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Indictment says Boeing pilot misled about flight-control software for 737 Max

The pilot allegedly withheld information about changes to flight control software before the airplane was certified and before the crashes of Lion Air Flight 610 and Ethiopian Airlines Flight 302 that killed 346.

(CN) — A federal grand jury in Texas indicted a former Boeing chief test pilot Thursday for allegedly misleading the government about new flight control software in the 737 Max — an airplane that was later grounded after two crashes that killed 346 people.

Mark Forkner, 49, of Keller, is charged with two counts of fraud and four counts of wire fraud for allegedly deceiving the Federal Aviation Administration during the agency’s evaluation and certification of the Max before its 2017 debut. The Max is Boeing’s latest variant of its highly successful line of 737 narrow-body commercial aircraft.

It was grounded by the FAA on March 13, 2019, after the deadly crashes of Lion Air Flight 610 five months earlier and Ethiopian Airlines Flight 302 three days earlier. The FAA allowed the 737 Max to return to service on Nov. 18, 2020.

“In an attempt to save Boeing money, Forkner allegedly withheld critical information from regulators,” said Chad Meacham, acting U.S. Attorney for the Northern District of Texas. “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.”

The indictment claims Forkner gave FAA evaluators “materially false, inaccurate, and incomplete” information about new flight control software called the Maneuvering Characteristics Augmentation System, or MCAS. The system was designed to push the nose of the Max down to prevent stall.

The software was allegedly necessary due to the use of larger LEAP1-B engines on the Max, which requires a different location to mount the engines that changes the aircraft’s center of gravity and makes it more susceptible to stall.

“Because of his alleged deception, a key document published by the FAA [Aircraft Evaluation Group] lacked any reference to MCAS,” prosecutors said in a written statement. “In turn, airplane manuals and pilot-training materials for U.S.-based airlines lacked any reference to MCAS — and Boeing’s U.S.-based airline customers were deprived of important information when making and finalizing their decisions to pay Boeing tens of millions of dollars for 737 MAX airplanes.”

Prosecutors claim Forkner learned about an important change to MCAS in 2016 but intentionally withheld the information, resulting in the FAA “deleting all reference to MCAS” from a final report on the Max in 2017. This resulted in pilots for U.S.-based airlines not getting information about MCAS in their manuals or training materials.

The FAA allegedly did not learn about the important change to MCAS until after the Flight 610 crash in 2018. The agency was still reviewing MCAS when Flight 302 crashed five months later.

Forkner faces up to ten years in federal prison on each fraud count and twenty years for each wire fraud count. He is expected to make his initial appearance Friday in federal court in Fort Worth.

Shares of Boeing dipped 15 cents to $217.29 a share in after-hours trading after the indictment was announced. The Chicago-based company did not immediately respond to a email message seeking comment Thursday evening.

Forkner’s indictment comes ten months after Boeing agreed to pay $2.5 billion to settle federal criminal charges that it conspired to defraud the federal government regarding the Max. Boeing itself was accused of giving “incomplete and inaccurate information about MCAS” to the FAA, according to the deferred prosecution agreement.

Under the settlement, Boeing agreed to pay a criminal penalty of $243.6 million, $1.77 billion in compensation for airline customers and establish a $500 million crash victim fund.

The criminal cases comes after the pilots union for Southwest Airlines sued Boeing in Dallas County District Court in October 2019, claiming it “deliberately misled its customers, pilots and the public about the true scope of design changes” to the Max from earlier variants. Southwest has exclusively operated a fleet of 737 aircraft since it began flying in 1971.

The union later urged Southwest management to stop buying Max aircraft, opening the door for Boeing’s primary competitor Airbus and its A320 narrow-body aircraft.

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