One of the criticisms most often made about Deferred Prosecution Agreements (DPAs) is that there is no judicial scrutiny of the final documents or results by any judicial authority, even though they are filed with federal district courts. The question of whether district courts can object to the terms and conditions of DPAs was settled in the prior decision of US v. Fokker Servs B.V. Unfortunately for those seeking transparency in the process, appeals courts have held that the terms and conditions of DPAs are the sole province of prosecutors and they cannot be objected to or revised by district courts.
There was another turn on this issue recently in a case where a federal district court approved a limited release of a Monitor’s report from the financial institution HSBC. The district court had approved the release of a redacted portion of the Monitor’s report, finding it to be a “judicial document” and therefore subject to the court’s jurisdiction. This limited release, however, was overturned on appeal by both the government and HSBC.
