‘Max efficiency, max reliability’: How Boeing sold its new 737
Boeing publicly acknowledged Wednesday that it is the subject of “lawsuits, investigations, and inquiries” stemming from two fatal crashes of its troubled 737 Max jetliner.
But the company stopped short in a securities filing of describing any of those actions as a criminal investigation, despite multiple news reports that the U.S. Justice Department’s Fraud Division and a federal grand jury in Washington, D.C. are looking into the development and certification of the plane.
In its quarterly earnings report filed with the Securities and Exchange Commission (SEC), Boeing stated, “we are fully cooperating with all ongoing governmental and regulatory investigations and inquiries relating to the accidents and the 737 Max program.”
It added: “We cannot reasonably estimate a range of loss, if any, that may result given the ongoing status of these lawsuits, investigations, and inquiries.”
Multiple civil suits stemming from the crashes have been filed against Boeing and a federal administrative audit is underway, actions that typically occur after a plane crash.
But criminal investigations into the U.S. aviation industry, including federal oversight of airplane manufacturing and airline operations, are rare – in part because of the longstanding belief that a civil-enforcement system encourages candid reporting of concerns without fear of criminal repercussions.
Those criminal cases that have occurred have focused on false entries and misrepresentations.
A Boeing spokesman declined to elaborate on Wednesday’s filing, saying he could not discuss whether the Chicago-based company has been notified it is under criminal investigation.
Wednesday’s filing did include boilerplate language that Boeing is subject to U.S. government inquiries and investigations from which civil, criminal or administrative proceedings could follow.
According to legal experts, some public companies voluntarily disclose they are under criminal investigation, while others opt to say little to their shareholders and others.
“The standards for disclosing government investigations are not straightforward, due in part to an absence of cases and SEC interpretive guidance providing meaningful direction on this topic under the securities laws,” Boston attorney Deborah Birnbach posted on a Harvard Law School Forum website in 2016. “As a result, disclosure practices vary.”
Companies sometimes disclose investigations after getting a subpoena, while some wait until an intermediate stage of an investigation, she wrote.
The Justice Department investigation began in response to information obtained after a Lion Air 737 Max 8 crashed shortly after takeoff from Jakarta on Oct. 29, killing 189 people, Bloomberg reported last month, citing an unnamed source.
It widened after the March 10 crash of an Ethiopian Airlines 737 Max 8 near Addis Ababa that killed 157 people, with the grand jury issuing a subpoena one day later for information from someone involved in the plane’s development, the Associated Press reported.
A March 17 Seattle Times story detailed how the Federal Aviation Administration (FAA) delegated to Boeing itself a system safety analysis of the flight-control system believed to have caused both the Lion Air crash and also the Ethiopian Airlines crashes.
The Times reported on March 20 that the FBI had joined the investigation already being conducted by U.S. Department of Transportation agents. The FBI’s support role was described by people familiar with the matter on condition of anonymity because of the confidential nature of the investigation.
The Times reported on April 1 that the grand jury had issued a subpoena seeking information from an aviation flight-controls expert and consultant, Peter Lemme, a Kirkland-based former Boeing flight-controls engineer who is now an avionics and satellite-communications consultant.
Although Lemme has no direct personal knowledge of the airplane’s development or certification, he did a detailed analysis of the October crash of a Lion Air 737 Max.
He was directed to provide to the grand jury by “any and all documents, records, emails, correspondence, audio or video recordings, text messages, voice messages, chats and/or other communications including drafts related to the Boeing 737 Max.”
The subpoena of someone with peripheral knowledge of the Max’s certification – who is outside Boeing and the FAA – is highly unusual and suggested the Justice Department is casting a wide net.
The Justice Department, the FBI and Transportation Department have declined to comment, saying they could neither confirm nor deny the existence of an investigation. Grand jury proceedings are supposed to be secret.
On the Harvard Forum website, Birnbach wrote, “There are practical reasons that may cause companies to disclose investigations even when a particular rule or regulation does not require immediate disclosure.”
Companies may feel pressure to disclose because of “certain business relationships or obligations,” she wrote. Also, “Companies may worry that if they do not disclose the investigation at the outset, shareholders, analysts, rating agencies, institutional investors, and others (including shareholder plaintiffs’ lawyers) will react poorly if they learn of the investigation later.”
At the same time, she wrote, companies should consider the costs of early disclosure.
“Shareholders may give an investigation greater weight than is merited because they are generally not in a position to distinguish between investigations resulting from indications of actual malfeasance and investigations that are more akin to fishing expeditions,” Birnbach wrote.