Mark Forkner, a test pilot for Boeing’s fatally flawed 737 MAX airplane, was indicted on federal criminal charges for misleading federal regulators on October 14, 2021, according to Reuters. Forkner was indicted on six counts of fraud by a Texas grand jury. The indictment explained that Forkner deceived federal regulators, hindered their ability to protect passengers and left “pilots in the lurch.” If convicted, Forkner potentially faces decades in prison. In January, Boeing signed a Deferred Prosecution Agreement with the U.S. Department of Justice (DOJ) to end the federal probe of the MAX’s development and certification processes. The agreement absolved company leadership from criminal charges, so Forkner is the first Boeing employee to face prosecution.
“Families, like our clients, suffered an unthinkable loss because Boeing prioritized its bottom line above passengers’ safety, and this level of accountability is long overdue,” said Beasley Allen airplane accident lawyer Mike Andrews who represents families in the Boeing litigation. “Unfortunately, the problems that led to the MAX tragedies run deeper than the chief test pilot. As we’ve said all along, the certification system is fundamentally flawed because of the undue influence industry giants like Boeing have over federal regulators.”
As the chief technical pilot for the MAX program, Forkner was Boeing’s primary contact for the Federal Aviation Administration (FAA). He was responsible for advising how pilots should be trained to fly the new iteration of the 737. Boeing turned over internal emails and instant messages as part of the DOJ’s investigation. The documents detailed discussions between Forkner and other Boeing employees, revealing how Forkner felt pressured by Boeing to keep the costs of the MAX low and to ensure the MAX met its certification deadline. These directives required Forkner to persuade regulators and airlines that the MAX iteration of the 737 was very similar to past generations of aircraft.
Yet, one of the significant differences between the MAX and the previous 737 generations was the Maneuvering Characteristics Augmentation System (MCAS), the new flight control software. The MCAS was added to help counter design defects that caused the MAX’s nose to continue to pitch higher and higher, leading to stalling and eventually a crash. However, the MCAS had defects of its own. In October 2018, after the FAA certified it, Lion Air flight 610, a MAX jet, crashed into the Indian Ocean, and within five months, a second MAX jet, Ethiopian Airlines flight 302, crashed. Combined, the two deadly flights claimed 346 lives. Investigators determined that a defect erroneously activated the MCAS, setting in motion a chain of events that led to each crash.
Chad Meacham, the acting U.S. attorney for Northern Texas, said, “In an attempt to save Boeing money, Forkner allegedly withheld critical information from regulators. His callous choice to mislead the FAA hampered the agency’s ability to protect the flying public and left pilots in the lurch, lacking information about certain 737 MAX flight controls.”
Forkner began working to convince stakeholders in 2016 and successfully persuaded the FAA to exclude any mention of the MCAS in the pilot manuals, according to the Seattle Times and The Wall Street Journal. He told regulators that the software would only activate in “extreme circumstances,” which would be “WAY outside” typical flying conditions. When Lion Air representatives asked for additional training for their pilots in MAX simulators, Forkner discouraged the request explaining that the training was “a difficult and unnecessary training burden for your airline.”
In one exchange between Forkner and his deputy, Patrik Gustavsson, Forkner boasted about how he “jedi mind tricked” the airlines that would be purchasing the Boeing 737 MAX. He bragged that he had saved Boeing “a sick amount of $$$$.”
Forkner learned in 2017, just before Boeing completed certification of the MAX, that the company altered the MCAS so that it would activate at lower speeds. This change increased the chance for pilots to encounter and be forced to deal with the automated system. After learning of the change, Forkner told Gustavsson that “basically I lied to the regulators (unknowingly).” Still, he did not share this information with regulators.
Boeing admitted it had misled the FAA and agreed to pay $2.5 billion in criminal fines to avoid prosecution as part of its plea agreement with the federal government.
Interestingly, shortly after signing the agreement with the DOJ, Boeing’s lead criminal defense firm, Kirkland & Ellis, hired the U.S. Attorney who handled negotiating the agreement for the DOJ. Erin Nealy Cox, the former U.S. Attorney for the Northern District of Texas, now represents the company she once was tasked with prosecuting.
Following the MAX debacle, the federal government enacted reforms for the FAA’s certification process of newly designed aircraft. The law restored some of the oversight authority the agency had ceded to the powerful aviation industry. There is still room for more improvement.
Mike Andrews handles all types of aviation litigation for the firm, involving both civilian and military aircraft.