Big Stock Photo_805445On August 30, 2016, the U.S. Department of the Treasury and four U.S. federal banking regulators sought to correct a problem—at least in part one of their own creation—by issuing a “Joint Fact Sheet on Foreign Correspondent Banking” to clarify enforcement priorities regarding AML/BSA and countering the financing of terrorism (CFT) regimes. The Fact Sheet highlighted the importance of maintaining correspondent banking relationships with foreign financial institutions and the value of the free flow of monies within and across global economies.

The Fact Sheet, in conjunction with a blog post by Treasury, attempts to allay concerns raised by industry and groups such as the International Monetary Fund about the trend of “de-risking” by U.S. banks as a result of fear of aggressive AML/BSA enforcement by U.S. regulators and law enforcement. In particular, the Fact Sheet suggests that U.S. banks have overreacted to concerns over AML/BSA enforcement by unnecessarily terminating correspondent banking relationships with foreign banks. It notes that these relationships are crucial to the global economy and reflexive “de-risking” could destabilize or disrupt access to U.S. financing, hinder international trade, cross-border business, and charitable activities, and make claim remittances harder to effectuate.

The blog post and Fact Sheet—which claims to “dispel certain myths about U.S. supervisory expectations”—make two main points:

  • There is no expectation of perfection, and U.S. authorities do not employ a “zero tolerance” standard regarding AML/BSA and CFT compliance failures. About 95 percent of AML/BSA and CFT compliance concerns and sanctions are resolved through cautionary letters and negotiations with the authorities. Penalties and enforcement actions generally will be sought only where enforcement authorities perceive a pattern of reckless and willful violations over a period of years with no effort from senior management to recognize red flags.
  • There is no general expectation that a U.S. depository institution must perform due diligence on the individual customers of foreign financial institutions. Institutions should follow industry best practices to identify and manage the risk profiles of foreign financial institution clients. Due diligence is required regarding the types of customers served by a foreign financial institution, in order to assess specific risks posed by certain relationships, detect suspicious activity, and comply with U.S. economic sanctions.

The comments in the Fact Sheet and the blog post are welcome indicators that U.S. regulators and law enforcement authorities recognize that most AML/BSA and CFT compliance deficiencies do not merit enforcement actions or penalties. They also suggest that regulators and law enforcement authorities recognize that industry fears regarding enforcement—sometimes stoked by the government—can have unwanted and negative consequences, such as the unnecessary hindering of the international financial system. Ultimately, however, the Fact Sheet and the blog post merely offer a degree of clarification and insight by the government into its expectations for compliance. They do not have the force of law, nor can they predict precisely how individual regulators or enforcement personnel will act in specific cases.

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Peter D. Hardy

hardyp@ballardspahr.com | 215.864.8838 | view full bio

Peter is a national thought leader on money laundering, tax fraud, and other financial crime. He is the author of Criminal Tax, Money Laundering, and Bank Secrecy Act Litigation, a comprehensive legal treatise published by Bloomberg…

hardyp@ballardspahr.com | 215.864.8838 | view full bio

Peter is a national thought leader on money laundering, tax fraud, and other financial crime. He is the author of Criminal Tax, Money Laundering, and Bank Secrecy Act Litigation, a comprehensive legal treatise published by Bloomberg BNA.  Peter co-chairs the Practising Law Institute’s Anti-Money Laundering program, and serves on the Steering Committee for the Cambridge Forum on Sanctions & AML Compliance

He advises corporations and individuals from many industries against allegations of misconduct ranging from money laundering, tax fraud, mortgage fraud and lending law violations, securities fraud, and public corruption.  He also advises on compliance with the Bank Secrecy Act and Anti-Money Laundering requirements.  Peter handles complex litigation involving allegations of fraud or other misconduct.

Peter spent more than a decade as a federal prosecutor before entering private practice, serving as an Assistant U.S. Attorney in Philadelphia working on financial crime cases. He was a trial attorney for the Criminal Section of the Department of Justice’s Tax Division in Washington, D.C.

Priya Roy

royp@ballardspahr.com | 215.864.8336 | view full bio

Priya focuses her practice on white collar defense, internal investigations, and complex civil litigation. She counsels clients in AML and BSA matters, as well as matters involving allegations of tax fraud, violations of the False Claims…

royp@ballardspahr.com | 215.864.8336 | view full bio

Priya focuses her practice on white collar defense, internal investigations, and complex civil litigation. She counsels clients in AML and BSA matters, as well as matters involving allegations of tax fraud, violations of the False Claims Act and Anti-Kickback Statute, violations of the Food, Drug, and Cosmetics Act, securities violations, and other fraud and regulatory offenses and abusive acts and practices.