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Are The Boeing Text Messages A Smoking Gun? Maybe, Maybe Not

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Boeing’s crisis over its bestselling plane took a lurch for the worse Friday with the revelation that the chief technical pilot for the 737 MAX told a fellow Boeing pilot in a 2016 series of text messages that he unknowingly misled federal regulators about the flight control system that subsequently is believed to have caused two crashes and the global grounding of the plane.

Boeing shares skidded 6.8% and the U.S. Federal Aviation Administration and members of Congress lashed the plane maker over the disclosure. However, it’s unclear yet whether the texts will help federal prosecutors build a criminal case against the company, legal experts told Forbes.

In the messages, which were first reported by Reuters and were published in full by the Seattle Times, Scott Forkner appears to be discussing a session on a flight simulator for the 737 MAX, which was then undergoing testing leading toward safety certification by the FAA. He tells Patrik Gustavsson, who succeeded him as chief technical pilot on the program, that the plane was flying strangely in the simulator, with a flight control system called the maneuvering characteristics augmentation system, or MCAS, activating at a low speed. “It’s running rampant in the sim on me,” Forkner texts. Later he writes, “I’m levelling off at like 4000 ft, 230 knots and the plane is trimming itself like craxy. [sic] I’m like, WHAT?”  

MCAS was originally designed to kick in only during high-speed maneuvers to lower the nose to counteract the lifting effect of the plane’s large engines. The messages suggest that the pilots were unaware that MCAS had been modified to operate at lower speeds and with increased power.

Forkner reportedly convinced the FAA officials overseeing the vetting of the new version of the 737 that it would not be necessary to include references to MCAS in the operating manual for the plane, or cover it in pilot training on new features of the MAX, in part because Boeing believed that pilots would recognize a malfunction of MCAS as runaway trimming of the plane’s rear stabilizer, something that could occur with the speed trim system on the previous version of the plane and which pilots were trained to counteract.

In their text exchange, the pilots appear to discuss that an update would have to be made to the safety assessment documents Boeing submitted to the FAA describing the system. Gustavsson writes, “Oh great, we’ll have to update the speed trim descritption [sic] …”

Forkner replies, “So I basically lied to the regulators (unknowingly).”

The text messages “unquestionably raise the stakes for Forkner and Boeing” in the criminal probe being conducted by the U.S. Department of Justice, says Jacob Frenkel, a criminal defense attorney at Dickinson Wright who is a former federal prosecutor and SEC enforcement counsel.

“It appears to acknowledge the existence of a duty” to inform authorities, Frenkel says. “The question becomes how did the company react upon receiving the information.” The texts could be a building block for charges of false statements, he says.

Forkner’s lawyer, David Gerger, said in an emailed statement: “If you read the whole chat, it is obvious that there was no ‘lie.’ The simulator was not reading right and had to be fixed to fly like the real plane. Based on everything Mark knew, he thought the plane was safe, and he never would put anyone in an unsafe plane.”

Mark Dombroff, an aviation attorney at Fox Rothschild, cautions not to jump to conclusions over the text messages.

“It’s awfully easy following an accident to look back at documentation that existed prior to the incident and against that set of circumstances to assign meaning to these communications other than what was meant at the time,” he says.

What’s key, he says, is what happened next: who, if anyone, did Forkner and Gustavvson talk to about it, what was said and what decisions were made.

In this instance, and about the case in general, he says, “I think there’s an awful lot less known than is known.”

Frenkel concurs that the texts don’t establish wrongdoing, but he says they open the door for DoJ and Department of Transportation investigators to pursue a very precise line of inquiry.

“Sometimes information comes out that people get excited about and it turns out to be a yawn,” Frenkel says. “This suggests there is a basis for this investigation to continue aggressively.”

Boeing provided the text messages to the Department of Transportation on Thursday, months after they had been turned over to DoJ prosecutors. FAA Administrator Steve Dickson wrote Boeing CEO Dennis Muilenburg on Friday to demand an explanation for the delay in sharing the texts with the agency.

Rep. Peter DeFazio (D-Ore.), who is leading a House transportation committee inquiry, issued a blistering statement: “This exchange is shocking, but disturbingly consistent with what we’ve seen so far in our ongoing investigation of the 737 MAX, especially with regard to production pressures and a lack of candor with regulators and customers.”

Boeing CEO Dennis Muilenburg will testify before the committee on Oct. 30. Last week Boeing’s board relieved Muilenburg of the position of chairman, replacing him with longtime independent director David Calhoun.

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