The DOJ decision on reopening Boeing’s criminal charges comes this month

The US Department of Justice expects to have a decision by the end of this month on whether to pursue criminal charges against Boeing after two fatal crashes of the 737 Max.

Federal prosecutors will meet May 31 with the families who lost loved ones in these crashes more than five years ago to share their decision, according to a letter sent Tuesday to the victims’ families and shared with The Seattle Times.

During the daylong meeting, federal prosecutors and the victims’ families will discuss a deferred prosecution agreement Boeing entered into in 2021 that allowed the company to avoid criminal charges if it met certain conditions over the next three years. Boeing faced a single fraud charge after failing to release information about a new software system largely responsible for the two crashes that killed 346 people in 2018 and 2019.

That agreement expired in January — days after a panel canceled a Boeing 737 Max 9 plane, reigniting scrutiny of the aircraft manufacturer and casting doubt on whether the company had kept its promises after the fatal Max crashes.

The panel’s outburst did not lead to a Justice Department meeting with the victims’ families, nor did recent congressional hearings, whistleblower testimony or Federal Aviation Administration investigations. The timeline was set at 2021 as part of the deferred prosecution agreement.

But recent events could play a role in federal prosecutors’ decision about what comes next.

This week, a new FAA investigation may have reopened the issue of Boeing’s compliance with the agreement. On Monday, the FAA said it was investigating the Boeing 787 Dreamliner after the company revealed that employees had falsified inspection records.

It’s not clear when that occurred — or if it was within the three-year period of the deferred prosecution agreement — but the new investigation could draw attention to one part of the agreement: Boeing agreed that the regulators did not intentionally ” false, incomplete or misleading information.”

The Justice Department has until July, six months after the agreement expires, to determine whether Boeing violated the agreement or to request more time to make that determination. If the company finds that the company is not following the rules, it can ask a judge to reopen the criminal case that is on hold.

As part of the 2021 agreement, Boeing and the victims’ families will have 30 days to respond to the Justice Department’s decision before the parties head to court in Texas, where the deferred prosecution agreement was signed.

By May 31, “the Department expects to have made a determination as to whether or not Boeing violated the Deferred Prosecution Agreement,” the Justice Department wrote in the letter to the victims’ families on Tuesday. “The department would therefore like to consult with you about that decision and possible next steps, and hear your input and views on this.”

What comes next?

After the two fatal Max crashes, the Justice Department charged Boeing with fraud for deliberately misleading FAA regulators when the company sought certification for the 737 Max planes.

Federal prosecutors say Boeing engineers have not released information about a new software system in the Max planes. Later, a flaw in that system – the Maneuvering Characteristics Augmentation System, or MCAS – caused two planes to nosedive shortly after takeoff, killing 346 people.

In the 2021 deferred prosecution agreement, Boeing agreed to pay $2.5 billion and to review and update its policies on safety and compliance with federal regulators. It agreed to establish an ethics and compliance program designed to prevent violations of U.S. fraud laws and provide consistent reports on its progress to the Justice Department.

Of the total fine, approximately $243 million was paid to the U.S. government for criminal conduct and $500 million to the victims’ families. The rest was compensation to Boeing’s airline customers, which the company had already agreed to pay.

The agreement listed several conditions that would be considered a violation of the agreement, including Boeing’s failure to implement a compliance program or cooperate with federal regulators. Boeing would also be considered to have breached its agreement if it committed a crime or if it provided “intentionally false, incomplete or misleading information.”

That line could connect the criminal claim to the FAA’s recent investigation into the 787 Dreamliner. In response to questions about the falsified data, the FBI, the investigative arm of the Justice Department, declined to confirm or deny the existence of an investigation.

The FBI has opened a criminal investigation into the panel explosion in January, according to a letter sent to passengers aboard Alaska Airlines Flight 1282.

Boeing declined to comment Tuesday.

The Justice Department is reluctant to share what information it looks at to determine whether Boeing has complied with the deferred prosecution agreement, according to attorneys representing the families of Max crash victims.

In 2022, federal prosecutors said in a lawsuit that the agreement “has now reached two-thirds of its life, and most of the obligations it imposes on Boeing have now been fully or substantially satisfied.”

But in April and again in Tuesday’s letter, the Justice Department told attorneys representing the victims’ families that they had not yet decided what to do next. The May 31 meeting in Washington DC could provide a long-awaited answer to families who have been asking for more to hold Boeing accountable.