The Boeing deferred prosecution agreement is on the ropes.

Victims of the Boeing 737 MAX crashes are in federal court in Ft. Worth, Texas seeking to have it overturned.

They are before Judge Reed O’Connor arguing that the Justice Department did not confer with the victims as required under the Crime Victims Rights Act (CVRA).

The Justice Department and Boeing counter that the Boeing victims are not victims of the crimes documented in the deferred prosecution agreement.

On July 27, 2022, Judge O’Connor ruled that the fifteen crash victims’ families could be representing crime victims under the CVRA if evidence could be presented by the families showing that Boeing’s conspiracy to lie to the Federal Aviation Administration (FAA) about its deadly Maneuvering Characteristics Augmentation System (MCAS) “directly and proximately” harmed the crash victims. 

Judge O’Connor’s July 27 ruling noted that the families had proffered that, through expert testimony and other evidence, they could establish that Boeing’s criminal conspiracy caused the two Boeing 737MAX plane crashes. 

The families argued that Boeing’s conspiracy caused the FAA not to order full flight simulator training for 737 MAX pilots on how to respond to improper MCAS activation, that the FAA’s recommendation had worldwide effects, and that as a result the pilots on Lion Air Flight 610 and Ethiopian Airlines Flight 302 did not know how to safely land the planes when MCAS took over the two flights. 

In his July 27 ruling, Judge O’Connor ordered an evidentiary hearing on the issues.

On August 5 and again on August 26, the families presented expert testimony to Judge O’Connor in support of their argument. 

The Fraud Section of the Justice Department and Boeing cross-examined the Boeing victims’ experts.

Judge O’Connor took the matter under advisement and indicated that he would give a written ruling on the issue as soon as possible.

Professor Paul Cassell of the S.J. Quinney College of Law at the University of Utah, a former federal judge who is representing the families pro bono, was optimistic that the families had proven their case that the CVRA applies.  

“Judge O’Connor has recognized that, with proper proof, the record could establish that the crash victims are ‘crime victims’ under the Crime Victim’s Rights Act,” Cassell told Corporate Crime Reporter last week. “We have provided the judge with extensive in-court testimony from two highly qualified experts as well as hundreds of pages of exhibits regarding the crashes. The record now establishes quite clearly that, directly because of Boeing’s criminal lies, 346 people died.”

A ruling on the issue is expected in the next several weeks. 

If Judge O’Connor rules that the crash victims are crime victims under the CVRA, he has indicated that he would next address the issue of how that affects the deferred prosecution agreement (DPA) signed by Boeing and the Justice Department. 

Cassell has argued that, because the Justice Department failed to confer with the victims’ families, the provisions in the deferred prosecution agreement extending immunity to Boeing for criminal prosecution are illegal and must be rescinded.  

The case is being closely watched because it has important implications for how crime victims’ rights are to be enforced in the federal criminal justice system in corporate crime cases.

The August 26 hearing was attended by families of six Boeing crash victims. The families presented expert testimony from a Boeing 737MAX pilot. 

According to victims’ families who attended the hearing, that pilot’s testimony was pivotal. 

According to the family members, a key moment in the hearing came when the pilot was under cross examination from Boeing’s lawyer. 

Boeing’s lawyer presented to the pilot a Multi Operator Message (MOM) from Boeing after the Lion Air Crash dated November 11, 2018. The Boeing lawyer was trying to show that in fact Boeing alerted pilots to the MCAS and how it worked. 

The Boeing lawyer pointed to a sentence in the MOM that tells pilots that the MCAS is a “pitch augmentation system function” that would “enhance pitch characteristics with flaps up and at elevated angles of attack.”

But according to family members at the hearing, the pilot told the Boeing lawyer – but that’s not all it says – read the next sentence. 

And the Boeing lawyer was forced to read this from the MOM:

“The MCAS function commands nose down stabilizer to enhance pitch characteristics during steep turns with elevated load factors and during flaps up at airspeeds approaching stall.”

That was a situation that would only happen during test runs of the MAX with no passengers on board, not on takeoff with passengers aboard, the pilot said, according to family members at the hearing.

“Our expert very convincingly and comprehensively put together the full story of Boeing’s conspiracy of lies,” Cassell said. “Our expert convincingly showed that Boeing covered up from the FAA the full operating capabilities of MCAS. And even after the Lion Air plane went down, Boeing continued to put out misleading and uninformative communications to the pilots who desperately needed information about how MCAS would operate and could drive a plane into the ground.”

The pilot testified that if Boeing had not lied to the FAA, then the FAA would have ordered full flight simulator training for all U.S.-based pilots who were transitioning from other types of the 737 to fly the MAX, that the FAA’s decision not to order full flight simulator training had worldwide effects, because the FAA’s training decisions are typically followed by regulators and carriers in other countries and that the because the pilots on the doomed Lion Air Flight 610 and Ethiopian Airlines Flight 302 had not received any training on how to respond when the MCAS software took over the planes, the direct and proximate result of lack of training was the two crashes.  

The Justice Department and Boeing both cross-examined, contending that Boeing’s limited crime of concealing the full operating powers of MCAS from the FAA could not have foreseeably had such far-reaching effects.

At the conclusion of the hearing, both the Justice Department and Boeing declined to offer any evidence.

The parties then argued their positions to Judge O’Connor. 

Professor Cassell argued that because of Boeing’s “conspiracy of lies”, 346 people died, that because the testimony in the record established a clear cause-and-effect relationship, the crash victims were “crime victims” under the CVRA and that the prosecutors violated the CVRA by failing to confer with the victims’ families before reaching the deal.

Cory Jacobs of the U.S. Department of Justice’s Fraud Section argued that Boeing crime was committed by only two Boeing employees, who did not intend to cause the plane crashes and that the link of causation was not direct enough to show “crime victim” status.

McGuireWoods partner Benjamin Hatch argued for Boeing that the tragic chain of events was too attenuated to establish crime victim status, that the actions of foreign regulators and foreign pilots were intervening events that removed any criminal liability from Boeing.

Judge O’Connor took the matter under advisement and promised a ruling quickly. 

He also indicated that, if he found that the crash victims were crime victims and that the prosecutors had violated the CVRA, he would then order further proceedings on the appropriate remedy for that violation.