The Boeing Company and the federal government told a North Texas judge this week to reject concerns raised by the families of victims of 737 Max crashes who oppose a settlement agreement that would end the criminal prosecution of the company.
The responses were filed July 2, after some families last month urged U.S. District Judge Reed O’Connor to deny the motion to dismiss the government’s criminal fraud case against Boeing and appoint a special prosecutor to take over. The government sued Boeing in January 2021 in the wake of two plane crashes in 2018 and 2019 that killed 346 people.
The families voiced their opposition after the government, on May 29, filed a motion to dismiss and informed the court it had entered a nonprosecution agreement with the aerospace manufacturing company.
The government explained in its response that of the families of the 346 victims, some have expressed “full support” for the nonprosecution agreement and dismissal but others have expressed “total opposition.” That range of opinions, the government wrote, is a reflection of the “complexities and sensitivities of this case.”
Prosecutors argued that what the opposing families are asking the court to do is substitute the Department of Justice’s judgment on litigation risk, the benefits of a public trial and other issues for the court’s judgment.
“That is not how Rule 48(a) works,” the brief reads. “No appellate court has endorsed the approach they advocate — and certainly none has upheld the denial of a consent motion to dismiss on such grounds. Their further request for the Court to appoint a special prosecutor, whether now or at a later date, is even more untethered from law and precedent.”
Appointing a special prosecutor in this case, DOJ argued, would be a violation of the Crime Victims’ Rights Act and the constitution, which vests in the executive branch the “exclusive authority” and “absolute discretion” on whether to prosecute a case.
“First, the government’s determination to dismiss this case does not mean that the objecting families have an independent CVRA right to see a special prosecutor appointed,” the brief argues. “… Second, even if the objecting families had raised a substantiated and present CVRA violation, the statute would not allow a district court to appoint a special prosecutor to remedy that harm.”
Boeing told the court in its brief that families of “more than 110” victims have voiced support for, or have not voiced opposition to, the settlement. While the company said it “respects the views and concerns” of all the families of the victims, Boeing argued the court should reject the request to appoint a special prosecutor because the request isn’t supported by the law and ignores “the fundamental role of the Executive Branch in enforcing the law.”
And the government has met its burden by publicly disclosing its “detailed reasons for dismissal,” Boeing argued.
“The objecting representatives would handle the case differently, but critically that is not the question that Rule 48(a) and Fifth Circuit precedent ask,” Boeing argued. “The only question is whether the prosecutor is clearly motivated by considerations other than the public interest. None of the oppositions allege such ulterior motives. As a result, the government’s motion to dismiss should be granted under controlling Fifth Circuit precedent.”
In their request to appoint a special prosecutor, the families have asked the court to “take steps wholly at odds with our constitutional structure,” Boeing argued.
“The objecting representatives invite the Court to look past these concerns and appoint a special prosecutor that ‘would not be an executive officer but a judicial officer,’” Boeing wrote. “This is an invitation to replace the executive’s prosecutorial discretion with the judiciary’s. That is not only novel — it is unconstitutional.”
Trial had been slated to begin in the case 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 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.
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.