The message is clear: Absent good cause to do so, district courts should not interfere with, or regularly exercise supervisory power over, DPAs.
The background of the case is as follows: In December 2012, following a four-year investigation, the United States and HSBC entered into a DPA pursuant to which the United States filed a four-count criminal information against HSBC but agreed to defer prosecution for five years in exchange for HSBC’s agreement to pay a cash penalty, to enact certain remedial practices, and to retain an independent monitor to report to the government regarding HSBC’s compliance with the DPA. When the United States and HSBC jointly moved in the district court for a speedy trial waiver,2 Judge Gleeson invoked his supervisory power to review and “approve” the DPA, and in the exercise of that purported authority, he granted his approval on the condition that government submit quarterly, confidential, reports prepared by the monitor to the court. The parties did not challenge this order, and the government proceeded to file the monitor’s reports under seal. In November 2015, a private citizen filed a pro se letter with the district court asking that these reports be unsealed. Based on a determination that these reports were “judicial documents” for which there is a “presumptive right of access,” the district court ordered that the monitor’s reports be publicly...
