On 25 May, the Harvard Law School Forum on Corporate Governance posted an article, based on a recent paper by the author, considers the DPA entered into by the US DoJ and Boeing in January 2021. The DoJ alleged that Boeing had misled the Federal Aviation Administration about its new model 737 MAX airliner, which had markedly different flight characteristics than its predecessors. Had the FAA known more, it would have almost certainly mandated more extensive flight simulator training. This failure to alert the FAA to these changes may have been a proximate cause of 737 MAX crashes in 2018 and 2019 that killed 346 passengers. Boeing was in trouble, and it needed a gentle, quiet exit with little publicity. But the penalty also had to look sufficiently tough that it would not strike the public as a sell-out. This was a difficult balance to strike. It concludes that what should concern one is the ability of a large public corporation to manipulate the DPA negotiation process to present itself in a very favourable and misleading light. Moreover, because judicial oversight is limited and courts are not constitutionally permitted, at present, to reject a DPA that they consider inadequate reforms limiting their use need to be adopted by the DoJ. The post warns that contemporary practice with respect to public corporations in the criminal justice system has reached the point where the DoJ is offering virtually all carrots and no sticks.
The Paper on which the post is based is at –
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