When Boeing’s chief executive was asked by Congress last month if the company was working to get lawsuits related to the deadly crash of Lion Air Flight 610 transferred from the United States to Indonesia, where the accident occurred, he pleaded ignorance.
“I can’t comment on that,” Dennis Muilenburg, the chief executive, said during the second day of contentious hearings investigating the deadly crashes of two of the company’s 737 Max jets. “I’m just not familiar with the details of that.”
But while Muilenburg said he was unaware of Boeing’s legal strategy in cases related to Flight 610, the first of the two crashes, the company’s lawyers have been remarkably transparent.
In at least six court filings and in-person appearances over the last year, Boeing has made it clear that it is prepared to seek a transfer of the cases out of the United States through a well-established legal doctrine known as forum non conveniens, or inconvenient forum. Such a move would most likely save Boeing many millions of dollars in damages and limit how much information about the crash the company has to make public.
“As soon as possible, Boeing will file a motion to dismiss this action and all related claims arising from the crash of Lion Air Flight JT610, for forum non conveniens,” company lawyers said in a filing last December, less than two months after the crash.
More than 100 Indonesian families who lost relatives in the Lion Air crash in October 2018 filed lawsuits against Boeing in federal court in Illinois, where Boeing has its headquarters. Those cases were consolidated, and lawyers for Boeing and the families of victims are still in mediation.
In May, the two sides agreed that if their attempts to reach a settlement hit an impasse, Boeing would have 10 days to file a motion to move the case outside the United States.
“The way it’s going to go forward, I expect, unless Boeing tells me differently, is they’re going to file a motion for forum non conveniens,” Judge Thomas Durkin, who is overseeing the case, said at a hearing last month.
Boeing said in a statement that it remained “committed to this mediation process” and noted that it had set up a $100 million fund to provide assistance to families and communities affected by the crashes.
The company did not reply to questions about whether Muilenburg had been briefed on the legal strategy.
Lawyers for the families of the victims say Boeing is using the threat of transferring the cases abroad as a way to drive down the cost of any settlement reached in the current mediation efforts.
In similar cases over the years, the Indonesia courts have not extracted large awards from big companies. So if Boeing’s cases were transferred to Indonesia, any amount it might pay there would almost certainly be substantially lower than what it might pay in the United States.
“Moving these cases outside the U.S. would eliminate any chance of accountability for Boeing,” said Sanjiv Singh, who is representing 16 families. “Muilenburg, as the CEO of one of the largest and most powerful companies on earth, had to have known this, or should have known this, when he testified.”
Boeing did not respond to questions about why it would want the cases moved abroad. But in a statement, the company indicated that even if it does settle the cases in the United States, it expects to compensate families at a level that reflects costs in Jakarta, not Chicago.
“As a matter of clear and well-established law, cost of living and similar considerations are highly relevant factors in determining fair and appropriate settlement amounts in cases like these,” Boeing said.
Lawyers for the families said such a strategy devalues Indonesian lives. “They don’t see Indonesian victims on the same terms as Americans or Europeans,” said one of the lawyers, Michael Indrajana.
Boeing’s strategy in the Lion Air cases stands in contrast to its approach to suits brought by families who lost relatives in the crash of Ethiopian Airlines Flight 302 in March. Boeing has given no indication it plans to try to move those cases to Ethiopia, partly because the victims of the second crash came from more than 30 different nations, complicating an argument that any one country other than the United States is a more appropriate place to hear the case.
While the legal maneuverings have been underway for a year, the issue burst into public view at the hearing before the House transportation committee.
Representative Hank Johnson, a Georgia Democrat, was the first to bring it up at the hearing. After Muilenburg’s initial denial, Johnson pressed him on whether he was really unaware of the strategy.
“Congressman, if I could take that question, we’ll get back to you,” Muilenburg responded. “But I don’t know the answer.”
Representative Peter DeFazio, an Oregon Democrat, then pounced on Muilenburg’s remarks.
“I’m incredulous that you don’t know whether or not your company is attempting to avoid the US courts for liability regarding Lion Air,” he said. “You’re not aware of your legal strategy regarding Indonesia? You really aren’t?”
“Congressman, I’m not familiar with that strategy,” Muilenburg said.
After the hearing, lawyers for the families who lost relatives in the Lion Air crash accused Muilenburg of being either disingenuous or ill-informed about his company’s own work.
“I was astounded to see Boeing’s CEO testify he was not aware of this legal issue,” said Charles Herrmann, a lawyer who is representing the families of several victims from the Lion Air crash. “Either he is concealing his knowledge or it is just another example of how out of touch he is with what is actually going on within his company.”
DeFazio also remains skeptical of Muilenburg’s testimony.
“I don’t believe him,” DeFazio said in an interview Friday. “He was chairman of the board as this strategy was formulated. And if he really honestly doesn’t know what their legal strategy is, that’s yet another reason to fire him.”