Bank Secrecy Act (BSA)

Banks stand to advance the fight against human trafficking and modern slavery by reporting suspicious transactions and other financial activity that raise red flags, according to a report on March 15, 2017. Published by the Royal United Services Institute (RUSI), a renowned British think tank, the report notes that banks and other financial service providers are increasingly applying their transaction monitoring and data analyses to hold those who exploit people for sex and labor accountable.

Today, nearly 46 million people are living as slaves or indentured servants, according to the 2016 Global Slavery Index by rights group Walk Free Foundation. As the trafficking of people is heavily dependent upon the movement of money, the misuse of banks and intermediaries are a key component of keeping the industry afloat. In particular, these institutions not only process payments and serve as the final stop for illicit proceeds, but also act as a conduit for financing the trafficking supply chain itself. For example, money services businesses are exploited to pay transporters, prepaid cards are used to move funds across borders, and individual bank accounts are opened to funnel profits.

Some financial institutions, aware of their misuse, are teaming with regulators and law enforcement alike to seek out ways to stem the tide. In fact, some institutions have looked beyond their standard controls to implement techniques specifically tailored to detect human trafficking. The U.S. Department of Homeland Security’s Project STAMP – created to promote the enforcement of the BSA and the money laundering statutes – aims to shut down human trafficking organizations by identifying and seizing assets and proceeds derived or used in support thereof. Similarly, FinCEN has published guidance to financial institutions that, inter alia, describes a number of unique red flags, such as atypical remittance patterns and frequent payments to online escort services for “advertising.”

As RUSI’s report makes clear, preexisting AML/CFT controls present a potentially highly effective means of identifying and providing evidence to hold accountable those who provide and solicit human trafficking.  Given the industry’s heavy dependence on financial institutions, together with these institutions’ preexisting AML/CFT programs and vast amounts of financial data on hand, banks and intermediaries alike are in a unique position to make a meaningful impact.

Employers increasingly face the difficult scenario of employees who misappropriate company data in the pursuit of whistleblower claims alleging misconduct by the employer. Such cases can present a complex mix of regulatory, cybersecurity, and employment issues. These issues were front and center in a recent whistleblower case pitting a bank against its former internal auditor, who engaged in computer-facilitated misappropriation of the bank’s confidential information allegedly to support whistleblower conduct.Whistle

The U.S. District Court for the Southern District of California recently declined to summarily adjudicate whether the employee’s confidentiality agreement precluded any whistleblower affirmative defense based on the employee’s alleged violation of computer fraud, contract, and tort laws. The whistleblower laws in question included the Bank Secrecy Act, Sarbanes-Oxley, Dodd-Frank, and the California Labor Code.

In Erhart v. Bofi Holding, plaintiff Charles Matthew Erhart filed a whistleblower complaint against his employer, Bank of the Internet (BofI), alleging BofI retaliated against him for reporting unlawful conduct to the government. BofI, in turn, filed a complaint, alleging that Erhart breached his employee confidentiality agreement by misappropriating confidential data relating to his employer and its clients and disseminating that data to the government, family members, and the national press.

Erhart illustrates the complex and practical problems faced by employers dealing with employees who engage in conduct that would otherwise constitute computer fraud, intellectual property theft, breaches of employment-related agreements and policies, and related tort claims under the mantle of “whistleblower.” A key issue in the case was whether Erhart would be entitled to pursue his retaliation claims before a jury or would be precluded from doing so as a matter of law given his computer-facilitated theft of confidential information. Continue Reading Bank Whistleblower Suits Highlight Limits of Employee Confidentiality Agreements

The Western Union Company (“Western Union”) entered into a deferred prosecution agreement (“DPA”) on January 19th with the Department of Justice, based on alleged willful failures to maintain an effective AML program and the aiding and abetting of wire fraud.  The DPA involved a combined $586 million monetary penalty and also involved related civil enforcement actions by the Federal Trade Commission and FinCEN.  The agreement has been well-publicized and its details will not be repeated here; very generally, the DPA rests on allegations involving conduct stretching from 2004 through 2012 and an overall failure by Western Union to detect and prevent a kaleidoscope of illicit behavior by customers, from structured transactions to an international consumer fraud scheme to potential drug distribution.  To be sure, this is a significant agreement – but it echoes the same general sort of facts and allegations which have become almost standard in large AML enforcement actions. However, the Western Union action contains at least one interesting wrinkle. Continue Reading The Western Union DPA and the Need to Investigate One’s Own

In part two of our review of the 2016 developments in Anti-Money Laundering (AML), the Bank Secrecy Act, (BSA), the criminal money laundering statutes, forfeiture, and related issues, we discuss four additional key topics:

You can read more about these topics areas in the blogs that follow.  Click here to read the full article 2016 Year in Review: Money Laundering (Part Two).  Click here if you missed Part One of our 2016 year in review.

Big Stock Photo_805445On August 30, 2016, the U.S. Department of the Treasury and four U.S. federal banking regulators sought to correct a problem—at least in part one of their own creation—by issuing a “Joint Fact Sheet on Foreign Correspondent Banking” to clarify enforcement priorities regarding AML/BSA and countering the financing of terrorism (CFT) regimes. The Fact Sheet highlighted the importance of maintaining correspondent banking relationships with foreign financial institutions and the value of the free flow of monies within and across global economies.

Continue Reading 2016 Year End Review: Banking Regulators Try to Ease Concerns Over Aggressive AML/BSA Enforcement

The federal courts continued in 2016 to produce a stream of cases pertaining to money laundering. We focus on three below because they involve analysis of basic issues that frequently arise in money laundering litigation.

Justitia, a monument in Frankfurt, Germany

The first case tests the money laundering statute’s reach in prosecution of an alleged international fraud perpetrated primarily outside of the United States—an increasingly common fact pattern as cross-border cases proliferate and the U.S. Department of Justice (DOJ) prosecutes more conduct occurring largely overseas. The other two cases involve defense victories that focus on critical issues of mental state: the question of specific intent under the BSA, and the question, under the money laundering statutes, of knowledge by a third party that a transaction involved proceeds of another person’s crime. The issue of third-party knowledge is often crucial in prosecutions of professionals. Continue Reading 2016 Year End Review: Money Laundering Opinions of Note

House and cashThe field of forfeiture saw significant action in 2016. The IRS offered to return forfeited funds used in structuring, but Congress still may clip its ability to forfeit such funds. Meanwhile, DOJ renewed a controversial program that incentivizes local law enforcement to aggressively pursue forfeiture. It filed a major forfeiture action which reminds law firms of their own need to vet the source of funds flowing into firm bank accounts. Finally, the U.S. Supreme Court made it clear that “clean” funds cannot be restrained pretrial when a defendant needs those funds for his criminal defense, even if the government wants to restrain the money in order to pay for forfeiture or restitution if the defendant is convicted. Continue Reading 2016 Year in Review: Forfeiture

2016 was a busy year for developments in Anti-Money Laundering (AML), the Bank Secrecy Act (BSA), the criminal money laundering statutes, forfeiture, and related issues. In part one of our year-in-review, we discuss six key topics:

  • The Panama Papers and its spotlight on the United States as a potential money laundering haven

You can read more about these topics areas in the blogs that follow. Click here to read the full article 2016 Year in Review: Money Laundering (Part One).

As part of the U.S. Treasury Department’s ongoing efforts to prevent possible bad actors from using U.S. companies to conceal money laundering, tax evasion, and other illicit financial activities, FinCEN issued, on May 11, 2016, a final rule to strengthen the customer due diligence (CDD) efforts of “covered financial institutions.” This was one of the most important, if not the most important, AML developments in 2016. Covered institutions have until May 11, 2018, to comply with the new CDD rule, which requires covered financial institutions, including banks, federally insured credit unions, broker-dealers, mutual funds, futures commission merchants, and introducing brokers in commodities, to identify the natural persons that own and control legal entity customers—the entities’ “beneficial owners.”

Continue Reading 2016 Year in Review: FinCEN Finalizes Regulations Regarding Customer Due Diligence

The New York State Department of Financial Services (NYDFS) emerged in 2016 as a leader in AML enforcement by issuing new and detailed AML regulations with the unique requirement of an individual certification of compliance.

On June 30, 2016, the NYDFS finalized a new regulation setting forth rigorous standards for monitoring and filtering programs to monitor transactions for potential AML violations and block transactions prohibited by the Office of Foreign Assets Control (OFAC). The regulation, which became effective on January 1, 2017, applies to all banks, trust companies, private bankers, savings banks, and savings and loan associations chartered under the New York Banking Law (NYBL); branches and agencies of foreign banking corporations licensed under the NYBL to conduct banking operations in New York; and check cashers and money transmitters licensed under the NYBL (collectively, the Regulated Institutions). The NYDFS regulation is instructive to all financial institutions as a benchmark for future standards potentially to be issued by other states and/or federal regulators.

Continue Reading 2016 Year in Review: NYDFS Finalizes Broad AML Regulations