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On January 5, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced the publication of two new FAQs related to the Countering America’s Adversaries Through Sanctions Act (CAATSA). FAQ 869 states that entities owned 50 percent or more by a person subject to the non-blocking menu-based sanctions in Section 235(a) of CAATSA are not subject to the same non-blocking sanctions. FAQ 870 details the prohibitions of the loan and credit-related sanction described in Section 235(a)(3) of CAATSA. Additionally, OFAC amended FAQ 545 and 546.
Find continuing InfoBytes covered on CAATSA-related sanctions here.
On January 4, the Department of Treasury’s Office of Foreign Assets Control (OFAC) announced an over $8.5 million settlement with a French bank that facilitates trade finance between Europe and the Middle East, North Africa, sub-Saharan Africa, and Asia for 127 apparent violations of Syria-related sanctions. The 127 apparent violations include: (i) 114 internal transfers on behalf of Syrian entities totaling over $1 billion, with 45 of the transfers processed between two clients, one being a sanctioned Syrian entity and 69 of the transfers conducted as a foreign exchange transaction with a sanctioned Syrian customer; and (ii) 13 “back-to-back” letter of credit transactions or other trade finance transactions involving sanctioned Syrian parties, processed through a U.S. bank.
In arriving at the settlement amount, OFAC considered various aggravating factors, including that management had “actual knowledge” of the conduct, and that the bank “conferred substantial economic benefit to U.S.-sanctioned parties,” causing “significant harm to the integrity of U.S. sanctions programs and their associated policy objectives.”
OFAC also considered various mitigating factors, including (i) the majority of the violations occurred in late 2011, after an August 2011 Executive Order significantly expanded U.S. sanctions against Syria; (ii) the bank voluntarily self-disclosed the apparent violations and cooperated with the investigations; and (iii) had a compliance program in place at the time of the apparent violations.
On January 13, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions against two purportedly charitable organizations controlled by the Supreme Leader of Iran, as well as their leaders and subsidiaries, for, among other things, allegedly controlling assets expropriated from political dissidents and religious minorities in order to benefit senior Iranian government officials. The OFAC sanctions were taken pursuant to Executive Order 13876 and follow sanctions issued last November against a conglomerate of roughly 160 holdings in key sectors of Iran’s economy (covered by InfoBytes here). As a result of the sanctions, all property and interests in property belonging to the sanctioned persons subject to U.S. jurisdiction are blocked and must be reported to OFAC. U.S. persons are generally prohibited from engaging in any dealings involving the property or interests in property of blocked or designated persons. OFAC further warned foreign financial institutions that knowingly conducting or facilitating significant transactions for or on behalf of the designated persons could subject them to U.S. correspondent account or payable-through sanctions.
On January 11, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions against seven individuals and four entities that are allegedly part of a Russia-linked foreign influence network associated with a Russian agent previously designated for his attempt to influence the 2020 U.S. presidential election. The individuals and entities associated with the Russian agent are now being similarly designated pursuant to Executive Order 13848 for “having directly or indirectly engaged in, sponsored, concealed, or otherwise been complicit in foreign influence in a United States election.” As a result, all property and interests in property belonging to, or owned by, the identified individuals and entities subject to U.S. jurisdiction are blocked, and “any entities that are owned, directly or indirectly, 50 percent or more by the designated entities, are also blocked.” U.S. persons are generally prohibited from dealing with any property or interests in property of blocked or designated persons.
OFAC announces several actions related to securities transactions involving Chinese military companies
On January 8, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) issued General License (GL) 1—“Authorizing Transactions Involving Securities of Certain Communist Chinese Military Companies.” This license permits transactions and activities otherwise prohibited by Executive Order (E.O.) 13959 involving “publicly traded securities, or any securities that are derivative of, or are designed to provide investment exposure to such securities, of an entity whose name closely matches the name of a Communist Chinese military company identified in the Annex to E.O. 13959” but does not appear on OFAC’s Non-SDN Communist Chinese Military Companies List. Authorization is granted through 9:30 am eastern standard time, January 28. The Non-SDN Communist Chinese Military Companies List was also updated the same day.
OFAC also recently published several new frequently asked questions related to E.O. 13959. Specifically, FAQ 862 states that U.S. persons are not required “to divest their holdings in publicly traded securities (and securities that are derivative of, or are designed to provide investment exposure to, such securities) of the Communist Chinese military companies identified in the Annex to E.O. 13959 by January 11, 2021.” FAQ 863 explains that U.S. persons are permitted to engage in activity related to the following services: “custody, offer for sale, serve as a transfer agent, and trade in covered securities.” Meanwhile, FAQ 864 clarifies that E.O. 13959’s prohibitions apply to “publicly traded securities (or any publicly traded securities that are derivative of, or are designed to provide investment exposure to, such securities)” of any entities with names that exactly or closely match the name of an entity identified in the aforementioned annex. Additionally, FAQ 865 clarifies that “[m]arket intermediaries and other participants may engage in ancillary or intermediary activities that are necessary to effect divestiture” from publicly traded securities of Communist Chinese military companies during relevant wind-down periods or that are otherwise not prohibited under E.O, 13959.
On January 8, the DOJ announced it had entered into a deferred prosecution agreement with a German-based multi-national financial services company (company), in which the company agreed to pay more than $130 million to resolve an investigation into violations of the Foreign Corrupt Practices Act (FCPA) and a separate investigation into a commodities fraud scheme.
According to the DOJ, between 2009 and 2016, the company admitted to knowingly and willfully conspiring to conceal payments to business development consultants (BDC) which were actually bribes to foreign officials in order to obtain business. The company admitted that employees agreed to “misrepresent the purpose of payments to BDCs and falsely characterize[d] payments to others as payments to BDCs” in violation of the FCPA’s books, records, and accounts provisions. Additionally, company employees failed to implement adequate internal accounting controls in violation of the FCPA by, among other things, (i) failing to conduct meaningful due diligence regarding the BDCs; (ii) paying BDCs who were not under contract with the company at the time; and (iii) paying BDCs without adequate documentation of the services purportedly performed.
Additionally, the DOJ stated that between 2008 and 2013, the company’s precious metal traders engaged in a scheme to defraud other traders on the New York Mercantile Exchange Inc. and Commodity Exchange Inc. by placing orders to buy and sell precious metals futures contracts with the intent to cancel those orders before execution. The company previously settled with the CFTC in January 2018 for substantially the same conduct (covered by InfoBytes here).
Of the total $130 million penalty, the company will pay a criminal penalty of nearly $80 million to the DOJ in relation to the FCPA violations, and will pay $43 million in disgorgement and prejudgment interest to the SEC to settle allegations that the company violated the FCPA’s books and records and internal accounting controls provisions. The company will pay over $7.5 million in relation to the commodities scheme, for criminal disgorgement, victim compensation, and a criminal penalty. The DOJ noted that the company received full credit for cooperation with the investigations and for significant remediation.
On January 4, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) issued Venezuela-related General License (GL) 31A and an amended related frequently asked question. GL 31A authorizes certain transactions and activities involving the IV Venezuelan National Assembly, the Interim President of Venezuela, and certain other persons that would otherwise be prohibited by Executive Order (E.O.) 13884, as incorporated into the Venezuela Sanctions Regulations. (See previous InfoBytes coverage here.)
Additionally, earlier on December 30, OFAC announced sanctions pursuant to E.O. 13692 against two Venezuelan government officials who presided over the trials of six U.S. persons in Venezuela. According to OFAC, the six executives’ trials “were based on politically motivated charges and marred by a lack of fair trial guarantees.” As a result, all property and interests in property belonging to the identified individuals subject to U.S. jurisdiction are blocked, and “any entities that are owned, directly or indirectly, 50 percent or more by the designated persons are also blocked.” U.S. persons are generally prohibited from engaging in any dealings involving the property or interests in property of blocked or designated persons.
On December 28, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced a $653,347 settlement with a Saudi Arabian bank to resolve 13 apparent violations of the Sudanese Sanctions Regulations, or section 2(b) of Executive Order (E.O.) 13582, which prohibits certain transactions with respect to Syria. According to OFAC’s web notice, between 2011 and 2014, the bank processed—directly or indirectly—13 U.S. dollar (USD) transactions totaling more than $5.9 million “to or through the United States in circumstances where a benefit of [the bank’s] service was received by Sudanese or Syrian counterparties, or that involved goods originating in or transiting through Sudan or Syria.” OFAC noted that the apparent violations began after the bank had implemented more robust compliance measures, “including those relating to sanctions screening and OFAC sanctions compliance.”
In arriving at the settlement amount, OFAC considered various aggravating factors, including that the bank “conferred substantial economic benefit to U.S.-sanctioned parties,” causing “significant harm to the integrity of U.S. sanctions programs and their associated policy objectives.”
OFAC also considered various mitigating factors, including that the bank (i) did not willfully intend to violate U.S. sanctions law or recklessly disregard its sanctions obligations; (ii) cooperated with the investigation and signed a tolling agreement; and (iii) has undertaken remedial measures and has enhanced its compliance controls and internal policies, including by requiring the screening of all payments against international sanctions lists and prohibiting the opening of USD accounts for any Sudanese customers or financial institutions.
On January 8, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions against an Iraqi militia leader for his alleged connection to serious human rights abuses. According to OFAC, the sanctions are taken pursuant to Executive Order 13818, which implements the Global Magnitsky Human Rights Accountability Act and “targets perpetrators of serious human rights abuse and corruption.” As a result of the sanctions, all of the militia leader’s property and interests in property that are in the United States, as well as any entities that are owned 50 percent or more by him are blocked and must be reported to OFAC. Additionally, OFAC regulations “generally prohibit” U.S. persons from participating in financial transactions with the individual and blocked entities.
On January 1, the U.S. Senate voted to override President Trump’s veto of the National Defense Authorization Act (NDAA) for Fiscal Year 2021, following a similar vote in the House a few days prior. As previously covered by InfoBytes, the NDAA includes significant changes to the Bank Secrecy Act (BSA) and anti-money laundering (AML) laws, such as:
- Establishing federal disclosure requirements of beneficial ownership information, including a requirement that reporting companies submit, at the time of formation and within a year of any change, their beneficial owner(s) to a “secure, nonpublic database at FinCEN”;
- Expanding the declaration of purpose of the BSA and establishing national examinations and supervision priorities;
- Requiring streamlined, real-time reporting of Suspicious Activity Reports;
- Establishing a Subcommittee on Innovation and Technology within the Bank Secrecy Act Advisory Group to encourage and support technological innovation in the area of AML and countering the financing of terrorism and proliferation (CFT);
- Expanding the definition of financial institution under the BSA to include dealers in antiquities;
- Requiring federal agencies to study the facilitation of money laundering and the financing of terrorism through the trade of works of art; and
- Including digital currency in AML-CFT enforcement by, among other things, expanding the definition of financial institution under the BSA to include businesses engaged in the transmission of “currency, funds or value that substitutes for currency or funds.”
- Steven R. vonBerg to discuss "Non-QM market overview and the impact & key details of the sunrise of seasoned non-QM/extension of the patch" at the IMN Non-QM Virtual Conference
- Buckley Webcast: Looking ahead — Tighter scrutiny of deposit and payment practices
- Jeffrey P. Naimon to discuss "What have you bought non-QM post-Covid?" at the IMN Non-QM Virtual Conference
- Garylene D. Javier to moderate "Innovation in an evolving privacy landscape" at the American Bar Association Business Law Section Consumer Financial Services Committee Winter Meeting