The HSBC's Monitor Report

July 13, 2017, 12:30 p.m. | bgarrett

The Second Circuit Court of Appeals yesterday ruled that the district judge, John Gleeson had incorrectly ruled in early 2016 that the thousand-page report of the independent monitor in the HSBC deferred prosecution agreement should be disclosed to the public. I had written an amicus brief in favor of public disclosure of the report, in redacted form, for reasons including that there is a strong public interest in learning more about corporate prosecution agreements and their implementation. The HSBC deferred prosecution agreement is itself available on the Registry. As I separately describe in an article in progress discussing the public interest in corporate settlements, I view the Speedy Trial Act as supporting judicial review of the approval and implementation of deferred prosecution agreements with corporations. The Second Circuit panel discussed the views in my amicus brief and directly disagreed. The panel emphasized that monitorships are themselves not part of a judicial process, requiring judicial intervention, and justifying treatment of the monitorship-related documents as judicial documents that must be disclosed under the First Amendment. That said, the Second Circuit did not rule out that such documents could become relevant to litigation. This Registry does not to date include monitors reports and obtaining information about the monitorships accompanying corporate prosecution agreements, while available on docket sheets for cases that result in convictions, is often quite difficult in cases resolved through deferred prosecution agreements. The Second Circuit also noted that FOIA litigation might provide another avenue for the public to learn more about reports in these important corporate criminal cases. FOIA litigation may test that question in the future and it would not revolve around the question whether the documents satisfy a First Amendment standard.