March 2022

Sanctions involving Russia is a front-burner issue for all businesses, but particularly for financial institutions. As we previously blogged, the Financial Crimes Enforcement Network (“FinCEN”) issued on March 7 an alert calling for increased vigilance in the face of potential evasion of Russian sanctions. On March 16, FinCEN issued its second alert on the topic (the “Alert”), reiterating the need for increased vigilance and assisting financial institutions in detecting suspicious transactions involving high-value assets to evade sanctions.

We discuss here the Alert, which provides guidance to financial institutions on how to identify suspicious transactions relating to the use of certain high-value assets by Russian elites, their family members and their “proxies.” The Alert reminds financial institutions of the importance of quickly identifying suspicious activity related to the disposition of sanctioned Russian assets. The Alert also highlights the international and domestic task forces that were formed to effectuate the sanctions laws we describe below, emphasizing the need for cross-agency collaboration and information sharing to achieve the common goal of sanctioning Russia’s power players.  However, and as we discuss, the Alert unfortunately offers no guidance on how “proxies” should be identified or defined.
Continue Reading  Russian Sanctions Redux: FinCEN Issues Guidance on Suspicious Transactions and Evasion Using High-Value Assets

On March 1, 2022, the U.S. Department of the Treasury (“Treasury”) published its National Risk Assessment for Money Laundering, Terrorist Financing, and Proliferation Financing (the “NMLRA”), identifying the national threats, vulnerabilities, and risks facing the U.S. financial system.  The NMLRA is 74 pages long and comprehensively covers many different perceived threats and vulnerabilities, including the misuse of legal entities, virtual assets, real estate, investment advisors, and casinos.  This post therefore selects three key issues for closer analyses.

First, cybercrime (a topic we cover frequently) in the form of ransomware received the dubious honor of representing “a larger and growing share of the overall money laundering threat in the United States.”  Second, professional money laundering organizations (“PMLOs”) continue to peddle their illicit services internationally to launder the proceeds of cybercrime, narcotics trafficking, and other schemes on behalf of organized criminal enterprises.  Third, merchants and professionals, such as lawyers, real estate professionals, and financial services employees, continue to perform – knowingly or unknowingly – critical functions in support of money laundering schemes and obfuscating the source of ill-gotten gains.
Continue Reading  U.S. Treasury Identifies Ongoing and Emergent Money Laundering Risks and Vulnerabilities

On March 7, the Financial Crimes Enforcement Network (“FinCEN”) issued an alert “advising all financial institutions to be vigilant against potential efforts to evade the expansive sanctions and other U.S.-imposed restrictions implemented in connection with the Russian Federation’s further invasion of Ukraine.”  The press release is here.  The alert itself is here.
Continue Reading  Russian Sanctions:  FinCEN Provides Red Flags for Potential Evasion Attempts

The European Parliament Votes to Ban Such Programs, with Immediate Effect as to all Russian Applicants

On March 9, the European Parliament (“Parliament”) voted overwhelmingly to limit citizenship-by-investment (“CBI”) programs in the European Union.  The vote, formally adopting a report by Sophie Int’ Veld, a Dutch Member of Parliament (“MEP”), calls on the European Commission (“Commission”) to enact legislation to phase out CBI programs and establish strict regulations governing residence-by-investment (“RBI”) programs.

Consistent with sweeping sanctions levied against Russia and affiliated entities and individuals in the wake of that country’s invasion of Ukraine, the Parliament is additionally calling for an immediate end to the processing of all Russian applicants of CBI/RBI programs.  The Parliament is also calling for EU members to “reassess” all approved applications from Russian citizens from the past few years to ensure that “no Russian individual with financial, business or other links to the Putin regime retains his or her citizenship and residency rights.”

As we will discuss, the risks for countries implementing CBI/RBI programs are significant, not least of which is the potential facilitation of corruption and money laundering.  As the Parliament noted in its report, these risks often cannot be properly assessed due to a lack of transparency and are not sufficiently managed, resulting in weak vetting and a lack of due diligence.
Continue Reading  “Golden” Passports and Visas

President Biden has signed an Executive Order entitled “Ensuring Responsible Innovation in Digital Assets.”  The press release regarding the Order is here.

According to the press release, the Order outlines “the first ever, whole-of-government approach to addressing the risks and harnessing the potential benefits of digital assets and their underlying technology. The Order lays out a national policy for digital assets across six key priorities: consumer and investor protection; financial stability; illicit finance; U.S. leadership in the global financial system and economic competitiveness; financial inclusion; and responsible innovation.”  Not surprisingly, the section of the Order pertaining to illicit finance focuses on AML concerns, and refers to issues on which we have blogged repeatedly, including the use of digital assets to further ransomware schemes and the global patchwork quilt of crypto-related AML regulation.

The Order does not make any substantive conclusions.  Rather, it sets forth requirements for various government agencies to coordinate and submit reports and recommendations regarding many different issues.  We set forth below the bulk of the press release, which nicely summarizes the Order, and highlight in bold the six “key priorities.”
Continue Reading  President Biden Issues Executive Order on Digital Assets and “Whole-of-Government Approach” to Risks and Benefits

The New York State Department of Financial Services (“NYDFS” or “the Department”) published a press release on February 24, 2022 announcing the issuance of a Consent Order (“the Consent Order”) to the National Bank of Pakistan (“NBP” or “the Bank”), which will require the Bank to pay $35 million in penalties to NYDFS.  In conjunction with the Department’s enforcement action, the Federal Reserve Bank of New York (“FRBNY”) also announced a $20.4 million penalty against NBP for its alleged Anti-Money Laundering (“AML”) violations.

The Consent Order describes NBP as a “multinational commercial bank incorporated in Pakistan in 1949 that is majority owned by the Pakistani government, with more than $20 billion in assets as of June 30, 2021.”  The Department’s issuance of the Consent Order marks the first major fine against a bank since Adrienne A. Harris was confirmed as New York’s top financial regulator (Superintendent of NYDFS) in January 2022.  In November 2021, while still leading the Department on an acting basis, Harris issued a consent order to Dubai-based Mashreqbank for sanctions violations requiring the bank to pay $100 million in penalties.

As we will discuss, the Department’s and the NYFRB’s actions sends a clear message confirming that repeated findings of violations over multiple examinations is a sure-fire way to become subject to enforcement.
Continue Reading  National Bank of Pakistan Fined $55.4 Million for Alleged Repeated AML and Compliance Deficiencies

Questions of which, if any, regulatory regimes apply to the variety of participants in the cryptocurrency market continue to dog the industry.  On February 28, 2022, whether a cryptocurrency futures trading platform constitutes a “futures commission merchant” (“FCM”) under the Commodity Exchange Act (“CEA”) subject to Bank Secrecy Act (“BSA”) regulations took center stage in a U.S. District Court decision denying a motion to dismiss an indictment alleging violations of the BSA against the founders and chief executives of BitMEX.

As we will discuss, the District Court for the Southern District of New York rejected a motion to dismiss the indictment, in which the defendants argued that they lacked notice under the Due Process Clause of the Fifth Amendment that they could face criminal charges based on two technical questions, the answers to which were “unknowable” at the relevant time: (1) whether Bitcoin is a “commodity;” and (2) was BitMEX an FCM brokering cryptocurrency futures.
Continue Reading  Cryptocurrencies as Commodities Plays Out in BitMEX Criminal Prosecution Under the BSA