FinCEN Names Jamal El-Hindi as New Deputy Director

On May 21, FinCEN announced Jamal El-Hindi as its new Deputy Director. Since January 2015, El-Hindi has been serving as the agency’s acting Deputy Director, and previously served as Associate Deputy Director for the Policy Division. Prior to joining FinCEN in June 2006, El-Hindi oversaw OFAC’s Compliance Outreach Division, Licensing and Policy Division as the Associate Director for Program Policy and Implementation, and was an Attorney-Advisor in the Office of Chief Counsel (Foreign Assets Control) within Treasury’s Office of General Counsel, serving on economic sanctions programs as a legal advisor. In his role as FinCEN’s Deputy Director, El-Hindi will work alongside law enforcement, intelligence, financial, and regulatory communities “to ensure the effective coordination of anti-money laundering and anti-terrorist financing initiatives.”

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FinCEN Recognizes Law Enforcement Agencies For Use of BSA Data, Holds First-Ever Law Enforcement Awards Ceremony

On May 12, FinCEN held its first-ever Law Enforcement Awards, recognizing law enforcement agencies that made effective use of BSA data in criminal investigations which lead to a successful prosecution. The awards were presented in six different categories: (i) SAR Review/Task Force; (ii) Third Party Money Launderers; (iii) Transnational Organized Crime; (iv) Cyer Threats; (v) Significant Fraud; and (vi) Transnational Security Threats. In prepared remarks, FinCEN Director Jennifer Shasky Calvery noted the importance of BSA data to the financial industry, stating that the data is used to confront serious threats to the U.S. financial system including massive fraud schemes, cyberthreats, foreign corruption, drug trafficking, and terrorist organizations.

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FinCEN Resolves First Enforcement Action Against Virtual Currency Exchange

On May 5, a virtual currency company and its subsidiary agreed to pay a $700,000 civil money penalty for violating multiple provisions of the Bank Secrecy Act (BSA), in which both companies acted as a money service business and seller of virtual currency without properly registering with FinCEN, as well as, failed to implement and maintain an adequate anti-money laundering (AML) program. Furthermore, according to a Statement of Facts and Violations, FinCEN also charged the subsidiary for not filing or untimely filing suspicious activity reports related to several financial transactions. In addition to the civil money penalty, terms of the agreement require both companies to, among other things, (i) engage in remedial steps to ensure future compliance with AML statutory obligations; and (ii) enhance their current internal measures for compliance with the BSA. In a separate DOJ announcement, both companies entered into a settlement agreement to resolve potential criminal charges with the U.S. Attorney’s Office in the Northern District of California. Under terms of the DOJ settlement, both companies agreed to forfeit a total of $450,000, which will be credited to satisfy FinCEN’s $700,000 penalty, in exchange for the government not criminally prosecuting the companies for the aforementioned conduct.

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FinCEN Eyes Real Estate Industry For Money Laundering Concerns

On May 6, FinCen Director Jennifer Calvery delivered remarks at the West Coast AML Forum, highlighting the agency’s increased focus to ensure transparency within the U.S. financial system. In her remarks, Calvery addressed concerns about potential money laundering activities in the real estate market, particularly for persons involved in real estate closings and settlements. The continued use of shell companies by criminals to purchase luxury residential real estate is of particular concern. Of note, Calvery referenced prior FinCEN efforts to define the scope of BSA obligations involving real estate closings and settlements, and that it has thus far deferred issuing rules likely to cover settlement and closing attorneys and agents, appraisers, title search and insurance companies, escrow companies, and possibly mortgage servicers and corporate service providers until it better identifies the money laundering risks and activities involved. Calvery also described criminal organizations’ use of third-party money launderers, such as accountants or attorneys, to obtain access to U.S. financial institutions, stating “[FinCEN] cannot permit institutions and their associated [third-party money launderers] to act as gateways to the U.S. financial system for criminal and other bad actors.” Calvery also provided an update on FinCEN’s current efforts to address beneficial ownership and ensure BSA compliance in the virtual currency market using the recent Ripple enforcement action as an example.

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FinCEN Assesses $75,000 Penalty Against Check Casher Business for Violating Anti-Money Laundering Laws

On March 18, the Financial Crimes Enforcement Network (FinCEN) assessed a $75,000 civil money penalty against a Colorado check casher and its general manager and ordered it to cease all business activities for “willfully violating” registration, reporting, and anti-money laundering provisions of the Bank Secrecy Act (BSA).  The Colorado-based check casher had been the subject of three BSA compliance examinations by the Internal Revenue Service, “all of which found significant and repeated violations.” Under the BSA, money services business are required to implement anti-money laundering controls, conduct internal compliance reviews, and provide compliance training for all staff in an effort to prevent the facilitation of money laundering and the financing of terrorist activities. The Colorado check casher failed to employ such programs, which resulted in a significant amount of untimely and inaccurate currency transaction reports.

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FinCEN Fines Community Bank Over BSA Violations

On February 27, FinCEN announced a $1.5 million civil money penalty against a Pennsylvania-based community bank for violating the BSA. Of that amount, $500,000 will go to the OCC, the bank’s primary regulator, for BSA violations. According to FinCEN, the bank admitted failing to file suspicious activity reports on transactions involving a former state judge who received over $2.6 million in personal payments in connection with a judicial scheme involving the construction, operation, and expansion of juvenile detention centers.

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FinCEN Fines Atlantic City Casino $10 Million for AML Deficiencies

Earlier this month, an Atlantic City-based casino was fined $10 million for violating the BSA – more specifically, for failing to (i) create and implement an adequate anti-money laundering program; (ii) establish an effective system of internal controls; and (iii) adequately file currency transaction reports or maintain other required records. Many of the violations that occurred in 2010 through 2012 were previously identified by regulators and brought to the attention of the casino. The federal government will not collect the $10 million civil penalty, but will receive an unsecured claim in the casino’s bankruptcy, pending approval from the bankruptcy judge.

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FinCEN Fines NY-Based Securities Broker-Dealer for Anti-Money Laundering Shortfalls

On January 27, FinCEN fined a New York securities broker-dealer firm $20 million for violating the BSA. According to the press release, the firm failed to (i) establish an adequate anti-money laundering program; (ii) conduct proper due diligence on a foreign correspondent account; and (iii) comply with Section 311 of the USA Patriot Act. These failures resulted in customers engaging in suspicious trading, including prohibited third-party activity and illegal penny stock trading, without it being detected or reported. The firm must pay $10 million of the $20 million penalty to the US Department of the Treasury. The remaining $10 million will be paid to the SEC to settle a parallel enforcement action.

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FinCEN Highlights Information Sharing Program Among Regulatory, Law Enforcement Agencies

On January 6, FinCEN released a fact sheet highlighting its Section 314(a) Program of the USA PATRIOT Act. Under the Section 314(a) Program, federal, state, local and foreign law enforcement are able to contact, through FinCEN, over 43,000 points of contact at more than 22,000 financial institutions to locate accounts and transactions of individuals or organizations engaged in, or reasonably suspected of, terrorism or money laundering. According to FinCEN, since its inception, the 314 Program has aided in 1,909 money laundering and 459 terrorism/terrorist financing criminal investigations. In addition, based on feedback from law enforcement, the Program has contributed to 95 percent of 314(a) requests lead to an arrest or indictment.

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FinCEN Fines Former CCO For Maintaining Ineffective AML Program

Recently, FinCEN announced a $1 million civil money penalty against the former Chief Compliance Officer (CCO) of a large financial services company for allegedly violating the Bank Secrecy Act (BSA) and its implementing regulations. In its complaint, FinCEN alleges that the CCO, from 2003 through 2008, failed to implement and maintain an effective AML program and file timely Suspicious Activity Reports as required by the BSA. As a result, the company’s money transfer system was used to carry out fraudulent activities causing customers to incur substantial losses. In addition to the penalty, FinCEN is seeking to prohibit the former CCO from participating, directly or indirectly, in the affairs of any financial institution.

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FinCEN Fines Small Credit Union for BSA Violations

On November 25, FinCEN fined a small Florida-based credit union $300,000 in civil monetary penalties for violating the Bank Secrecy Act (BSA). From 2009 through 2014, FinCEN charged that, among other deficiencies within its anti-money laundering program, the credit union lacked proper internal controls and failed to designate a BSA compliance officer to monitor suspicious transactions. The credit union admitted that it violated Section 314(a) of the USA PATRIOT ACT, which requires financial institutions to search their records of accounts and transactions of individuals who may be involved in money laundering or terrorist financing activities. The credit union, with assets of $4 million and five employees, contracted with a third party vendor to provide services and subaccounts to 56 money services businesses located in Central America, Middle East, and Mexico. FinCEN stated that 90% of the credit union’s annual revenue was generated from these accounts.

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FinCEN Issues Statement On Providing Banking Services to Money Services Businesses

On November 10, FinCEN released a statement to reiterate that banking organizations can serve Money Services Businesses (MSB) while meeting obligations under the Bank Secrecy Act. FinCEN noted that there is concern that banks may be terminating the accounts of MSBs on a wholesale basis because of potential regulatory scrutiny and that as a result MSBs are losing access to banking services. FinCEN stated that they do “not support the wholesale termination of MSB accounts without regard to the risks presented or the bank’s ability to manage the risk.” Rather, the risks presented by a given MSB can vary and, therefore, financial institutions should assess the risks on a case-by-case basis. FinCEN expects that banking organizations will manage the risks associated with MSB accounts and are committed to addressing the “wholesale de-banking of an important part of the financial system.”

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New Bitcoin Firms May Get Transitional License in New York

On November 2, New York Superintendent Lawsky delivered remarks at the Money 20/20 Conference on the state’s virtual currency and Bitcoin regulation. In October, Lawsky publicly stated that, as a result of the comments received on New York’s proposed BitLicense framework, there would be important changes made to the July 17 proposal. This week, on behalf of the NYDFS, Lawsky announced that additional changes are being considered to address “concern about the compliance costs of regulation on new or fledging virtual currency enterprises.” Specifically, Lawsky introduced the concept of a Transitional BitLicense, which would allow certain small, money transmitting startups to begin operating without huge compliance costs. Lawsky noted four main factors the NYDFS would consider when deciding whether or not to grant a Transitional BitLicense: (i) the nature and scope of the business and the associated risks for consumers; (ii) projected transactional and business volume; (iii) registration status as a Money Services Business with FinCEN; and (iv) previously established mitigating risk controls.

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FinCEN Rules Proposed Virtual Currency Exchange, Bitcoin Payment System Subject to BSA

On October 27, FinCEN issued two administrative rulings to companies seeking guidance on whether they must register as MSBs and be subject to the required reporting, recordkeeping, and monitoring obligations. In its first letter, a company queried whether its plans to set up a virtual currency trading and booking platform, similar to a traditional securities or commodities exchange, would make it subject to FinCEN regulations. FinCEN responded that the proposed virtual trading platform would be classified as an MSB. As a result, the company would have to register as an MSB as defined under the BSA. In its second ruling, a company asked whether a bitcoin payment system would be subject to the agency’s regulations. The payment system would accept customers’ credit card payments and transfer the payments to merchants in the form of bitcoin. FinCEN ruled that if the company sets up the payment system, the company would be classified as a money transmitter, and subject to BSA regulations, because “it engages as a business in accepting and converting the customers’ real currency into virtual currency for transmission to the merchant.”

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BuckleySandler Webinar Recap: FinCEN’s Proposed Rule Amending Customer Due Diligence Obligations

BuckleySandler hosted a webinar entitled “FinCEN’s Proposed Rule Amending Customer Due Diligence Obligations,” on September 18, 2014, as part of the ongoing FinCrimes Webinar Series. Panelists included James Cummans, Vice President of BSA/AML Operations at TCF Bank; Jacqueline Seeman, Managing Director and Global Head of KYC at Citigroup, Inc.; Sarah K. Runge, Director, Office of Strategic Policy at the U.S. Department of Treasury; and, Amy Davine Kim, Counsel at BuckleySandler LLP. The following is a summary of the guided conversation moderated by Jamie Parkinson, partner at BuckleySandler, and key take-aways to prepare for comments to the proposed rule and implementation of the new rule, once final, at your financial institution.

Key Tips and Take-Aways:

  1. Assess and prepare your organization’s financial and personnel resources to make sure that the appropriate resources are in place to comply with the proposed rule once it is finalized. Certain technical aspects of implementation may be complicated depending on the financial institutions’ existing processes.
  2. Boards of Directors should participate in and be informed of the process.
  3. Institutions that are exempt from the rule, including money services businesses (“MSBs”), should also consider how this rule would affect their operations. FinCEN has announced that this is an incremental rule making, meaning the rule could extend to additional entities in the future.
  4. Covered financial institutions should consider the implications and compliance issues associated with the proposed rule and actively engage in the comment period. It is clear that FinCEN took certain industry concerns into account from the earlier Advance Notice of Proposed Rulemaking (“ANPRM”), so any potential issues should again be raised.

Read more…

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