Clifford Chance

Second Circuit agrees with the D.C. Circuit in sharply limiting judicial review over DPAS

14 July 2017

In its July 12, 2017 decision in United States v. HSBC Bank USA, N.A., the U.S. Court of Appeals for the Second Circuit in New York (“Second Circuit”) sharply limited the scope of judicial review and supervision over deferred prosecution agreements (“DPAs”). In doing so, the Second Circuit agreed with the April 5, 2016 opinion of the U.S. Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") in United States v. Fokker Services B.V. ("Fokker"), which was the first Circuit Court decision to strictly limit the scope of judicial review of DPAs. Fokker was the first appellate decision to hold that, because of constitutional separation of powers, a U.S. district court may not refuse to approve a DPA because it disagreed with the merits of the DOJ’s charging decisions or the terms of the DPA. As the second appellate decision on this issue, the HSBC opinion extends the reasoning in Fokker beyond the context of initial court approval of a DPA, and clarifies the very limited scope of judicial supervision over a DPA while it remains pending on the court's docket.

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