Chief U.S. District Judge Reed O’Connor on Thursday morning issued an order granting the government’s motion to dismiss a criminal case against The Boeing Company that the government brought in January 2021.
In the 10-page order, Chief Judge O’Connor wrote that the court “does not have the authority to deny leave because it disagrees with the government that dismissing the criminal information in this case is in the public interest.” The order also denied a request from some family members of crash victims to appoint a special prosecutor to pursue the case against Boeing.
“Accordingly, because the government has not acted with bad faith, has given more than mere conclusory reasons for its dismissal, and has satisfied its obligations under the [Crime Victim’s Rights Act], the motion to dismiss is granted,” the order reads.
The criminal information charged Boeing with conspiracy to defraud the United States and came after a federal investigation into the company’s conduct in relation to two Boeing 737 Max crashes that killed 346 people: Lion Air Flight JT610 and Ethiopian Airlines Flight ET302.
The criminal information was filed simultaneously with a deferred prosecution agreement. Then, in May 2024, prosecutors told the court Boeing had breached the agreement by “failing to design, implement, and enforce a compliance and ethics program to prevent and detect violations of U.S. fraud laws throughout its operations.”
In July 2024, the federal government sought approval of a plea agreement under which Boeing would have to plead guilty and serve probation, but the court rejected the deal as “not in the public interest” in December 2024, according to court documents.
On May 29, the government filed a motion to dismiss the information, telling the court in a 24-page filing that it had reached a nonprosecution agreement with Boeing “that secures meaningful accountability, delivers substantial and immediate public benefits, and brings finality to a difficult and complex case whose outcome would otherwise be uncertain.”
Under the nonprosecution 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.
A total of 14 families of victims opposed the motion to dismiss while more than 60 victims’ families did not oppose the motion.
At a hearing in Fort Worth in early September, Chief Judge O’Connor heard testimony from some of the wives, parents, brothers and daughters of the 346 people killed in two Boeing 737 Max plane crashes who pleaded with him to reject the government’s request to dismiss the criminal case against the manufacturer.
Some of the family members of the victims also requested a special prosecutor be appointed to the case.
Chief Judge O’Connor wrote that he agreed with the argument from some of the opposing families that the nonprosecution agreement “disregards the need for Being to be subject to independent monitoring.” He noted that he rejected the proposed plea agreement with Boeing last year in part “because Boeing would have had veto power over the Government’s choice of an independent monitor.”
“In summary, the government’s position in this lawsuit has been that Boeing committed crimes sufficient to justify prosecution, failed to remedy its fraudulent behavior on its own during the deferred prosecution agreement] which justified a guilty plea and the imposition of an independent monitor, but now Boeing will remedy that dangerous culture by retaining a consultant of its own choosing,” the judge wrote. “Given Boeing’s history related to this case (and the government’s continued failure to gain Boeing’s compliance), the movants are correct that this agreement fails to secure the necessary accountability to ensure the safety of the flying public.”
He also agreed with the families who oppose the motion to dismiss that the government’s argument that pursuing litigation and proceeding to trial would come with “litigation risks” and “uncertainty” “is unserious.”
“The government has a confession from Boeing, signed by the CEO and chief legal officer, admitting to all the elements of the conspiracy charge against it in the DPA,” he wrote. “As such, the assertion that there is a legitimate risk that Boeing would be acquitted at a trial lacks support.”
Despite that, Chief Judge O’Connor wrote that he disagrees that case law permits him to find that “dismissal is clearly contrary to manifest public interest.” He pointed to a 1975 Fifth Circuit opinion in United States v. Cowan, where the court determined a trial judge’s refusal to grant leave to dismiss — on grounds that dismissing serious charges in favor of a guilty plea on lesser charges was against the interest of justice — was “legally insufficient to overcome the presumption of the government’s good faith and establish its betrayal of the public interest.”
“Just as the trial judge in Cowan, the Court’s concerns about the Government’s decision making in this case are an insufficient reason to deny leave to dismiss,” Chief Judge O’Connor wrote. “Thus, movants’ argument that the government’s agreement in this case is contrary to public interest, while compelling, cannot justify denying leave to dismiss under Rule 48(a).”
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 and Adrian Vuckovich of Collins Bargione & Vuckovich.
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.
Alexa Shrake contributed to this report.