The Boeing 737 MAX case took another dramatic turn.  On July 24, 2024, the Department of Justice filed with the United States District Court for the Northern District of Texas a proposed plea agreement with Boeing.  The plea agreement, which has been filed under Federal Rule Criminal Procedure 11(c)(1)(C), requires the Court to approve and accept the deal.  The Court can reject the plea deal and require the parties to renegotiate the terms.

Under the Plea Agreement, Boeing will plead guilty to the original Information filed in 2021 with the Deferred Prosecution Agreement (“DPA”).

The proposed resolution has been controversial because of the opposition of the families of the victims who have opposed the plea agreement and general disposition of DOJ’s investigation and prior resolutions as insufficient to vindicate the public interest and their rights as victims of Boeing’s malfeasance. 

Court Proceedings

The Court entered a Scheduling Order for filing of briefs on the proposed plea agreement.  The families of victims of the Lion Air Flight 610 and Ethiopian Airlines Flight 302 airplane crashes, and any other person claiming status as a ‘crime victim’ under the Crime Victims’ Rights Act, 18 U.S.C. § 3771 [“CVRA”], must file any motion, and supporting brief.  DOJ and Boeing must then file their respective briefs in response. The victims’ families must then file their respective briefs in response.

DOJ previously notified the Court via a status report that DOJ and Boeing had reached an agreement in principle on the terms of a proposed plea agreement. Prior to that, on May 14, 2024, DOJ notified the Court that Boeing breached its obligations under the Deferred Prosecution Agreement (“DPA”), by failing to design, implement, and enforce a compliance and ethics program to prevent and detect violations of the U.S. fraud laws.

On December 15, 2023, the United States Court of Appeals for the Fifth Circuit issued a decision on the mandamus petitions brought by representatives of victims of the crashes of Lion Air Flight 610 and Ethiopian Airlines Flight 302, as well as foreign airline carrier Polskie Linie Lotnicze LOT S.A., pursuant to the Crime Victims’ Rights Act (“CVRA”). The Fifth Circuit affirmed the district court’s decision that it “cannot substantively revise the DPA between the Government and Boeing.” But the Fifth Circuit clarified “the courts’ ongoing CVRA responsibility” and how the statute will guide further proceedings in this case before the district court. Specifically, the Fifth Circuit explained that “if judicial approval is sought to resolve the instant case, the district court has an ongoing obligation to uphold the public interest and apply the CVRA.” “More specifically, if the Government concludes, independent of court supervision, that Boeing has not complied with the DPA, the case will instead proceed to trial or to Rule 11 guilty plea resolution, both assuring CVRA victim protection. On the other hand, if the Government assesses that Boeing has complied sufficiently with the DPA’s terms and asks the district court to dismiss criminal proceedings, then, ‘in passing on any government motion under Rule 48(a) . . . the court will expect to see the prosecutor recount that the victim has been consulted on the dismissal and what the victim’s views were on the matter.’” Accordingly, the Fifth Circuit denied the petitions without prejudice to new mandamus petitions being filed again at a later date, observing that the district court “must uphold crime victims’ statutory rights at every stage of the court’s criminal proceedings.” here.

The case was initiated in January 2021, when a criminal information was filed simultaneously with a DPA. The information charges Boeing with one count of conspiracy to defraud the United States in violation of 18 U.S.C. § 371. Boeing admitted to the conspiracy in the DPA filed in this matter. 

Proposed Plea Agreement

The original case against Boeing began in January 2021 with the entry of a DPA to resolve a criminal conspiracy to defraud the FAA’s Aircraft Evaluation Group (“FAA AEG”) in connection with the FAA AEG’s evaluation of Boeing’s 737 MAX airplane. As Boeing admitted in court documents, Boeing, through two of its 737 MAX Flight Technical Pilots, deceived the FAA AEG—which evaluated and mandated pilot-training requirements for U.S.-based airlines flying the 737 MAX—about the speed range in which a part of the 737 MAX’s flight controls called the Maneuvering Characteristics Augmentation System (MCAS) could operate.

Boeing agreed as part of the DPA to pay a total of over $2.5 billion, composed of a criminal monetary penalty of $243.6 million, compensation payments to Boeing’s 737 MAX airline customers of $1.77 billion, and a $500 million fund (Fund) to compensate the heirs, relatives, and legal beneficiaries of 346 individuals who died in the two Boeing 737 MAX crashes—Lion Air Flight 610 on October 29, 2018, and Ethiopian Airlines Flight 302 on March 10, 2019. The DPA required Boeing to set up a claims-handling system to distribute the Fund and to bear all the costs associated with that process.

CVRA Requirements

Because charges have been filed in this case in federal court, victims of the charges filed are entitled to the following rights, according to CVRA, Title 18, United States Code, Section 3771: (1) The right to be reasonably protected from the accused; (2) The right to reasonable, accurate, and timely notice of any public court proceeding, or any parole proceeding, involving the crime or of any release or escape of the accused; (3) The right not to be excluded from any such public court proceeding, unless the court, after receiving clear and convincing evidence, determines that testimony by the victim would be materially altered if the victim heard other testimony at that proceeding; (4) The right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding; (5) The reasonable right to confer with the attorney for the Government in the case; (6) The right to full and timely restitution as provided in law; (7) The right to proceedings free from unreasonable delay; (8) The right to be treated with fairness and with respect for the victim’s dignity and privacy; (9) The right to be informed in a timely manner of any plea bargain or deferred prosecution agreement; and (10) The right to be informed of the rights under this section and the services described in section 503(c) of the Victims’ Rights and Restitution Act of 1990 (42 U.S.C. § 10607(c)).