Over the past several years, there have been many attempts to garner greater transparency of the government’s use of nonprosecution agreements and monitorships. On three occasions the party attempting to obtain a ruling that would reign in the government’s authority over these matters has won at the district court level. In each of these instances, however, the court of appeals reversed.
In January 2011, a reporter filed suit as part of an attempt to obtain access to reports filed by a monitor who oversaw remediation activities at AIG.[1] A D.C. district court, which had previously granted an order of confidentiality protecting the monitor’s reports, granted the reporter’s request for access to the reports.[2] The district court “determined that: (1) the reports were judicial records; (2) the interests of the public weighed in favor of requiring disclosure of the reports; and (3) redacted Monitor Reports must be made available to the public.”[3] The D.C. Circuit Court of Appeals reversed, finding that the reports were “not judicial records subject to the right of access because the district court made no decisions about them or that otherwise relied on them.”[4]
In 2015, a D.C. district court held that it had the power to “choose to accept or reject a deferred prosecution agreement pursuant to its supervisory powers.”[5] The court rejected a deferred prosecution agreement, in part, because it failed “to require the appointment of an independent monitor to verify that the company remained in compliance with the terms of the deferred prosecution agreement.”[6] On appeal, the D.C. Circuit concluded that the district court lacked authority to assess the advisability of certain terms included within the deferred prosecution agreement, including the decision on whether a monitorship was necessary.[7]
In 2016, a E.D.N.Y. district court concluded that it “had authority to approve or deny a deferred prosecution agreement and ordered the public release of the associated enforcement monitor’s reports.”[8] The district court concluded that the monitor reports were judicial documents, making them subject to disclosure.[9] The Second Circuit reversed, holding that “the Monitor’s Report is not a judicial document because it is not now relevant to the performance of the judicial function.”[10] And like the D.C. Circuit, the Second Circuit maintained that the district court misunderstood its appropriate powers based on its supervisory authority.[11]
In these examples, district courts attempted to assert authority to supervise the government’s use of negotiated settlement agreements and the related monitorships that are often entered into as part of those agreements. And in each case, the circuit courts circumvented these attempts, holding that the district court had erred in some way. These cases are just a small part of a much broader debate about the use of monitorships.
Interestingly, a recent case reveals yet another concern regarding the government’s use of monitorships. On March 29, 2018, a D.C. district court judge ruled in favor of a reporter who filed a “public-records suit,” which challenges the government’s authority to keep the names of individuals who were candidates to oversee monitorships secret.[12] The reporter’s counsel argued that “the public has a strong interest in knowing exactly who is involved in the corporate compliance monitor selection process, including both who is nominated for these positions and who is evaluating those candidates.”[13] The government argued that monitors who were not selected would be harmed and embarrassed by the disclosure. Judge Rudolph Contreras disagreed, explaining that “while DOJ has demonstrated that these individuals have more than a de minimis privacy interest in their anonymity, the public interest in learning these individuals’ identities outweighs that privacy interest, and therefore the individuals’ names and firms must be released.”[14]
In past work, I have argued that whether a monitor’s reports should be protected by confidentiality versus disclosed to the public depended, at least in part, on the goals of the monitorship.[15] The notion, however, that the identities of monitorship candidates should be kept protected, at least in my mind, does not seem worth the fight. But the government’s ability to maintain its sole decisionmaking authority over monitorships has been upheld by the circuit courts to date; only time will tell whether the government will continue to prevail on these issues.
Footnotes
[1] SEC v. Am. Int’l Grp., 854 F. Supp. 2d 75, 77–78 (D.D.C. 2012), rev’d, 712 F.3d 1, 5 (D.C. Cir. 2013).
[2] Id. at 81–83.
[3] Veronica Root, The Monitor-“Client” Relationship, 100 Va. L. Rev. 523, 547 (2014).
[4] Am. Int’l Grp., 712 F.3d at 3–4.
[5] Veronica Root, Constraining Monitors, 85 Fordham L. Rev. 2227, 2231 (2017) (citing United States v. Fokker Servs. B.V., 79 F. Supp. 3d 160, 164 (D.D.C. 2015), vacated and remanded, 818 F.3d 733 (D.C. Cir. 2016)).
[6] Id.
[7] Fokker Servs. B.V., 818 F.3d 733.
[8] Root, supra note 5, at 2232.
[9] See United States v. HSBC Bank USA, N.A., No. 12-CR-763, 2016 WL 347670, at *4 (E.D.N.Y. Jan. 28, 2016), rev’d, 863 F.3d 125 (2d Cir. 2017).
[10] United States v. HSBC Bank USA, N.A., 863 F.3d 125 (2017).
[11] Id.
[12] Tokar v. U.S. Dep’t of Justice, No. 16–2410, 2018 WL 1542320 (Mar. 29, 2018) (mem.).
[13] Mike Scarcella, Justice Dept. Must Reveal Names of Unselected Corporate Compliance Monitors, Nat’l L.J. (Apr. 4, 2018).
[14] Tokar, 2018 WL 1542320, at *8.
[15] Veronica Root, Modern-Day Monitorships, 33 Yale J. Reg. 109 (2016).
Veronica Root is an Associate Professor of Law at University of Notre Dame Law School. Professor Root teaches Corporate Compliance & Ethics, Professional Responsibility, and Contracts. Her scholarship on compliance and other matters is available.
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