US aircraft manufacturer Boeing has asked a US federal court to dismiss a petition filed by the estate of the bankrupt South African airline Comair (South Africa). Comair had sought to sanction Boeing for allegedly deleting a crucial "comfort letter" that supposedly assured the airline of a refund of its deposits for the purchase of Boeing 737-8 Max aircraft. Boeing argues that such a letter never existed and that deleting documents was part of standard corporate procedures.
Boeing's response, filed on May 12, 2025, in the U.S. District Court for Washington in Seattle, refers to Comair's lawsuit, filed in February 2023. In it, Comair's estate is seeking $83 million in damages from Boeing for fraud and breach of contract in connection with the purchase of eight Boeing 737 Max aircraft. Comair had paid Boeing more than $45 million in advance payments for seven Boeing 737-8s and made full payment for one aircraft delivered in February 2019. However, Comair canceled the order following the worldwide, 20-month grounding of the aircraft following two fatal crashes. Boeing refused to refund the advance payments for the seven aircraft that were never delivered.
Boeing denies existence of the “Comfort Letter”
Comair's case relies heavily on the alleged "Comfort Letter," allegedly sent by Boeing employee Rob Faye. The airline's estate claims this letter promised a refundable deposit. However, Boeing disputes the letter's authenticity, citing several irregularities. For example, it took Comair nine months to submit the letter. When it was finally submitted, it was dated January 18, 2024, more than ten years after the date Comair originally claimed to have received it. This inconsistency raised concerns about the letter's validity. Furthermore, the letter itself states that the deposit in the purchase agreement is "non-refundable," contradicting Comair's argument that Boeing promised a refundable deposit. Following a court order for additional documents, Comair's metadata showed that the letter was created in January 2024, not the date Comair claimed. In addition, Comair admitted that it had instructed its e-discovery service provider to overwrite metadata, which raised concerns about the integrity of the document production.
Boeing defends its document retention practices, stating that the company follows a standard data deletion policy. Documents from departing employees are deleted within 30 days unless there is a retention order in anticipation of a legal dispute. When the key Boeing employees involved in Comair's purchase, Ron Dubois and Rob Faye, left the company in 2015 and 2018, respectively, no such order existed because no legal dispute was foreseeable. Boeing argues that there was no obligation to retain the data at the time, especially since Comair did not file its lawsuit until 2023, several years after the employees' departures and the first Max-related accidents. Comair, on the other hand, argues that Boeing should have expected a lawsuit as early as 2012, based on alleged fraud in the development and sale of the Boeing 737 Max. Boeing considers this unreasonable.
Dispute over misleading representations and MCAS disclosure
At the heart of Comair's request for sanctions is the allegation that Boeing made fraudulent misrepresentations. Comair points to a 2013 presentation in which Boeing discussed the integration of the Boeing 737 Max into existing fleets. Boeing defends this statement as forward-looking and speculative, emphasizing that the Max was still under development at the time and that this could not constitute fraudulent misrepresentation.
Additionally, Boeing disputes the allegation that it withheld critical information about the MCAS system from Comair. Boeing asserts that MCAS was disclosed to both the FAA and Comair in 2012 and that, at the time the purchase agreement was signed in 2013, no deficiencies in the system existed that would have required disclosure. Boeing further argues that Comair has not presented evidence that any of Boeing's key employees knew their statements were false, a necessary element to prove fraud under Washington state law. Boeing maintains that Comair has not proven that the employees involved in the communications were aware of the alleged problems they allegedly failed to disclose.
In summary, Boeing argues that Comair's request for sanctions is a strategic move to prevent the OEM from addressing the weaknesses in the fraud allegations. The aircraft manufacturer believes Comair's legal and factual arguments are inadequate and flawed. The case continues.
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