The Justice Department’s deferred prosecution agreement with Boeing contains a little of everything.

A criminal monetary penalty of $243.6 million. 

Compensation payments to Boeing’s 737 MAX airline customers of $1.77 billion.

The establishment of a $500 million crash-victim beneficiaries fund to compensate the families of the 346 passengers who died in the Boeing 737 MAX crashes of Lion Air Flight 610 and Ethiopian Airlines Flight 302.

An admission by Boeing that, through two of its 737 MAX flight technical pilots, the company deceived the Federal Aviation Administration (FAA) about an important aircraft part called the Maneuvering Characteristics Augmentation System (MCAS) that impacted the flight control system of the Boeing 737 MAX. 

Because of their deception, a key document published by the FAA lacked information about MCAS, and in turn, airplane manuals and pilot-training materials for U.S.-based airlines lacked information about MCAS.

Despite admissions of wrongdoing in the agreement, Boeing got its prosecution deferred.

There was no corporate guilty plea. 

No, Boeing would not have been driven out of business had it been forced to plead guilty.

Boeing was already a convicted felon – having pled guilty in July 1982 to failing to disclose payments of at least $7 million in commissions to overseas agents to help win orders for 35 aircraft valued at $344 million and in November 1989 for “unauthorized conveyance’” of secret Pentagon budget documents. 

Boeing pled guilty to felonies in both cases and was not driven out of business.

Where deaths were involved, other companies like BP, have pled guilty to felony manslaughter. And they were not driven out of business.

Why was Boeing not forced to plead guilty to felony manslaughter?

Why were no executives prosecuted?

In a recent review “Getting Away with Murder” (New York Review of Books, December 3, 2020) of Columbia Law Professor John Coffee’s Book “Corporate Crime and Punishment: The Crisis of Underenforcement,” federal Judge Jed Rakoff goes down the list of cases where major corporations have caused death and destruction and the Justice Department has deferred or denied justice – Purdue Pharma (tens of thousands of opioid deaths and no prison time for executives), GM ignition switch (124 documented deaths, not one executive prosecuted), Pacific Gas & Electric triggered forest fires (175 deaths, not one executive prosecuted.)

With Boeing we have 346 deaths, no corporate guilty plea, no monitor, no executives prosecuted, the corporate prosecution is deferred and the stock price goes up.

“This is symptomatic of everything I discuss in my book,” Coffee told Corporate Crime Reporter last week. “No executives have been prosecuted – and the signs are that none will be. There is no monitor appointed, and, while a large penalty is imposed, it falls only on shareholders. The people who commit crimes are executives and once again they have escaped. This is further evidence that the Yates Memorandum is not taken seriously.”

Senator Richard Blumenthal (D-Connecticut) called the Boeing deferred prosecution “a disgrace to the memory of the 737 MAX crash victims.” 

“Boeing and its senior management, complicit in the deaths of 346 people, have been allowed to escape individual accountability by paying a nominal fine – a drop in the bucket for this multibillion dollar company,” Blumenthal said. “This shameful settlement does nothing to change the rotten corporate culture that allowed Boeing to mislead and deceive regulators. Justice hasn’t been served for the families who lost loved ones in two entirely preventable crashes and no monetary sum will ease their pain and suffering.”

The families agreed.

“Families previously contacted the Department of Justice requesting input into their prosecution under the Crime Victims’ Rights Act but we were rebuffed,” said Michael Stumo, father of Samya Rose Stumo, 24, who was killed in the Ethiopian crash. 

“This agreement is therefore a surprise to us,” Michael Stumo said. “It is the Boeing Protection Agreement (BPA), not a deferred prosecution agreement (DPA). The Boeing individuals who committed fraudulent acts are protected by Boeing’s money and will not be held accountable. The documents that reveal what actually happened will still be secret. The Department of Justice attorneys therefore participated in the effort to freeze out families, protect individual wrongdoers from harm, and conceal the Boeing documents which would let the public know what really happened. The actual government fine of $243.6 million is a rounding error in Boeing corporate finances, worth a couple of airplanes. This is fake justice agreed to by insiders while excluding victims’ families.”

Zipporah Kuria of the UK lost her father in the Boeing crash in Ethiopia.

“Today’s action won’t bring back our loved ones but at least there is clarity that their deaths weren’t incidental and there is clarity in liability,” Kuria said. “I am disgusted that my dad and 345 people lost their lives and, instead of taking accountability, Boeing decided to cover it up. I hope this is a reminder to the public that every time you get on a Boeing 737-8 MAX these are the hands you’re putting your life into.” 

“In pursuit of real justice, the individuals responsible at Boeing should not be retiring or resigning with bonuses – they should be held criminally liable for their actions. The loss of life shouldn’t go unaddressed or dealt with with a slap on the wrist. Our loved ones paid for their gross negligence with their lives, and we paid with our loss forever. May this serve as a reminder that Boeing’s and the FAA’s current leadership is not fit to be entrusted with human life. Their priority is corporate interest over human life. This decision highlights failure in the justice process, and this doesn’t even scratch the surface of justice. It doesn’t even signify an olive branch. It raises the question of moral compass. If people can pay their way out of accountability, what can’t they get away with?”

Robert Clifford, the lawyer representing the families suing Boeing, called the deferred prosecution agreement “an insult to the families and the flying public.”

“We will continue to fight for the real justice that these family members deserve in the civil courts,” Clifford said. “They want answers. They deserve to know what happened and why it was allowed to happen.”