Earlier today, I filed a motion on behalf of the families of the victims of the Boeing 737 MAX crash asking a district judge to throw out the plea agreement negotiated by the Department of Justice and Boeing. I believe the proposed plea agreement is a “sweetheart” deal that is insufficient to address the most deadly corporate crime in American history. Since the motion raises interesting issues such as crime victims’ rights and corporate responsibility, I would like to publish the motion here and highlight the arguments contained in it.
As stated in a previous post, I have been working with other attorneys (pro bono) for about two and a half years to represent a number of families who lost loved ones in two accidents aboard the Boeing 737 MAX aircraft. In short, Boeing admitted in January 2021 to concealing safety issues with the 737 MAX from the FAA after two fatal crashes in 2018 and 2019. Boeing quickly and secretly negotiated a deferred prosecution agreement (DPA) with the department, apparently resolving criminal liability for its deadly conspiracy to defraud the FAA.
But then, in October 2022, the district judge hearing the case (Reed O’Connor, Northern District of Texas) concluded that the 346 families who lost loved ones in car crashes represented “crime victims” who Crime victims of crime victims whose DPAs were secretly negotiated by the department violated their CVRA rights. Then, while discussions were ongoing about how to remedy the rights violations, in May the Justice Department concluded that Boeing had violated the DPA’s pledge to improve the company’s safety. Following the decision to violate the rules, Boeing was indicted on charges of conspiring to defraud the FAA. Last week, the Justice Department and Boeing announced the specific terms of their plea agreement to resolve the indictment.
It is often believed that once the parties in a criminal case (prosecutor and defense) reach a plea, the matter is over. But under federal rules, a district judge must approve a plea deal based on what is essentially a public interest standard. My brief to the victim’s family argued strenuously that this plea agreement was not in the public interest. From the introduction (some quotes omitted):
As this court has previously found, Boeing’s lies to the FAA directly contributed to and resulted in the deaths of 346 people. Yet as the government and Boeing’s skilled legal teams negotiated the plea agreement behind closed doors, this tragic fact went unmentioned. Instead, what was negotiated was a plea deal that treated Boeing’s deadly crimes as just another run-of-the-mill corporate compliance issue. The plea agreement is premised that the appropriate outcome here is a modest fine and that corporate monitors focus on “the effectiveness of the company’s compliance program and internal controls, recordkeeping, policies and procedures…” As justification for this leniency, the plea agreement relied on incomplete and deceptive statements of facts that obscured Boeing’s true culpability.
The families objected because the Crime Victims’ Rights Act gave them the right to do so. The family respectfully asks the court not to grant this inappropriate outcome. In fact, the families’ first objection was that the court was not allowed to decide on its own the appropriate sentence for Boeing, but could only rubber stamp the proposals made by the parties through a “binding” plea agreement under the leadership of the Federal Reserve. chapter. R. Krim. Page 11(c)(1)(C).
In the pages that follow, the family raises eight substantive objections to the proposed defense, including its deceptive factual premises, inaccurate basis for sentencing guidelines and inadequate explanation of deaths caused by Boeing. The court has previously said that “it will not hesitate” when it has the power to “ensure that justice is done”. This proposed deal is not just. The court should have no hesitation in rejecting it.
My motion raised eight different and independent arguments as to why the district judge should dismiss the defense, specifically:
- Proposed Rule 11(c)(1)(C) binding plea agreements undermine a judge’s ability to craft a fair and just sentence;
- Both parties “swallowed the gun” by concealing relevant facts about Boeing’s true culpability;
- The proposed plea agreement unfairly allows Boeing to escape responsibility for the direct and proximate deaths of 346 people;
- The proposed plea agreement secretly and unfairly exonerates Boeing’s then-senior leadership from participating in the conspiracy;
- The proposed $243 million fine is insufficient under generally accepted sentencing principles;
- The proposed compliance monitoring provision was inadequate because it created an unenforceable obligation;
- Provisions of the plea agreement requiring Boeing to make new investments in compliance, quality and safety programs are also largely unenforceable; and
- The agreement’s compensation provisions are misleading and unfairly allow Boeing to tie up damages through extensive litigation and appeals.
You can read the entire motion and merger memorandum here . Furthermore, in response to the family’s contention that the parties fraudulently concealed facts regarding the conspiracy, the family has prepared a more complete and extensive statement of facts – which can be found here .
The Department of Justice and Boeing now have two weeks to respond, and I have five days to respond. Thereafter, the question of whether to grant the plea will be decided by Judge O’Connor.
