As we have blogged, the Anti-Money Laundering Act of 2020 (“AMLA”) amended the Bank Secrecy Act (“BSA”) to expand greatly the options for whistleblowers alleging anti-money laundering (“AML”) violations and potentially create a wave of litigation and government actions, similar to what has occurred in the wake of the creation of the Dodd-Frank whistleblower
Much has occurred in the last two months regarding the relationship between financial institutions and Marijuana-Related Businesses, or MRBs. In this post, we discuss three major developments, all of which share a complex connection. First, the National Credit Union Administration (“NCUA”) recently pursued its first enforcement action against a credit union for Anti-Money Laundering (“AML”) compliance failures when servicing MRBs. Second, two cannabis industry executives were convicted of bank fraud for allegedly tricking banks and other financial institutions into unwittingly extending financial services to their MRB. Third, and despite this enforcement drumbeat regarding MRBs, Congress has introduced again, with bi-partisan support, the SAFE Banking Act, which seeks to normalize the banking of cannabis by prohibiting federal bank regulators from taking certain actions against financial institutions servicing MRBs.
Continue Reading Banking and Cannabis Enforcement Round Up: NCUA Imposes First Penalty Relating to Cannabis Banking Services; Cannabis Industry Execs Convicted of Defrauding Banks into Providing Financial Services; Congress Re-Introduces the SAFE Banking Act
In its most recent Marijuana Banking Update, the Financial Crimes Enforcement Network (FinCEN) stated that the decline in the number of banks and credit unions actively banking marijuana-related businesses (MRBs) in the United States “appears to have leveled off.” As of December 31, 2020, there were 684 banks and credit unions banking MRBs. That…
On November 3rd, voters in Arizona, New Jersey, South Dakota, Montana, and Mississippi passed ballot measures to bring legal cannabis to each of their states. It’s not every year that we see states from opposite ends of the political spectrum agree on something with such vigor. In fact, loosening the laws surrounding cannabis—be it medical use, recreational use, or farming of hemp products—has consistently been one of the only areas receiving bipartisan support in a country divided on almost everything else.
The passage of these ballot measures means that the cannabis industry will generate even more revenue. Despite the massive dollar amounts currently associated with the cannabis industry, reliable banking services remain elusive, due to federal drug and money laundering laws and the Bank Secrecy Act (“BSA”). This post will summarize the recent cannabis legislation, and recap the main roadblocks facing the industry (and financial institutions) from a financial compliance perspective.
Continue Reading The State of Cannabis Affairs: New Legislation and a Regulatory Recap
Ballard Spahr to Present on Banking and Cannabis
FinCEN and the National Credit Union Administration Both Issue Guidance on Hemp and Banking
We are really pleased to presenting on July 9, 2020 to the National Association of Federally-Insured Credit Unions (“NAFCU”) on banking issues relating to cannabis. The cannabis and hemp industry continues to pose a fascinating mix of competing opportunities and risks – particularly from an anti-money laundering (“AML”) perspective. Changing societal opinions and business opportunities can conflict with daunting legal landscapes and a spectrum of potential AML risks.
This is an important topic with evolving real-world implications, particularly for credit unions, which generally have been more willing to cater to cannabis and hemp-related clients than other financial institutions. Of course, we frequently have blogged on cannabis, hemp and banking, for which the legal landscape would change significantly if pending federal legislation were to pass.
Ultimately, this topic produces constant twists and turns, including two sets of guidance – described below – recently issued by the Financial Crimes Enforcement Network (“FinCEN”) and the National Credit Union Administration (“NCUA”). Both are consistent with a (slowly) growing acceptance of cannabis and hemp-related banking by both government and the financial industry.
Continue Reading The Banking of Cannabis and Hemp-Related Customers: An Update
Five U.S. regulatory agencies—the Board of Governors of the Federal Reserve System (“FRB”), the Federal Deposit Insurance Corporation (“FDIC”), the National Credit Union Administration (“NCUA”), the Office of the Comptroller of the Currency (“OCC”), and the U.S. Department of Treasury’s Financial Crimes Enforcement Network (“FinCEN”)—released on October 3, 2018 an Interagency Statement on Sharing Bank Secrecy Act Resources (the “Statement”). This guidance addresses instances in which certain banks and credit unions can enter into “collaborative arrangements” to share resources to manage their Bank Secrecy Act (“BSA”) and anti-money laundering (“AML”) obligations more efficiently and more effectively.
The Statement contemplates banks sharing resources such as internal controls, independent testing, and AML/BSA training (it does not apply to collaborative arrangements formed for information sharing among financial institutions under Section 314(b) of the U.S. Patriot Act). Such resource sharing contemplates reducing costs and increasing efficiencies in the ways banks manage their BSA and AML obligations. The Statement clearly is addressed primarily to community banks, for which the costs of AML/BSA compliance can be significant, and which presumably engage in “less complex operations [and have] lower risk profiles for money laundering or terrorist financing.” The Statement potentially represents another step in an ongoing AML reform process, which increasingly acknowledges the costs of AML compliance to industry.
Continue Reading Federal Banking Agencies Encourage BSA Resource Sharing
The Federal Banking Agencies (“FBAs”) — collectively the Office of the Comptroller of the Currency (“OCC”); the Board of Governors of the Federal Reserve System (“Federal Reserve”); the Federal Deposit Insurance Corporation (“FDIC”); and the National Credit Union Administration (“NCUA”) — just issued with the concurrence of FinCEN an Order granting an exemption from the…
Part Two of a Three-Part Series
In the second part of this series, we explore the practical effects of the FinCEN and DOJ guidance documents on industries attempting to serve marijuana related business (“MRBs”). On June 27, 2017, the Tenth Circuit issued an interesting and divided opinion showing us how difficult it can be to square the prohibitions in the federal Controlled Substances Act (“CSA”) and money laundering statutes with state legislation legalizing certain MRB activity and the seemingly permissive nature of the FinCEN and DOJ guidance documents.
Continue Reading Continued and Unexpected Roadblocks to Serving the Marijuana Industry: Fourth Corner Credit Union v. Federal Reserve Bank
FinCEN assessed two significant AML-related civil money penalties in 2016 against a bank and credit union. First, FinCEN and the Office of the Comptroller of the Currency announced a combined $4 million civil money penalty against Gibraltar Private Bank and Trust Company for allegedly willfully violating the AML requirements of the BSA. According to FinCEN,…