Second Circuit Holds that U.S. Deferred Prosecution Agreements Are Not Subject to Substantive Judicial Review

On July 12, 2017, the Second Circuit held in United States v. HSBC Bank USA, N.A., __ F.3d __, 2017 WL 2960618 (2d Cir. 2017), that federal courts have no authority, absent impropriety, to supervise the implementation of deferred prosecution agreements (“DPAs”), and that their role with respect to the approval of DPAs is limited to ensuring that the DPA is genuine and not a means of circumventing the requirements of the Speedy Trial Act.

Reinforcing the largely extrajudicial nature of DPAs in the U.S. contrasts with the approach taken in various other countries that have adopted DPA frameworks more recently. For example, in both the U.K. and France, whose legislatures have recently codified a DPA framework, courts are given a substantial role in substantively reviewing and approving proposed DPAs.