(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Alison Frankel

July 8 (Reuters) - Almost as soon as the U.S. Justice

Department disclosed a proposed criminal plea agreement on

Sunday with Boeing ( BA ) to resolve the government's investigation of

two fatal 737 MAX crashes, families of some of the victims

announced opposition to the deal.

In a court filing on Sunday night, the families of more than

a dozen crash victims told the Texas federal judge who will

decide whether to accept Boeing's ( BA ) $243.6 million plea deal that

they intend to argue the agreement fails to hold the aerospace

company accountable for the deaths of 346 passengers and crew

members on the doomed 737 MAX planes, which crashed in Indonesia

in 2018 and Ethiopia in 2019.

"The critical problem is that the agreement skates by the

main harm Boeing ( BA ) committed," said University of Utah law

professor Paul Cassell, who represents several crash victims'

families, in an interview on Monday morning. "The main point of

the criminal case was never about money. It was always about

accountability."

Cassell said his clients want Boeing ( BA ) officials explicitly to

admit that the company is responsible for the plane crashes. He

and other lawyers for family members, according to a Reuters

report last month, have urged the Justice Department to demand

nearly $25 billion in penalties from the company.

Will the families' arguments make a difference? After all,

Cassell and other lawyers for victims' families previously tried

and failed to block Boeing's ( BA ) 2021 deferred prosecution agreement

with the Justice Department.

But, as I'll explain, the families won an important interim

ruling in their ultimately unsuccessful challenge to that

agreement, which secures their right to speak on behalf of the

victims of Boeing's ( BA ) alleged criminal conspiracy to defraud the

Federal Aviation Administration.

And because of key differences in judges' authority over

deferred prosecution deals and plea agreements, the families'

objections may carry significantly more weight this time around.

There is a real possibility, in other words, that victims'

families could disrupt this deal.

Boeing ( BA ) and its outside counsel from Kirkland & Ellis and

McGuireWoods did not respond to a query on the families'

announced objection.

A Justice Department spokesperson said via email that the

plea agreement provides victims' families with all available

legal remedies, including full rights to any court-ordered

restitution for their relatives' deaths.

The Justice Department also said in both the email statement

and in a court filing on Sunday night that the proposed plea

agreement reflects concerns that family members expressed to the

government in several hours-long conferences in April, May and

June. By way of example, the Justice Department said, the plea

deal requires Boeing ( BA ) board members to meet with victims'

families and gives families a say in the appointment of a

monitor to oversee the company's compliance efforts.

Those provisions are already a victory for family members.

When victims' families first tried back in 2021 to derail the

government's deferred prosecution deal with Boeing ( BA ), the Justice

Department argued that family members were not technically

victims of Boeing's ( BA ) alleged conspiracy to defraud the U.S.

government and therefore did not have rights under the Crime

Victims' Rights Act, a federal law granting a formal voice to

crime victims. (The Justice Department, I should note, prefaced

that argument with an acknowledgement that family members had

suffered "indescribable and irreparable losses" and an apology

for failing to meet with the families before making a deal with

Boeing ( BA ).)

U.S. District Judge Reed O'Connor of Fort Worth, Texas,

sided with the families in an October 2022 decision, holding

crash victims' survivors are covered by the Criminal Victims'

Rights Act. O'Connor granted the families' request for a public

arraignment of Boeing ( BA ) and allowed more than a dozen family

representatives to testify about the impact of what O'Connor has

called "perhaps the deadliest corporate crime in our nation's

history."

But the judge subsequently denied the families' request that

he reject or substantively change the deferred prosecution

agreement between Boeing ( BA ) and the Justice Department. The

families appealed that decision, but O'Connor's decision was

upheld by the 5th U.S. Circuit Court of Appeals.

The problem for the families, as the 5th Circuit explained,

is that trial courts have extremely limited authority over

deferred prosecution deals, in which prosecutors agree to

postpone criminal charges as long as defendants comply with the

government's terms.

Under the U.S. Constitution's separation of powers doctrine,

the appeals court said, prosecutorial discretion belongs to the

executive branch, not to courts. So if federal prosecutors opt

to defer charges, judges generally can't interfere.

But that is no longer the posture of the government's

criminal case against Boeing ( BA ).

After a door plug flew off of an Alaska Air Boeing 737 MAX

jet in midflight last January, the Justice Department concluded

in May that Boeing ( BA ) had breached the terms of its deferred

prosecution agreement. As prosecutors weighed bringing criminal

charges against the planemaker, the Justice Department took care

to meet with the families of crash victims, in a nod to

O'Connor's ruling on the families' rights as crime victims.

The proposed deal disclosed on Sunday night, as Reuters

reported on Monday, requires Boeing ( BA ) to plead guilty to

conspiring to defraud the government and to pay the additional

$243.6 million fine.

Crucially, the plea agreement - unlike Boeing's ( BA ) deferred

prosecution agreement - must be approved by O'Connor. That

requirement, said family members' lawyer Cassell, give his

clients a shot at blocking the deal.

"The standard that a judge applies when reviewing a plea

deal is more rigorous than it is for a deferred prosecution

agreement," said Cassell. "Make no mistake: Judge O'Connor has

the authority to reject the plea agreement."

The Justice Department is already bracing for the families'

opposition. Prosecutors told O'Connor that they'd demanded

additional concessions from Boeing ( BA ) after meeting several times

with family members and their counsel, but that some family

members continued to oppose the deal. (The Justice Department

did not say how many families are opposed.) The government asked

the judge to postpone a hearing to give both sides time to

submit briefs on the proposed deal and to allow family members

to make travel plans to attend a hearing in person.

Cassell, a retired federal judge, told me that the crash

victims' families have already succeeded in "shaking up business

as usual in the criminal division of the Justice Department."

Now we'll see if his clients and other families can use their

leverage to force additional relief from Boeing ( BA ).

Read more:

Boeing ( BA ) to plead guilty to fraud in US probe of fatal 737 MAX

crashes

How Boeing's ( BA ) plea deal could affect the planemaker

US to criminally charge Boeing ( BA ), seek guilty plea, sources

say