Boeing pilot involved in Max testing is indicted in Texas
When I was working, there was an agreement in place that - if an AR got personally sued for what he'd done as an AR - the company would pay for their defense and any settlements. But there was a disclaimer that it didn't include 'willful misconduct' - if it was considered willful misconduct (e.g. lying) then you were on your own.
I don't recall anything regarding criminal charges - I suspect it would be treated similarly - but I doubt many of us even thought about that possibility.
I don't recall anything regarding criminal charges - I suspect it would be treated similarly - but I doubt many of us even thought about that possibility.
It looks bad for him I agree, but it's really disappointing to see too many comments above which without caution accept he is wholly guilty - whereas actually he has yet to come to a (fair ?) trial..
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For the avoidance of doubt, Forkner is - and must be seen as - innocent until proven guilty. Posting here as SLF/attorney I don't want to leave any ambiguity about that, resulting from my comments.
As tdracer noted, while there can be indemnity for ordinary misdeeds, wilful misconduct is a different matter. And criminal misconduct, if proven, even more so. (This is a bit out of my area, but everyone knows there's no legal advice here and anybody who is actually interested can easily find all sorts of sources to read online.)
About whether Boeing could in effect set its plea bargain aside, the terms of indemnity generally are set by official corporate documents, and it is doubtful the company could pull Forkner out from under the bus they threw him under, consistent with its formal indemnity policy. (But if it tried, wouldn't that be a fun amendment to draft for the shareholders' derivative suit in Delaware....lawyer thinking, sorry).
All along, I mean from the time when the problem messages surfaced, I've thought that the company was trying to set Forkner up as a center of attention, not so much as a scapegoat. Though despicably corrupt in the saga of the 737 MAX Boeing's senior people weren't stupid; they knew not even a haplessly messaging chief technical pilot could be turned into a scapegoat given the reams of evidence of corporate wrongdoing. But maybe his messages could be sensationalized, and deflect attention, long enough at least for those golden, you know, golden parachutes to have their ripcords yanked.
As tdracer noted, while there can be indemnity for ordinary misdeeds, wilful misconduct is a different matter. And criminal misconduct, if proven, even more so. (This is a bit out of my area, but everyone knows there's no legal advice here and anybody who is actually interested can easily find all sorts of sources to read online.)
About whether Boeing could in effect set its plea bargain aside, the terms of indemnity generally are set by official corporate documents, and it is doubtful the company could pull Forkner out from under the bus they threw him under, consistent with its formal indemnity policy. (But if it tried, wouldn't that be a fun amendment to draft for the shareholders' derivative suit in Delaware....lawyer thinking, sorry).
All along, I mean from the time when the problem messages surfaced, I've thought that the company was trying to set Forkner up as a center of attention, not so much as a scapegoat. Though despicably corrupt in the saga of the 737 MAX Boeing's senior people weren't stupid; they knew not even a haplessly messaging chief technical pilot could be turned into a scapegoat given the reams of evidence of corporate wrongdoing. But maybe his messages could be sensationalized, and deflect attention, long enough at least for those golden, you know, golden parachutes to have their ripcords yanked.
Last edited by WillowRun 6-3; 15th Oct 2021 at 19:10. Reason: Herr Typo war hier.
Hope he has the funds
I suspect this will come down to how much money he has to fund his defense.
For sure there were others involved , who told the programers to make the changes etc etc.
Discovery is very expensive and you can bet Boeing is not going to do anything but obstruct.
The bill could easily run to hundreds of thousands.
Unless he has a very good insurance policy or a union somewhere , who has that kind of money?
Was a member of a union or ALPA while at Boeing?
So far the case against seems to consist of texts. A good lawyer can make those mean a lot of things.
What will count is the paper trail of documentation.
I suspect he will cut a deal and the truth will never be told.
For sure there were others involved , who told the programers to make the changes etc etc.
Discovery is very expensive and you can bet Boeing is not going to do anything but obstruct.
The bill could easily run to hundreds of thousands.
Unless he has a very good insurance policy or a union somewhere , who has that kind of money?
Was a member of a union or ALPA while at Boeing?
So far the case against seems to consist of texts. A good lawyer can make those mean a lot of things.
What will count is the paper trail of documentation.
I suspect he will cut a deal and the truth will never be told.
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Unless something has changed in the last 90 days, I don't think Boeing is picking up any of the cost associated with this debacle.
Last edited by Pilot DAR; 16th Oct 2021 at 11:10. Reason: typo
For those clamoring for senior management scalps, let’s not forget the deferred prosecution agreement (DPA) that Boeing and DOJ signed on 1/6/21. If no new information comes to light and Boeing behaves itself for the period of the DPA, senior management is off the hook, at least criminally. I suspect that senior management could still be liable in a civil suit.
The following explains the scummy inhabitants above Forkner:
Lead Boeing Prosecutor Joins Boeing Corporate Criminal Defense Firm Kirkland & Ellis (corporatecrimereporter.com)
Lead Boeing Prosecutor Joins Boeing Corporate Criminal Defense Firm Kirkland & Ellis (corporatecrimereporter.com)
While things look bad for Forkner before he appears in court, he will no doubt try to share as much blame as possible with senior management.
One wonders what he can still reveal about instructions he received and warnings he may have given, that could cause fresh embarrassment to the company.
One wonders what he can still reveal about instructions he received and warnings he may have given, that could cause fresh embarrassment to the company.
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During the process of demonstrating design compliance for certification of a new type, pilot Forkner would have been acting as a member of a certification team. Both in the cockpit, and in the broader certification sense. That certification team would involve many people with delegated authority to make a finding of compliance on behalf of the FAA, not just pilot Forkner. And, that team would not be upper management at Boeing. I have no opinion who might have influenced whom to do what, but an effort to suppress test observations would not be a solo effort. That said, many other certification requirements not associated with flight also required a demonstration and finding of compliance (by FAA staff/DER/delegate) as a part of this effort, it wasn't just pilot stuff....
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Correct, it wasn't just pilot stuff, it was also industry/political influence to get a product out before the foreign competitor won market domination for the next decade. The FAA also has a lot of skin in all this. Pity it all went wrong, so now the finger pointing starts, but the actual problem started many, many years earlier when engineering took a back seat to handing out corporate bonuses to MBAs.
For quite some time many large corporations are conspiracies by upper management to screw employees, customers, shareholders and the public in whichever way will maximize their bonuses.
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Is there an "Objection-Scapegoating" in the Federal Rules of Evidence?
Do enough work in taking depositions in civil cases in U.S. federal district courts, most or perhaps all state courts, and something like an instinct develops. A questioner asks a witness about what content a specific document includes or does not include . . . . drawing the objection, "the document speaks for itself."
Amidst several aspects of this case possibly worthy of comment, if there's one I'm pretty sure about, it is that certain of Mr. Forkner's written communications, informal though they were, poisoned the atmosphere about everything else involving his role and responsibilities as "chief technical pilot", from the very first time those messages hit the public arena. Those messages speak for themselves -- but only insofar as what specific content is set down in words, in phrasings. Not the context, not the background, and certainly not insofar as proving, beyond a reasonable doubt to a jury of his peers, the criminal intent necessary for a conviction.
Today's WSJ edition contains a piece of excellent reporting on Forkner's appearance in court Friday, and also a typically biting column by the inimitable Holman Jenkins. Your SLF/atty poster recommends these articles. In fact, the succinct yet thorough protestations of innocence by Forkner's legal counsel are enough to want to take suits to the cleaners in case the defense team needs a sub-sub-document hauler.
Many have noted the quite large ladders of hierarchy above Forkner. It doesn't take imagination, or much of it, to visualize volumes of email and other more formal document-type records (reports, memos, etc.) about the change in MCAS function. Have these been disclosed fully, as they would be in a full-authority U.S.D.C. civil case in this matter? Or were they disclosed in the Delaware shareholder suit pre-filing phase? I think it's obvious that Forkner's various reactions, noted in informal messaging documents, are small indications of a much, much larger picture. Everyone working on MAX knew additional training was stridently, relentlessly to be avoided, prevented. And who owns, within the massive corporate bean-counting machine, the decisions about that component of the 737 MAX aircraft program? Certainly not the defendant in this criminal case. (And several other phases of the road to air crash disasters likewise are marked by decisions about which Forkner was one of, what? --hundreds? --certainly dozens -- of Boeing employees who had no decision-making role yet who, in hindsight, are marred by said disasters.)
Beyond accountability, is there no room for sarcasm in informal messaging? Are we to take literally everything anyone bothers to reduce to words through keystrokes? Actually, "the document does not speak for itself" - try putting a document on the witness stand and asking it questions.
The release of documents by the company to the House Committee investigation, if I recall correctly, was tardy by quite a significant time. The excuse at the time was that the documents had also been sought by the Department of Justice. Obviously such a statement could not possibly have been offered without input from the company's legal staff, even its (renowned) general counsel. I'll get to attorney-client privilege in a moment..... The excuse was lame, but maybe it makes more sense now. Possibly the company was looking to force Forkner into his present jeopardy by taking advantage of his perhaps overly casual informal messaging parlance and tone. Sounds conspiratorial on WR's part doesn't it, you may ask.
Well, consider that after the LionAir crash, Boeing continued to play its p.r. game of pretending that all was completely on-course with this aircraft. The Delaware shareholder suit lays out the timeline nicely. If it is to be believed that the company did not merely stumble into a set of decisions about the MAX and MCAS as unconscious, random events or choices, then how much of a naive, gullible person does one need to be not to also believe that after the first crash, the CEO and the General Counsel had extensive communications about, you know, C.Y.A.
But attorney-client privilege bars reaching those communications (on the unproven assertion that such communications took place and could be reflected in documents). So: Boeing Board: Waive Attorney-Client Privilege about the MAX. What, you're afraid this could push the company into more serious decline, that the military-industrial complex of the United States and the Free World (or what there still is of it) will go into decline? Don't worry, you've lost that lovin' feeling, and it's gone, gone, gone . . .
Amidst several aspects of this case possibly worthy of comment, if there's one I'm pretty sure about, it is that certain of Mr. Forkner's written communications, informal though they were, poisoned the atmosphere about everything else involving his role and responsibilities as "chief technical pilot", from the very first time those messages hit the public arena. Those messages speak for themselves -- but only insofar as what specific content is set down in words, in phrasings. Not the context, not the background, and certainly not insofar as proving, beyond a reasonable doubt to a jury of his peers, the criminal intent necessary for a conviction.
Today's WSJ edition contains a piece of excellent reporting on Forkner's appearance in court Friday, and also a typically biting column by the inimitable Holman Jenkins. Your SLF/atty poster recommends these articles. In fact, the succinct yet thorough protestations of innocence by Forkner's legal counsel are enough to want to take suits to the cleaners in case the defense team needs a sub-sub-document hauler.
Many have noted the quite large ladders of hierarchy above Forkner. It doesn't take imagination, or much of it, to visualize volumes of email and other more formal document-type records (reports, memos, etc.) about the change in MCAS function. Have these been disclosed fully, as they would be in a full-authority U.S.D.C. civil case in this matter? Or were they disclosed in the Delaware shareholder suit pre-filing phase? I think it's obvious that Forkner's various reactions, noted in informal messaging documents, are small indications of a much, much larger picture. Everyone working on MAX knew additional training was stridently, relentlessly to be avoided, prevented. And who owns, within the massive corporate bean-counting machine, the decisions about that component of the 737 MAX aircraft program? Certainly not the defendant in this criminal case. (And several other phases of the road to air crash disasters likewise are marked by decisions about which Forkner was one of, what? --hundreds? --certainly dozens -- of Boeing employees who had no decision-making role yet who, in hindsight, are marred by said disasters.)
Beyond accountability, is there no room for sarcasm in informal messaging? Are we to take literally everything anyone bothers to reduce to words through keystrokes? Actually, "the document does not speak for itself" - try putting a document on the witness stand and asking it questions.
The release of documents by the company to the House Committee investigation, if I recall correctly, was tardy by quite a significant time. The excuse at the time was that the documents had also been sought by the Department of Justice. Obviously such a statement could not possibly have been offered without input from the company's legal staff, even its (renowned) general counsel. I'll get to attorney-client privilege in a moment..... The excuse was lame, but maybe it makes more sense now. Possibly the company was looking to force Forkner into his present jeopardy by taking advantage of his perhaps overly casual informal messaging parlance and tone. Sounds conspiratorial on WR's part doesn't it, you may ask.
Well, consider that after the LionAir crash, Boeing continued to play its p.r. game of pretending that all was completely on-course with this aircraft. The Delaware shareholder suit lays out the timeline nicely. If it is to be believed that the company did not merely stumble into a set of decisions about the MAX and MCAS as unconscious, random events or choices, then how much of a naive, gullible person does one need to be not to also believe that after the first crash, the CEO and the General Counsel had extensive communications about, you know, C.Y.A.
But attorney-client privilege bars reaching those communications (on the unproven assertion that such communications took place and could be reflected in documents). So: Boeing Board: Waive Attorney-Client Privilege about the MAX. What, you're afraid this could push the company into more serious decline, that the military-industrial complex of the United States and the Free World (or what there still is of it) will go into decline? Don't worry, you've lost that lovin' feeling, and it's gone, gone, gone . . .
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Remember the timeline of events
Once they became available, I read through the released emails and instant messages from the House Committee investigation to understand the context in which they were made. The most egregious statements which received the most press, e.g. the phrase "Jedi Mind Trick" and "is designed by clowns, who in turn are supervised by monkeys", have absolutely no relationship to MCAS functionality, and are immaterial to the case against Forkner. So your assessment here is absolutely correct.
What the majority of people and the press continue to fail to grasp is the timeline of events. The criminal case against Forkner begins in November 2016 when he inadvertently in the simulator learns of the changed functionality of MCAS from the high speed regime to the low speed regime. It was during flight test in March 2016 where MCAS was changed from a system that used two dis-similar sensors--a G-sensor and Angle-of-Attack--operating at high speed to a system that relied only on the AoA sensor operating throughout the flight envelope. This change in functionality was not formally communicated by the 737Max Program to the Technical Pilots which reside in a separate business unit. This explains why MCAS was permitted to be removed from mention in the FCOM which also occurs in March 2016. Forkner signs off on this document believing that the MCAS system had limited capability and operated only within a corner point of the flight envelope.
This is fundamentally a failure in maintaining airplane configuration control first-and-foremost. It was a change that was hurried through without sufficient review. Importantly because finding compliance to MCAS was delegated by the FAA to Boeing AR/DER/O-EMs, this change was also not properly communicated back to the FAA regulators.
According to the consent decree, Forkner knowingly misrepresents the capability of MCAS to the AEG after accidentally finding out about the change in the November 2016 simulator session. This is the basis for the criminal charges of fraud. Fundamentally, the regulatory system should not have to rely upon serendipitous events to ensure safety. The timeline of events indicates that this was the case.
From my perspective, Forkner is being made the scapegoat for poorly written software, poor engineering decisions and poor program management. Boeing is still at fault here.
What the majority of people and the press continue to fail to grasp is the timeline of events. The criminal case against Forkner begins in November 2016 when he inadvertently in the simulator learns of the changed functionality of MCAS from the high speed regime to the low speed regime. It was during flight test in March 2016 where MCAS was changed from a system that used two dis-similar sensors--a G-sensor and Angle-of-Attack--operating at high speed to a system that relied only on the AoA sensor operating throughout the flight envelope. This change in functionality was not formally communicated by the 737Max Program to the Technical Pilots which reside in a separate business unit. This explains why MCAS was permitted to be removed from mention in the FCOM which also occurs in March 2016. Forkner signs off on this document believing that the MCAS system had limited capability and operated only within a corner point of the flight envelope.
This is fundamentally a failure in maintaining airplane configuration control first-and-foremost. It was a change that was hurried through without sufficient review. Importantly because finding compliance to MCAS was delegated by the FAA to Boeing AR/DER/O-EMs, this change was also not properly communicated back to the FAA regulators.
According to the consent decree, Forkner knowingly misrepresents the capability of MCAS to the AEG after accidentally finding out about the change in the November 2016 simulator session. This is the basis for the criminal charges of fraud. Fundamentally, the regulatory system should not have to rely upon serendipitous events to ensure safety. The timeline of events indicates that this was the case.
From my perspective, Forkner is being made the scapegoat for poorly written software, poor engineering decisions and poor program management. Boeing is still at fault here.
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It might be worth noting that in 2016 Boeing did not have a MAX simulator, rather the engineering staff and technical pilots were utilizing an engineering cab not associated with, nor approved for customer flight training. In addition the simulators that Boeing installed (built by TRU), were not configured to emulate any MCAS flight characteristics.
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US DOJ media release
Here's the US DOJ media release into the matter. I'm amused how people don't seek to go to the original source of the matter. Skynews isn't much of a credible source for anything.
https://www.justice.gov/opa/pr/forme...indicted-fraud
https://www.justice.gov/opa/pr/forme...indicted-fraud
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tdracer
Is there any clarity to what appears to be an assumption that the indicted individual was acting as an authorised DER/AR ?
The DOJ media release and the indictment itself make no reference to this, nor any FAA delegation. If it was the case, I would expect it to be identified and to be relevant. Additional charges under Federal law would have been levied IMO if he was acting as a federal govt 'representative' in the certification activity.
I suspect despite his responsibility to disclose matters to the FAA, that doesn't mean he was a DER/AR. I wouldn't trust most media reporting to properly dissect and report these nuances accurately.
Is there any clarity to what appears to be an assumption that the indicted individual was acting as an authorised DER/AR ?
The DOJ media release and the indictment itself make no reference to this, nor any FAA delegation. If it was the case, I would expect it to be identified and to be relevant. Additional charges under Federal law would have been levied IMO if he was acting as a federal govt 'representative' in the certification activity.
I suspect despite his responsibility to disclose matters to the FAA, that doesn't mean he was a DER/AR. I wouldn't trust most media reporting to properly dissect and report these nuances accurately.
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The actual indictment is available here:
https://www.justice.gov/opa/press-re...42191/download
I recommend y'all read it carefully, because for the moment, that's all that matters in this case. Not what any reporting says or what uniformed commentators posit.
https://www.justice.gov/opa/press-re...42191/download
I recommend y'all read it carefully, because for the moment, that's all that matters in this case. Not what any reporting says or what uniformed commentators posit.
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Pilot DAR
You are spot on, however, in the indictment there is NO mention of the individual's role as an FAA authorised representative.
I am not convinced at this stage, that the employer will not be brought into this matter in some other way. I know they've paid the compensation to relatives and fines. But they were not required to plead guilty to criminal charges by the DOJ. And in that last point is the 'rub'.
https://www.abc.net.au/news/2021-01-...ashes/13041586
You are spot on, however, in the indictment there is NO mention of the individual's role as an FAA authorised representative.
I am not convinced at this stage, that the employer will not be brought into this matter in some other way. I know they've paid the compensation to relatives and fines. But they were not required to plead guilty to criminal charges by the DOJ. And in that last point is the 'rub'.
https://www.abc.net.au/news/2021-01-...ashes/13041586
WillowRun 6-3
I agree that Forkner is not alone in this - others are going to be dragged in (interesting to see high how up that goes). It wasn't Forkner's responsibility to educate the FAA about the existence of MCAS, or to inform them that the functionality changed late in the program (although it's unforgivable if he intentionally withheld the info from the FAA when he found out). Some AR in flight controls had that responsibility - and he/she has a lot to answer for (that being said, I have it on good authority that there were attempted suicides among the 737 flight controls community in the aftermath of the second crash - although I have no idea how connected they were to the compliance activities or even the design aspect of MCAS). Discovery is going to be interesting - there will be volumes of emails and Coord Sheets that have nothing to do with Forkner. Further, it's unforgivable that Forkner apparently discovered the change in MCAS by accident - again someone in flight controls should have made sure that the Chief Pilot knew all about any flight control changes.
That's not entirely true. Shortly after the second MAX crash, I ran into a Boeing Experimental Test pilot at an event - a friend that I'd known and worked with for for years . Of course the MAX came up - he'd been involved in the MAX flight testing, and he told me more about it than I could repeat at the time (most - but not all - of which is now out in the public domain). He explained to me why an MCAS failure was considered to be no worse than Major - basically that they expected that if the stab trim started doing something unexpected the crew would turn it off. But he also said that it was assumed by all involved that the pilots would be informed/trained on the existence of MCAS, and what to do if it malfunctioned.
I agree that Forkner is not alone in this - others are going to be dragged in (interesting to see high how up that goes). It wasn't Forkner's responsibility to educate the FAA about the existence of MCAS, or to inform them that the functionality changed late in the program (although it's unforgivable if he intentionally withheld the info from the FAA when he found out). Some AR in flight controls had that responsibility - and he/she has a lot to answer for (that being said, I have it on good authority that there were attempted suicides among the 737 flight controls community in the aftermath of the second crash - although I have no idea how connected they were to the compliance activities or even the design aspect of MCAS). Discovery is going to be interesting - there will be volumes of emails and Coord Sheets that have nothing to do with Forkner. Further, it's unforgivable that Forkner apparently discovered the change in MCAS by accident - again someone in flight controls should have made sure that the Chief Pilot knew all about any flight control changes.
That's not entirely true. Shortly after the second MAX crash, I ran into a Boeing Experimental Test pilot at an event - a friend that I'd known and worked with for for years . Of course the MAX came up - he'd been involved in the MAX flight testing, and he told me more about it than I could repeat at the time (most - but not all - of which is now out in the public domain). He explained to me why an MCAS failure was considered to be no worse than Major - basically that they expected that if the stab trim started doing something unexpected the crew would turn it off. But he also said that it was assumed by all involved that the pilots would be informed/trained on the existence of MCAS, and what to do if it malfunctioned.
Last edited by tdracer; 17th Oct 2021 at 19:36. Reason: Inadvertently left out the 'not' in 'Forkner is not alone'