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No enforcement action against investment advisor in first FCPA advisory opinion in six years
On August 14, the DOJ issued an FCPA Opinion Procedure Release concluding that a U.S. financial institution’s proposed payment to a foreign government-linked investment bank would not result in an enforcement action. This is the first FCPA advisory opinion issued since 2014. According to the opinion, a U.S.-based multinational financial institution (Requestor) asked the DOJ for guidance on whether its planned conduct would conform with the DOJ’s enforcement policy regarding the FCPA’s anti-bribery provisions. The Requestor explained that it intended to pay a $237,500 fee to a foreign subsidiary of a foreign investment bank that was majority owned by a foreign government, as “compensation for services the [foreign subsidiary] provided during a two-year period in which Requestor sought to and ultimately did acquire a portfolio of assets” from a different foreign subsidiary of the same investment bank. The fee represented 0.5 percent of the face value of the assets, and was intended to compensate the foreign subsidiary for “certain enumerated analytical and advisory tasks it had performed on Requestor’s behalf.”
In response to the request, the DOJ stated that it did not presently intend to take any enforcement action if the fee payment was made, noting that there is “no information evincing a corrupt intent to offer, promise, or pay anything of value to a ‘foreign official.’” For the purposes of review, the DOJ assumed that the foreign subsidiary receiving payment is “an instrumentality of a foreign government” and its employees are considered “foreign officials” as defined by the FCPA. With those assumptions, the DOJ concluded that the facts “do not reflect a corrupt intent to influence a foreign official,” because (i) the payment would be to an office, not an individual; (ii) there was no indication the payment would be diverted to an individual and there were no representations of “corrupt offers, promises, or payments of anything of value”; and (iii) the fee was commercially reasonable in response to “specific, legitimate services.”
11th Circuit holds forfeiture is required for money laundering even without financial harm
On August 12, the U.S. Court of Appeals for the Eleventh Circuit reversed a district court’s denial of a government forfeiture order, concluding that a forfeiture order is still mandatory when a defendant is convicted of a money laundering scheme even when no financial harm is caused to a bank. According to the opinion, between 2000 and 2009 an international businessman engaged in “mirror-image” financial transactions, which includes using phony invoices to launder money between his corporations. The bank involved incurred no financial loss from the transactions, due to the “mirror-image nature of the scheme,” and all financial draws were repaid with interest. The opinion notes that “had the Bank known of the falsehoods that prompted these financial transactions, it would not have approved [them].” In 2017, the defendant pled guilty to conspiracy to commit money laundering and the government requested forfeiture of over $20.8 million. The district court sentenced the defendant to 27-months imprisonment and denied the government’s forfeiture motion, noting that the purpose of forfeiture would not be served since the defendant returned all the money plus interest.
On appeal, the 11th Circuit disagreed, holding that the language of the U.S. money laundering statute (18 U.S.C. § 982(a)(1)), as stated by the Supreme Court, “provides that a district court ‘shall order’ forfeiture, [Congress] ‘could not have chosen stronger words to express its intent that forfeiture be mandatory.’ The appellate court noted that there is no “double counting” merely because the money was returned to the bank, and this is not a case of “double recovery” because the defendant “made no payment to the government body seeking forfeiture.” Moreover, the court agreed with the government that “substitute forfeiture” is permitted, rejecting the defendant’s claim that the bank was the owner of the funds; therefore, not a “third party” to whom the money was transferred within the meaning of e 21 U.S.C. § 853(p). Lastly, the appellate court rejected the district court’s conclusion that the $20.8 million forfeiture order was “excessively punitive,” holding that the court “failed to properly define the harm” when performing the excessiveness analysis. The appellate court noted that on remand, the district court “must consider the adverse impact on society that money laundering generally has as well as the specific conduct that [the defendant] engaged in” when determining the forfeiture amount.
Agencies clarify BSA/AML enforcement
On August 13, the OCC, the Federal Reserve Board, the FDIC, and the NCUA (collectively, the “agencies”) issued a joint statement, which clarifies how the agencies apply the enforcement provisions of the Bank Secrecy Act (BSA) and related anti-money laundering (AML) laws and regulations. Specifically, the statement discusses the conditions that require the issuance of a mandatory cease and desist order under sections 8(s) and 206(q). According to the agencies, there are no new exceptions or standards created by document. Among other things, the statement:
- Provides examples of when an agency shall issue a cease and desist order in accordance with sections 8(s)(3) and 206(q)(3) for “[f]ailure to establish and maintain a reasonably designed BSA/AML Compliance Program. The statement notes that an institution would be subject to a cease and desist order when the one component of their compliance program “fails with respect to either a high-risk area or multiple lines of business… even if the other components or pillars are satisfactory.”
- Describes circumstances in which an agency may use its discretion to issue formal or informal enforcement actions related to unsafe or unsound BSA-related practices. The statement notes that the “form and content” of the enforcement action will depend on a variety factors, including “the capability and cooperation of the institution’s management.”
- Describes how the agencies incorporate customer due diligence regulations and recordkeeping requirements as part of the internal controls pillar of an institutions BSA/AML compliance program.
- Discusses the treatment of isolated or technical compliance program requirements that are generally not issues resulting in an enforcement action.
Broker dealer assessed $38 million in penalties for AML violations
On August 10, the Financial Industry Regulatory Authority (FINRA), SEC, and the CFTC announced separate settlements with a broker-dealer following investigations into its anti-money laundering (AML) programs. The broker-dealer did not admit or deny any of the charges, and the agencies all considered remedial actions undertaken by the broker-dealer. FINRA fined the broker-dealer $15 million for allegedly failing to establish and implement AML processes reasonably designed to detect and report suspicious transactions as required by the Bank Secrecy Act, including foreign currency wire transfers to and from countries known to be at high risk for money laundering. Additionally, the broker-dealer “lacked sufficient personnel and a reasonably designed case management system.” The broker-dealer consented to the terms of the Letter of Acceptance, Waiver and Consent and agreed to retain a third-party consultant to take steps to remediate its AML program.
In a separate investigation conducted by the SEC, the broker-dealer reached a settlement to resolve allegations that it repeatedly failed to file suspicious activity reports (SARs) as required by the Exchange Act for U.S. microcap securities trades executed on behalf of its customers. According to the SEC, because the broker-dealer’s “AML policies and procedures were not reasonably tailored to the risks of [its] U.S. microcap securities business,” over a one-year period, it failed to (i) recognize red flags; (ii) properly investigate suspicious activity; and (iii) file more than 150 SARs in a timely fashion even after compliance personnel flagged the suspicious transactions. Under the terms of the order, the broker-dealer has agreed to be censured, will cease and desist from committing future violations, and will pay an $11.5 million civil penalty.
The CFTC also announced a settlement to resolve allegations that the broker-dealer failed to (i) diligently supervise the handling of several commodity trading accounts; (ii) sufficiently oversee its employees’ handling of these accounts, leading to its “failure to maintain an adequate [AML] program and to conduct appropriate customer monitoring”; and (iii) identify or conduct adequate investigations necessary to detect and report suspicious transactions. Under the order, the broker-dealer is required to pay an $11.5 million civil penalty and disgorge $706,214 it earned as the futures commission merchant for certain accounts that were the subject of a 2018 CFTC enforcement action.
$21.7 million FCPA settlement for consumer lender
On August 6, the SEC announced that a South Carolina-based consumer loan company agreed to pay over $21.7 million to settle the SEC’s claims that the company violated the books and records and internal accounting controls provisions of the FCPA through its Mexican loan operations. According to the SEC, the company’s former Mexican subsidiary paid more than $4 million in bribes, “directly or through intermediaries, to Mexican government officials and union officials, from at least December 2010 through June 2017 to obtain and retain business” related to the offering of small loans to state and federal government employees. The SEC alleged that in order to “retain the ability to make loans to government employees under all of the contracts” and to ensure loan repayments were made in a timely manner, the former subsidiary paid bribes in several ways, including (i) cash payments; (ii) making deposits into bank accounts linked to government officials and union officials or those of their relatives and friends; and (iii) hiring third-party intermediaries to assist in securing business and making bribe payments, including large bags of cash, to officials.
These bribes, the SEC alleged, were then inaccurately recorded in the company’s books and records as “legitimate ‘commission’ expenses.” The SEC also found that the company and its former subsidiary lacked “internal accounting controls sufficient to detect or prevent such payments,” and that as a result of the subsidiary’s failure to implement a sufficient accounts payable system, managers pre-signed blank checks, which made “it impossible to enforce authorization limits in place over payments.” The SEC further alleged that while the former subsidiary sent spreadsheets to the parent company each month detailing the payments, the company did not require invoices or back-up support to account for the expenses and failed to identify the high risk of bribery and corruption in Mexico. Additionally, the SEC noted that despite incorporating an FCPA policy into the company’s corporate compliance manual in 2013, there was no effective formal monitoring or internal controls to ensure the former subsidiary complied with the policy. The company also allegedly lacked personnel oversight in Mexico, and “the tone at the top” from company management “did not support robust internal audit and compliance functions,” leading to several material weaknesses.
In entering into the administrative order, the SEC considered the company’s cooperation and remedial efforts. Without admitting or denying wrongdoing, the company consented to a cease and desist order, and agreed to pay a $2 million civil money penalty and approximately $19.7 million in disgorgement and pre-judgment interest.
OFAC sanctions additional persons for human rights violations in China’s Xinjiang region
On July 31, the U.S. Treasury Department’s Office of Foreign Assets Control announced sanctions pursuant to Executive Order 13818 against a Chinese government entity and two current or former government officials for alleged corruption violations of the Global Magnitsky Human Rights Accountability Act. According to OFAC, the sanctioned persons are connected to serious human rights abuse against ethnic monitories, including Uyghurs, in the Xinjiang region. Earlier in July, OFAC sanctioned another Chinese government entity and several current or former government officials for similar corruption violations (covered by InfoBytes here). As a result of the sanctions, all property and interests in property of the designated persons within U.S. jurisdiction must be blocked and reported to OFAC. OFAC notes that its regulations generally prohibit U.S. persons from participating in transactions with these individuals and entities, which includes “the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any blocked person or the receipt of any contribution or provision of funds, goods or services from any such person.”
Concurrent with the sanctions, OFAC also issued General License No. 2, which authorizes certain wind down and divestment transactions and activities related to blocked subsidiaries of the Chinese entity through September 30.
OFAC settles Iranian sanctions violations
On July 28, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced a $824,314 settlement with a Pennsylvania-based cookware coating manufacturer for 74 apparent violations of the Iranian Transactions and Sanctions Regulations. According to OFAC, between November 2012 and December 2015, two of the company’s foreign subsidiaries allegedly sold coatings intended for customers in Iran and engaged in trade-related transactions with Iran, despite changes to OFAC’s Iran sanctions program, which prohibited such transactions. In addition, OFAC stated that in 2013, once the company realized that these sales may be problematic, some of its U.S. employees devised and facilitated a plan to continue sales from the two subsidiaries by using third-party distributers and avoiding referencing Iran on documentation.
In arriving at the settlement amount, OFAC considered various mitigating factors, including that the apparent violations were non-egregious and (i) the company voluntarily disclosed the violations and cooperated with the investigation; and (ii) the company has undertaken significant remedial efforts to address the deficiencies and minimize the risk of similar violations from occurring in the future, including appointing compliance monitors and outside counsel, making changes to its leadership, and adopting compliance and training policies.
OFAC also considered various aggravating factors, including that the company (i) failed to implement appropriate compliance policies “commensurate with selling to a high-risk jurisdiction such as Iran”; (ii) took “affirmative steps” to help the foreign subsidiaries continue to sell to Iran through indirect channels even though it knew the sales were problematic; and (iii) senior management, including U.S. employees, had actual knowledge of the conduct leading to the alleged violations and continued to facilitate transactions with Iran.
OFAC sanctions ISIS financial facilitators
On July 28, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions pursuant to Executive Order 13224 against two Islamic State of Iraq and Syria (ISIS) financial facilitators based in Syria and Turkey for allegedly providing financial and logistical support to ISIS. OFAC noted that these sanctions coincide with the thirteenth meeting of the Counter ISIS Finance Group, which coordinates efforts to isolate ISIS from the international financial system and eliminate revenue sources. As a result of the sanctions, all property and interests in property of the designated individuals within U.S. jurisdiction must be blocked and reported to OFAC. OFAC further noted that its regulations “generally prohibit” U.S. persons from participating in transactions with the designated persons, and warned foreign financial institutions that if they knowingly facilitated significant transactions for any of the designated individuals, they may be subject to U.S. correspondent account or payable-through account sanctions.
OFAC sanctions investors supporting Syrian government
On July 29, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced sanctions against one individual and nine entities for providing significant investment support to the Syrian government. OFAC noted that, among other things, the designated individual and his companies knowingly provided “significant financial, material, or technological support to, or knowingly engag[ed] in a significant transaction with, the Government of Syria (including any entity owned or controlled by the Government of Syria) or a senior political figure of the Government of Syria.” As a result, all property and interests in property belonging to the designated persons and subject to U.S. jurisdiction are blocked and must be reported to OFAC. OFAC further noted that its regulations “generally prohibit all dealings by U.S. persons or within (or transiting) the United States that involve any property or interests in property of designated persons,” and warned that non-U.S. persons that engage in transactions with the designated persons may expose themselves to designation. OFAC also referenced a previously published Fact Sheet (covered by InfoBytes here), which highlights the most pertinent exemptions, exceptions, and authorizations for humanitarian assistance and trade under the Syria, Iran, Venezuela, North Korea, Cuba, and Ukraine/Russia-related sanctions programs to ensure humanitarian-related trade and assistance reaches at-risk populations through legitimate and transparent channels during the global Covid-19 pandemic.
FinCEN warns of Covid-19 cybercriminal activity
On July 30, the Financial Crimes Enforcement Network (FinCEN) issued an advisory to financial institutions to assist in the “detecting, preventing, and reporting” of potential Covid-19 cybercriminal activity. The advisory highlights specific ways cybercriminals are exploiting the Covid-19 pandemic through “malware and phishing schemes, extortion, business email compromise (BEC) fraud, and exploitation of remote applications.” Among other things, the advisory warns that with increased remote access, cybercriminals seek to undermine weak authentication processes to gain unauthorized access to accounts. Moreover, FinCEN and law enforcement have observed increased phishing scams that use Covid-19 themes, such as payments related to the CARES Act, in the subject and body of emails to lure their victims. Regarding ransomware, the advisory notes that “[i]n almost all cases, criminals require ransomware-related extortion payments to be made in [convertible virtual currency].” Lastly, the advisory notes that due to changing business operations, cybercriminals are using BEC schemes to intercept or fraudulently induce payments in the healthcare industry supply chain. The advisory includes a specific list of red flag indicators for financial institutions to be aware of in each category.