Bloomberg Law
Feb. 10, 2023, 3:34 PM

Boeing Crash Victims’ Families Lose Bid to Block DOJ Deal (2)

Madlin Mekelburg
Madlin Mekelburg
Bloomberg News

Families of people killed in two Boeing 737 Max crashes lost their bid to reopen or reject a controversial agreement the aircraft manufacturer struck with federal prosecutors in 2021.

A federal judge in Texas late Thursday declined to revisit Boeing Co.’s 2021 deferred-prosecution agreement, saying he lacked the authority to order a “substantive review and disapproval or modification” of the deal, which shields the company from fraud charges so long as it meets certain conditions.

“The court has no occasion to address whether the DPA is in fact grossly incommensurate with Boeing’s egregious criminal conduct,” US District Judge Reed O’Connor wrote in his decision.

A Boeing 737 Max taxis after landing during a test flight in Seattle.
Photographer: Chona Kasinger/Bloomberg

The families had said Boeing Co. violated the pact when it pleaded not guilty in Texas last month to a fraud charge tied to its role in hiding flight control flaws from regulators. They’d also asked the judge to appoint an independent monitor to supervise the company’s compliance — a request the judge declined.

“The families are disappointed with Judge O’Connor’s ruling, and we plan to appeal to the Fifth Circuit,” said Paul Cassell, a former federal judge who is representing the families. “We are optimistic our appeal will vindicate the families’ rights in this case and ensure that never again are deals like this one reached secretly and without victim involvement.”

Design flaws in the 737 Max were blamed for crashes of a Lion Air flight in 2018 and an Ethiopian Airlines plane in 2019, which killed a combined 346 people. Some of their relatives have been working to unwind Boeing’s agreement with the US Department of Justice, arguing it was flawed because they were never consulted on terms.

Read More: Boeing Crash Families Say Not-Guilty Plea Defies Settlement

O’Connor said he wasn’t insensitive to the families’ plea.

“This court has immense sympathy for the victims and loved ones of those who died in the tragic plane crashes resulting from Boeing’s criminal conspiracy,” the judge wrote. “Had Congress vested this court with sweeping authority to ensure that justice is done in a case like this one, it would not hesitate.”

Boeing and the DOJ have resisted efforts to revisit the deal, arguing the company has been in compliance for the first two years of the three-year agreement.

O’Connor said he didn’t believe the government acted in bad faith, and that excluding the families from those conversations was nothing more than a “legal error.”

In fact, the judge contends the government facilitated “historic engagement with the families (that) undercuts arguments that it dealt with them in bad faith.”

He pointed to listening sessions and personal meetings offered by the government prior to the deal and highlighted recent developments in the families’ legal fight that resulted in further opportunities for them to meet and confer with prosecutors.

“Though these measures do not alter the fat that the families were originally denied their legal status and associated rights as crime victims’ representatives, they evince the Government’s good faith — not the opposite,” O’Connor wrote.

The case is US v. Boeing, 21-cr-5, US District Court, Northern District of Texas (Fort Worth).

(Updates with comment from family attorney, background on case.)

--With assistance from Bob Van Voris and Mary Schlangenstein.

To contact the reporter on this story:
Madlin Mekelburg in Austin at

To contact the editors responsible for this story:
Angela Moon at

Peter Jeffrey, Steve Stroth

© 2023 Bloomberg L.P. All rights reserved. Used with permission.