Why are the Lion Air and Ethiopian Airlines crashes being litigated in the US?

Question

The current news is about the breach of Boeing's agreement with the US Justice Department which would otherwise grant them protection against criminal charges relating to the Lion Air and Ethiopian Airlines crashes. This prompted a question of why the US Justice Department involved in crashes that occurred in Indonesia on an internal flight and Ethiopia on a flight to Kenya.

From a quick google I found this, which concerns copyright law but says:

Ruling on the matter, the High Court noted that it was undisputed that, when one of the airline’s jets is in the state or its airspace, the law of the state applies. The same is true when the aircraft is in international airspace. However, when an aircraft is in a destination country or its airspace, the law of that country applies. The position is less certain when the aircraft is in the airspace of a non-destination country.

Why is the US Justice Department in a position to offer protection from prosecution to Boeing for events that occurred in Indonesia and Kenya?

Answer 1

The news article here refers back to a Deferred Prosecution Agreement from 2021, between the US Department of Justice and Boeing. The fresh statement from the DoJ is to the effect that if Boeing has breached the terms of that agreement, then the DoJ might take up the prosecution again. See a DoJ press release from 2021 for the context of the original agreement.

Such agreements are essentially "so long as you do X, we will not prosecute you for Y". They have legal effect in that once the promise has been made, and if Boeing has indeed done X, then the courts would not allow a prosecution for Y to go forward. Some typical conditions for X are:

• make public statements admitting the relevant facts behind Y
• paying some money in fines
• paying some money to compensate victims
• taking steps to avoid future similar crimes (e.g. corporate restructuring)
• making regular reports on progress implementing the changes
• paying costs of the criminal investigation and prosecution
• cooperating with ongoing related investigations
• cooperating with an independent monitor

The Department of Justice is now saying that Boeing might not have done X to its satisfaction, and so the company can potentially be prosecuted for Y. In procedural terms, this is not bringing a fresh charge, but would be reviving a criminal case that was previously filed and put on hold: so it's about going back to the original court and arguing what should happen. Again because of that implementing procedure, the DPA does not deal with a completely separate crime involving Boeing - that would be a new indictment for something else - or with proceedings before a foreign court. It's strictly about the DoJ setting limits on its own specific ongoing prosecution.

For the question at hand, the charge of Y in this case was that Boeing defrauded an agency of the US Government (the Federal Aviation Administration) concerning the safety of the 737 MAX aircraft. The conduct in question took place well before either of the two aircraft crashes. Partly because of those crashes, taking place in Indonesia and Ethiopia, the FAA came to learn that Boeing had misled it. The criminal fraud charge here is not "Boeing crashed some planes (outside the USA)" but "Boeing lied to the FAA". Those lies probably took place in the USA, but even if they didn't, the federal courts have subject-matter jurisdiction over the offense in question, "conspiracy to defraud the United States" (18 USC 371). It's one of those crimes which can be prosecuted federally even if committed somewhere else in the world.

If a trial were to go forward, then there is no problem with the federal courts receiving evidence of the events taking place in Indonesia or Ethopia. Indeed, there are specific rules about, for example, documentary evidence produced by a foreign government - such as a report into a plane crash.

The scope of the DPA does not protect Boeing from prosecution for other crimes, or from civil liability related to its conduct. In other instances, US courts have had jurisdiction for different reasons. For example, some wrongful death claims from the Lion Air crash were heard by federal courts because of the Death on the High Seas Act, which is a US statute concerning this sort of situation. Boeing is also being sued by some of its shareholders for securities fraud relating to the crashes: in that case, the alleged bad conduct is that Boeing made knowingly false public assurances about safety, causing the stock price to be inflated (and it then dropped once the rest of the world caught up to Boeing's state of knowledge).

Answer 2

Why is the US Justice Department in a position to offer protection from prosecution to Boeing for events that occurred in Indonesia and Kenya?

Because the prosecution concerns an alleged crime that occurred in the United States, namely fraud in connection with the Federal Aviation Administration's evaluation and certification of the aircraft type. The protection concerns only charges related to that crime, not "criminal charges relating to the Lion Air and Ethiopian Airlines crashes" generally.

From the article linked in the question:

Under the deal, Boeing paid a $2.5bn (£1.98bn) settlement, while prosecutors agreed to ask the court to drop a criminal charge after a period of three years.

What settlement? What charge? From the Justice Department's press release:

Boeing ... deceived the FAA [Aircraft Evaluation Group] about an important aircraft part called the Maneuvering Characteristics Augmentation System (MCAS) that impacted the flight control system of the Boeing 737 MAX. Because of their deception, a key document published by the FAA AEG lacked information about MCAS, and in turn, airplane manuals and pilot-training materials for U.S.-based airlines lacked information about MCAS.

Boeing began developing and marketing the 737 MAX in or around June 2011. Before any U.S.-based airline could operate the new 737 MAX, U.S. regulations required the FAA to evaluate and approve the airplane for commercial use.

In connection with this process, the FAA AEG was principally responsible for determining the minimum level of pilot training required for a pilot to fly the 737 MAX for a U.S.-based airline, based on the nature and extent of the differences between the 737 MAX and the prior version of Boeing’s 737 airplane, the 737 Next Generation (NG). At the conclusion of this evaluation, the FAA AEG published the 737 MAX Flight Standardization Board Report (FSB Report), which contained relevant information about certain aircraft parts and systems that Boeing was required to incorporate into airplane manuals and pilot-training materials for all U.S.-based airlines. The 737 MAX FSB Report also contained the FAA AEG’s differences-training determination. After the 737 MAX FSB Report was published, Boeing’s airline customers were permitted to fly the 737 MAX.

There are several more paragraphs with more detail.

Answer 3

Why is the US Justice Department in a position to offer protection from prosecution to Boeing for events that occurred in Indonesia and Kenya? It's not; nothing in what you say implies that it is. Unsurprisingly, it is in position to offer protection from prosecution from the US Justice Department to Boeing for events that occurred anywhere, but nothing protects it from an Indonesian or Kenyan court, or from a case involving the European Union Aviation Safety Agency or other non-US analog to the FAA.

Answer 4

Large sales contracts often in include a place of where to sue civilly

If Lion Air and Ethiopian Airlines want to get compensated from Boeing, they can sue Boeing for the shoddy machines in the US, because that is the court both agreed to in the sales contract.

Boeing is a US company - and breached US laws in their dealings

The US has little to no consumer protection laws, but there are laws: An airplane that is not airworthy is not merchantable, thus it breaches the the implied warranty of merchantability.

Further, the production of the airframe was in the US, and the US company did a lot of things to suppress whistleblowers. That action violates the Whistleblower Protection Act (infosheet) - and is illegal.

Being prosecuted in the US does not protect from other countries

Two countries are separate sovereigns. Those are not bound to one another's decisions and double jeopardy doe snot apply unless there is an international treaty that stipulates exactly that.