False claims Boeing made to the Federal Aviation Administration about a critical system on its 737 MAX airplane may have led to a fatally flawed product being sold to airlines around the globe. In the legal world, however, it doesn’t necessarily follow that the people killed in two subsequent air crashes are victims, according to a legal filing by Kenneth Polite, US Assistant Attorney General Criminal Division in a Texas courtroom on Tuesday.

The law surely allows lawyers like Mr. Polite and his boss, Attorney General Merrick Garland, to argue over semantics but when it comes to who is impacted on the most fundamental level by the twin disasters in October 2018 and March 2019, any reasonable person would have to agree, it is the families of the 346 people who died.

“I would like someone in the U.S. Justice Department to spend one day in the life of my 6-year-old daughter and have them dare tell me she is not a victim of Boeing’s crimes,” said Naoise Ryan, whose husband Mick died in the crash of Ethiopian Airlines Flight 302.

In early January 2021, Federal prosecutors ended a criminal investigation into Boeing’s chicanery during the certification of the MAX, its newest iteration of the 737 by offering the planemaker a plea deal. Boeing would pay a fine, promise to behave better and, if after three years it met those terms, it would face no further penalty.

Families learned about the deal in a press release only when the deal became final. The news came as a shock because all along they had been told there was no criminal investigation.

Now more than a dozen families are trying to have the Federal Judge in Fort Worth, Texas reopen the deal claiming it was negotiated without their knowledge in violation of the Crime Victims Rights Act.

Tuesday’s filing raises the seemingly simple question; are Ryan and her children Boeing’s victims? And the answer from the prosecutor is no.  The victim of Boeing’s crime is the FAA.

In its filing, the Department of Justice says it could prove Boeing conspired to defraud the agency responsible for certifying the airplane. It could not necessarily prove that the fraud caused the crashes. And so, it argues, if it wanted to get Boeing to pay restitution to crash victims it had to go the plea bargain route.

Kenneth Polite Jr. Assistant Attorney General Criminal Division

“Absent the Government’s successful negotiation of the $500 million fund from Boeing through the DPA, the crash victims’ beneficiaries would not be entitled to any compensation from Boeing,” Mr. Polite argues.

When the agreement was first made public more than a year ago, Columbia Law Professor John Coffee told Corporate Crime Reporter the deal was “an egregious case and one of the worst deferred prosecution agreements I have seen.” He said it was unprecedented to have the prosecution conclude that “the misconduct was neither pervasive across the organization, nor undertaken by a large number of employees, nor facilitated by senior mismanagement.”

Several MAX families have long made it clear that their view of justice has nothing to do with the money DOJ brags about having pried from Boeing’s bank account.

Keep in mind though, that a considerably larger sum of money in the plea deal was earmarked for another class of victim, the airlines that bought but could not fly their MAX aircraft when they were grounded for nearly two years.  Airline losses were considerable and compensation was likely just what they were looking for.

But for families who wanted a thorough examination of Boeing’s deception – how high up it went and how widespread it was, being excluded from even knowing about the case meant they had no way to voice their opinion.

For that, prosecutors are sorry. “The Government apologizes for not meeting and conferring with these crash victims’ beneficiaries before entering into the DPA,” Mr. Polite writes before adding, “even though it had no legal obligation to do so.”

Paul Cassell, a law professor at the University of Utah who specializes in crime victims’ rights and who represents the families on this issue says prosecutors have invented a “nonsensical legal justification” for denying the families their rights.

They may have been ignored prior to the Boeing plea deal, but for now, the families are getting their say.

Christine Negroni

Author of The New York Times bestseller, The Crash Detectives, I am also a journalist, public speaker and broadcaster specializing in aviation and travel.