The federal judge assessing a plea agreement between Boeing and the Department of Justice wants to know how diversity, equity and inclusion policies might affect the selection of a compliance monitor to oversee the embattled aviation behemoth.
The independent monitor is a key provision of the deal, in which Boeing would plead guilty to a criminal charge of defrauding the U.S. and pay a $243.6 million fine and invest more than $450 million in compliance and safety programs during a three-year probation period.
The proposed settlement stems from a 2021 deferred prosecution agreement between Boeing and the government related to the crashes of two 737 Max 8 jets, which occurred in October 2018 and March 2019, killing 346 people. The Justice Department concluded earlier this year that Boeing had violated its agreement.
On Tuesday, Judge Reed O’Connor of the Northern District of Texas notified lawyers for Boeing and the government that he wants briefs by Oct. 25 related to DEI programs at the company and Justice Department.
The filings should detail “what role Boeing’s internal focus on DEI impacts its compliance and ethics obligations; how the provision will be used by the Government to process applications from proposed monitors; and how Boeing will use the provision and its own internal DEI commitment to exercise its right to strike a monitor applicant,” O’Connor wrote.
The court heard oral arguments last week from the parties and from lawyers representing families of the crash victims, who are urging O’Connor to reject the settlement. The families — who are involved in the case due to the Crime Victims’ Rights Act — had urged prosecutors to charge Boeing with additional crimes, including homicide.
During the hearing, O’Connor also posed several questions about the DEI programs’ definitions of diversity and inclusion and their impact on the monitoring provisions.
A Boeing spokesman said Thursday the company has no comment on the judge’s DEI request. The Justice Department did not respond to a request for comment.
Erin Applebaum, a partner at Kreindler & Kreindler who represents the families opposing the deal, said O’Connor “is asking the right questions” about the compliance monitor’s selection.
“DOJ has an obligation to select the individual best qualified for the monitor job, and DEI has no place in the selection process,” she wrote Wednesday in an email to Legal Dive. “Anyone who insists that it does has lost the plot.”
The loss of a cabin door plug on an Alaska Airlines 737 Max 9 aircraft in Oregon in January provoked greater regulatory oversight by the Federal Aviation Administration and renewed efforts by the crash victims’ families to hold Boeing to account.
The incident also prompted prosecutors to investigate whether Boeing had violated the 2021 deferred prosecution agreement. In May, the government determined that Boeing had done so and was criminally liable.
The victims noted the DEI issue in the Boeing compliance provision in their extensive brief in July, arguing that the DOJ will choose the independent monitor after candidates meet with the company and prosecutors, after which officials in the criminal division will vote to select the monitor.
“The votes will be made ‘in keeping with the Department’s commitment to diversity and inclusion,’” the families’ lawyers wrote. “Remarkably, the process makes no provision for the families to have any input into the selection process. Nor does the process involve this Court.”
O’Connor, who was nominated in 2007 by President George W. Bush, noted in his briefing order that Boeing did not object to the Justice Department factoring its DEI policies into the monitor selection.
