White Collar: Second Circuit Limits Judicial Oversight Of Deferred Prosecution Agreements

The Second Circuit held last month that an independent monitor report is not a "judicial document" and, among other things, largely curtailed district courts' oversight of deferred prosecution agreements. United States v. HSBC Bank USA, N.A., No. 16‐308(L) (2d Cir. July 12, 2017). The case arose from a five-year deferred prosecution agreement (DPA) that the government had entered into with HSBC Bank, USA, N.A. in 2012.

The DPA in question called for the appointment of an independent monitor to prepare periodic reports on HSBC's compliance with the DPA itself and with anti-money laundering laws. When the parties filed the DPA with the court and sought to exclude time under the Speedy Trial Act, the district court concluded that it had "authority to approve or reject the DPA pursuant to its supervisory power." The district court also conditioned its approval of the DPA on its own monitoring of the DPA's implementation. In November 2015, the district court received