The Boeing Company v. Southwest Airlines Pilots Association (Swapa) on Behalf of Itself and Its Members

Supreme Court of Texas
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No. 22-0631
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The Boeing Company,
Petitioner,

v.

Southwest Airlines Pilots Association (SWAPA) on behalf of itself
and its members,
Respondent

═══════════════════════════════════════
On Petition for Review from the
Court of Appeals for the Fifth District of Texas
═══════════════════════════════════════

JUSTICE BLAND, joined by Justice Huddle, dissenting in part.

Our Court carefully scrutinizes assignments of legal causes of
action because such assignments uncouple the damages suffered from
the party seeking recompense in court. 1 And in other ways, assignments

1 See State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696, 706–07

(Tex. 1996) (explaining that this original concern of assignability—that a
“claim or cause of action was part of a right of redress that was personal to the
holder by virtue of the injury suffered and thus incapable of transfer”—
remains today); PPG Indus., Inc. v. JMB/Hous. Ctrs. Partners L.P., 146
S.W.3d 79, 89 (Tex. 2004) (“If consumers can assign their DTPA claims, they
may still have to testify at trial about the nature, duration, and severity of
their mental anguish, but someone else will keep the money.”).
skew litigation incentives and outcomes. This case involves the
assignment of more than 8,000 individual claims to one nonprofit
association, something unheard of in Texas law.
For good reason. Business Organizations Code Section 252.007
does not grant nonprofit associations the right to pursue claims on
behalf of their individual members if the lawsuit requires the members’
participation. The statute thus precludes the Southwest Airlines Pilots
Association from pursuing claims to recover its pilots’ individual
damages resulting from the 737 MAX’s grounding. Today, however, the
Court permits an association to seek individual damages if the
association—which cannot bring such claims by statute—gathers
assignments from its members and, still contrary to statute, sues on
their behalf. To permit assignments such as these hollows out the
Legislature’s careful limits as to the types of claims associations can
bring.
Our assignment jurisprudence should cohere with the statute
that governs the assignee. I join the Court’s opinion as it pertains to
preemption—even though the Court’s assignment holding jeopardizes
its preemption holding by permitting a party to a collective bargaining
agreement governed by the Railway Labor Act to sue for compensatory
damages allegedly sustained under that agreement. The Court should
reinstate the trial court’s dismissal with prejudice of SWAPA’s claims
for money damages sought on behalf of its members. Accordingly, I do
not join Part III of the Court’s opinion and respectfully dissent from the
portion of its judgment remanding those claims to the trial court.

2
I
Following the grounding of the 737 MAX aircraft, SWAPA sued
Boeing, asserting claims on behalf of itself and its member pilots.
SWAPA sought damages for the pilots for lost compensation resulting
from the grounding. Boeing filed a plea to the jurisdiction, arguing in
part that SWAPA lacked associational standing to bring claims on
behalf of its members. In response, over 8,000 SWAPA members
executed assignments of their claims against Boeing to SWAPA. Boeing
then amended its plea to argue that the assignments are void because
they circumvent the statute prohibiting associations from asserting
claims on behalf of their members if such claims require their members’
individual participation.
The trial court granted Boeing’s jurisdictional plea and dismissed
the suit. On interlocutory appeal, the court of appeals held that the
assignments are not void as against public policy. 2 While the
assignments did not cure the jurisdictional issues in this suit because
they occurred after it was filed, the court of appeals modified the trial
court’s dismissal to be without prejudice so that SWAPA could assert
the claims of its members by assignment in a future suit. 3
A
Under the Business Organizations Code, a nonprofit association
has standing to assert a claim on behalf of its members if: “(1) one or
more of the nonprofit association’s members have standing to assert a

2 704 S.W.3d 832, 848 (Tex. App.—Dallas 2022).

3 Id.

3
claim in their own right; (2) the interests the nonprofit association seeks
to protect are germane to its purposes; and (3) neither the claim asserted
nor the relief requested requires the participation of a member.” 4
At issue here is the third requirement: whether the claim
asserted, or the relief requested, requires individual participation. 5 This
requirement “depends in substantial measure on the nature of the relief
sought.” 6 Prospective relief will ordinarily not require individual
participation as “it can reasonably be supposed that the remedy, if
granted, will inure to the benefit of those members of the association
actually injured.” 7 However, when an association seeks damages for its
members that are “not common to the entire membership, nor shared by
all in equal degree,” individualized proof is required, and the third
requirement cannot be met. 8 Notably, the statute does not limit its
prohibition to any particular kind of standing—it does not parse
standing by association or standing by assignment. It simply does not
authorize an association to sue for damages that require individual
member participation.

4 Tex. Bus. Orgs. Code § 252.007(b).

5 Id. § 252.007(b)(3).

6 Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 448 (Tex.

1993) (quoting Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343
(1977)).
7 Id. (quoting Hunt, 432 U.S. at 343); see also Warth v. Seldin, 422 U.S.

490, 515 (1975) (“Indeed, in all cases in which we have expressly recognized
standing in associations to represent their members, the relief sought has been
of this kind.”).
8 Warth, 422 U.S. at 515.

4
SWAPA’s petition in this case seeks such damages. It requests
“millions of dollars in lost compensation” on behalf of its member pilots
stemming from the grounding of the 737 MAX. Pilots are paid via a
formula, according to SWAPA’s expert, who claimed that he could
compute the total amount of lost compensation before and after the
grounding by comparing differences in Southwest’s flight schedules.
Each pilot would then be entitled to “the share of damages that is equal
to his or her share of total pilot compensation.” To calculate this share,
the expert would rely on each pilot’s individual tax records. Even though
pilot compensation would be wholly dependent on individual tax and
employment records, he claimed no individual participation would be
required because his calculations did not require pilot assistance. 9
But the numbers the expert planned to use as a basis for these
calculations absolutely would: in the form of individual flight schedules,
individual salaries, and individual tax records. SWAPA must prove
these varying amounts of lost compensation resulting from the MAX’s
grounding for each of its member pilots to obtain its requested relief. It
proposes to do so by combing through the tax records of each of its over
8,000 members, which presumably provide salary and flight–time

9 Courts of appeals faced with similar damages claims have held that

expert testimony does not obviate the need for member participation. In Big
Rock Investors Ass’n v. Big Rock Petroleum, Inc., an association sought varying
damages for each of its members but argued that their participation was not
necessary because an expert could testify as to individual amounts. 409 S.W.3d
845, 851–52 (Tex. App.—Fort Worth 2013, pet. denied). The court held the no-
participation requirement was not satisfied because the expert’s proposed
testimony “is no less fact-intensive than simply permitting each individual
member to provide such testimony concerning his profits and losses.” Id. at
852.

5
information for each individual member. As the court of appeals
correctly observed, numerous other variations among individual
members remain: “individual assignments, whether they were
reassigned to other aircraft, seniority, experience, level of compensation,
retirement, military reserve duty, and disability.” 10
The process would thus be a “fact-intensive-individual inquiry,”
requiring proof of each member’s individual circumstances. 11 The
assignments themselves prove this point. Paragraph four provides:
Damages recovered from Boeing in the Litigation or a
settlement will be distributed in an equitable manner in
proportion to gross W-2 earnings per pilot for the period of
May 1, 2019 through the date that Southwest returns the
737 MAX into revenue service, less [a member’s]
proportional share of all fees, expenses and financing costs
associated with the Litigation. 12
In these circumstances, Section 252.007(b) does not authorize
SWAPA to seek money damages because it must provide evidence of the
members’ individual damages to prevail.
B
The court of appeals held that SWAPA lacked associational
standing because its damages claims required individual participation,
and I agree with the Court that SWAPA waived that issue by not filing
a cross-petition for review of the court of appeals’ judgment. 13 The Court

10 704 S.W.3d at 845.

11 Ass’n of Am. Physicians & Surgeons, Inc. v. Tex. Med. Bd., 627 F.3d

547, 552 (5th Cir. 2010).
12 Emphasis supplied.

13 Ante at 15–16 n.21.

6
further holds, however, that SWAPA can pursue these same claims as
an assignee of its members’ claims. Such a holding guts the limited
standing authorization the Legislature has granted to SWAPA. The
Court’s holding permits SWAPA to proceed when the statute says it
cannot.
While assignment of legal causes of action is permitted, “the
common law’s reservations to alienability . . . [and] the role of equity or
policy in shaping the rule” remain. 14 Prohibited assignments include
those “that tend to increase or prolong litigation unnecessarily, tend to
distort the litigation process, or are otherwise inconsistent with the
purpose of a statutory cause of action.” 15 It remains the prerogative of
the courts to determine whether equity and public policy require
invalidation of assignments in circumstances that have not been
recognized. 16
This case presents such a circumstance. Statutes express the
public policy of Texas. 17 Section 252.007, by its plain text, grants
associations the authority to pursue claims “on behalf of” their members
in limited circumstances only—whether by association or by
assignment. SWAPA’s claims for money damages for individual lost

14 Gandy, 925 S.W.2d at 707.

15 Sw. Bell Tel. Co. v. Mktg. on Hold Inc., 308 S.W.3d 909, 916 (Tex.

2010).
16 See PPG Indus., Inc., 146 S.W.3d at 87 (“But the assignability of most

claims does not mean all are assignable; exceptions may be required due to
equity and public policy.” (internal citation omitted)).
17 Town of Flower Mound v. Stafford Ests. L.P., 135 S.W.3d 620, 628

(Tex. 2004).

7
wages do not fall within these limited circumstances. The assignments
do not change the fundamental fact that SWAPA’s suit requires
individual participation, with claims of varying amounts of individual
damages. Moreover, these assignments require payments to each pilot
based on the pilot’s income should SWAPA obtain a recovery in the suit.
The assignments are nothing more than an attempt to circumvent the
statute’s limits.
We invalidated assignments that similarly would have frustrated
the intent of the Legislature in PPG Industries, Inc. v. JMB/Houston
Centers Partners L.P. 18 That case involved the Deceptive Trade
Practices Act, which limited its causes of action to “consumers.” 19 In
holding that such claims were not assignable, we reasoned that allowing
assignment could allow “a party excluded by the statute . . . [to]
nevertheless assert DTPA claims by stepping into the shoes of a
qualifying assignor.” 20 We also raised the concern that the Act’s treble
damages provisions, intended to motivate affected consumers, could
instead motivate those “considering litigation for commercial profit.” 21
Together, assignment would “defeat the very purposes for which the
DTPA was enacted.” 22 Permitting SWAPA to proceed as an assignee of
claims brought on behalf of individual pilots would also “defeat the very

18 146 S.W.3d at 82.

19 Id. at 85 (quoting Tex. Bus. & Com. Code § 17.45(4)).

20 Id.

21 Id.

22 Id. at 87.

8
purposes” for which the Legislature enacted limits on the claims
associations can bring.
The Court seems to share this concern. 23 But it nonetheless states
that SWAPA may prevail on the assigned claims by “proving Boeing’s
liability to the individual member who assigned it and the damages that
member sustained.” 24 In other words, SWAPA may assert and prevail
on claims that require individual participation—just what Section
252.007 prevents it from doing. The Court justifies this inconsistency by
asserting that standing by assignment and associational standing are
equally permissible alternatives for associations seeking to recover
damages its members individually sustained. 25 While an assignee
ordinarily “steps into the shoes” of an assignor and can pursue claims
the assignor holds, the assignments in this case obligate SWAPA to
remit the proceeds of its lawsuit back to its assignor members. 26

23 See ante at 23 (“In determining how to resolve those claims, the trial

court . . . must ensure that SWAPA pursues the claims as an assignee and not
as a representative association.”). The statute does not differentiate between
claims that SWAPA brings as an association or as an assignee. Particularly in
this case, in which SWAPA’s intent is to remit damages back to individual
members—whether by associational standing or by assignment—the
distinction is one without a difference.
24 Id.

25 Id. at 21.

26 Sw. Bell Tel. Co., 308 S.W.3d at 916. Such provisions call into
question whether the association has a sufficient stake in the litigation to even
claim standing by assignment. See Sprint Commc’ns Co. v. APCC Servs., Inc.,
554 U.S. 269, 300 (2008) (Roberts, C.J., dissenting) (“An assignee who has
acquired the bare legal right to prosecute a claim but no right to the
substantive recovery cannot show that he has a personal stake in the
litigation.”).

9
Associations are now free to bring claims requiring member
participation. Our proper focus should be on the substance of the claims,
not the presentment of them.
Perhaps recognizing the fallacy of considering two avenues for
standing as “alternative[s]”—with one permitting claims the other
prohibits—the Court states that the Legislature should have prohibited
assignments if it so intended. 27 It is entirely superfluous to expect the
Legislature to codify that associations cannot circumvent the statute’s
limited grant of authority to bring suits on behalf of their members.
The Court does not grapple with these concerns, relying instead
on a sentence fragment from the United States Supreme Court and
observing that assignment and associational standing have “distinct
requirements.” 28 Important to the question presented in this case,
however, is whether such distinctions make a difference. They do not in
this case. Either way, SWAPA must prove the individual circumstances
of its members. Our historic aversion to assignment counsels toward
subordinating assignments to the statutory limits placed on nonprofit

27 Ante at 21.

28 Id. The United States Supreme Court stated in Warth v. Seldin that

an association “allege[d] no monetary injury to itself, nor any assignment of
the damages claims of its members” when explaining why the association could
not receive an award “as such.” 422 U.S. at 515. The Court then held that the
organization lacked associational standing because the damages claims it
asserted required individualized proof. Id. at 515–16. Warth does not confront
the tension between associational standing limitations and the assignment of
claims to an organization barred from asserting them by those limitations.

10
associations instead of elevating them over the expressed public policy
of our state. 29
The Court cites no case before today permitting a nonprofit
association to act as the assignee of thousands of its members’ damages
claims. With the Court’s opinion in hand, nonprofit organizations are
free to become clearinghouses for mass torts—with none of the
protections that other mass-action vehicles afford. 30 New associations
could form to bring such claims and ensure the assignment agreements
reserve a portion of each member’s damages to the association. That is
assuming, of course, that the association diligently pursues such claims,
which it has no obligation to do as an assignee. As in this case, nonprofits
will become vehicles for third-party litigation financing, the costs of
which the assignment requires SWAPA’s individual members to bear.
The Court is nevertheless content to ground its holding in the fact
that the assignments do not violate public policy because—in an

29 See Gandy, 925 S.W.2d at 707 (“Practicalities of the modern world

have made free alienation of choses in action the general rule, but they have
not entirely dispelled the common law’s reservations to alienability, or
displaced the role of equity or policy in shaping the rule. Even today, the
general rule is that a contractual assignment may be inoperative on grounds
of public policy.” (internal quotations omitted)).
30 E.g., Tex. R. Civ. P. 42(a)(4) (permitting class actions only if “the
representative parties will fairly and adequately protect the interests of the
class”). These protections are not limited to plaintiffs. Defendants, for example,
can challenge a trial court’s order certifying a class under Rule 42. Id. R.
42(c)(1)(A); see also Tex. Civ. Prac. & Rem. Code § 51.014(a)(3) (permitting
interlocutory appeal of class–certification orders). No similar vehicle exists if a
well-financed nonprofit unilaterally decides to bring a mass action of assigned
claims as SWAPA does here.

11
optimistically omniscient view—a labor association’s involvement will
not protract the litigation or drive up its costs. 31
Finally, claims for individual damages that arise out of
compensation provided in a collective bargaining agreement disrupt the
relationship between common carriers and their equipment providers.
When brought by a plaintiff that is also a party to that bargaining
agreement, such a suit comes closer to conflicting with the Railway
Labor Act’s express purpose to govern all claims relating to collective
bargaining agreements and the compensation derived therefrom. 32
State laws must be careful not to unduly intrude into the interstate
railway and air travel systems. Given its limits, our state law does not
conflict with the Act—an expansive interpretation of that law allowing
for money damages based on the collective bargaining agreement, less
so.
* * *
The Southwest Airlines Pilots Association lacks the authority to
pursue individual damages claims that involve their members. We
therefore should uphold the trial court’s dismissal of SWAPA’s claims
for its pilots’ individual damages. As the Court permits SWAPA to bring
such claims despite the statutory limit on its authority to do so, I do not

31 Ante at 19.

32 See 45 U.S.C. § 151a (“The purposes of the chapter are . . . to provide

for the prompt and orderly settlement of all disputes growing out of grievances
or out of the interpretation or application of agreements covering rates of pay,
rules, or working conditions.”).

12
join Part III of its opinion and respectfully dissent from its judgment
remanding those claims to the trial court. 33

Jane N. Bland
Justice

OPINION FILED: June 20, 2025

33 For these reasons, I would also grant the petition for review in the

companion case (No. 22-1124) that SWAPA filed as an assignee. We should
reinstate the trial court’s judgment granting Boeing’s motion to dismiss in that
case.

13