HSBC will soon be forced to expose its dirty laundry to the world. A federal judge this week ruled that the British banking giant must make public a 1,000-page independent monitor’s report that outlines the company’s challenges in reforming itself, three years after settling with U.S. prosecutors over charges that it had let clients launder money for terrorist regimes and drug cartels.
The order, another turn in the long-running saga of HSBC’s legal difficulties, sheds light on the Justice Department’s at-times contested role in prosecuting corporate wrongdoers. Lawyers for the government had previously argued, along with HSBC, that the reportedly damaging report should remain under wraps given the confidential nature of its contents. The judge disagreed.
“HSBC and DOJ [U.S. Department of Justice] do not want the public to have access to the report,” wrote District Judge John Gleeson of the Eastern District Court of New York. “I find that the report is a judicial record, and that the public has a First Amendment right to see the report.”
In recent years, the Obama Justice Department has come under criticism for its handling of corporate crime and reliance on settlement deals, called “deferred prosecution agreements,” such as the one it entered into with HSBC. Under these deals, a company generally admits wrongdoing and agrees to pay a hefty fine, and may be required to hire an independent monitor to ensure it’s cooperating with the agreement.
But critics charge the agreements lack transparency about whether a company is moving towards compliance, and allow the individual executives responsible for wrongdoing to evade punishment. Individuals were prosecuted in only 33 percent of the deferred prosecution agreements that banks entered into from 2001 through 2014, according to Brandon Garrett, a University of Virginia law professor who tracks the Justice Department’s use of settlement agreements.
“This is an important ruling. So much of what these corporate monitors do remains totally out of the public eye,” Garrett told International Business Times in an email. “It is only because of Gleeson’s supervision that the public knows so much about the apparently slow progress HSBC has made towards compliance.”
The Justice Department reached its $1.9 billion settlement agreement with HSBC under U.S. Attorney General Loretta Lynch, who was previously U.S. attorney for the same Eastern District of New York. At the time, Gleeson made clear he found the agreement too lenient and wavered over signing it. The selection of seasoned litigator Michael Cherkasky as HSBC’s monitor was seen as a crucial step in winning Gleeson’s approval.
Cherkasky’s first annual report, filed with the court in April, found that although the bank had made progress, it had been “too slow.” According to a six-page summary of the lengthy report — all the Justice Department said it was obliged to provide to the court — senior bank managers pushed back on the monitor’s efforts, displaying “combativeness, overblown complaints about factual inaccuracy and a basic lack of cooperativeness.” HSBC reassigned one of the managers in question.
The New York Times subsequently reported that Cherkasky’s review of HSBC’s movement toward compliance may have been more damning than the summary released by the Justice Department, citing “people briefed on the matter.”
Gleeson seemed to agree. His court order on Thursday came after a substantial back-and-forth among the court, HSBC and the Justice Department. In May 2015, Gleeson ordered the government to file a copy of the monitor’s full report with his court. In a letter the following month, attorneys for HSBC argued that their cooperation in the agreement hinged, in part, on promises that the internal reports would remain under seal.
“HSBC knew when it agreed to the terms of the DPA that, if the monitorship was to function effectively, it would be necessary to provide the monitor with access to the kinds of information that HSBC would otherwise keep strictly confidential,” the company’s lawyers wrote.
The Justice Department’s original December 2012 agreement with HSBC contained assurances that the monitor’s reports would be kept secret — asserting that their disclosure could “discourage cooperation, impede pending or potential government investigations and thus undermine the objectives of the monitorship.”
The government’s lawyers have argued that the annual compliance reports were intended for the use of regulators, not as public court documents. Disclosure, they said, would also endanger “the viability of other current and future monitorships,” while giving would-be criminals a road map to exploiting HSBC’s anti-money-laundering weaknesses.
Gleeson acknowledged those arguments on Thursday, but ruled that public-interest concerns outweigh those expressed by HSBC and the Justice Department. “My oversight of the DPA and the open criminal case goes to the heart of the public’s right of access,” he wrote. “Federal courts must ‘have a measure of accountability,’ and the public must have ‘confidence in the administration of justice.’”