The U.S. Department of Justice is contemplating dropping its criminal conspiracy case against Boeing only a year after Boeing first faced being branded a corporate felon. In a dramatic turn in the case, the Justice Department informed U.S. District Judge Reed O’Connor on May 17 that it has reached the “framework” for a potential non-prosecution agreement with The Boeing Company over the deadly Lion Air Flight 61 and the Ethiopian Airlines Flight 302 crashes of 2018 and 2019, respectively.
In an interview with Law360, Michael J. Wynne, a partner and white collar criminal defense attorney with Gregor Wynne Arney PLLC said a non-prosecution agreement for Boeing “is the right result.”
If Boeing had a felony criminal conviction under last year’s plea deal, it would’ve triggered additional scrutiny for a possible suspension or debarment from federal contracting, putting the American aerospace titan’s lucrative future contracts at risk.
“While a criminal prosecution may at a certain level go further in vindicating the losses the families suffered and in sending a message, you cannot put a corporation in prison,” Wynne said. “Boeing is a corporate citizen. Difficult as it may be to swallow, a resolution of this case that allows the company to retool, reform its practices, and then compete for future contracts is in the best interest of the public at the end of the day.”
The entire story from Law360 is shown below.
By Linda Chiem
Law360 (May 22, 2025, 9:16 PM EDT) — Boeing might be on the verge of closing a chapter in its 737 Max legal saga as the U.S. Department of Justice contemplates dropping its criminal conspiracy case against the company in what experts described as an unprecedented move just a year after Boeing was preparing to be branded a corporate felon.
The Justice Department told U.S. District Judge Reed O’Connor on May 17 that it has reached the “framework” for a potential non-prosecution agreement with The Boeing Co., a dramatic turn in a case that’s already had a wild trajectory in recent years.
What was once a deferred prosecution agreement reached with the DOJ during the final stretch of President Donald Trump’s first term in January 2021 later led to Boeing, in July 2024, agreeing to plead guilty to conspiring to defraud U.S. regulators over the 737 Max 8’s development after Joe Biden’s administration determined that Boeing didn’t live up to the letter of the earlier DPA.
Boeing and the DOJ had sought to avoid a high-profile criminal trial over the deadly Lion Air Flight 610 and Ethiopian Airlines flight 302 crashes of 2018 and 2019, respectively. But their efforts were sidelined when Judge O’Connor rejected the plea agreement in December, forcing Boeing and the DOJ to regroup.
While the government said it has not yet made a final decision on Boeing’s new deal, an NPA would mean no guilty plea, no felony criminal conviction and, potentially, no independent compliance monitor scrutinizing Boeing’s moves. It also means Boeing may no longer have the threat of “deferred prosecution” hanging over it, punctuating the second Trump administration’s more lenient approach to enforcement actions against corporate misdeeds, experts say.
“It’s just such an unprecedented path of corporate enforcement,” Todd Haugh, associate professor of business law and ethics at Indiana University’s Kelley School of Business, told Law360. “I don’t recall anything that’s gone through this many machinations.”
The government indicated that the framework for Boeing’s NPA would include the “statutory maximum fine, required expenditures on compliance improvements, retention of an independent compliance consultant, and the creation of another fund for additional compensation to the families.” So, key provisions of the earlier agreements might still be incorporated into a non-prosecution agreement.
“Given the journey from deferred prosecution to plea, going back to a non-prosecution agreement, which is [in] many ways like a deferred prosecution agreement, is not the craziest outcome here,” said Schwartz Sladkus Reich Greenberg Atlas LLP partner Andrew Bauer. “A guilty plea by a corporation, when no one goes to jail, is often more about the financial penalty and the required remedial measures than anything else.”
“While a felony conviction for a pharma company can mean a death knell because they can potentially be debarred from billing to Medicaid and Medicare, I don’t think this plea agreement contemplated any direct bar to Boeing’s business, given how important the company is to the American economy and military machine,” said Bauer, a former assistant U.S. attorney for the Southern District of New York “It was more about institutional changes to Boeing’s operations, implementing a monitor to oversee that process, and the financial penalty. That type of thing can, and often is, built into a non-prosecution agreement.”
It’s still an unusual development, according to Greg A. Brower, a shareholder with, Brownstein Hyatt Farber Schreck LLP, given that an NPA is typically entered into as an alternative to criminal charges before a criminal case is even filed.
Boeing’s criminal case is already pending, so the DOJ would have to file — and the judge would have to grant — a motion to dismiss the case under Federal Rule of Criminal Procedure 48(a) as part of any NPA resolution, according to Brower, a former U.S. attorney for Nevada.
“While such motions are routinely granted, even where serious questions emerge concerning DOJ’s motivations — see, for example, the Michael Flynn and Eric Adams cases — this case is not routine for a couple of reasons,” Brower said. “First, the district court judge has already shown a willingness to closely scrutinize how the parties propose to resolve the matter, having rejected a plea agreement. Second, the families of the victims of the crashes that prompted the government’s criminal investigation of Boeing are extraordinarily well-organized and well-represented and have voiced very strong objections to the idea of an NPA.”
That level of significant pushback by victims “doesn’t exist in the vast majority of federal criminal cases and will undoubtedly be taken seriously by the judge,” Brower added.
Paul G. Cassell, a former Utah federal judge and current professor at the University of Utah’s S.J. Quinney College of Law, is representing crash victims’ families who successfully fought to be recognized as crime victims under the Crime Victims’ Rights Act, triggering obligations that the government confer with the families on potential resolutions to Boeing’s criminal conspiracy case. However, the families have said their goal was to have Boeing face a criminal trial.
Judge O’Connor scheduled a June 23 trial date, but what happens now is unclear.
In a statement to Law360, Cassell said the families will continue to challenge “any decision by [the] DOJ not to prosecute the deadliest corporate crime in U.S. history, which apparently (and remarkably) is what the government is considering.”
Notably, an NPA doesn’t need the court’s approval. When Judge O’Connor vetoed Boeing’s plea deal in December, he flagged two major issues: the DOJ’s policies of considering diversity, equity and inclusion when selecting an independent compliance monitor, and the court’s “erroneously marginalize[d]” role in picking and overseeing that monitor.
“I don’t think there’s a whole lot that can be done to stop a non-prosecution agreement from being entered into,” said Haugh, of the Kelley School of Business. “Because the court, in the end, can’t force the Department of Justice to prosecute a case it doesn’t want to prosecute and there’s very little recourse that can happen if the agency, the DOJ, says [that it won’t prosecute] for whatever reason, whether that’s prosecutorial priorities shifting or new facts that have come out.”
Ultimately, criminal prosecutions over aviation accidents are rare. And taking Boeing to trial was always going to be a long shot for government prosecutors who’ve already pointed out the challenges of trying to prove that Boeing intended to defraud the Federal Aviation Administration.
Moreover, a Texas federal jury in March 2022 acquitted the only individual to be criminally charged and tried over the 737 Max saga, Boeing’s former chief technical pilot Mark Forkner. The government’s case against Boeing stemmed from allegations that Forkner and another Boeing employee downplayed the novelty of the 737 Max 8’s features in order to persuade an FAA evaluation group to mandate a less-rigorous level of training for pilots, to get the aircraft to market faster.
Corporate criminal charges hinge on a lot of factors and questions, including whether the acts of the defendant company’s employees were authorized and to what extent the company cooperated with the government’s investigation. Prosecutors also have to consider whether there could be important collateral consequences that might unduly harm the corporation or, more importantly, the national security or trade interests of the U.S., according to Clyde & Co. LLP partner Ken Quinn, a former chief counsel for the FAA.
“Ultimately, prosecutors must have confidence they can prove the case at trial, beyond a reasonable doubt. The difference between civil and criminal standards is vast,” Quinn noted. “The record in aviation criminal prosecutions is that absent clear evidence of authorized, intentional or reckless acts condoned at the highest levels, these cases against aviation companies often collapse.”
Boeing has stated that it remains focused on overhauling its corporate culture and plugging gaps on production lines under an FAA-mandated corrective action plan that was implemented following a different incident, the January 2024 midair door-plug blowout aboard a 737 Max 9 jet operated by Alaska Airlines.
Michael J. Wynne, a partner and white collar criminal defense attorney with Gregor Wynne Arney PLLC, said a non-prosecution agreement for Boeing “is the right result.”
If Boeing had a felony criminal conviction under last year’s plea deal, it would’ve triggered additional scrutiny for a possible suspension or debarment from federal contracting, putting the American aerospace titan’s lucrative future contracts at risk.
“While a criminal prosecution may at a certain level go further in vindicating the losses the families suffered and in sending a message, you cannot put a corporation in prison,” Wynne said. “Boeing is a corporate citizen. Difficult as it may be to swallow, a resolution of this case that allows the company to retool, reform its practices, and then compete for future contracts is in the best interest of the public at the end of the day.”