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FinCEN Issues Guidance on 314(b) Information Sharing Among Financial Institutions

By Jean Veta & Nikhil Gore on December 14, 2020
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On December 10, the Financial Crimes Enforcement Network (FinCEN) issued new guidance interpreting section 314(b) of the USA PATRIOT Act and rescinding FinCEN’s previous guidance. Section 314(b) is intended to establish a safe harbor for financial institutions that voluntarily share (in accordance with the statute’s terms) information regarding possible terrorism and money laundering.  The new guidance, which is in the form of a Fact Sheet, appears aimed at providing further encouragement and assurance to financial institutions to participate in section 314(b).

FinCEN Director Kenneth Blanco introduced the guidance in a speech to the Financial Crimes Enforcement Conference of the American Bar Association and American Bankers Association.  Director Blanco explained that the guidance was the outcome of feedback from financial institutions on the effectiveness of previous section 314(b) guidance. He also highlighted FinCEN efforts during the COVID-19 pandemic and recent FinCEN rulemakings in the speech.

Most notably, the guidance clarifies the circumstances under which financial institutions may share information under section 314(b), including when the financial institution does not have specific information that the suspicious activity relates to a specified unlawful activity (SUA) or includes proceeds from an SUA.

The guidance also provides that financial institutions can share information not only about a “transaction,” but also about certain attempted transactions, attempted inducements of others to transact, and other predicate offenses.  In his speech, Director Blanco explained that “this clarification is significant and addresses some uncertainty with sharing incidents involving possible fraud, cybercrime, and other predicate offenses when financial institutions suspect those offenses may involve terrorist acts or money laundering activities.”

The Fact Sheet also clarifies the types of associations that can facilitate information sharing under section 314(b).  The guidance provides that entities which are not “financial institutions” under the Bank Secrecy Act may nonetheless form and operate associations of financial institutions that share information under section 314(b).  Thus, unincorporated associations of financial institutions and compliance service providers to financial institutions that operate associations may share information under section 314(b), even though they themselves are not “financial institutions.”

In his speech, Director Blanco said that the new guidance was intended to “enhanc[e] participation and utility of the 314(b) program” and “mak[e] good on a commitment” to make the fight against terrorism and money laundering “more effective and efficient.”

Photo of Jean Veta Jean Veta

Jean Veta is described by Chambers USA as “one of the premier banking and financial regulatory enforcement litigators in the country.” She defends financial institutions and their officers and directors in civil and regulatory enforcement matters, government investigations, internal corporate investigations, and congressional…

Jean Veta is described by Chambers USA as “one of the premier banking and financial regulatory enforcement litigators in the country.” She defends financial institutions and their officers and directors in civil and regulatory enforcement matters, government investigations, internal corporate investigations, and congressional investigations.
Jean regularly represents clients on the full range of regulatory enforcement issues, including:

advising on safety and soundness issues, UDAAP and other consumer compliance issues, fair lending, anti-money laundering, securities issues, and FIRREA and False Claims Act investigations.
appearing before the federal bank regulators, the CFPB, FinCEN, the Department of Justice, the SEC, and state attorneys general and bank regulators.

Jean’s pro bono work includes:

filing amicus briefs on behalf of over 20 professional medical associations in opposition to state laws that would ban gender affirming medical care for transgender adolescents. Amici include the American Academy of Pediatrics, the American Medical Association, and the American Psychiatric Association.
filing an amicus brief in support of transgender students’ rights. Amici include the National Association of Social Workers, the American Academy of Pediatrics, and the American Medical Association.
representing civil rights organizations, an interfaith group of clergy, and four same-sex couples in support of Washington DC’s marriage equality.
representing pro-choice organizations in Congressional investigations into fetal tissue research and late-term abortion.

Jean is ranked in Chambers USA’s Band 1 for Banking Enforcement and Investigations. She was named by The American Lawyer as Litigator of the Week and by Best Lawyers in America as “Washington’s Lawyer of the Year for Banking and Finance Litigation” and “Washington’s Lawyer of the Year for Financial Services Regulatory Law.”

Jean serves as a Commissioner on the American Bar Association’s Commission on Sexual Orientation and Gender Identity. Previously, Jean was a member of the ABA’s Standing Committee on the Federal Judiciary, which provides an impartial evaluation of the professional qualifications of all federal judicial nominees. As the Standing Committee’s representative for the U.S. Court of Appeals for the D.C. Circuit, Jean served as a principal evaluator of then Supreme Court nominee, Justice Ketanji Brown Jackson’s professional qualifications to serve on the Court. Jean testified before the Senate Judiciary Committee regarding Justice Jackson’s integrity, professional competence, and judicial temperament. On April 7, 2022, Justice Jackson was confirmed by the Senate to replace Justice Stephen Breyer.

Jean also serves as the DC Bar’s Delegate to the ABA House of Delegates.

During President Clinton’s administration, Jean served as:

Deputy Associate Attorney General, United States Department of Justice (2000-2001)
Deputy General Counsel, United States Department of Education (1998-2000)

As described in Chambers USA, one client said “She’s at the top of her game and top of the industry. She has a keen intellect, and a commanding knowledge of the law, excellent judgment and a passion for zealous representation of her client. You can do no better than to have Jean on your side. She’s the leader in her field.”

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Photo of Nikhil Gore Nikhil Gore

Nikhil V. Gore represents financial institutions, sovereigns, and global corporations in investigations, disputes, and regulatory advocacy before U.S. and international financial services regulators.

As co-chair of Covington’s financial services investigations and government enforcement practice, Nikhil leads anti-financial crime investigations, as well as a…

Nikhil V. Gore represents financial institutions, sovereigns, and global corporations in investigations, disputes, and regulatory advocacy before U.S. and international financial services regulators.

As co-chair of Covington’s financial services investigations and government enforcement practice, Nikhil leads anti-financial crime investigations, as well as a wide range of financial institution governance, control, safety and soundness, and consumer and market conduct matters. He has served as lead counsel for multiple major financial institutions in safety-and-soundness matters before the OCC and Federal Reserve; secured unprecedented outcomes for community banks challenging FDIC supervisory and enforcement actions; and represented global banking institutions in anti-financial crime investigations in Asia, Latin America and the Middle East.

Nikhil also counsels clients on a range of financial statutes and regulations, including those governing U.S. fiscal law and the investment and payment authorities of government agencies; the control of money laundering and the licensing of money transmission; and the combatting of terrorist financing.

In his disputes practice, Nikhil is part of the Covington team representing Ukraine in state-to-state arbitrations against the Russian Federation and was appointed by the Prosecutor-General of Ukraine to the Legal Task Force on Accountability for Russian War Crimes. He has handled treaty arbitrations and commercial disputes spanning Asia, Eastern Europe, North America, the Middle East, and Africa.

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  • Posted in:
    Banking, Finance and Securities
  • Blog:
    Cov Financial Services
  • Organization:
    Covington & Burling LLP

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