737 Max cleared for takeoff — but there’s turbulence ahead

If all goes well for Boeing and its customers in the next few months, the friendly skies will soon be swarming again with the 737 Max, giving airlines a much-needed boost to their fleets and bottom lines.

The Max – the most efficient and technologically advanced version of the 737 workhorse – has been grounded for nearly two years following two disasters, Indonesia’s Lion Air flight 610 in 2018 and Ethiopian Airlines flight 302 in 2019, that killed 346 people.

Airlines that are relying on the Max to be a major part of their operations are holding their collective breath as they await full results of a Federal Aviation Administration (FAA) order that rescinded the grounding, which was the longest for any aircraft in U.S. history. The rescission paves the way for a resumption of the airplane’s use, but “only upon satisfaction of applicable requirements for a return to service,” according to the FAA order, dated Nov. 18, 2020.

Those requirements include modifications to the problematic software systems that contributed to the crashes and additional training for all 737 Max pilots.

Beginning in mid-February, the FAA also began strictly monitoring all Max flights, partnering with Aireon and L3Harris Technologies to track the airplanes in real time with satellite data.

Airlines are eager to get the plane in the air, given it uses 14 percent less fuel than its predecessor and can travel longer ranges.

American Airlines began flying its Florida-based Max planes between New York and Miami on Dec. 29 and has since added flights to Washington, D.C. and Orlando. It will be expanding destinations, including internationally, scheduling up to 100 Max flights daily by March, according to Business Insider. United Airlines resumed Max flights on Feb. 11, while Southwest Airlines plans to bring the plane back into service by April. Delta, meanwhile, has never used the Max but is in talks with Boeing to acquire it.

In addition to the beefed-up training requirements and the increased regulatory scrutiny of the flights, the airlines face another obstacle: Convincing the public that of the 737 Max’s airworthiness. So far, it does not appear a major issue, however, as the airlines are allowing customers to opt out of Max flights without penalty.

The return to service of the 737 Max bodes well for embattled Boeing, which has endured congressional investigations, continues to defend itself from numerous civil lawsuits, may face new scrutiny over recent mishaps involving the 777, and was the subject of a criminal complaint by the U.S. Department of Justice.

The prosecution, however, was settled in early January when Boeing pleaded no contest and agreed to pay $2.5 billion in damages. The sum includes $1.77 billion for Boeing’s adversely affected customers, $500 million for the families of those who died in the crashes, and a $244 million fine.

We’ll be closely following the trajectory of the 737 Max, as aerospace is one of our practice areas. Ehrenstein|Sager has the industry knowledge to effectively and strategically represent aerospace stakeholders in the prosecution or defense of these legal disputes.