On April 14, 2022, the Financial Crimes Enforcement Network (“FinCEN”) issued an advisory on kleptocracy and foreign public corruption.  At a high level, the advisory stresses the importance of financial institutions focusing their efforts on detecting and targeting the proceeds of foreign public corruption. This advisory aligns with President Biden’s establishment of the fight against corruption as a core national security interest, as well as FinCEN’s identification of corruption as a national priority for anti-money laundering and countering the financing of terrorism.  The advisory seeks to provide financial institutions with typologies and potential indicators associated with kleptocracy and other forms of foreign public corruption, such as bribery, embezzlement, extortion, and the misappropriation of public assets.  The advisory further identifies 10 financial red flag indicators to assist financial institutions in detecting, preventing, and reporting suspicious transactions associated with kleptocracy and foreign public corruption.
Continue Reading  More from FinCEN to Financial Institutions on the Kleptocracy – With a Continued Focus on Russia

On January 24, 2022, the Financial Crimes Enforcement Network (“FinCEN”) published a Notice of Proposed Rulemaking (“NPRM”).  FinCEN is proposing a rule to establish a pilot program that permits certain financial institutions to share Suspicious Activity Reports (“SARs”) in alignment with Section 6212(a) of the Anti-Money Laundering Act of 2020 (“AML Act”).

The Proposed Rule

This proposed rule would add a new section at 31 C.F.R. section 1010.240, which would enact a pilot program permitting financial institutions with SARs reporting obligations to share SARs and SARs information with its foreign branches, subsidiaries, and affiliates for the purpose of combating illicit finance risks.  According to FinCEN, this proposed rule ensures that federal and state law enforcement mechanisms would limit the sharing of SARs and information related to SARs.  Moreover, the proposed role considers the intelligence community’s potential concerns and would be governed by requirements and standards surrounding the confidentiality of personally identifying information and data security.

The pilot program does not apply to all foreign branches of a financial institution.  Rather, the proposed rule would largely exclude the sharing of SARs and SARs information with foreign affiliates in The People’s Republic of China, the Russian Federation, and any jurisdiction that is a state sponsor of terrorism, that is subject to United States sanctions, or that the Secretary of the Treasury (the “Secretary”) has determined cannot reasonably protect the security of SARs and SARs information.  A “state sponsor of terrorism” is a jurisdiction so determined by the United States Department of Justice.  The Secretary may, however, make exceptions to this prohibition on a case-by-case basis by notifying the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services that such an exception is in the United States’ national security interests.
Continue Reading  Sharing is Caring: FinCEN Proposes Extending Sharing Suspicious Activity Reports to Foreign Affiliates

Farewell to 2021, and welcome 2022 — which hopefully will be better year for all.  As we do every year, let’s look back — because 2021 was a very busy year in the world of money laundering and BSA/AML compliance, and 2022 is shaping up to be the same.

Indicative of the increased pace and

Travel Rule and Beneficiary Information Continues to Challenge Virtual Asset Service Providers

In late October, the Financial Action Task Force issued its long-awaited updated guidance on Virtual Assets and Virtual Asset Service Providers (“FATF Guidance”), an extremely lengthy and detailed document setting forth how virtual asset service providers (“VASPs”) and related virtual asset activities fall within the scope of FATF standards for anti-money laundering (“AML”) and countering the financing of terrorism (“CFT”).  The FATF Guidance is important to VASPs worldwide, as well as the more traditional financial institutions (“FIs”) doing business with them.  Because of its great breadth, we focus here only on its comments regarding implementation of the so-called “Travel Rule” for virtual assets.  This portion of the FATF Guidance is particularly relevant to the U.S. because, as we have blogged, the Financial Crimes Enforcement Network (“FinCEN”) proposed regulations in 2020 – still pending – which would change the Travel Rule by lowering the monetary threshold for FIs from $3,000 to $250 for collecting, retaining, and transmitting information related to international funds transfers, and explicitly would make the Travel Rule apply to transfers involving convertible virtual currencies.

The FATF Guidance has additional relevance to U.S. VASPs and FIs because, this month, the U.S. President’s Working Group on Financial Markets (“PWG”), the Federal Deposit Insurance Corporation (“FDIC”), and the Office of the Comptroller (“OCC”) (together, “the U.S. Agencies”) issued a Report on Stablecoins (the “Report”).  Stablecoins are digital assets designed to maintain stable value as related to other reference assets, such as the U.S. Dollar.  In the Report, the U.S. Agencies delineate perceived risks associated with the increased use of stablecoins and highlight three types of concerns: risks to rules governing AML compliance, risks to market integrity, and general prudential risks.  We of course will focus here on the Report’s discussion of AML risks, particularly because it repeatedly invokes the FATF Guidance, thereby illustrating the increasing efforts by governments to seek a global and relatively coordinated approach to addressing AML/CFT concerns regarding virtual assets.
Continue Reading  Global Developments in AML and Virtual Assets:  FATF Guidance and the Travel Rule, and U.S. Pronouncements on Stablecoins

Amicus Briefs Urge that Only FinCEN, Not the SEC, Should Enforce the BSA in Regards to Broker-Dealers

In the next stage of the Alpine Securities saga (as we blogged about here, here and here), a petition for a writ of certiorari is pending before the Supreme Court, asking the Court to decide whether the Southern District of New York and the Second Circuit correctly decided that the Securities Exchange Commission (“SEC”) may bring suit directly to enforce compliance with the Bank Secrecy Act (“BSA”).  Distilled, the Second Circuit and the District Court ruled that by promulgating Rule 17a-8, which states in part that “[e]very registered broker or dealer who is subject to the requirements of the [BSA] shall comply with the reporting, recordkeeping and record retention requirements of [BSA regulations promulgated by FinCEN],” the SEC is properly exercising its own independent authority under Rule 17a-8 and Section 17(a) of the Exchange Act when it regulates broker-dealers for the record-keeping and reporting requirements of the BSA.

Alpine Securities’ petition (the “Petition”) has received support in the form of amicus briefs from former officials of the Financial Crimes Enforcement Network (“FinCEN”) and the Cato Institute (“CATO”), both of which argue the SEC does not have the power to enforce violations of the BSA.  As we will discuss, the amicus briefs argue that only FinCEN may enforce the BSA, and that a contrary system would undermine FinCEN and create unacceptably conflicting interpretations, standards, and penalties for BSA/anti-money laundering (“AML”) compliance.
Continue Reading  Circular Delegation: Amicus Support By Former FinCEN Officials and the Cato Institute in the Alpine Securities Saga

Bottom Line: Biden Administration May Revive FinCEN’s Proposed Rule For Investment Advisers

Unlike broker-dealers, investment advisers are not currently required to maintain anti-money laundering (“AML”)/counter-terrorist financing (“CTF”) compliance programs under the Bank Secrecy Act (“BSA”), or file Suspicious Activity Reports (“SARs”).  In 2015, during President Obama’s second term, the Financial Crimes Enforcement Network (“FinCEN”) proposed exactly such a rule for certain investment advisers.  Although FinCEN then never moved forward, the stars may be aligning for the implementation of a similar rule in the new Biden Administration.

Industry watchdog groups will push for this.  For example, after Biden’s victory in the 2020 election, the independent Financial Accountability & Corporate Transparency Coalition wrote a memorandum, asking him to “[f]inalize the proposed Obama-era rule requiring investment advisers to establish AML programs.”  Action on this front also would be generally consistent with the 2020 Examination Priorities issued by the SEC’s Office of Compliance Inspections and Examinations (OCIE), which stated that the OCIE will prioritize examining broker-dealers “for compliance with their AML obligations in order to assess, among other things, whether firms have established appropriate customer identification programs and whether they are satisfying their SAR filing obligations, conducting due diligence on customers, complying with beneficial ownership requirements, and conducting robust and timely independent tests of their AML programs.”  Moreover, the FBI’s concern over money laundering through private equity and hedge funds may increase the likelihood of the administration reviving some version of the 2015 proposed rule.  A leaked FBI Intelligence Bulletin from May 2020 stated that “threat actors[, or money launderers,] likely use the private placement of funds, including investments offered by hedge funds and private equity firms, to launder money, circumventing traditional” AML protections in place at other financial institutions already subject to such regulations.  According to its Intelligence Bulletin, the FBI made this assessment in “high confidence.”
Continue Reading  Investment Advisers May Be Subject to AML Regulations Under Revival of Proposed Rule