Some of the families of those who died in Boeing 737 MAX crashes have asked U.S. District Judge Reed O’Connor to remove a lawsuit against The Boeing Company from the U.S. Department of Justice’s hands and instead appoint a “disinterested” special prosecutor “who will pursue justice without regard to institutional conflicts.”
The families’ request was lodged Wednesday in the criminal fraud case the government brought against Boeing in January 2021 in the wake of two plane crashes in 2018 and 2019 that killed 346 people. The families filed their briefs after the government, on May 29, filed a motion to dismiss and informed the court it had entered a non-prosecution agreement with the aerospace manufacturing company.
The families asked the court to deny the government’s motion to dismiss, to declare the non-prosecution agreement void as against public policy and also to appoint a special prosecutor, arguing that the Department of Justice has demonstrated that it “cannot be relied upon to fairly handle this case.” The families alleged the government, through its motion to dismiss and non-prosecution agreement, was mounting an “unprecedented attempt to circumvent judicial review.”
“No branch can punish — or exonerate — Boeing simply because they choose to do so,” the motion reads. “Justice is wrought from the essential separation of powers. The steady and just hum of the separation breaks down when the actions of one branch (in this case the inking of a Non Prosecution Agreement or ‘NPA’) usurps the function of the other. That is precisely what has happened here.”
The families who requested a special prosecutor be appointed in this case argued in their motion that this particular non-prosecution agreement is crafted in a way that contractually prohibits the government from further prosecution, regardless of how Judge O’Connor rules on the pending motion to dismiss.
“It is important to note that this conclusion does not require delving into the subjective intent of the lawyers for DOJ or Boeing or speculating about the role of current events or politics. None of that matters,” the families wrote. “What matters is that the NPA is now executed, the DOJ has filed a motion to dismiss predicated on the NPA, and the NPA itself appears to be a literal ‘heads I win, tails you lose’ document benefitting Boeing, while usurping power from the judiciary and the legislative branch.”
In a separate brief filed Wednesday opposing the motion to dismiss, some of the families of the victims called the government’s request for dismissal “truly extraordinary.”
“In response to what the court has called ‘the deadliest corporate crime in U.S. history,’ they ask this court to approve a resolution that would result in no public trial, no final determination of guilt, and no enforceable accountability,” the families argued.
The federal government and Boeing have until June 25 to file responses to the families’ filings.
Trial had been slated to begin June 23, but the government and Boeing filed a joint motion to vacate that trial date on June 2, and Judge O’Connor granted it the same day.
Under the agreement, Boeing would:
- Admit that it conspired to obstruct and impede the Federal Aviation Administration Aircraft Evaluation Group;
- Pay a $487.2 million criminal penalty;
- Fund a $444.5 million “Crash-Victim Beneficiaries” fund;
- Invest $445 million to “strengthen the company’s compliance, safety and quality programs”;
- Hire an “independent compliance consultant” whose role would be to suggest improvements to Boeing’s antifraud, compliance and ethics program;
- Have its board of directors meet with the victims’ families to discuss “the impact of the company’s conduct”;
- And cooperate with any DOJ investigation.
“In exchange for these certain, guaranteed, and substantial benefits the agreement secures from Boeing, and the litigation risks the agreement addresses, the government’s primary obligation is to move to dismiss the information without prejudice and to not further prosecute the company for the conduct that is the subject of this case,” the motion reads.
The government told the court that before offering and entering the agreement with Boeing, it “solicited the views of the families, with whom the government has continued to engage in good faith and in satisfaction of the Crime Victims’ Rights Act.”
“Family members on behalf of over 110 crash victims have expressed their support for the agreement specifically or the department’s judgment to resolve the case pre-trial, or at least do not oppose the agreement,” the government wrote. “Several other families continue to urge the government to go to trial — even though their conception of what the trial should look like does not align with the charge, the evidence, and the law — and they urge the government to reject any pre-trial resolution other than a plea by Boeing to the information without any agreement.”
In a footnote, the government pointed to its response in support of the plea agreement to further explain that, in its view, it does not have sufficient evidence to:
- Charge Boeing with a federal criminal offense relating to the deaths;
- Allege and prove Boeing executives and board members conspired with the company’s former chief technical pilot;
- Allege and prove there was a “pecuniary gross gain or loss amount greater than the $243.6 million in training-cost savings Boeing derived.”
The government told Judge O’Connor in the filing that it “stands by” its May 2024 determination that Boeing had breached the deferred prosecution agreement “by not fully meeting its compliance obligations,” but said in the past year, Boeing has “made meaningful progress in improving its anti-fraud compliance and ethics program.”
“In light of these changed circumstances, and taking into account the certainty, finality, and substantial benefits the agreement secures, the government has determined, after careful and good faith consideration, that it is in the public interest to dismiss the Information in exchange for the obligations the [non-prosecution agreement] places on Boeing,” the motion reads.
In an objection filed by some victims’ families opposing the motion to dismiss, they argue that the non-prosecution agreement represents a “stunning departure from the principle of equality.”
“In the NPA, Boeing agrees to fund a pot worth $444.5 million, which would then be divided equally among victims’ families,” the objection reads. “Boeing dangles this money in front of the families, apparently hoping that it will lead them to back off their efforts to hold Boeing accountable for killing their loved ones. And Boeing’s offer appears to have had the desired effect, at least with respect to a few families.”
“The families objecting here, however, are unwilling to be bought off. And this Court should not bless this unseemly effort by a wealthy corporation to buy its way out of the criminal justice system.”
According to court documents, when the government criminally charged Boeing with conspiracy to defraud the United States, it simultaneously entered into a deferred prosecution agreement with the company. Judge O’Connor ruled that agreement violated the CVRA because it was negotiated without conferring with the victims’ families.
In July, DOJ and Boeing tried again, filing a proposed plea agreement with the court. Judge O’Connor rejected that, too, in December, holding it was “inappropriate and against the public interest,” in part because it marginalized the court’s role in “the selection and monitoring of an independent monitor” to oversee Boeing’s ethics and anti-fraud programs.
In Wednesday’s brief urging the court to deny the motion to dismiss, some of the victims’ families told the court that the government’s claims that it faces risk if it proceeds to trial are “meritless” and said that the public interest “will be best served by a trial rather than a backroom negotiated non-prosecution deal, so that the public can see that justice is carried out.”
Further, the families argued, if the court granted the motion to dismiss, then the “maneuver” used to circumvent judicial review could provide a “blueprint for all future dismissal motions in federal criminal prosecutions.”
“In these unprecedented circumstances, the Court should find that the government is attempting to obscure Boeing’s true culpability,” the families wrote. “Accordingly, the Court should deny the motion to dismiss.”
The families are represented by Darren P. Nicholson, Warren T. Burns and Chase Hilton of Burns Charest, Paul G. Cassell of the Utah Appellate Project at S.J. Quinney College of Law, Sanjiv N. Singh of San Mateo, California, Tracy A. Brammeier of Clifford Law Offices, Erin R. Applebaum of Kreindler & Kreindler, Adrian Vuckovich of Collins Bargione & Vuckovich and Pablo Rojas of Podhurst Orseck.
Boeing is represented by Craig S. Primis, Ian Hatch, Jeremy Fielding, John Lausch Jr., Mark Filip and Ralph Dado III of Kirkland & Ellis, Michael Heiskell of Johnson Vaughn & Heiskell and Benjamin Hatch, Brandon Santos and Elissa Baur of McGuireWoods.
The federal government is represented by Sean P. Tonolli and Chad E. Meacham of the Department of Justice.
The case number is 4:21-cr-00005.