Volkswacht Bodensee - Families of 737 MAX crash victims, Boeing face off in US court

"Boeing is responsible, this is obvious," Catherine Berthet told the court. "Nobody was arrested or charged."

Berthet's daughter, Camille, perished on the March 2019 Ethiopian Airlines flight, which followed the October 2018 Lion Air crash in Indonesia. Together, the crashes claimed 346 lives and led to the global grounding of the MAX aircraft for more than a year and a half.

Some relatives testified through tears during Thursday's three-hour hearing in Fort Worth, Texas, the latest twist in the battle over the Boeing enforcement that has pitted relatives of MAX victims against both Boeing and the Department of Justice.

The families are challenging the DOJ's deferred prosecution agreement (DPA) with Boeing, which required the aviation giant to pay $2.5 billion in fines and restitution in exchange for immunity from criminal prosecution for charges it defrauded the government during the certification of the MAX.

The DPA, announced in January 2021, appeared to close the door to criminal prosecution of Boeing and senior leadership.

But relatives of the victims began challenging the DPA later in 2021, winning an order last week from US District Judge Reed O'Connor requiring Boeing appear Thursday at an arraignment in the criminal case.

Thursday's hearing began as a formal arraignment at which Boeing attorneys entered a "not guilty" pleading to the DPA.

After that, about a dozen relatives and their legal representatives addressed the court in an often emotional proceeding that included collages of the victims.

Their demands included that O'Connor appoint an independent monitor to oversee the DPA, while DOJ attorneys argued against amending the agreement.

O'Connor requested additional information from the government. He said he would review the materials from the parties before making a decision.

- Victim's rights -

In unveiling the agreement in January 2021, the DOJ depicted the DPA as tough enforcement for Boeing's "fraudulent and deceptive" conduct towards Federal Aviation Administration regulators during the MAX certification when the company omitted key facts about the Maneuvering Characteristics Augmentation System (MCAS), a flight handling system that badly malfunctioned in both crashes.

The DPA absolved Boeing leadership, concluding Boeing's misconduct was neither "pervasive" nor "facilitated by senior management," according to the DPA.

But the families have rejected the validity of the agreement, arguing in legal briefs that Boeing's immunization from prosecution should be stripped because the DOJ flouted the US Crime Victims' Rights Act, which required the government to confer with them prior to entering into the agreement.

O'Connor, in an October 21 ruling, backed the families' argument about their status, ruling that they qualified as "crime victims" and concluding that Boeing's deceptions cost the relatives their loved ones.

In a legal filing ahead of Thursday's hearing, attorneys for the families said DOJ and Boeing "have contrived through the covertly crafted DPA to essentially sweep away any real accountability."

Boeing, which has fought efforts to change the DPA and resisted Thursday's arraignment, on Thursday reiterated its apology for the accidents and said the memory of the victims "drives us every day to uphold our responsibility to all who depend on the safety of our products," according to a Boeing statement.

We are "committed to continuing to comply scrupulously with all of our obligations under the agreement we entered into with the Justice Department two years ago," Boeing said.

But those words are not enough for Paul Njoroge, who lost his wife and three children on the same Ethiopian flight and flew to Texas from Canada to urge the court to cancel Boeing's "sweetheart deal."

"We know that senior executives of Boeing committed a fraud," Njoroge told AFP outside the courthouse. "We want to see them in prison."

While the families have scored notable wins, legal experts say courts typically show deference towards the DOJ on such agreements.

Brandon Garrett, a professor at Duke University Law School, said courts should consider the public interest during reviews of DPAs, adding that US law "permits such review."

But Garrett said courts have generally interpreted their role "very narrowly," while the DOJ has usually opposed such a review.

"If this judge does reject the agreement, I could imagine the DOJ would appeal, citing their prosecutorial discretion to defer prosecution," Garrett said.

J.Fankhauser--BTB