A motion was filed earlier this month on behalf of families who lost loved ones in two Boeing crashes six years ago asking a federal court judge to reject the Department of Justice agreement it reached with Boeing not to prosecute the aircraft manufacturer for criminal fraud.
Texas A&M School of Law
The brief from fifteen families objecting to the non prosecution agreement argues that the Department is violating the judicial review provisions of the federal rules by preemptively agreeing not to prosecute Boeing even before U.S. District Court Judge Reed O’Connor in Texas, who is hearing the matter, has ruled on the previous motion to dismiss.
The Department filed a motion to dismiss the criminal fraud matter against Boeing, but, instead did an about face and told old the families it filed a non prosecution agreement in federal district court in Texas and that it does not intend to proceed with a criminal fraud trial against the aircraft manufacturer regarding two crashes of the 737 MAX8 aircraft six years ago killing 346 people.
The motion, filed by the families argues, in part, that “the government and Boeing have already decided that they won’t even wait for the Court’s ruling on the pending dismissal motion. In an extraordinary provision in the non prosecution agreement (NPA) connected to the motion to dismiss, the government has contractually obligated itself not to further prosecute Boeing, regardless of how the Court rules.”
Peter Reilly is a Professor of Law at Texas A&M Law School and is on the pro bono legal team representing the families in the case.
“For ten years, I had been writing about deferred prosecution agreements,” Reilly told Corporate Crime Reporter in an interview last week. “The Boeing settlement was initially a deferred prosecution agreement. And Paul Cassell, who was the attorney for the families in the criminal case, called me up and said – do you want to be on the team? I said yes. And I’ve been a pro bono member of this legal team now for almost three years.”
“The Department initially said to Boeing – okay, we’re going to give you a deferred prosecution agreement. And then about two years into the agreement, the Justice Department told Boeing – you have breached the agreement. You are not adhering to the terms of the agreement.”
“It took a little while, but then the government and Boeing said – okay, we’ll do a plea agreement. The plea agreement was presented to the judge. And the judge said – I’m going to deny your plea agreement. One reason was he was concerned with the role DEI was playing in the selection of the monitor. But then the judge says – you are not letting me, the court, to be involved in the selection of the monitor. The court said it was being marginalized because the court wasn’t allowed to help select the monitor and the court was not involved with monitoring the monitor. The judge said – this goes against the public interest so I’m going to deny the plea.”
“The usual course of events at that point would be for the government and Boeing to go back and say – okay, it has been denied for these two reasons. And those were two objections that were easy to overcome. We thought we would get another plea agreement where they would eliminate DEI. And for political reasons under Trump, that is sort of off the table anyway. But we were also going to have the court involved with selecting the monitor and monitoring the monitor. But that didn’t happen at all.”
“Instead, they came back with this non prosecution agreement. And the reason we are gobsmacked with the non prosecution agreement is paragraph 22. It essentially says that this non prosecution is effective right away. And no matter what the court says with respect to dismissal of the charges, we have this deal in place.”
“A non prosecution is a simple contract. So we say – you are essentially using this simple contract to contract around court review. You are saying – this non prosecution agreement is already in effect and no matter what the court says with respect to dismissal, we have a non prosecution agreement.”
How is this agreement different from other similar corporate agreements?
“I’ve been researching deferred and non prosecution agreements for ten years. I’ve never seen this provision, ever. It says – we are going to ignore what the court says about the dismissal.”
“Here’s the interesting thing about non prosecution agreements. They are different from deferred prosecution agreements. Deferred prosecution agreements have to be approved by the court. A non prosecution agreement does not have to be approved by the court.”
“All this time, the Department has been wanting to make this very favorable deal with Boeing. And at every turn the court has stopped them and in our opinion for very good reasons. So here you have a court stopping an outrageous deal from being made.”
“So what does the Justice Department do? It says – hey, let’s turn to a vehicle where we don’t even need court approval for the vehicle.”
“But things have gone off the rails with respect to procedure. If the Department at the beginning of this case said – we are going to do a non prosecution agreement, they could do it. It wouldn’t have to be approved by a court. And boom – you have the non prosecution agreement. But since they involved the court, they dragged the court into this. They put a charge on the docket. A criminal charge has been on the docket now since 2019 or so. The charge has been on the docket all this time.”
“Since the charge is on the docket, the court is involved. Yes, I agree, if the Department had done a non prosecution agreement from the very beginning, then that would be it. It would be out of the court’s authority. But it’s interesting that it comes along now. You have a charge on the docket and you have a motion to dismiss the charge.”
“In a way, they want a non prosecution agreement where the court is not involved. But I’m sorry, you have a charge on the docket. And you have asked the court to dismiss it. The standard of review is – contrary to manifest public interest. So the court can look at this and say – if it’s contrary to manifest public interest to dismiss this charge, then it won’t be dismissed.”
“If the court says – no we are not going to dismiss this charge – the Department might come back and say – fine, the charge will just sit there. We have this non prosecution agreement with Boeing. Nobody can force us to prosecute.”
“I guess that could happen. And maybe that will happen. But should the public be outraged if that happens? Absolutely. Should Congress be outraged if that happens? Absolutely.”
“In this case, the Department has been rebuffed by the court at every turn from doing what they want to do. Usually non prosecution agreements are used to get cooperation from witnesses as part of a prosecution. Let’s give this witness a non prosecution agreement so they will tell us what happened. That’s what they have been used for. They should not be used for corporate criminals who killed 346 people. That’s not what they were designed for.”
“We are saying this is outrageous. And because it’s against the public interest, the court needs to deny the dismissal. And at that point, if the charge is still sitting there, the clock will start running. You have the Speedy Trial Act. The judge should say – the clock is running. I haven’t dismissed the charge. You’ve got time now. Tell me what you want to do. And then the Department will be up against the Speedy Trial Act.”
In your brief, you also call for a special prosecutor to bring these charges. But if the statute of limitations has run, how can a special prosecutor prosecute this case?
“The Department of Justice has clearly indicated that they have no interest in prosecuting this case. At every turn, they have brought up alternative dispute resolutions. These are vehicles to try and avoid trial. First the deferred prosecution agreement, then the plea agreement and now the non prosecution agreement. They have shown their cards again and again that they don’t want to prosecute.”
“All we have to work with is the charge that is on the docket now. The Justice Department has told Boeing – we are not going to prosecute you. Then this seems to be a perfect case for the judge to say – if there is going to be any kind of justice in this case, I’m going to have to bring in a special prosecutor.”
“Under the Speedy Trial Act, you have the 70 or so days to bring a prosecution under the charge that’s on the docket. There is no statute of limitations problem with prosecuting the charge that is on the docket now. This is the time to bring a special prosecutor. If there is any case that demands a special prosecutor, it’s a case like this where 346 people have died.”
As part of the non prosecution agreement, Boeing agrees to pay $444.5 million to the families – that’s on top of the $500 million Boeing paid them as a condition of the first deferred prosecution agreement. You call this a cash for immunity deal.
“We have asked for a trial from day one. But Boeing is trying to pay money to get out of accountability. We want a jury trial because then you would get real justice. The jury will determine – what was done wrong, who is accountable? And then the court gets to decide the penalty.”
“One of the big problems we have with how this is being done is that the process has gone off the rails. Anybody looking at this from the outside will say – this smacks of a company trying to buy itself out of accountability. And there is real merit to that criticism.”
“If you have a jury trial, there is no money to pollute the decision. Was there wrongdoing? How much wrongdoing? By whom? You need to get all of those questions settled before you start throwing money into the mix.”
“This is why we need a jury trial, so there can be real justice in this case.”
You don’t want to accept any plea agreement? You want a trial no matter what?
“We know that there have been trials that have started that ended up with a plea agreement. In the middle of a trial, the parties will enter into a plea agreement. We know full well that for a million reasons, it appears that Boeing does not want a full blown jury trial. We know full well that when it heads toward a trial, it might end up in a plea. But that’s a whole different dynamic. The judge can determine whether the deal is fair or not. Checks and balances will be in place.”
Ninety-nine percent of corporate crime cases are settled with these plea deals or more likely these deferred and non prosecution agreements. And on the civil side, it’s the same dynamic. In the Boeing tort cases, so far, not one family has gone to trial. They have all settled their cases. That’s what has been happening on both the civil side and the criminal side.
“Fair point. But on the criminal side, if corporations that are accused of a crime where people die, then deferred and non prosecution agreements should be off the table.”
“And Congress needs to pass a law that says – if a company is involved in a case where people die as a result of the crime, then deferred and non prosecution agreements are off the table. As a society, we need to draw a line. In these cases where there are deaths, we need to take these resolutions off the table. Because the companies use those agreements to exploit the situation with their wealth and power.”
“You can’t say – we can’t afford to do these trials. Yes we can. There are a couple of them a year. So for the sake of justice, we must ensure that we go down the road of a full blown trial.”
“As a society we have said – the court must be involved. The court was involved with the deferred prosecution agreement, and it didn’t happen. The court was involved with the plea agreement, and it didn’t happen. And now they have elected to use a tool where they are going to eliminate the court altogether. It’s obvious and the Department of Justice and Boeing see the court as an obstruction to the deal they want to make.
But the court is what society needs to make sure there is some sort of reasonableness, fairness and justice.”
“Boeing and the Department of Justice are trying to contract around judicial review. We need judicial review in this case. And Congress needs to make sure that the court always plays a role in these corporate cases. These companies have so much power and wealth.”
“I’m dealing with a member of Congress who is thinking about dropping a bill that would eliminate a corporation’s ability to use deferred and non prosecution agreements if anyone is killed or severely injured. That’s exactly what we need.”
If the judge dismisses the changes, would you appeal that ruling?
“Absolutely. But we think the judge will not dismiss the charges. We are hoping the judge holds a hearing on the Department’s motion to dismiss. And we think the families will convince the judge not to dismiss these charges.”
[For the complete q/a format Interview with Peter Reilly, see 39 Corporate Crime Reporter 26(13), May 30, 2025, print edition only.]