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Financial Services Law Insights and Observations

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  • FDIC releases January enforcement actions

    Federal Issues

    On February 28, the FDIC released a list of administrative enforcement actions taken against banks and individuals in January. The FDIC issued 18 orders, which “consisted of two consent orders; one civil money penalty; three removal and prohibition orders; eight section 19 orders; three terminations of consent orders and cease and desist orders; and one order terminating prompt corrective action.” Among the actions was a civil money penalty assessed against a Montana-based bank for allegedly violating the Flood Disaster Protection Act by failing to obtain adequate flood insurance coverage on certain loans and failing to provide borrowers with notice of the availability of federal disaster relief assistance. Separately, in a joint action with the California Department of Business Oversight, the agency issued a consent order against a California-based bank related to alleged weaknesses in its Bank Secrecy Act and anti-money laundering (BSA/AML) compliance program. Among other things, the bank was ordered to (i) retain qualified management to ensure compliance with applicable laws and regulations; (ii) “correct all violations of law to the extent possible”; (iii) implement a revised, written BSA compliance program to address BSA/AML deficiencies; (iv) establish a written Customer Due Diligence Program to ensure the reasonable detection of suspicious activity and the identification of higher-risk customers; (v) adopt a process for reviewing transaction monitoring alerts; and (vi) “ensure that suspicious activity monitoring system is independently validated.”

    Federal Issues FDIC Enforcement Bank Secrecy Act Anti-Money Laundering Cease and Desist Customer Due Diligence FDI Act Civil Money Penalties Flood Disaster Protection Act CDBO Flood Insurance

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  • FDIC seeks to codify policy statement on bank employment standards

    Agency Rule-Making & Guidance

    On November 19, the FDIC issued a proposed rule, which would formalize the agency’s Federal Deposit Insurance Act (FDI Act) Section 19 policy statement covering individuals seeking to work in the banking industry who have been convicted of certain crimes. In general, Section 19 of the FDI Act prohibits, without the prior written consent of the FDIC, any person who has been convicted of any criminal offense involving dishonesty, breach of trust, or money laundering—or who has entered into a pretrial diversion or similar program in connection with such an offense—from participating in the banking industry. As previously covered by InfoBytes, in August 2018, the FDIC updated the statement of policy to expand the criteria of de minimis offenses for which the FDIC will not require the filing of an application and (i) clarify when an expungement is considered complete for Section 19 purposes; (ii) recognize that convictions set aside based on procedural or substantive error should not be considered convictions under Section 19; and (iii) adjust the definition of “jail time” to not include “those on probation or parole who may be restricted to a particular jurisdiction.”

    The proposal not only seeks to codify the policy statement but requests public comment on all aspects of the policy. According to Chairman McWilliams, the FDIC is particularly interested in “whether and how the FDIC should expand the criteria for what constitutes a de minimis offense.” Comments are due 60 days after publication in the Federal Register.

    Agency Rule-Making & Guidance FDIC FDI Act Section 19

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  • Fed cites control deficiencies in $1 million fine for BHC

    Federal Issues

    On February 28, the Federal Reserve Board announced an enforcement action against a bank holding company for alleged internal control deficiencies, resulting in unsafe and unsound practices in violation of the Federal Deposit Insurance Act that caused a financial loss to the company. The consent order acknowledges that the company has since addressed the deficiencies that contributed to the loss and implemented additional improvements in its internal controls and audit programs. The Federal Reserve Board assessed a civil money penalty of $1,012,500.  

    Federal Issues Federal Reserve Enforcement Civil Money Penalties Compliance Bank Holding Companies FDI Act

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  • 8th Circuit: Bank that discharged employees as a “business necessity” did not violate Section 19 of the FDI Act

    Courts

    On August 29, the U.S. Court of Appeals for the 8th Circuit affirmed a lower court’s order granting summary judgment in favor of a national bank, holding that the bank did not violate the Federal Deposit Insurance Act’s Section 19 employment ban when it discharged African-American and Latino employees who previously had been convicted of crimes involving dishonesty. Under Section 19, individuals who have been convicted of a crime “involving dishonesty or a breach of trust” cannot be employed by a financial institution covered by federal deposit insurance. A bank that violates the ban is subject to criminal penalties, although an individual may request a waiver from the FDIC. According to the order, the bank screened all home mortgage division employees in 2012 and discharged anyone who was found to have a conviction without providing the option to apply for a waiver. The class members—who brought discrimination claims based on a disparate impact theory—complained that the bank’s automatic discharge of all affected employees impacted African Americans and Latinos at a higher rate than white employees, and contended that the bank could have prevented this result with an alternative such as giving employees “advance notice of the need for a Section 19 discharge, granting leave time to seek a waiver, and/or sponsoring a waiver.” The appellate court relied on data showing that approximately half of waiver applications are approved by the FDIC, and class members presented no data to show that sponsored waivers would ameliorate any racial disparity. In addition, the appellate court held that the bank’s decision to comply with the statute was a business necessity in light of the possibility of a $1 million-per-day fine “even if [the bank’s] policy of summarily terminating or not hiring any Section 19 disqualified individual creates a disparate impact.” Moreover, the appellate court stated that the class members “failed to establish a prima facie case of disparate impact,” and did not present a less discriminatory alternative that would serve the bank’s interests in compliance with the statute.

    Courts Appellate Eighth Circuit FDI Act Disparate Impact

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  • Federal Reserve Board fines national bank $8.6 million for legacy mortgage documentation deficiencies

    Federal Issues

    On August 10, the Federal Reserve Board (Board) announced a settlement with a national bank for legacy mortgage servicing issues related to the improper preparation and notarization of lost note affidavits. Under the consent order, the Board assessed an $8.6 million civil money penalty for alleged safety and soundness violations under Section 8 of the Federal Deposit Insurance Act. The Board emphasized that the bank’s servicing subsidiary replaced the documents with properly executed and notarized affidavits and, as of September 2017, the subsidiary no longer participated in the mortgage servicing business. The Board also announced the termination, due to “sustainable improvements,” of a 2011 enforcement action against the national bank and its subsidiary related to residential mortgage loan servicing.

    Federal Issues Enforcement Civil Money Penalties Mortgages FDI Act

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  • FDIC issues updated Section 19 policy statement

    Federal Issues

    On August 3, the FDIC published in the Federal Register an updated statement of policy pursuant to Section 19 of the Federal Deposit Insurance Act (FDI Act) concerning participation in banking of a person convicted of a crime of dishonesty, breach of trust, money laundering or who has entered a pretrial diversion program in connection with the prosecution of such offenses. In addition to technical and clarifying changes, the final policy statement expands the criteria of de minimis offenses for which the FDIC will not require the filing of an application, and in response to comments received on the January proposal, (i) clarifies when an expungement is considered complete for Section 19 purposes; (ii) clearly recognizes that convictions set aside based on procedural or substantive error should not be considered convictions under Section 19; and (iii) adjusts the definition of “jail time” to not include “those on probation or parole who may be restricted to a particular jurisdiction.”

    Federal Issues FDIC FDI Act Section 19 Federal Register

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