On June 23, 2022, the Office of the Comptroller of the Currency (OCC) released its Semiannual Risk Perspective (SRP) for spring 2022.  In the SRP, the OCC opines on its current safety and soundness concerns for banks under its regulatory umbrella, focusing on Russia sanctions, climate-related risk, and rising inflation.  Despite these challenges, the OCC believes that “[b]anks’ financial condition remains strong and positioned to deal with the economic headwinds.”

Of special note, the OCC also believes compliance risk is “heightened” for Bank Secrecy Act/Anti-Money Laundering (BSA/AML) and Office of Foreign Assets Control (OFAC) compliance because of world events and compliance staffing concerns.  In addition, the OCC warns that banks face an “elevated” risk of cyber attacks and fraud or cybersecurity risks related to digital assets.

Continue Reading OCC Highlights Risks Associated with Compliance Staffing Concerns, Russia Sanctions, Environmental Crimes, Cyber Attacks and Digital Assets

Judge Jed Rakoff of the Southern District of New York issued an opinion last week on a motion to dismiss in a putative class action securities fraud case against Deutsche Bank (“DB”) and several current and former bank executives. The opinion, while technically a “split decision,” allows the bulk of plaintiffs’ claims to proceed to the class certification phase – dismissing claims only with regard to the bank’s current and former CFOs.

The case against DB and its current and former CEO now proceeds to the class certification phase – which, if the Court continues at its current pace, may culminate sooner rather than later. Aside from continuing to keep DB in the headlines for all the least desirable reasons, this case may continue to serve as an ongoing object lesson in the costs – legal, financial, reputational – of talking the talk, but potentially failing to walk the walk, with regards to anti-money laundering (“AML”) and “Know Your Customer” (“KYC”) compliance.

Continue Reading SDNY Allows Putative Class Action Securities Fraud Case Based on Alleged AML Deficiencies to (Mostly) Proceed

On June 15, FinCEN issued an Advisory on Elder Financial Exploitation (“Advisory”) to warn financial institutions about the rising trend of elder financial exploitation (“EFE”), which FinCEN defines as “the illegal or improper use of an older adult’s funds, property, or assets, and is often perpetrated either through theft or scams.”  The Advisory is detailed.  It highlights new EFE typologies and potential red flags and builds upon a related advisory issued in 2011.  It also offers tips on Suspicious Activity Report (“SAR”) filings and describes other resources available to fight EFE.

Continue Reading FinCEN Warns Against Elder Financial Exploitation

On June 6, Attorney General Merrick Garland (“AG”) issued a report titled “How to Strengthen International Law Enforcement Cooperation For Detecting, Investigating And Prosecuting Criminal Activity Related To Digital Assets” (the “Report). Led by the Department of Justice, the Report represents a collaborative effort with feedback from the Department of State, Department of Treasury, Department of Homeland Security, Securities and Exchange Commission, and Commodities Future Trading Commission (“CFTC”). The Report also comes as U.S. senators Cynthia Lummis, R-Wyo., and Kirsten Gillibrand, D-N.Y. recently introduced a sweeping bipartisan bill to bring clarity to cryptocurrency regulation by defining most digital assets as commodities (to be regulated primarily by the CFTC) and enacting rules governing stablecoins.

The Report was required by President Biden’s March 9, 2022 Executive Order, Ensuring Responsible Development of Digital Assets, on which we previously blogged.  The Executive Order addressed concerns about the growing role of digital assets in money laundering crimes and sanctions evasion, and called for a report to be published by the AG for the purpose of strengthening international law enforcement cooperation.  The resultant Report stresses the pragmatic problems facing cross-border investigations – particularly the reluctance or sheer inability of foreign jurisdictions to tackle such investigations independently – and makes three basic recommendations, all of which relate to improved funding, communication and standards.

Continue Reading DOJ Report Calls For International Cooperation to Fight Digital Asset Crime

On June 3, 2022, the Financial Crimes Enforcement Network (“FinCEN”) issued an Advance Notice of Proposed Rulemaking (“ANPRM”) that seeks public comment on the implementation of a “no-action letter” process at FinCEN.  The “no-action letter” is “a form of an exercise of enforcement discretion wherein an agency issues a letter indicating its intention not to take enforcement action against the submitting party for the specific conduct presented to the agency.”  These no-action letters “address only prospective activity not yet undertaken by the submitting party.” 

This proposal has been slowly winding its way through the agency rulemaking process.  The Anti-Money Laundering Act of 2020 (“AMLA”) directed FinCEN to assess the feasibility of no-action letters.  In July 2021, FinCEN issued an assessment (the “Assessment”) of a no-action letter process (which we covered here), finding in part that FinCEN should conduct a rulemaking to create such a process.  Now nearly a year later, FinCEN is seeking public comment on myriad questions involving the specific of no-action letters.  Currently, the public comment period closes August 5, 2022. 

As we discuss, the ANPRM grapples with how to make the no-action letter process efficient, by avoiding the potential delays of consulting with its regulator counterparts, and effective, by establishing an advisory process that does not yield inconsistent results between regulators.

Continue Reading FinCEN Seeks Public Comments on No-Action Letters

On May 19, 2022, the Associate Director of the Enforcement and Compliance Division of the Financial Crimes Enforcement Network (“FinCEN”), Alessio Evangelista, spoke at the Chainalysis Links Conference in New York City on the topic of “The Intersection of Cryptocurrencies and National Security.”  Associate Director Evangelista stressed “responsible innovation” by the cryptocurrency industry, in order to protect consumers and national security interests, as well as to combat cybercrime and other illicit financial activity.  Associate Director Evangelista also denied that FinCEN’s enforcement efforts represent a “gotcha” enterprise.

Shortly after Associate Director Evangelista’s speech, Acting Comptroller of the Currency Michael J. Hsu discussed vulnerabilities in the cryptocurrency framework and recent volatility with stablecoins in pointed remarks at the DC Blockchain Summit 2022.  Describing himself as a “crypto skeptic,” Acting Comptroller Hsu acknowledged the potential value of innovation presented by crypto, but repeatedly bemoaned a “hyped-based” crypto economy, and stressed that “hype is not harmless.”

Combined, these speeches leave no doubt that regulators are exceedingly focused on digital assets and cryptocurrencies, and in particular are increasingly focused on consumer protection concerns, beyond the usual illicit finance and terrorist financing concerns.

Continue Reading FinCEN and OCC Address Cryptocurrency:  Responsible Innovation and Pervasive Hype

Strategy Includes Professionals Not Yet Covered by BSA

On May 13, 2022, the U.S. Treasury (“Treasury”) released its 2022 Strategy for Combatting Terrorist and Other Illicit Financing (“2022 Strategy”).  The proposed 2022 Strategy, prepared pursuant to Sections 261 and 262 of the Countering America’s Adversaries Through Sanctions Act (CAATSA), outlines four goals to address the key risks identified by the 2022 National Money Laundering, Terrorist Financing, and Proliferation Financing Risk Assessments:

  • Increasing transparency and closing legal and regulatory gaps in the U.S. Anti-Money Laundering / Combating the Financing of Terrorism (“AML/CFT”) framework exploited by bad actors;
  • Making the AML/CFT regulatory framework for financial institutions more effective and efficient;
  • Enhancing operational effectiveness in combating illicit finance; and
  • Utilizing technological innovation to combat illicit finance risks.

The 2022 Strategy is incredibly broad, identifying sixteen threats and vulnerabilities to the AML/CFT system as top priorities, and providing fourteen separate supporting actions necessary to achieve Treasury’s four goals outlined above.  This post summarizes the priorities outlined in the 2022 Strategy, and details the specific supporting action targeting financial intermediaries and gatekeepers not presently covered by the Bank Secrecy Act (“BSA”), such as investment advisors, lawyers and accountants. 

Continue Reading U.S. Treasury Releases 2022 Strategy for Combatting Terrorist and Other Illicit Financing

Hefty Monetary Penalties – Accompanied by the Possibility of No Prison Time

The legal saga involving the civil and criminal cases against the entity and former individual owners of the Bitcoin Mercantile Exchange, or BitMEX—a large and well-known online trading platform dealing in futures contracts and other derivative products tied to the value of cryptocurrencies (see here, here, and here)—continues unabated. 

Most recently, BitMEX co-founder and former CEO, Arthur Hayes, a high-profile leader in the cryptocurrency industry, settled his civil charges with the CFTC and pleaded guilty to criminal charges brought by the DOJ.  He now faces sentencing in the criminal case, currently scheduled for the end of this week.  As we will discuss, Hayes and the government take very different views regarding his appropriate sentence.

These cases emerged publicly in October 2020 when: (1) the Commodity Futures Trading Commission (“CFTC”) filed a civil complaint against the entities operating the BitMEX trading platform and its three individual owners for allegedly failing to register with the CFTC and violating various laws and regulations under the Commodity Exchange Act (“CEA”); and (2) the Department of Justice obtained an indictment against the three individual owners and another individual, including Hayes, charging each with violating, and conspiring to violate, the Bank Secrecy Act (“BSA”) by failing to maintain an adequate anti-money laundering (“AML”) program.

The cases have raised novel legal questions concerning which, if any regulatory regimes, apply to participants in the cryptocurrency market.  Moreover, Hayes’ upcoming sentencing raises the question of whether an offense is so novel that it can merit probation, despite the high dollar value of the alleged scheme at issue.

Continue Reading BitMEX Co-Founder and Owner Settles with CFTC and Now Faces Criminal Sentencing

Enforcement Trends, Crypto, the AML Act — and More

We are very pleased to be moderating, once again, the Practising Law Institute’s 2022 Anti-Money Laundering Conference on May 17, 2022, starting at 9 a.m. This year’s conference will be both live and virtual — and it will be as informative, interesting and timely as always. 

Again, we are lucky to have a fantastic line-up of experienced and knowledgeable panelists:

The conference will tackle many critical issues in BSA/AML compliance and money laundering enforcement.  The three panels will be:

Recent Trends in Money Laundering and Enforcement

The Department of Justice continues to bring major money laundering indictments and civil forfeiture actions.  The panel will discuss:

Digital Assets and AML: Evolving Regulations and Enforcement

Regulators are scrambling to keep up with the fast-paced technologies of Blockchain, digital assets, and cryptocurrencies.  The panel will discuss:

The AML Act: Beneficial Ownership, Regulatory Priorities, Effective AML Programs, and More

Congress passed the expansive AML Act on January 1, 2021.  The Act has been heralded as a groundbreaking piece of BSA/AML legislation – but its potential promise inevitably will be tempered by its real-world implementation by regulators and affected stakeholders.  The panel will discuss:

If you would like to remain updated on these issues, please click here to subscribe to Money Laundering Watch. To learn more about Ballard Spahr’s Anti-Money Laundering Team, please click here.

On April 28, 2022, the Acting Director of the Financial Crimes Enforcement Network (“FinCEN”), Himamauli Das (“Das”), appeared before the U.S. House Committee on Financial Services to provide an update on FinCEN’s implementation of the Anti-Money Laundering Act of 2020 (“AML Act”), including the Corporate Transparency Act (“CTA”).  You can find his prepared statement here.

In his opening remarks, Das walked through FinCEN’s activities for the year, and applauded the AML Act for putting FinCEN in a position to address today’s challenges, such as illicit use of digital assets, corruption, and kleptocrats hiding their ill-gotten gains in the U.S. financial system.  The speech focused on financial sanctions on Russia, FinCEN’s continued efforts to fight corruption, and effective AML programs.   Das also indicated that FinCEN is examining whether to issue proposed AML regulations for investment advisers – an effort that stalled in 2015. Continue Reading FinCEN Acting Director Das Focuses on Corruption and Transparency During U.S. House Committee on Financial Services Testimony