Southwest Airlines proposed a ploy to deceive FAA on Boeing 737 MAX, legal filing alleges

In April 2016, when Boeing’s 737 MAX was in flight test a year ahead of its certification by the Federal Aviation Administration, Southwest Airlines made a strange proposal to Boeing — one that suggests an effort to deceive the FAA.

According to a legal filing by attorneys pursuing a lawsuit against the airline, Southwest manager Bill Lusk asked Boeing officials, including the MAX chief technical pilot Mark Forkner, if engineers could install a new flight control safety alert required for the MAX on a single one of Southwest’s older 737s — and then deactivate it once the MAX was certified.

The filing in a Texas lawsuit in late March alleges that the sole purpose of this proposal was to be able to tell the FAA that the alert was not new on the MAX, so that it wouldn’t trigger costly additional pilot training that Southwest was determined to avoid.

“It’s hard to come up with any reason for that other than to deceive the FAA,” said Mary Schiavo, former U.S. Department of Transportation Inspector General and advocate for airline safety. “It’s really appalling.”

In an interview, Rick Ludtke, the former Boeing engineer who designed the new alert, recalled the Southwest proposal and how Boeing managers talked to him about implementing it.

“We laughed at them,” said Ludtke. “We thought they were nuts.”

The documents cited in the legal filings are sealed, so only the limited quotations excerpted in the filing are available, without full context. It’s unclear if Boeing followed through on Southwest’s proposal; Ludtke was focused on his design work and doesn’t recall.

However, Schiavo said the proposal should trigger investigation into whether there were false statements made to the government, which could be criminal.

Boeing declined to comment on the legal case.

Southwest declined to answer questions about the specific details in the legal filing, but in an emailed statement, spokesperson Brandy King said, “Southwest vigorously disputes the plaintiffs’ characterization of the facts in this lawsuit.”

“Good wingmen for Boeing”

The Texas case is a class-action lawsuit that alleges, on behalf of people who bought tickets on Southwest MAX flights between the first MAX crash in October 2018 and the second in March 2019, that Boeing and Southwest concealed safety defects on the MAX to buoy demand for air travel, resulting in those passengers paying higher ticket prices.

Given the real tragedy of the 346 people who died in the two crashes, the notion that people who traveled safely to their destinations on a MAX are victims who should be compensated because they overpaid for their tickets may seem distasteful. Yet, whatever the merits of the case, the discovery process has unearthed details not previously known.

There’s nothing new in the filings about Boeing’s role in designing and certifying the MAX. What’s new are the revelations about Southwest, the launch customer for the MAX.

The filing cites documents that show Southwest pressured Boeing intensely to ensure that its pilots — and so those at other airlines — were required to do only minimal training to fly the MAX.

Not only did Southwest management not want their pilots who flew the earlier model 737 NG to have to train in a flight simulator for the MAX, they insisted to Boeing that even classroom training be off the table, the filing shows. Southwest insisted on a clause in the sales contract stipulating a penalty of $1 million per airplane delivered if that standard wasn’t met.

As the MAX’s most influential customer, Southwest’s insistence on this “infected every aspect of the birth and development of the new 737,” the legal filing asserts.

It quotes a Boeing “Program Directive” that instructs the jet maker’s training development organization to collaborate with Southwest on the required pilot training.

Boeing’s chief technical pilot on the MAX, Mark Forkner — who was acquitted by a U.S. District Court jury in March of deceiving both the FAA and Southwest about the MAX flight controls — worked closely with Southwest to achieve that goal.

In the end, Southwest got its way: its 737 NG pilots were able to upgrade to fly MAXs after completing a three-hour course on an iPad.

The legal filing alleges that Southwest’s involvement included pressuring Boeing to remove from pilot materials any mention of the new flight control software called the Maneuvering Characteristics Augmentation System that was later identified as the primary cause of the two crashes.

In November 2015, Southwest conducted an intensive review of the MAX’s systems, pilot procedures and flight manuals and came across mention of MCAS in a pilot checklist for an emergency procedure, the legal filing shows.

Southwest contacted Boeing to remove MCAS from the checklist; it was.

When Forkner left Boeing in early 2018, Southwest hired him at the recommendation of executives who had dealt with him on the MAX. He worked at Southwest’s Dallas headquarters on the Technical Pilot Team, “where he focused on a wide variety of projects,” said spokesperson King.

After the first MAX crash in November that year, a Lion Air jet in Indonesia, Forkner discussed with Southwest Chief Operating Officer Mike Van de Ven and other executives whether the MAX should be grounded.

According to a deposition by another Southwest executive, Van de Ven ordered that the airline simply follow the Boeing instruction, which was a bulletin telling pilots how they should handle a similar emergency — instructions that proved entirely inadequate just over four months later in Ethiopia.

The filing also notes how top Southwest executives worked closely with Boeing’s leaders to deflect press attention and convince journalists there was no safety issue with the MAX.

After a request from Boeing following the first MAX crash, Southwest’s chief pilot, Bob Waltz, spoke with journalists from The Wall Street Journal preparing a story and urged them to back off their sharpest angle.

The legal filing details how he told them their “hypothetical scenario” of what happened on the Lion Air flight was off base and showed “a lack of understanding of the systems involved.”

Next day, Van de Ven told Boeing’s then-CEO of the Commercial Airplanes unit Kevin McAllister in a text message that his team at Southwest had been “good wingmen for Boeing.”

Last week, The Wall Street Journal was the first to report on the legal filing’s revelation of Southwest’s influence on the MAX.

Airline spokesperson King said the plaintiffs “are regurgitating false and unfounded allegations improperly directed at Southwest and its leadership.”

Pushback to new safety system

The new cockpit alert that triggered Southwest concern and the ploy to install it on a single 737 NG was called the Roll Command Alerting System.

This was developed in response to several accidents, including the Aeroflot-Nord flight 821 crash in Russia in 2008 that killed 88 people.

A safety analysis team at Boeing led by Ludtke, and including engineer Curtis Ewbank who later turned whistleblower, determined that when a 737 banked too hard the autopilot reaction to level the plane could confuse the pilots as to what was happening.

As in the Aeroflot-Nord crash, the pilot could think the autopilot was causing the excessive bank angle instead of trying to counter it, and turn the yoke the opposite way, only serving to increase the plane’s roll and flip the plane upside down.

Developed to address this, RCAS is an aural alert in which a computer-generated voice tells the pilot to “Roll Right” or “Roll Left” as appropriate.

RCAS was installed on the MAX as a direct result of Boeing’s decision that it needed the unrelated MCAS system.

Once MCAS changed the flight control computer software, regulations required additional upgrades to meet the latest safety standards, one of which mandated that the autopilot not cause confusion in the cockpit.

At that point, RCAS then became a certification requirement on the MAX. Boeing suggested to Southwest that it be offered as a retrofit on all the 737 NGs.

Ludtke said that was a reasonable strategy. Rolling out the new RCAS system first on the 737 NG would both make those planes safer and reduce the work necessary to certify the MAX because there would be one less change from the NG.

But Southwest balked at this plan, refusing to put RCAS on its fleet of NGs because of the potential for extra training needed. Later, Southwest came up with the alternative of installing it on one jet only and then deactivating it.

Ironically, Ludtke, who now works for Dynon Avionics in Woodinville, said Southwest’s fear about RCAS requiring more pilot training was completely overblown. For the pilot, all that the system added was the voice directive to help decide which way to roll.

“We avoided any new maneuvers. Pilots didn’t have to do anything except what they already knew to do,” he said. “I designed the risk out of it.”

In the end, Boeing offered RCAS as an option at no cost to all 737 NG operators. Contrary to the worries of managers at Boeing and Southwest, it didn’t trigger any different level of pilot training.

“It drove me crazy that they were worried about differences causing a problem,” Ludtke said.

While RCAS was benign, MCAS was not. It was exactly such worries that led Boeing to minimize to the FAA the importance of MCAS and led Southwest to press Boeing to make sure it never appeared in the flight manuals.