Naoise Ryan is prepared for the long road. She is seeking justice for her husband, for herself, and her two small children — and for others.
In March, it will be three years since Mick Ryan was killed when Ethiopian Airlines flight 302 crashed soon after taking off from Addis Ababa international airport. All 157 people on board died.
Mick, a native of Co Clare, was deputy chief engineer with the UN’s World Food Programme. He worked in some of the most dangerous corners of the globe, but he never thought there would be danger in boarding an aircraft made by Boeing.
It was the second crash within five months of a Boeing 737 Max, the first having occurred the previous October. In that first crash, all 189 passengers and crew on the same make of aircraft died when it crashed into the sea minutes after taking off from Indonesia.
Within three days of the second crash, the Boeing 737 Max was grounded, but questions mounted.
The company was investigated for criminal culpability, in which it was alleged that profit was put ahead of passenger safety.
In January last year, the US justice department reached an agreement with Boeing that included payouts to airlines and victims’ families, but protected all of the company’s executives from prosecution.
Last month, Naoise Ryan and 14 other bereaved families launched a legal action to nullify the deal. Contrary to US law, the victims had not been consulted on the agreement.
As Eoin English reported in theon the day after the action was launched: “Since the agreement was reached, only one employee of Boeing has been charged with a crime, despite the indictment making clear his criminal acts were not undertaken in rogue fashion and without the direct knowledge of others within Boeing.”
The employee in question, many observers suggest, was a test pilot in the company, a low-level employee who had left the company and whom many observers are suggesting was a designated fall guy.
As part of the deal cut by the US justice department, Naoise would be entitled to around $1.4m (€1.23m) in compensation from Boeing. She has refused the money.
“I can’t say this is wrong and shouldn’t have come about, and take the money at the same time,” she says.
“Refusing to take this money is a small price to pay if we can challenge this agreement. It’s as simple as that for me.”
Naoise and Mick had been living in Rome with their two young children when the accident occurred. Last year, Naoise moved home to Cork, but her eyes are fixed on the US justice system and whether it is capable of doing what it says on the tin, invoking laws designed to ensure that everybody — and every corporate entity — is equal before the law.
The battle faced by Naoise and the other victims involves all the elements that make America what it is today.
There is the societal hierarchy, where business has a higher rating than the welfare of citizens. There is a justice system in which money doesn’t so much talk as scream. And there is the political divide, where you pick your side and, through that prism, you view every aspect of life in the US.
The Boeing Max went into production in 2011 to help the company take on the rise in popularity of the 323 aircraft from rival manufacturer, Airbus.
The Max was effectively an upgrade of the 737 aeroplane, which was the mainstay of global travel for domestic or short international trips. Since the tragedies, it has become apparent that there were numerous issues around the Max’s manufacture, including problems with software that was used.
Following the crashes, investigations were launched by both the US legislature and the justice department. At Boeing, chief executive Dennis Muilenburg came under pressure and agreed to resign at the end of 2019. His severance package was worth an estimated $80m.
In September 2020, the US Congress published the report of its 18-month investigation into the company’s role in the disasters. The report was endorsed only by majority members on the House committee, all democrats. Even in a matter of public safety, the lines of political divide were maintained.
The report was highly critical of both Boeing and the aviation regulatory authority, the Federal Aviation Administration (FAA). It stated that the two crashes were the “horrific culmination” of engineering flaws, mismanagement, and a severe lack of federal oversight.
Boeing “emphasised profits over safety,” the report said.
“This is a tragedy that never should have happened,” committee chair Peter DeFazio said.
“It could have been prevented and we’re going to take steps in our legislation to see it never happens again.”
The Republicans on the committee issued their own minority report calling for tighter regulations, but condemning the “partisan” majority report. Boeing was a favoured company of then president Donald Trump, who said it was vital for the US economy.
Even in dealing with the loss of 346 lives, the possibility of an agreement on what had actually happened was swamped by political imperatives.
Naoise was following the inquiry closely. After the report was published, the families contacted the US justice department to inquire whether there was still a criminal investigation into Boeing.
“A group of us got together and we contacted the department of justice to find out if an investigation was ongoing,” she says. “We wanted to be part of it and we were entitled to be part of it.
“We were told at the time there was no investigation. So when the news came out that a settlement had been reached we were in shock.”
The settlement referenced was the deferred prosecution agreement (DPA) agreed between the justice department and Boeing. It was announced last January, days before the Trump administration left office, and provided for Boeing to pay a fine of $244m, pay $1.77bn in compensation to airline customers, and a $500m fund for victims’ families.
Crucially, it also gave immunity from prosecution to all of the company’s executives. There would be no criminal prosecution for any kind of negligence or breaking laws on safety.
The deal was highly controversial. Even legal experts in the US, who know the system inside out, found it jaw dropping. John C Coffee, a professor of law and director of the Center on Corporate Governance at Columbia Law School in New York City, told the Irish Examiner: “This is the worst DPA that I have seen for a variety of reasons.
“Boeing was a favourite of the Trump administration and they bent over backwards to help it at the expense of the victims. That it was brought in Dallas was the first sign that things were being manipulated, as Boeing has no connection to Dallas.
“Boeing’s attorney was a former deputy attorney general and he knew how to pull all the levers to keep the case out of sight and quickly approved.
“The DPA throws one Boeing employee under the bus. He may be guilty, but people above his level had to be involved. No major airline allows its test pilot to make critical decisions for the airline or alone handle negotiations with the FAA.”
Apart from any specific terms of the DPA or how it was handled, there was one feature to it that has been described as “shocking”. The case against Boeing was brought on behalf of the justice department by the US attorney in the northern district of Texas, Erin Nealy Cox.
In December 2020, she indicated her intention to leave the public service post and make a career in private practice. A month later, she signed off on the DPA with Boeing’s defence law firm, Kirkland & Ellis. Five months later, she joined Kirkland & Ellis as a partner in its Dallas office.
Naoise says she was simply dumbfounded when she heard that this had happened.
“I just can’t understand how it has come about,” she says. “How all of this is such a blatant violation of our rights and how we’re even in this situation.
“This attorney handed in her resignation one month prior to the agreement being signed and then afterwards she joins the company that was on the other side of the agreement. There is no law that says somebody from the Department of Justice can’t join another law firm, but what is justice if somebody who signs off on what looks like a sweetheart deal goes and then joins the firm involved. It just beggars belief.”
Prof Coffee echoes the sentiment. “It shocked just about everyone,” he says. “But I cannot say that it amounts to bribery or any other crime. Still, it is extraordinary.
“As for other aspects of the agreement, do you realise that Boeing can deduct 90% of the amount it has paid on its tax returns, thereby halving the penalty? Only the purely criminal fine, which is about 10% of the whole cost, is non-deductible. Those payments to the airline are being used to inflate the size of the settlement so that it sounds more acceptable.”
While shocking, this apparent conflict of interest is not entirely unknown in US corporate culture. The oxycontin scandal, in which millions of mainly poor Americans have been addicted to the painkiller, has been well documented recently in books and the TV series.
One element to the story was the capacity of the makes of oxycontin, Purdue Pharma, to get regulatory approval for the drug. The US Federal Drugs Administration examiner who oversaw the approval left the government body in 1997. The following year he joined Purdue with a $400,000 salary.
Another US attorney in the state of Maine was one of the first prosecutors to recognise the harm being done by oxycontin. In 1998, he left his job and began working as a consultant for the company.
As Prof Coffee pointed out, there is no law against any of this, but it certainly raises questions about the perception, at the very least, of a grave conflict of interest.
The administration of the law in the US is, as outlined above, open to major criticism. However, it could be claimed that, nominally, there are laws in place that ensure victims of alleged crimes are properly served within the system.
One such law is the Crime Victims’ Rights Act, which states that victims of any alleged crime must be consulted in negotiations for a deferred prosecution agreement.
On December 16, a motion was filed in the US courts challenging the DPA on behalf of 15 victims’ families, including Naoise. The case is being brought on behalf of the families by former federal judge Paul Cassell, a leading authority on victims’ rights.
Filing the motion, Mr Cassell said the families had been excluded and misled.
“Boeing and the government deliberately excluded those who were most concerned with the negotiations — the families of victims,” he said.
“If the government is going to craft a DPA for a serious felony crime, including one that gives a corporation like Boeing immunity, it cannot do so secretly. In concealing its negotiations from Boeing’s victims, the government plainly violated the Crime Victims’ Rights Act.”
The challenge is the second high-profile attempt to overturn a DPA on behalf of victims. Paedophile Jeffrey Epstein had struck a DPA agreement with prosecutors over crimes against underage girls from which the victims had been excluded.
That was being contested when Epstein took his own life in 2019 while on remand in a New York prison.
Now, another case of a different hue, but involving a major loss of life, is putting the law under the spotlight.
For Naoise and the other families, a long battle may lay ahead.
“Right now, the thing I’m most scared of is that we won’t have a battle, that it will be dismissed by the Department of Justice. They won’t want a scandal.
“More than anything what I want is the truth and the full truth to come out. I want justice for all the victims and I want accountability and not scapegoats. Then maybe we can get some sense of peace and closure over this but, until that happens, I don’t think we will.”
There is also a horrible irony involved in Naoise taking on corporate America on behalf of her husband. Mick Ryan’s life was, through his job, dedicated to helping the poorest, most dispossessed people on the planet. Those whom his wife is now pitting against represent some of the wealthiest and most powerful interests, who often determine how our world is shaped.
“Mick was doing his job to protect the most vulnerable people and he was going to the most dangerous places in the world to do so. Yet it was getting on what should have been a safe flight that killed him. It [the aircraft] was branded the best in the world. That is what is really unfathomable about all of this.”
In response to queries from the, Boeing issued the following statement.
“We remember those lost on Lion Air Flight 610 and Ethiopian Airlines Flight 302. Since the accidents, Boeing has made significant changes as a company, and to the design of the 737 Max, to ensure that accidents like those never happen again.
“Safety is fundamental to the success of our industry, and the industry takes steps after every accident and incident to further improve safety for the flying public. Over the past 50 years, this journey of continuous improvement has made commercial aviation the world’s safest form of transportation.
“We will be responding to the recent motions but through the courts rather than the media.”