Boeing expressed regret at the embarrassing communications it sent to investigators early January, which included a comment that “this airplane is designed by clowns, who are in turn supervised by monkeys.”
Employees of Boeing mocked federal rules, talked about deceiving regulators and joked about potential flaws in the 737 Max as it was being developed, according to over a hundred pages of internal messages delivered to congressional investigators.
“I still haven’t been forgiven by God for the covering up I did last year,” one of the employees said in messages from 2018, apparently in reference to interactions with the Federal Aviation Administration (FAA).
The most damaging messages included conversations among Boeing pilots and other employees about software issues and other problems with flight simulators for the 737 Max, a plane later involved in two accidents, in late 2018 and early 2019, that killed 346 people and threw the company into chaos.
The employees appear to discuss instances in which the company concealed such problems from the FAA. during the regulator’s certification of the simulators, which were used in the development of the Max, as well as in training for pilots who had not previously flown a 737.
“I just Jedi mind tricked this fools. I should be given $1,000 every time I take one of these calls. I save this company a sick amount of $$$$.”
“Would you put your family on a MAX simulator trained aircraft? I wouldn’t.”
“I’ll be shocked if the FAA passes this turd.”
“This is a joke. This airplane is ridiculous.”
“Best part is we are re-starting this whole thing with the 777X with the same supplier and have signed up to an even more aggressive schedule!”
“Jesus, it’s doomed.”
In an exchange from 2015, a Boeing employee said that a presentation the company gave to the FAA. was so complicated that, for the agency officials and even himself, “it was like dogs watching TV.”
Several employees seemed consumed with limiting training for airline crews to fly the plane, a significant victory for Boeing that would benefit the company financially. In the development of the Max, Boeing had promised to offer Southwest a discount of $1 million per plane if regulators required simulator training.
In an email from August 2016, a marketing employee at the company cheered the news that regulators had approved a short computer-based training for pilots who have flown the 737 NG, the predecessor to the Max, instead of requiring simulator training.
“You can be away from an NG for 30 years and still be able to jump into a MAX? LOVE IT!!” the employee says, following up later with an email noting: “This is a big part of the operating cost structure in our marketing decks.”
Last year, Boeing disclosed internal messages from 2016, in which a top pilot working on the plane told a colleague that he was experiencing trouble controlling the Max in a flight simulator and believed that he had misled the FAA.
“I basically lied to the regulators (unknowingly),” the pilot, Mark Forkner, said to his colleague, Patrik Gustavsson.
Boeing did not inform the FAA about the messages when the company first discovered them, waiting until about two weeks before Mr. Muilenburg was set to testify in front of Congress to send them to lawmakers. The conversation, which took place before the Max was approved to fly, angered key FAA officials, who felt misled by the company, according to three people familiar with the matter.
Representative Peter DeFazio, a Democrat from Oregon who is leading the House investigation into the development of the 737 Max, called the newly released messages “incredibly damning.”
“They paint a deeply disturbing picture of the lengths Boeing was apparently willing to go to in order to evade scrutiny from regulators, flight crews and the flying public,” he added, “even as its own employees were sounding alarms internally.”
Besides an appalling disrespect for human lives, Boeing shoes how not to build relationships with regulators.
Depending on how regulated your industry is, your company will have more or less contact with its regulators. You should think about your relationships with regulators in four categories:
1) Relationships in ordinary periods where no proposed regulation is being considered and no examination is underway,
2) Relationships when a rule is proposed or likely to be proposed by your regulator;
3) Relationships when you are being examined by your regulator, and
4) Relationships when your regulator is investigating your company or individuals associated with your company.
It is critical for the long term success of your company and the success of your regulator that you interact with your regulator in a constructive way in each of these circumstances.
During Ordinary Periods
The most important time to build a relationship with your regulator is when you have no current matters with your regulator.
For everyone in this technology-fueled age, we all feel like they are in fact no quiet times because it feels like there’s always too much work to do and not enough people to do it. But during the times when you are not engaged with the regulator about a rulemaking, examination or an investigation is the best time to develop your relationship with your regulator.
Your regulator may have access to a tremendous amount of data about your industry and that may lead you to think that your regulator is on top of developments in your industry and even with your company. The reality is that your regulator is a branch of the government. As such, your regulator is almost undoubtedly dealing with technology that is way behind the technology that you take for granted every day.
So when things are quiet I urge you to approach your regulator and offer your assistance. One very simple way to provide that assistance is to meet with the regulator and let them know what you are seeing in your industry. What business developments are driving innovation and change in your industry? What holdover practices from earlier times do you feel have not caught up with current operations? What risks do you see in your industry in the future?
These are topics that you are thinking about anyway in the course of managing your business and implementing sufficient compliance efforts for your business to comply with applicable rules and regulations. If you can convey your knowledge of these issues to your regulator, you’ll make your regulator better informed and better able to craft policies to address issues in your industry.
During a Rulemaking
When your regulator turns to action, like a proposed rulemaking that will impact your industry, you have another opportunity to build an effective relationship with your regulator. If you are already engaged with your regulator and communicating regularly you will have a distinct advantage in engaging on a rulemaking. If you are not already engaged with your regulator at that point, you should get engaged.
Rule proposals from the SEC for example often asked for data about particular issues and they often would not get any data from the industry. I know that there is an argument that says that industry is better off not sharing information with an SEC or another regulator. The idea behind this argument is that sharing information and data may lead the regulator to do something it wasn’t otherwise considering.
Just like in industry, the vast majority of regulators are trying to do the right thing with the information they have. If you give them more information, you have a better chance of them coming out with a rule that will be well thought out and supported by the data.
During an Examination
If your company is subject to an examination by the FINMA, SEC, RAB, BaFin or another regulator, you have another opportunity to build your relationship with your regulator.
I realize there are a number of my readers who might not have quite that reaction to an exam! I understand that an exam can be a tremendous expenditure of resources by your company and can be a source of concern that examiners may find something that you may have overlooked. Nonetheless, an examination involves a sustained interaction with your regulator.
It gives you an opportunity for the regulator to understand who you are and what your company is trying to do. Don’t waste this chance. If the examination does show an issue or a problem, you are far better off if you have been cooperative during the examination and explained your compliance efforts. If you have been uncooperative and hostile and the examiners find something, I promise you they will take a less charitable view of any explanation that you give.
During an Investigation
If all of your best efforts do not work out and you come under investigation from a regulator, are you past the point of maintaining a relationship with your regulator? While I hope that you don’t end up under investigation, I also would argue that all is not lost.
If you find yourself under investigation, I recommend that you maintain a spirit of cooperation and continue to explain the facts that landed you in the investigation. I have seen investigations being dropped because the company involved was able to adequately explain its conduct.
Enforcement departments of regulators like to win their cases as well. If you have an explanation for facts that may seem to be a problem, enforcement teams will listen. They would rather find out sooner rather than later. Don’t let your relationship with the regulator lapse just because you are under investigation. Keep up your effort to engage and to provide information that your regulator needs. You will have a better chance of the investigation being closed out without being charged.
In a nutshell: Develop and maintain relationships with your regulators for the long term success of your company.
