New York Federal Court Holds Courts Possess Power To Accept Or Reject DPA


On July 1, in the U.S. District Court for the Eastern District of New York held that it has the power to accept or reject a deferred prosecution agreement (DPA), and to retain supervisory power over the implementation of a DPA. U.S. v. HSBC Bank USA, N.A., No. 12-00763, 2013 WL 3306161 (E.D.N.Y. Jul, 1, 2013). In 2012, a major international bank holding company announced agreements with U.S. law enforcement authorities and federal bank regulators to end investigations into alleged inadequate compliance with anti-money laundering and sanctions laws by the holding company and its U.S. subsidiaries. As part of the resolution, the companies entered into a DPA, which the parties filed with the court and asked the court hold the case in abeyance to exclude part of the DPA from the federal Speedy Trial Act. In reviewing the request for abeyance, the court held that it has broader supervisory power to approve or reject the agreement in its entirety and that such power extends to implementation of the agreement. The court approved the DPA, but retained authority to monitor its execution and implementation. The court explained that “by placing a criminal matter on the docket of a federal court, the parties have subjected their DPA to the legitimate exercise of that court’s authority.” Under its supervisory powers holding, which the court characterized as “novel,” the court could later move to modify the agreement. More broadly, the court’s assessment of its supervisory power potentially calls into question the certainty and finality of DPAs, which could impact the use of that prosecutorial tool.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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