Brandon Garrett Dennis Kelleher and Reporters Committee Call on Second Circuit to Make HSBC Monitor Report Public

The monitor’s report in the HSBC criminal case is being kept secret at the request of HSBC and the Justice Department.

But that secrecy is now being challenge by a law professor and two public interest groups who are demanding that the report be made public.

Brandon Garrett

Brandon Garrett

HSBC and the Justice Department, both arguing that the report be kept secret, appealed to the Second Circuit.

Brandon Garrett, a professor at the University of Virginia Law School and author of Too Big to Jail: How Prosecutors Compromise with Corporations, Dennis Kelleher of Better Markets, The Reporters Committee for Freedom of the Press and 24 major news organizations — including the New York Times, Dow Jones and CNBC — last week all weighed in in opposition to both the Justice Department and HSBC and in favor of making the monitor’s report public.

Dennis Kelleher

Dennis Kelleher

“The HSBC monitorship is a perfect illustration of the enormous public interest in what corporate monitors do when they supervise deferred prosecution agreements,” Garrett wrote in an amicus brief filed with the Second Circuit. “It is standard practice to release monitor reports in a wide range of civil monitorships and in cases resolved with guilty pleas. The monitor is not an agent of the corporation or of the prosecutor, but rather an independent entity, serving in the public interest, and providing information to the parties as well as the judge.”

“The reports by that monitor, properly redacted, should inform the judge’s decision whether to permit ongoing tolling of the Speedy Trial clock. Moreover, victims have special interests, buttressed by recent legislation, in deferred prosecution agreements. Among the public, other corporations can benefit from best practices and success stories described in monitor reports, as well as from the difficulties monitors encounter. Such lessons ultimately help to prevent corporate crimes in the first instance, which serves perhaps the largest public interest of all.”

“The HSBC case provides an important opportunity to emphasize the public interest served by corporate monitors retained as part of deferred prosecution agreements, and for that reason, the redacted report of this monitor should be made public.”

Dennis Kelleher of Better Markets argued that “criminals’ privacy rights yield somewhat to public safety when courts strike a thoughtful balance.”


“This is as true of a terrorist or narcotrafficker as his accomplices, human and corporate alike. If the possible public airing of a company’s crimes and attempted rehabilitation occasions the sound and fury seen in HSBC’s brief, transparency may prove to be the best tool available for deterring corporate recidivists,” Kelleher wrote. “But this Court need not police Wall Street from 40 Foley any more than the district court flew to London; all that is required is that this Court apply settled law and affirm the district court’s orders that vindicate the public’s right of access to this judicial record while respecting the appellants’ valid confidentiality interests.”

The Reporters Committee and the news organizations argued that “courts have repeatedly affirmed the importance of openness in cases such as this one, involving newsworthy events pertaining to allegations of fraud and economic misconduct.”

“The overwhelming public interest demands that access be allowed, as this case has fueled intense national debate about whether the U.S. government has been too lenient in its prosecution of big banks, like HSBC, that contributed to the worldwide economic crisis.”

“To the extent a compelling interest exists that would justify some degree of confidentiality, any restrictions on public access must be narrowly tailored, and thus should be handled through limited redactions, rather than complete sealing. Even heavily redacted documents that protect privacy interests can nonetheless provide important information that helps the public hold the government accountable and allows it to understand how the courts work.”

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