The U.S. Department of Justice will meet this month with the families of victims of two fatal Boeing 737 Max crashes, as federal prosecutors consider whether to move forward with a criminal case against the aerospace giant
That criminal case was put on hold three years ago after Boeing entered into an agreement with federal prosecutors that would prevent Boeing from facing criminal charges if the company met certain conditions, such as strengthening its quality oversight. The agreement expired in January, paving the way for DOJ to determine if it should ask a judge to dismiss the pending criminal claim against Boeing or move forward.
At the same time, the FBI is interviewing some passengers who were on board a Boeing 737 Max 9 plane that lost a piece of fuselage midair in January. That incident occurred just two days before Boeing’s deferred prosecution agreement expired.
The panel blowout did not spark the meeting that DOJ now plans to have with families of victims from the Max 8 crashes, but the Jan. 5 incident does offer a high-profile example that left many wondering if Boeing had violated the terms of its agreement and opened itself up to criminal charges.
At the April 24 meeting, the families and attorneys representing them will share feedback on whether Boeing kept its promise to improve regulatory compliance, oversight and transparency after the crashes in 2018 and 2019 that killed 346 people.
“The families are going to point out what I think has become pretty obvious: Boeing did not seriously follow the obligations it made through the [agreement],” said Paul Cassell, a law professor at the University of Utah who is helping represent the families of victims from the Max 8 crashes.
“We’re just seeing example after example of problems with the 737 Max and even more broadly with other things at Boeing,” Cassell said.
Boeing and the DOJ declined to comment.
The DOJ has also opened a criminal investigation into the panel blowout from January. That incident involved a piece of fuselage that fills what can be an emergency exit in some aircraft with high density seating. The National Transportation Safety Board, which is investigating the cause of the incident, determined that four bolts meant to secure the door plug in place were missing.
The Jan. 5 midair blowout “signifies a lack of quality control, which gets to the crux of the deferred prosecution agreement,” said Mark Lindquist, an attorney who is representing individuals in litigation around the Max 8 crashes and the Max 9 safety incident.
“In other words, they have not made the fixes that they promised.”
‘Let Boeing worry’
Following the Max 8 crashes, Boeing faced a single criminal count for misleading U.S. regulators who certified the Max’s design.
The Justice Department has until July 7 — six months after the deferred prosecution agreement expired — to determine its next steps.
It could find Boeing stuck to the conditions of the agreement and ask a judge to dismiss the criminal charge against the company. Or it could rule Boeing violated the terms of the agreement and ask a judge to throw out the agreement. Or, it could ask for an additional six months to investigate.
Justin Green, an attorney from Kreindler and Kreindler LLP who is representing some passengers from the Max 8 crashes, said he hopes DOJ asks for more time to consider.
“This is not the right time to say Boeing should not be under prosecution,” he said. “Let Boeing worry about it more.”
The April 24 meeting is likely one of the last times the families will get a chance to voice their opinions to the DOJ, Green said. When the deferred prosecution agreement was announced, many were blindsided by the settlement and shocked that they hadn’t been consulted.
Since then, the Justice Department has hosted listening sessions with the victims’ families. Those left some feeling DOJ was putting on “performative theater,” said Michael Stumo, an outspoken advocate for families and the father of Samya Rose Stumo, who died in the Ethiopian Airlines Max crash when she was 24.
As Stumo describes it, the DOJ and the Federal Aviation Administration let Boeing “set the agenda” and create a system that punishes those who prioritize quality and safety over financial performance. A group of victims’ families have requested to view emails and communication between Boeing’s attorneys and the DOJ, hoping to determine how the agreement was decided on.
Stumo hopes this next meeting will “finally shake (DOJ) out of their slumber,” and result in criminal charges against Boeing and its CEOs.
“They knew internally the plane wasn’t safe, it had to be fixed, and they still told everyone that everything’s fine,” Stumo said. “So people got on that plane — and it killed my daughter.”
In July, the DOJ will ask a U.S. District Court judge in Texas to either drop the pending claim against Boeing or to move forward with the case. If it asks the judge to dismiss the claim, Erin Applebaum, another attorney with Kreindler and Kreindler, said her firm intends to object.
“In our mind, the only real solution here is a public trial in front of a jury,” Applebaum said. “We don’t want to accept anything less than that.”
‘A second bite at that apple’
The DOJ has also opened a criminal probe following the panel blowout on the 737 Max 9 plane in January, though it’s not clear if that is a separate investigation or related to the deferred prosecution agreement from the Max 8 crashes.
Last month, the FBI sent a letter to passengers on board Alaska Airlines Flight 1282, telling them they may have been a “victim of a crime.”
The FBI has started interviews with some people on board, according to one passenger who asked to remain anonymous due to the sensitive nature of their experience. That passenger said the FBI first contacted them in February, just weeks after the crash.
Compared with the DOJ’s response after the fatal Max 8 crashes, the agency is moving quickly and notifying passengers much earlier than it had before, according to three attorneys who have represented victims in the Max 8 crashes.
“I think it goes to show that the families’ efforts in this DPA fight have really made a difference,” Applebaum said. “The DOJ promised to treat victims better in the future.”
The April 24 meeting with victims’ families from the Max 8 crashes will take place in Washington, D.C. The families can submit written statements in advance, or attend via Zoom or in person.
Stumo said he plans to attend in person. The DOJ, and U.S. Attorney General Merrick Garland, had “an opportunity to fix the mistakes” but chose not to, Stumo said. “Now, he’s got a second bite at that apple.”
