InfoBytes Blog

FinCEN data reveals Russian oligarchs’ financial activity

On December 22, the Financial Crimes Enforcement Network (FinCEN) issued a Financial Trend Analysis on the financial activity of Russian oligarchs. In the analysis, FinCEN examined Bank Secrecy Act (BSA) reports from March 2022 to October 2022 involving Russian oligarchs, high-ranking officials, and sanctioned individuals. FinCEN identified 454 reports detailing suspicious activity and reported that some of the trends in the data by Russian oligarchs included: (i) the movement of funds around the start of the invasion of Ukraine in February 2022; (ii) the purchase of high-value goods or property in 2022; and (iii) based on the movement of funds from accounts in Russia to other countries, an indication of potential changes in longstanding oligarch-linked financial flows related to U.S. properties and companies. FinCEN noted that 78 percent of the 454 BSA reports were filed by U.S.-based depository institutions. Other types of financial institutions—such as holding companies or financial technology companies—submitted roughly 19 percent of reports, mainly on suspicious electronic funds transfers or wire transfers and suspicions concerning the source of funds.

Financial Crimes Of Interest to Non-US Persons Department of Treasury FinCEN Ukraine Ukraine Invasion Bank Secrecy Act SARs Russia Wire Transfers

District Court rules beneficiary bank without actual knowledge of wire transfer misdescription is not liable

On September 22, the U.S. District Court for the Middle District of Louisiana granted summary judgment to a defendant beneficiary bank in an action concerning a fraudulent wire transfer that was allegedly sent to a hacker instead of the intended recipient. According to the opinion, the originating bank executed a wire transfer on behalf of the commercial plaintiff to a supplier.  However, a hacker had inserted false account information into the supplier’s email to the plaintiff, causing the plaintiff’s instruction to the originating bank to indicate the wrong account at the beneficiary bank. As a result, the funds were deposited by the beneficiary bank into an account for which the account number did not match its account name. A large sum of the plaintiff’s money was thereupon withdrawn by a hacker from the account into which the funds had been deposited. The plaintiff sued asserting several claims, including, negligence and gross negligence, violations of the EFTA and the Louisiana’s Uniform Commercial Code (UCC), and aiding fraud. After all the claims except for the UCC claim were dismissed, the defendant moved for summary judgment on the grounds that it did not violate the UCC “because it did not have actual knowledge that the wire transfer at issue misdescribed the beneficiary prior to payment of the wire transfer as contemplated by that statute.”

The court ruled that based on the evidence, no reasonable juror could find that the defendant had actual knowledge of the misdescription at the time it made the transfer, explaining that the defendant did not have actual knowledge that a hacker had accessed the plaintiff’s wire transfer order, provided false instructions, and changed the target account number to its own. The court stated that under Louisiana law, a bank’s liability for completing a wire transfer that misidentifies a beneficiary or account number depends on whether it has “actual knowledge prior to payment that there was a misdescription of a beneficiary”—constructive knowledge is not actionable, the court said. The defendant also did not have actual knowledge of the misdescription prior to the payment, but rather acquired actual knowledge of the misdescription roughly two weeks later when the originating bank alerted the defendant of the alleged fraud. The court further contended that under Louisiana law a beneficiary bank that uses a fully automated payment system for wire transfers is allowed “to act on the basis of the number without regard to the name if the bank does not know that the name and number refer to different persons.”

Courts State Issues Louisiana Fraud Wire Transfers

District Court says Reg. J does not preempt state law in wire transfer case

On October 5, a federal judge for the U.S. District Court for the Western District of Pennsylvania remanded a case back to state court, holding that the Federal Reserve’s regulation governing Fedwire transfers does not completely preempt state law claims. The elderly plaintiff alleged that bank employees helped her execute wire transfers totaling $4.3 million to an unknown scam artist, but never questioned whether she “intended, or knew, that the wire transfers were being made through a crypto currency bank to a crypto currency trust company.” The plaintiff sued the bank, claiming that it was negligent in not protecting her from the scheme, and that its advertising claims about keeping client information safe from scams were misleading and violated Pennsylvania’s Unfair Trade Practices and Consumer Protection Law. While recognizing that the plaintiff only asserted state law claims, the bank removed the case to federal court on the ground that the Fedwire system used to make the transfers was governed by the Fed’s Regulation J, and thus state law was preempted.

The court ruled that, while the bank could invoke Regulation J as a defense, the regulation does not expressly provide a private right to seek redress in federal court, nor does the regulation itself allow the bank to remove the case to federal court. “[T]he court concludes that the more persuasive case law reflects that only Congress (not a federal agency in a regulation) can completely preempt a state law cause of action to create removal jurisdiction.” The plaintiff did not assert federal claims, and so “[t]he mere fact that [the bank] intends to assert Regulation J as a preemption defense does not create removal jurisdiction.” Furthermore, the court cited the Fed’s commentary to Regulation J, which said regulations “may pre-empt inconsistent provisions of state law” but do not affect state law where there was no conflict. Since there was no conflict between Regulation J and the Pennsylvania law, the federal regulation does not provide the exclusive cause of action, the court said.

Courts Federal Reserve State Issues Regulation J Wire Transfers Preemption Bank Regulatory