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On January 27, SEC Chairman Mary Jo White outlined in remarks to the 41st Annual Securities Regulation Institute her agency’s 2014 agenda, promising “incredibly active enforcement” across “the entire industry spectrum.” Within that enforcement push, the Commission will pay particular attention to financial fraud, including by working to complete its major investigations stemming from the financial crisis while ramping up investigations by its new Financial Reporting and Accounting Task Force. As part of the broader enforcement agenda, the SEC will continue its new stance on seeking admissions from alleged wrongdoers, a policy change that Ms. White first announced publicly last June. Chairman White cited public and media pressure as part of the reason for the change, and explained that “admissions can achieve a greater measure of public accountability.” Outside of the agency’s enforcement plans, Chairman White highlighted numerous other SEC initiatives, including finalizing new disclosure requirements for asset-backed securities. The Commission also will continue to implement the National Examination Program’s new trading data analytics tool—just one example of the “transformative changes at the SEC in 2014” necessary to keep up with evolving market technology.
On January 27, during a speech to certified AML compliance specialists, the U.S. Attorney for the Southern District of New York, Preet Bharara, stressed BSA/AML enforcement as a top priority for his office. Mr. Bharara focused on three issues: (i) the importance of holding institutions accountable for misconduct; (ii) the need for law enforcement to stay ahead of rapidly changing markets and technologies; and (iii) organizational changes within his office to bring the needed resources to bear. With regard to enforcement against institutions, the U.S. Attorney rebutted arguments that prosecutors should focus on individuals and described the full spectrum of tools available to hold institutions accountable—ranging from pursuing criminal prosecutions to seeking monetary fines and restitution through civil actions. He stressed the need to employ the full range of tools against institutions, especially in the AML context where many of the anti-money laundering laws and BSA provisions are specifically directed at institutions. The U.S. Attorney also announced that his office’s Criminal Division’s Asset Forfeiture Unit will be renamed the Money Laundering and Asset Forfeiture Unit to reflect his office’s commitment to dedicate more physical and human resources to addressing money laundering crimes and BSA violations.
On January 27, the U.S. Attorney for the Southern District of New York announced the unsealing of criminal charges against an underground Bitcoin exchanger and the CEO of a Bitcoin exchange company registered as a money services business for allegedly engaging in a scheme to sell over $1 million in Bitcoins to users of “Silk Road,” the website that is said to have enabled its users to buy and sell illegal drugs anonymously and beyond the reach of law enforcement. Each defendant is charged with conspiring to commit money laundering and operating an unlicensed money transmitting business. The CEO of the exchange company is also charged with willfully failing to file any suspicious activity report regarding the exchanger’s illegal transactions, in violation of the Bank Secrecy Act. The U.S. Attorney stated that the charges demonstrate his office’s intention and ability to “aggressively pursue those who would coopt new forms of currency for illicit purposes.” The complaint alleges that over a nearly two-year period, the exchanger ran an underground Bitcoin exchange on the Silk Road website, selling Bitcoins to users seeking to buy illegal drugs on the site. Upon receiving orders for Bitcoins from Silk Road users, he allegedly filled the orders through a company based in New York, which was designed to charge customers for exchanging cash for Bitcoins anonymously. The exchanger allegedly obtained Bitcoins with the company’s assistance, and then sold the Bitcoins to Silk Road users at a markup. The exchange company CEO, who was also its Compliance Officer, allegedly was aware that Silk Road was a drug-trafficking website, and also knew that the exchanger was operating a Bitcoin exchange service for Silk Road users. The government alleges that the CEO knowingly facilitated the exchanger’s business, personally processed orders, gave discounts on high-volume transactions, and failed to file a single suspicious activity report.
On January 17, New York Attorney General (AG) Eric Schneiderman announced that Gary Fishman will lead a new Criminal Enforcement and Financial Crimes Bureau. The bureau, which expands the Attorney General’s former Criminal Prosecutions Bureau, will focus on combating complex financial crimes in (i) bank and financial institution fraud; (ii) securities and investment fraud; (iii) money laundering; (iv) tax crimes; (v) mortgage fraud; (vi) investment schemes; and (vii) insurance fraud. The bureau also intends to form a Financial Intelligence Section that will review banking, regulatory, law enforcement, and open-source data to identify trends that will enhance the investigation and prosecution of financial crime schemes. Mr. Fishman has served as Senior Investigative Counsel since joining the AG’s office in 2012. Prior to joining the AG’s office, Mr. Fishman was the Managing Director of Investigative Group International and before that served as a New York County District Attorney’s Office prosecutor for more than 15 years, including as the Principal Deputy Chief of the Major Economic Crimes Bureau in the Investigation Division.
On November 18, at an American Bar Association/American Bankers Association conference on the Bank Secrecy Act/Anti-Money Laundering (BSA/AML), Deputy Attorney General (Deputy AG) James Cole challenged financial institutions’ compliance efforts and outlined the DOJ’s financial crimes enforcement approach. Noting that compliance within financial institutions is of particular concern to the DOJ, based in part on recent cases of “serious criminal conduct by bank employees,” the nation’s second highest ranking law enforcement official detailed DOJ’s approach to investigating and deciding in what manner to pursue potential violations. The Deputy AG included among his examples of serious misconduct recent BSA/AML, RMBS, mortgage False Claims Act, and LIBOR cases. He explained that the DOJ is particularly concerned about incentives that encourage excessive risk taking, and stated that “too many bank employees and supervisors value coming as close to the line as possible, or even crossing the line, as being ‘competitive’ or ‘aggressive.’”
Deputy AG Cole stated that the DOJ’s decisions about bringing criminal prosecutions are informed by the Principles of Federal Prosecution of Business Organizations, which include, among other factors: (i) the nature and seriousness of the offense; (ii) the pervasiveness of the wrongdoing within the corporation, including the complicity of corporate management; (iii) the corporation’s history of similar misconduct, including prior criminal, civil, and regulatory actions against it; and (iv) the adequacy of a corporation’s pre-existing compliance program. He added that the DOJ “look[s] hard at the messages that bank management and supervisors are actually giving to employees in the context of their day-to-day work.” Specifically, the DOJ (i) reviews chats, emails, and recorded phone calls; (ii) talks to witnesses to assess management’s compliance message; and (iii) examines the “incentives that banks provide their employees to either cross the line, or to exhibit compliant behavior.”
The Deputy AG stressed that “[i]f a financial institution wants to encourage compliance – if its values are not skewed towards making money at all costs – then that message must be conveyed to employees in a meaningful and effective way if they’d like [the] Department to view it as credible.” He echoed past calls by federal authorities for institutions to create “cultures of compliance” that include “real, effective, and proactive” compliance programs. Any institution that fails to do so, he cautioned, could be subject to prosecution.
On March 14, Fannie Mae followed its March 6 promise to update lender-placed insurance (LPI) requirements, by issuing Servicing Guide Announcement SVC-2012-4. The announcement details policy amendments and clarifications regarding the (i) use of LPI, (ii) coverage requirements, (iii) deductibles, (iv) carrier eligibility requirements, and (v) allowable reimbursable expenses. The Announcement also provides additional guidance to servicers for submitting property insurance claims and remitting outstanding insurance funds to Fannie Mae. The LPI updates will be published as a new section in Part II, Chapter 6 of the Servicing Guide, and servicers are required to implement the amended requirements by June 1, 2012. Additionally, on March 14, Fannie Mae announced the release of its 2012 Servicing Guide. According to SVC-2012-3, the new Guide incorporates all announcements issued through September 2, 2011. The new Guide does not include policies related to the servicing of reverse mortgages, which now form a new Servicing Manual. In addition, the new Guide includes certain policy clarifications regarding lender relationships and other miscellaneous issues.
- APPROVED Webcast: Remote examinations and complaints — The “new normal”
- Sasha Leonhardt to discuss "Privacy laws clarified" at the National Settlement Services Summit (NS3)
- Amanda R. Lawrence to discuss "New privacy legislation: Preparing for a major source of class action and enforcement activity going forward" at the American Conference Institute Consumer Finance Class Actions, Litigation & Government Enforcement Actions
- Sherry-Maria Safchuk and Lauren Frank to discuss "New CFPB interpretation on UDAAP" at a California Mortgage Bankers Association Mortgage Quality and Compliance Committee webinar
- Daniel P. Stipano to discuss "High standards: Best practices for banking marijuana-related businesses" at the ACAMS AML & Anti-Financial Crime Conference
- Daniel P. Stipano to discuss "Wait wait ... do tell me! Where the panelists answer to you" at the ACAMS AML & Anti-Financial Crime Conference
- Jonice Gray Tucker to discuss "The future of fair lending" at the Mortgage Bankers Association Regulatory Compliance Conference
- Jonice Gray Tucker to discuss "Consumer financial services" at the Practising Law Institute Banking Law Institute