Families of Boeing MAX crash victims set to face company in US court

VICTIM’S RIGHTS

The families have criticised the agreement ever since it was announced in January 2021, waging a battle not only against Boeing, but a second 800-pound gorilla: the Department of Justice.

In unveiling the agreement, DOJ said Boeing was being held accountable for “fraudulent and deceptive” conduct towards Federal Aviation Administration regulators during the MAX certification when the company omitted key facts about the Maneuvering Characteristics Augmentation System (MCAS), a flight handling system that badly malfunctioned in both crashes.

The DOJ’s case spotlighted the deceptions of two Boeing technical pilots, but absolved leadership, concluding Boeing’s misconduct was neither “pervasive” nor “facilitated by senior management”, according to the DPA.

But the families have rejected the validity of the agreement, arguing in legal briefs that Boeing’s immunisation from prosecution should be stripped because the DOJ flouted the US Crime Victims’ Rights Act, which required the government to confer with them prior to entering into the agreement.

O’Connor, in an Oct 21 ruling, backed the families’ essential argument, ruling that they qualified as “crime victims” and concluding that Boeing’s deceptions cost the relatives their loved ones.

“In sum, but for Boeing’s criminal conspiracy to defraud the FAA, 346 people would not have lost their lives in the crashes,” O’Connor wrote.

PROSECUTORIAL DISCRETION

Adding to the families’ momentum has been the Securities and Exchange Commission, which in September fined Boeing US$200 million for misleading investors about the MAX.

The SEC case homed in on a November 2018 press release approved by then-CEO Dennis Muilenburg after the first deadly crash on Indonesia’s Lion Air.

He stated that the MAX was “as safe as any plane that has ever flown the skies”, even though the company was urgently addressing the MCAS problem.

The agency also penalised Muilenburg US$1 million in a settlement with the ex-CEO that accused him of “materially misleading” statements.

O’Connor has not ruled on potential remedies.

Legal experts say courts typically show deference towards the DOJ on such agreements.

“The judge could cancel the DPA but I think that is unlikely,” said Columbia University Professor John Coffee, who has criticised Justice’s Boeing settlement as emblematic of the government’s tendency to go easy on big, powerful companies.

“Prosecutors and the Executive Branch are given great discretion by law in that area (the decision to prosecute),” Coffee told AFP in an email.

Brandon Garrett, a professor at Duke University Law School, said courts should consider the public interest during reviews of DPAs, adding that US law “permits such review”.

But Garrett said courts have generally interpreted their role “very narrowly”, while the DOJ has usually opposed such a review.

“If this judge does reject the agreement, I could imagine the DOJ would appeal, citing their prosecutorial discretion to defer prosecution,” Garrett said.