The Volokh Conspiracy

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Judge O'Connor Rules that the Boeing 737 MAX Crashes Victims' Families Represent Protected "Crime Victims" and Can Seek Boeing's Prosecution

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


Late Friday afternoon, Judge Reed O'Connor of the U.S. District Court for the Northern District of Texas ruled that families whose relatives were killed in two Boeing 737 MAX crashes represented "crime victims" under the Crime Victims' Rights Act (CVRA). And because the Justice Department never conferred with the families before reaching the secret deferred prosecution deal with Boeing, the Department violated the CVRA. Judge O'Connor ordered further proceedings on the appropriate remedy for the Department's violations of law. As the lead attorney representing the families, I will argue that the appropriate remedy (among others) is to rescind the provision in Boeing's deal barring its prosecution for lying to the FAA–lies that, as the judge has ruled, killed 346 people.

While news reports have already flashed the headline about the judge's important ruling, many of the details and legal pleadings are difficult to find. This post summarizes the case, with links to important documents.

As I blogged about previously, this case arises from the Justice Department secretly negotiating a deferred prosecution agreement (DPA) with Boeing concerning its crimes connected to the  two Boeing 737 MAX crashes. Both crashes were caused by a new part Boeing built into the 737 MAX–a software system called the Maneuvering Characteristics Augmentation System (MCAS).  Tragically, in the two crashes, MCAS improperly activated and drove the planes down. On October 28, 2018, Lion Air Flight 610 crashed shortly after takeoff into the Java Sea, killing all 189 passengers and crew on board. A little more than four months later, on March 10, 2019, Ethiopian Airlines Flight 302 suffered the same fate, also crashing shortly after takeoff and killing all 157 passengers and crew.

After the two crashes, the Justice Department began investigating whether Boeing had lied to the Federal Aviation Administration (FAA) about the new MCAS system. For the first six months of the investigation, Boeing frustrated the Department's efforts to uncover what happened. But ultimately, the Justice Department learned that Boeing test pilots had concealed from the FAA how MCAS operated. The reason for the deception was to secure less onerous training requirements for pilots transitioning to fly the MAX from other older 737 models. These less-rigorous training requirements enabled Boeing to earn millions of dollars when selling the plane; as a selling point, Boeing had promised its airline customers that additional flight simulator training would not be required for pilots already qualified to fly the 737 MAX's predecessors.

The Justice Department and Boeing began negotiating how to resolve the criminal charges. While those negotiations were going on, the families of those who died reached out to the Justice Department to be involved in the negotiations. The Justice Department's Victims' Rights Ombudsman told the families–falsely–that no criminal investigation was on-going.

Ultimately, the Justice Department and Boeing secretly reached a deal, under which Boeing would be charged with the crime of conspiring to lie to the FAA. Boeing admitted the allegations, but would not enter a guilty plea to the charge. Instead, prosecution of the crime would be deferred for three years. If Boeing complied with its obligations under the agreement, at the end of the three-year period, the charges would be dismissed.  Boeing also agreed to pay $1.7 billion to its airline customers and $500 million to the crashes victims' families. It also agreed to pay a fine of $243 million.

The agreement was reached in secret negotiations between the Justice Department and Boeing. On January 7, 2021, the deal between Boeing and the Justice Department was filed with Judge O'Connor in the Northern District of Texas. It was swiftly criticized as being one of the worst plea agreements in history. Critics pointed out that the $1.7 billion payment to customers was something that Boeing was already contractually obligated to do; the amount was included in the DPA to inflate the apparent amount of the settlement. Moreover, the agreement contained an unprecedent provision in which the Justice Department stated (without explanation) that "the misconduct was neither pervasive across the organization, nor undertaken by a large number of employees, nor facilitated by senior mismanagement."

But in my view, the Boeing DPA's worst feature was that it was negotiated without participation by the victims' families. In the federal criminal justice system, the CVRA requires prosecutors to afford to crime victims the reasonable right to confer with them about a case and also timely notice of any deferred prosecution agreement. In a case involving the death of a crime victim, a surviving family member can step into a case to assert the rights of the person killed. The families should have been involved in negotiating such a far-reaching agreement. Instead, the families learned about the deal only through Twitter and Facebook reports.

In December 2021, I filed a motion alleging that the Justice Department violated its CVRA obligations to fifteen families whose family members were killed in the two crashes. I argued that because of that violation, the DPA was illegally concluded. I also filed a motion urging the district court to carefully scrutinize the proposed DPA and ensure that it held Boeing and its management accountable for their crimes. I also filed one last motion urging the district court to formally arraign Boeing and impose standard conditions of release on the company.

At this point, I contacted the Justice Department to see whether Attorney General Garland would support the victims' families. After a meeting with General Garland, however, the Justice Department filed a brief  arguing that the families did not represent "crime victims" under the CVRA. In the Government's view, only the FAA was the victim of Boeing's conspiracy to conceal information about the MCAS. Boeing also responded, arguing that the district court was powerless to do anything about the deal that Boeing had reached with the Government.

In my reply brief, I worked through the requirements for "crime victim" status under the CVRA. The CVRA extends rights not only to those specifically named in the charging document but also to anyone "directly and proximately harmed" as the result of the crime. In this case, because Boeing's lies to the FAA led directly and proximately to the two crashes–and to the deaths of 346 passengers and crew members on board–the families represented crime victims under the CVRA. This assertion about the causal connection between Boeing's lies and the crashes was supported by a detailed proffer of facts that the families could prove at an evidentiary hearing.

I also filed a motion for disclosure of relevant information from the Justice Department's files that would support the families' position that they represented "crime victims." The motion argued that the families were entitled to such disclosure by analogy to the Brady disclosure rule that generally applies in criminal cases and by operation of the CVRA's provision requiring the Government to make its "best efforts" to see that the victims' rights are protected.

Several months later, the victims' families received valuable support from U.S. Senator Ted Cruz. In an amicus brief supporting the families, Senator Cruz explained his agreement that the families represented "crime victims":

Boeing engaged in criminal conduct that defrauded government regulators and left hundreds of people dead in preventable plane crashes. The government's professed handwringing about who is actually a "victim" here is belied by the entire settlement. This is not a mine-run fraud case where some low-level employee lied or committed a technical violation; it is a long-running conspiracy that directly led to some of the  worst air travel disasters of the 21st century. The deferred prosecution agreement is therefore a landmark settlement and, among other things, requires Boeing to pay $500 million to those who lost family members in the two plane crashes, including the families that the Justice Department now argues aren't really victims at all. The government's position is simply nonsensical.

Senator Cruz also explained that he believed it was important for the district court to carefully scrutinize the provisions of the Boeing DPA to ensure that it complied with federal law, served the public interest, and protected the rights of crime victims.

Following an oral argument in Texas, in July 2022, Judge O'Connor ruled that the families could potentially prove "crime victim" status if they could establish the link between Boeing's conspiracy and the two crashes. Judge O'Connor explained that, with sufficient evidence, the families might be able to show that they were directly and proximately harmed by Boeing's conspiracy to defraud the FAA. Nothing in the families' contentions contradicted the DPA. Indeed, many of the families' contentions were supported by it. Judge O'Connor ordered an evidentiary hearing, at which the families could produce expert testimony in support of their position.

In August, I presented two expert witnesses to establish that, because of Boeing's lies, the two planes crashed. The transcripts from the two hearings can be found here and here. The testimony demonstrated "but for" causation between Boeing's conspiracy and the crashes–that is, "but for" Boeing's crime, the two planes would not have crashed.  Specifically, the testimony established three links in a causal chain: (1) that if Boeing had not lied to the FAA, the FAA would have ordered full flight simulator training for American carriers on how pilots should respond to improper MCAS activation; (2) the FAA's flight simulator training requirements would have been followed by foreign carriers; and (3) flight simulator training would have permitted the pilots of the two doomed flights to have successfully landed the planes.

During the two evidentiary hearings, neither the Justice Department nor Boeing offered any contrary evidence to that from the families' experts.

Following the evidentiary hearing, I also filed a motion to supplement the record with new information that came from a September SEC filing against Boeing. The SEC filed a cease-and-desist order against Boeing (which Boeing did not contest) which contained an extensive factual recitation about how Boeing and its then-CEO Dennis Muilenburg mislead the general public (including investors in Boeing) about the safety of the 737 MAX aircraft in the time period after the Lion Air crash and before the Ethiopian airlines crash. The motion argued that this new information that Boeing's senior management knew (at least) two months before the Ethiopian Airlines crash about the inadequacy of its disclosures to the FAA demonstrated that the Government possessed significant information about Boeing's crimes that the Government had not disclosed to the families or to the district court.

On Friday, Judge O'Connor handed down his ruling that the crashes victims were crime victims. He explained that the families had proven both direct (that is, "but for") causation and proximate causation. Regarding but-for causation, the families had

established a direct chain of causation. Had Boeing not committed its crime, the FAA[] would have required … [flight simulator] training for operators of the 737 MAX and would have included information related to MCAS in relevant training materials. As a result, foreign regulators—including Indonesian and Ethiopian authorities—would have issued similar training certifications and instructional materials, having taken their [cue] from the world's leading authority on aviation standards, the FAA. And ultimately, foreign operators of the 737 MAX—including the pilots on Lion Air Flight 610 and Ethiopian Airlines Flight 302—would have received training adequate to respond to the MCAS activation that occurred on both aircrafts. In sum, but for Boeing's criminal conspiracy to defraud the FAA, 346 people would not have lost their lives in the crashes.

Regarding proximate causation, Judge O'Connor ruled that the crashes were a foreseeable consequence of lying to the FAA (citations to the record omitted):

[I]t is generally foreseeable that Boeing's deceiving the [FAA] which resulted in an improperly low level of differences training certification, would potentially cause a disaster. As noted above, reasonable laypeople could easily predict that inadequate pilot training might result in catastrophic airplane crashes, as it did here. And given the well-recognized global industry practice of foreign entities following the FAA's recommended guidance, it was generally foreseeable that Lion Air's and Ethiopian Airlines' pilots, would have been inadequately trained with respect to MCAS because of foreign regulators' reliance on the [FAA training requirements] certification and silence on MCAS in its [materials about training]. Not only was this outcome generally foreseeable, Boeing admitted as much [in an internal email]: "FAA is pretty powerful and most countries defer to what the FAA does[.]"

In light of these factual findings, Judge O'Connor granted the families' motion for findings that the Justice Department and Boeing negotiated the DPA in violation of the CVRA. As explained in the families' motion, the CVRA entitled the families the rights to: (1) reasonably confer with the Department about the DPA; (2) receive timely notice of the DPA before it was finalized; and (3) be treated with fairness during the process. As also explained in the motion, the Justice Department not only made no effort to confer with the families, it actually deceived them by falsely stating that the FBI was not conducting a criminal investigation into the two crashes.

In light of these rulings, Judge O'Connor concluded that he did not need to reach the families' motion for disclosure of information from the Government and to supplement the record with the SEC cease-and-desist order.

Judge O'Connor concluded his opinion by directing the families, the Justice Department, and Boeing to file a statement about further briefing on remedies by this Friday, October 28.  In my earlier briefing on remedies, I requested (at least) the following actions from the court:

• As a remedy for Boeing's illegal behavior and the illegal agreement, an order directing the Government to meet and confer with the victims' families about its evidence against Boeing and its decision to grant Boeing immunity from further criminal prosecution;

• An order directing the Government to provide to the victims' families its documents and related evidence of Boeing's crimes;

• Exercising the Court's supervisory powers over the DPA;

• Requiring that Boeing appear for a public arraignment and that the victims be heard
concerning appropriate conditions of release during the term of the DPA;

• An order that the DPA's "immunity" provision be excised, permitting the victim families to exercise their CVRA right to confer with prosecutors about pursuing further criminal
prosecution of Boeing;

• An order that the victim families be permitted to confer with prosecutors about other ways to hold Boeing accountable for its crimes beyond the provisions in the existing DPA;


• A referral of the Government's illegal behavior in reaching the DPA to appropriate investigative authorities, including the House and Senate Committees with authority over the issue and the Department of Justice's Office of Professional Responsibility.

This case is important not only for the families of the Boeing 737 MAX crashes but also, more broadly, for the crime victims' rights movement. If successful, the families' challenge here will make clear that the Justice Department cannot ignore the CVRA's requirements to involve victims in negotiating plea arrangement and that, if the Department does ignore victims, appropriate remedies are available to enforce the CVRA.

Update: A few typos corrected from original post.