Boeing is facing fresh legal troubles after the US Department of Justice (DOJ) determined that the airframer breached a 2021 deferred prosecution agreement related to the certification of the 737 Max, a move that means the company may find itself in court facing the previous criminal charges.
The news comes after reports that the DOJ had been investigating Boeing’s compliance with the agreement in recent months following the January in-flight blow-out of an Alaska Airlines 737 Max 9’s door-plug.
Boeing has taken responsibility for that event, and an early investigation report suggested that workers at its Renton site never installed the bolts that hold the plug in place.
“The government has determined that Boeing breached its obligations under [the deferred prosecution agreement]… by failing to design, implement, and enforce a compliance and ethics programme to prevent and detect violations of the US fraud laws throughout its operations,” DOJ attorneys said in a 14 May letter to US justice Reed O’Connor with the US District Court for the Northern District of Texas.
“For failing to fulfill completely the terms of and obligations under the [agreement], Boeing is subject to prosecution by the United States” for criminal violations, the letter adds. “The government is determining how it will proceed in this matter.”
Boeing denies it violated the agreement but commits to co-operating with the DOJ.
“We can confirm that we received a communication today from the Justice department, stating that the department has made a determination that we have not met our obligations under our 2021 deferred prosecution agreement, and requesting the company’s response,” Boeing says.
“We believe that we have honoured the terms of that agreement, and look forward to the opportunity to respond to the department on this issue.
“We will engage with the department with the utmost transparency, as we have throughout the entire term of the agreement, including in response to their questions following the Alaska Airlines… accident.”
The DOJ says Boeing has until 13 June to respond “in writing, to explain the nature and circumstances of such breach, as well as the actions [Boeing] has taken to address and remediate the situation”.
Government attorneys say they will consider Boeing’s explanation “in determining whether to pursue prosecution”. Additionally, the DOJ intends to confer on its next steps with relatives of people killed in two 737 Max crashes – that of Lion Air flight 610 in 2018 and of Ethiopian Airlines flight 203 in 2019. The crashes killed 346 people.
The US government intends by 7 July to inform judge O’Connor about how it plans to proceed.
The DOJ’s 14 May letter specifies that Boeing’s actions leave the company open to prosecution for conspiring to defraud the Federal Aviation Administration, as described in the DOJ’s January 2021 criminal complaint against the company.
The DOJ based that case on actions of two Boeing employees, both flight technical pilots, who allegedly misled the FAA’s Aircraft Evaluation Group (AEG) about the 737 Max’s Maneuvering Characteristics Augmentation System (MCAS). The AEG establishes pilot training requirements.
Boeing added MCAS to the 737 Max to counter the jet’s tendency, due to its larger engines, to pitch nose-up during certain circumstances. MCAS forces the nose down in response.
Investigators determined that the system put both the Lion Air and Ethiopian jets into dives from which the pilots could not recover. Experts have said maintenance issues and pilot-training factors also played roles.
The company in 2021 agreed to pay $2.5 billion and to ensure its compliance with federal laws in exchange for the DOJ deferring prosecution of the criminal charges.
Specifically, Boeing agreed to “review its internal controls, policies and procedures” related to interactions with regulations, and to make changes if necessary to ensure compliance with US law.
