Deferred Prosecution Agreements have been viewed for many years as a relatively manageable way for companies to wrap up federal criminal investigations. That may still be true, but any sense of certainty and dependability should have ended with the experience of Boeing Corporation. Boeing’s ordeal began when Boeing 737 Max planes crashed in 2018 and 2019, and it ended (at least for now) in a Fort Worth courtroom in early November, when U.S. District Judge Reed O’Connor of the Northern District of Texas granted the Justice Department’s motion to dismiss a pending criminal charge. The court expressed disagreement with the government’s decision but concluded that it was constrained by law not to overrule the government’s prosecutorial discretion.
The Boeing experience highlights several key aspects of federal criminal investigations of corporations: the enduring and irreducible force of prosecutorial discretion; the very limited scope of judicial review; and the increasing voice and influence of victims and their advocates. I touch on these matters below.
The 2021 Deferred Prosecution Agreement
In January 2021 Boeing entered into a deferred prosecution agreement (DPA) with the Justice Department to resolve a charge of conspiracy to defraud the government’s Aircraft Evaluation Group, part of the Federal Aviation Administration (FAA). The DPA arose from two plane crashes in 2018 and 2019 (resulting in 346 deaths) that were alleged to have resulted from a software design flaw that Boeing had concealed from federal regulators.
The DPA, which had a three-year term ending in January 2024, required Boeing to implement an effective compliance and ethics program and to pay a criminal penalty of $243.6 million, $1.77 billion in compensation to airline customers, and $500 million to victims’ families and beneficiaries. The DPA provided that, if the government determined during the six-month period following the end of the DPA (in 2024) that Boeing had breached the agreement, the government could pursue remedies which included reinstating the conspiracy charge held in abeyance pursuant to the 2021 DPA. The DPA did not require an independent compliance monitor.
In addition to the corporate resolution, the government charged a Boeing technical pilot with wire fraud stemming from the concealment. In 2022, the pilot was acquitted at trial by a Northern District of Texas jury. (See Abramowitz and Sack, “Jury Rejects Wire Fraud Charges in Boeing Crash Prosecution,” NYLJ (May 4, 2022)).
Crash victims’ families attempted to block court approval of the 2021 DPA. That effort resulted in extensive litigation over the rights of crime victims in connection with DPAs. The attempt to set aside the DPA ultimately was rejected by the district and appellate courts. (See Abramowitz and Sack, “Not So Fast: The Rights of Victims in Corporate Deferred Prosecutions,” NYLJ (March 3, 2023); Bonifassi, Caylor, Mangeat, Moubayed, Sack, Stafford, Spoerr, and Weibel, “Working Paper 2: The Role of Victims in Negotiated Settlements,” The International Academy of Financial Crime Litigators (June 2024)).
The 2021 Deal in Jeopardy
In January 2024, before the term of 2021 DPA ended, a Boeing aircraft door blew out mid-flight, and in April 2024, Boeing disclosed to the Justice Department possible shortcomings in its anti-fraud compliance program. These events coincided with the Justice Department’s consideration of whether Boeing’s efforts to ensure compliance with federal safety requirements satisfied the terms of the DPA.
In May 2024, before the six-month post-DPA evaluation period expired, the Justice Department determined that Boeing had breached the 2021 DPA by “failing to design, implement, and enforce a compliance and ethics program to prevent and detect violations of the U.S. fraud laws throughout its operations,” and later revived the criminal conspiracy charge against the company. (See United States v. The Boeing Co., No. 4:21-cr-05, Dkt. No. 199 (N.D. Tex. May 14, 2024); Abramowitz and Sack, “Up in the Air: Boeing’s Deferred Prosecution Saga Continues,” NYLJ (Jan. 9, 2025)).
Following DOJ’s decision, Boeing agreed to plead guilty to the original charge of conspiracy to defraud the FAA and pay additional criminal penalties and to accept an independent compliance monitor. Some victims’ families objected to the terms of the new deal. In December 2024, Judge O’Connor rejected the plea agreement, finding that it required the parties inappropriately to consider race when hiring the independent monitor, and “improperly marginalize[d] the Court” in the process of selecting and overseeing the independent monitor. The Court ordered the parties to meet and confer and provide the Court with an update on their plan to proceed.
Post-Election Developments
In May 2025, after months of negotiations with Boeing and victims’ families, and less than one month before a scheduled trial, the Justice Department announced its intention to dismiss the conspiracy charge. On May 29, 2025, Boeing and the Justice Department entered into a non-prosecution agreement (NPA) with a two year term. The NPA requires Boeing to continue to improve the effectiveness of its anti-fraud compliance and ethics program and retain an Independent Compliance Consultant, pay additional compensation to crash victims’ beneficiaries, pay additional criminal monetary penalties, and invest at least $455 million in its compliance, quality, and safety programs.
In its May 2025 motion to dismiss the pending case, the government argued that the NPA “secures meaningful accountability, delivers substantial and immediate public benefits, and brings finality to a difficult and complex case whose outcome would otherwise be uncertain.” The government maintained its earlier position that Boeing had breached the 2021 DPA by failing to meet its compliance obligations and should be held accountable for the breach.
In a departure from its earlier position (in 2024), the Justice Department now said that an independent compliance monitor was not necessary. The Justice Department said that Boeing’s retention of a compliance consultant, rather than court appointment of an independent monitor, was appropriate because Boeing had “made meaningful progress in improving its anti-fraud compliance and ethics program” in the year since the breach determination, and because the Federal Aviation Administration, which regulates Boeing, “sustained its more robust oversight” of Boeing.
The crash victims’ families objected to the motion to dismiss and asked the Court to appoint a disinterested special prosecutor to pursue the Boeing prosecution. The court held a hearing in September 2025 and granted the government’s motion to dismiss on November 6, 2025, finding that it lacked under the authority under Fifth Circuit precedent to deny leave to dismiss. See, e.g.,United States v. Cowan, 524 F.2d 504, 513 (5th Cir. 1975).
Justice Department Policies
The Justice Department’s decision in 2025 to enter into an NPA with Boeing and to dismiss the pending conspiracy charge, and only to require a compliance consultant, was a departure from its position in 2024. Then DOJ had required a guilty plea by Boeing and an independent compliance monitor. DOJ’s new position was consistent with the current Trump Administration’s shift in approach toward corporate criminal enforcement. It has not abandoned such enforcement but seeks, more so than in the Biden Administration, to avoid what it regards as undue burdens on U.S. companies, and to tailor the imposition of monitorships to minimize expense and interference with business.
On May 12, 2025, Matthew Galeotti, Acting Assistant Attorney General of the Justice Department Criminal Division, unveiled a new white collar enforcement policy in a memorandum entitled “Focus, Fairness, and Efficiency in the Fight Against White-Collar Crime” (Enforcement Plan) and an updated “Memorandum on Selection of Monitors in Criminal Division Matters” (Monitor Memo). These new policies were announced a short time before the May 2025 announcement of the Boeing NPA. Under the updated policies, the government will seek to limit the use of monitors to situations when they are “necessary,” which the Enforcement Plan defines as “when a company cannot be expected to implement an effective compliance program or prevent recurrence of the underlying misconduct without such heavy-handed intervention.”
Further, the Monitor Memo sets forth factors that Criminal Division attorneys must consider when determining whether a monitor is necessary: (1) “Risk of recurrence of criminal conduct that significantly impacts U.S. interests,” (2) “Availability and efficacy of other independent government oversight,” (3) “Efficacy of the compliance program and culture of compliance at the time of the resolution,” and (4) “Maturity of the company’s controls and its ability to independently test and update its compliance program.”
Constraints on the Court’s Oversight of Prosecutorial Discretion
NPAs generally do not require court approval because they are entered into in lieu of the filing of criminal cases in court. The active case pending against Boeing when the government and Boeing agreed on the NPA, however, placed the parties in an unusual procedural position giving the Court the final word. Cf. Stolt-Nielsen, S.A. v. United States, 442 F.3d 177 (3d Cir. 2006), cert. denied, 127 S.Ct. 494 (2006) (reversing district court injunction barring prosecution under terms of Conditional Leniency Agreement with Justice Department).
Judge O’Connor agreed with the victims’ families on the need for an independent compliance monitor and expressed concern that the NPA “fails to secure the necessary accountability to ensure the safety of the flying public.” Still, he concluded that the court lacked the authority to substitute its judgment for that of the prosecutor and granted the government’s motion to dismiss because the government “has not acted with bad faith, has given more than mere conclusory reasons for its dismissal, and has satisfied its obligations under the CVRA.” On November 13, 2025, the victim families filed a writ of mandamus asking the Fifth Circuit Court of Appeals to reverse Judge O’Connor’s decision.
Conclusion
Boeing’s protracted DPA saga highlights essential features of corporate criminal enforcement.
- Prosecutorial discretion remains fundamental, as suggested by the Trump Administration’s decision to change course from that of the Biden Administration—in line with the current Administration’s different approach to corporate enforcement and remedies.
- Judicial oversight of prosecutors’ judgment remains highly constrained, as reflected in Judge O’Connor’s lack of authority to substitute his judgment for that of the prosecutors, notwithstanding the judge’s disagreement with the Justice Department’s decision.
- The role of victims and their advocates, in the Boeing case and others, is growing in strength and effect, as reflected in their ability to prolong and complicate legal proceedings once the 2021 DPA was made public.
In the future, I expect further analysis and consideration of how claims for compensation, traditionally viewed as largely or entirely civil in nature, will (and will not) be incorporated into the resolution of criminal cases.