Earlier today, I filed a motion for the Boeing 737 MAX crashes victims’ families, asking the district judge to reject the plea deal that the Justice Department and Boeing have negotiated. I argue that the proposed plea agreement is a “sweetheart” deal that is an inadequate response to the deadliest corporate crime in U.S. history. Because the motion raises interesting issues of crime victims’ rights and corporate accountability, I wanted to post the motion here and highlight the arguments it contains.
As noted in earlier posts here, here, here, and here, I have been working with other lawyers (pro bono) for about two-and-half years now, representing some of the families who lost loved ones in the crashes of the two Boeing 737 MAX aircraft. To quickly recap where things stand, after two deadly crashes in 2018 and 2019, in January 2021, Boeing admitted that it concealed safety issues with the 737 MAX from the FAA. Boeing swiftly and secretly negotiated a deferred prosecution agreement (DPA) with the Department, apparently resolving its criminal liability for its deadly conspiracy to defraud the FAA.
But since then, in October 2022, the district judge handling the case (Judge Reed O’Connor in the Northern District of Texas) concluded that the 346 families who lost family members in the crashes represent “crime victims” and that their Crime Victims’ Rights Act (CVRA) rights were violated by the Department covertly negotiating the DPA. And then, while issues of how to remedy that rights violations were being debated, in May of this year, the Justice Department concluded that Boeing had breached its DPA commitment to improve safety at the company. Following that breach determination, Boeing was subject to prosecution for the charge of conspiring to defraud the FAA that had been filed against it. And last week, the Department and Boeing announced the specific terms of the plea agreement they had reached to resolve the prosecution.
It is often assumed that once the parties in a criminal case (the prosecutors and defense) reach a plea, that’s the end of things. But under the federal rules, a district judge must approve the plea agreement under what is essentially a public interest standard. And my brief for the victims’ families argues strenuously that this plea deal is not in the public interest. From the introduction (some citations omitted):
Boeing’s lies to the FAA directly and proximately killed 346 people, as this Court has previously found. And yet, when the Government’s and Boeing’s skilled legal teams sat down behind closed doors to negotiate a plea deal, that tragic fact somehow escaped mention. Instead, what emerged from the negotiations was a plea agreement treating Boeing’s deadly crime as another run-of-the-mill corporate compliance problem. The plea agreement rests on the premise that the appropriate outcome here is a modest fine and a corporate monitor focused on the “effectiveness of the Company’s compliance program and internal controls, record-keeping, policies, and procedures ….” And as a justification for such lenient treatment, the plea agreement relies on an incomplete and deceptive statement of facts that obscures Boeing’s true culpability.
The families object, as the Crime Victims’ Rights Act gives them the right to do. The families respectfully ask the Court not to lend its imprimatur to such an inappropriate outcome. Indeed, the families’ first objection is that the Court would not be allowed to make its own determination about the appropriate sentence for Boeing but merely to rubber stamp what the parties propose through a “binding” plea deal under Fed. R. Crim. P. 11(c)(1)(C).
In the pages that follow, the families provide eight substantial objections to the proposed plea, including its deceptive factual premises, its inaccurate Sentencing Guidelines foundation, and its inadequate accounting for the deaths Boeing caused. This Court has previously stated that when it has authority “to ensure that justice is done,” then “it would not hesitate.” This proposed agreement is not justice. The Court should not hesitate to reject it.
My motion advances eight different and independent arguments about why the district judge should reject the plea, specifically:
- The proposed Rule 11(c)(1)(C) binding plea agreement destroys the judge’s ability to craft a Fair and Just Sentence;
- The Parties have “swallowed the gun” by hiding relevant facts About Boeing’s true culpability;
- The proposed plea agreement unfairly allows Boeing to escape accountability for directly and proximately causing 346 deaths;
- The proposed plea agreement surreptitiously and unfairly exonerates Boeing’s then-senior leadership for their involvment in the conspiracy;
- The proposed $243 million fine to be imposed is inadequate under recognized general principles of sentencing;
- The proposed compliance monitor provision is inadequate because it creates unenforcable obligations;
- The plea agreements provisions requiring Boeing to make new investments in compliance, quality, and safety programs is also essentially unenforcable; and
- The agreement’s restitution provision is misleading and unfairly allows Boeing to tie Up restitution awards through extensive litigation and appeals.
You can read the entire motion and incorporated memorandum here. And, in connection with the families’ argument that the parties have deceptively concealed the facts surrounding the conspiracy, the families have prepared a more complete and expansive statement of facts–found here.
The Justice Department and Boeing now get two weeks to respond, and I get five days to reply. After that, the issue of whether to approve the plea will be in the hands of Judge O’Connor.
