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Private Antitrust Litigation: United States
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Second Circuit Upholds Prosecutorial Discretion in Deferred Prosecution Agreements
In July 2017, the U.S. Court of Appeals for the Second Circuit provided critical guidance concerning the role of federal district courts in overseeing deferred prosecution agreements. By protecting monitor reports from disclosure, the Second Circuit's ruling in U.S. v. HSBC Bank USA increased the divide between the U.S. and European approaches to judicial supervision of criminal settlements: In the U.S., corporate defendants can be more confident that DPAs entered into with the DOJ will not be second-guessed by district courts; in France and the U.K., defendants entering into DPAs should expect to engage in dialogue not only with prosecutors, but also with the judiciary.
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Equitable Mootness Doctrine Persists in Bankruptcy Appeals
Despite court criticism of equitable mootness, the doctrine persists in some form within every circuit that has jurisdiction over bankruptcy appeals. Plan proponents and objectors alike must be aware of its implications on contested plan confirmations.
