Noting in advance, this will be a lengthy post, because there are several quite significant parts of the DPA. And besides those items there also are some related questions about the money Boeing has agreed to pay and its overall potential criminal liability. And, because as SLF/atty it's an obligation to post only content I can be confident is the best professional assessment or description of legal (and sometimes, policy) aspects of which I am capable...... a few caveats follow, because no one who reads these threads routinely should be misled by a wordy lawyer (even one who seems to think he is an airport, or named for one).
A) WR is not a criminal defense attorney, or prosecutor, and has not done any legal work in the field of criminal law in my entire legal career, and this exclusion emphatically reaches federal criminal matters. Nothing in this post should be construed, relied upon, or otherwise seen, interpreted, understood, or read back, as legal advice to any individual, person, entity, or other callsign-poster. (C'mon, for a mix of the mandatory with the attempt at humor, that was halfway decent.)
B) I have not and don't plan to delve or drill deeply into the finer points of terms and provisions of the DPA or its many elements. It might be entirely routine, in its structure and language, in the courts where these lawyers practice, but it's, how to say this neutrally?...very detailed.
C) Boeing is represented in the matter in which the DPA was agreed to and filed by two of the biggest and best law firms in the country, both with three attorneys listed by name (Kirkland & Ellis, and McGuire Woods). My comments in what follows are, in comparison, entirely from the cheap seats. And intended for the enlightenment if not also reading enjoyment of the community on R&N and any others who may have had a look now and again at this thread.
Here is the DPA as posted on a United States, Department of Justice, website yesterday:
U.S. v. The Boeing Company - Final DPA Package (1.6.21).pdf (justice.gov)
1) The press announcement does an excellent job of explaining the agreement and what the company is obligated to do, although obviously it does not drill into much, let alone all, the pertinent details.
For the best overall summary of the misdeeds (and that's probably an overly nice term) involved in the criminal case particularly,
go to the Statement of Facts. It is Attachment A, on pages 28-43 of the pdf. It's some 54 paragraphs. It tells quite a detailed story, factually. Each poster and thread-visitor ought to reach his or her own determinations about just how serious the problems which obviously existed in the company actually were.
Recall, though -- the criminal law complaint here is for acts and omissions in the nature of fraud -- and conspiracy. It is not an overall assessment and allegation of criminal culpability for everything that was done improperly. It is limited. And limited factually - it is only based (insofar as I have understood it) on the conduct of the two unnamed technical pilots.
2) About the fine and its amount. It turns out, the monetary amounts are calculated according the the U.S. Sentencing Guidelines. The $243.6 million amount is based on the company's own calculation, internally, of its intended cost savings. (Para. 9(b)).
The $500 million in compensation to crash-victim beneficiaries is to be administered by a highly structured, and very highly neutrally structured, escrow fund arrangement. These payments, when ultimately made, will not be offset against other claims by crash-victim beneficiaries (Para. 19). How exactly this term might interact with damages provisions in the liability lawsuits, or under the Montreal treaty system in general, is a question for another place and time (or, I'm not sure how that plays out, candidly).
The $1.77 million for airline financial penalties can be offset by payments already made by Boeing to its airline customers (para. 12).
2(a) - how do these amounts compare to other DPAs, per the question of a recent post? I don't know. The DPA process for negotiation, for manipulation of the Guidelines as a tactical matter as well as intellectual exercise - way out of my league here. My own view is that some account must be taken of the role Boeing plays, sorry make that roles, plural,...the multiple roles Boeing plays in the national aviation sector, the international aviation sector, aerospace, and as a defense contractor. There is prosecutorial discretion, and then there are other, even larger matters of discretion. This should not be a saga akin to, "it became necessary to destroy the village in order to save it."
3) Notice that the court of public opinion can be a much easier place to win a sensational case than a court of law especially the United States District Court in any District in the country. This is not to say the prosecution had a big uphill fight, but just because respected and credible writers, journalists and armchair expert/authorities view liability issues in the criminal law one way, does not mean that your pre-trial order and proffers of trial exhibits are going to be good enough.
4) About the comparisons to other companies based in other sovereign Member States (ICAO reference, in case anybody needs the note), this is apples and golf balls. No one has ever said that the United States legal system and its courts are set up as a kind of "all comers" system, any litigant, any place of existence, any claim. (Reference to a U.S. Supreme Court case a few years back about a university having an "all comers" policy for acceptance of students into campus organizations.) Whether a terribly botched blowout of a drilling rig or a screwed up way of gaming anti-air pollution rules can be compared to the elaborately articulated civil air transport safety and certification system, its legal and regulatory regime, I think is not as simple as just measuring who received superficially harsher sentences.
4(a) Note the recitation in the DPA of remedial measures instituted by the company (para. 4(d)). Skeptics may scoff and surely will, yet these actions by the company would not end up in the DPA itself unless some pretty hardheaded federal prosecutors believed in good faith and on the basis of evidence likely admissible in a court of law that these steps are for real. Does that alter anyone's calculus for comparing the VW or BP cases? Up to you.
5) About what happens if Boeing does not comply? The DPA term can be extended. Further about company performance, there is an extensive template for its Corporate Compliance Program in Attachment C. And Reporting obligations are set forth in Attachment D. They're both apparently heavy programs and obligations, reaching for an escape-proof burden for the company to fulfill. In this context, a look at Paragraph 5, Future Cooperation and Disclosure Requirements, likely would be instructive.
6) With no doubt at all, individuals are not released whatsoever from potential criminal prosecution. It's stated in Para.20(b).
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On some thread or another, discussion has occurred over the likely, or even only possible, legal fate to befall one or both of the named technical pilots. Certainly a good number of others must share the culpability in some arena or another. At the same time, the admissions by the company which it made as part of this outcome of this specific federal criminal inquiry would seem not good for the prospects for those individuals...not at all good. I wish unfavorable outcomes on no one, having experienced enough lean times to appreciate that for your friendly neighborhood SLF/attorney-poster, the rule of law being the determining factor must be all that we can ask for, and all that we really need.
With apologies to Gums, WR sends.....