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Case 22-1426, Document 87, 07/27/2023, 3548202, Page9 of 35

F.2d 603 (2nd Cir. 1979) (standing for the proposition that there can be a third-party beneficiary of a plea bargain of another). The NPA, together with the Justice Office of Professional Responsibility (hereinafter, “OPR”), establish that the immunity given Ms. Maxwell precluded the United States from prosecuting her in the Southern District of New York or elsewhere.

A. Ms. Maxwell has Standing to Enforce the Non-Prosecution Agreement as a Third-Party Beneficiary.

The District Court correctly found that Ms. Maxwell is a third-party beneficiary of the NPA, and, for that reason, has standing to enforce it.¹ As the Seventh Circuit has observed, plea agreements, like all “ordinary contracts,” may be enforced by third parties “when the original parties intended the contract to directly benefit them as third parties.” U.S. v. Andreas, 216 F.3d 645, 663 (7th Cir. 2000) (indicating that third-party beneficiary standing applies to “[i]mmunity agreements” and “plea bargains,” but concluding on the facts presented, that defendants were not third-party beneficiaries). No circuit has held otherwise, and this Court should not create a split on this issue. The Seventh Circuit has been joined by numerous district courts in holding that an agreement promising immunity to a third party may be enforced by that party if that party is later prosecuted in breach of the agreement.

¹ In its brief, the Government fails to concede that the Court found that Maxwell was in fact a third-party beneficiary of the NPA.

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