’s 737 MAX 8 airplane. In a case unrelated to those tragedies, the district court certified four classes comprising 200 million claims after determining that the plaintiffs’ lone damages expert could ultimately “fix” demonstrable flaws in his conjoint survey as evidence of class-wide damages. But, as WLF’s brief argued and the Fifth Circuit ultimately held, a district court may not certify any class without first resolving whether the plaintiffs have introduced reliable evidence of class-wide injury and damages. Here the Fifth Circuit panel concluded that “the plaintiffs in this suit have not plausibly alleged that they’re any worse off financially” because defendants kept flying the MAX 8 during the class period. And because they alleged no concrete injury, the plaintiffs lacked standing to sue in federal court.


Fifth Circuit decision

WLF amicus brief