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$368 million penalty assessed against California branch for BSA/AML deficiencies
On February 7, the OCC and DOJ announced settlements with a Netherlands-based lender’s California branch, in which the branch pled guilty to one count of conspiracy to defraud the U.S. Government for impeding and obstructing a 2012 OCC examination when it concealed deficiencies in its Bank Secrecy Act and anti-money laundering (BSA/AML) compliance programs. According to the DOJ’s press release, the branch will pay over $368 million as a result of allowing “hundreds of millions of dollars in untraceable cash, sourced from Mexico and elsewhere, to be deposited into its rural bank branches” without conducting adequate BSA/AML review, and for conspiring with several former executives to hide information from OCC officials during the 2012 examination. Among other things, the plea agreement states that the branch “created and implemented a number of policies and procedures that prevented adequate investigations into suspicious customer activity,” which included (i) creating a “Verified List” of customers whose transactions needed no further review even if there was a change in the customer’s activity from when it was verified; and (ii) instructing BSA/AML staff to “aggressively increase the number of bank accounts on the Verified List.” Further, the branch admitted it failed to both monitor and conduct adequate investigations into these transactions and submit suspicious activity reports to the Financial Crimes Enforcement Network, as required by the BSA. Additionally, in an effort to conceal deficiencies in its BSA/AML program, the branch demoted or terminated two employees who risked “contradicting” the branch’s findings. Two months before the branch's guilty plea, a former executive entered into a deferred prosecution agreement for his role in the misconduct, and agreed to cooperate with the DOJ's continuing investigation.
As part of the plea agreement, the OCC announced it had terminated a December 2013 consent order entered into with the branch over its BSA/AML failures and stated, “the OCC has determined that the bank has implemented all of the corrective actions required by the 2013 consent order and has achieved compliance with the requirements set forth in that order.” On February 6, the branch agreed to pay $50 million civil money penalty to the OCC, which will be credited towards the overall amount assessed by the DOJ.
British pharmaceutical company responds to inquiries from SFO, DOJ, and SEC regarding its use of third-party advisors in China
In a securities filing on Wednesday, Feb. 7, a U.K.-based pharmaceutical company announced that it is responding to requests for information from the DOJ and SEC regarding third-party advisors that the company engaged in China. These requests came about after the company, pursuant to its continuing obligation to report to the SEC on its efforts to improve compliance following its September 2016 settlement of allegations that it violated the FCPA, informed the SEC and DOJ that the SFO had sought additional information in the course of its own investigation, which began in May 2014. The company was also investigated by Chinese authorities and, in September 2014, the company’s Chinese subsidiary was reportedly found guilty of bribery resulting in the company’s payment of a $491.5 million fine.
Allegations by short seller lead to corruption investigation of California-based electronics manufacturer
In a securities filing on February 1, a California-based electronic systems manufacturer revealed that the DOJ and SEC have launched investigations into its FCPA compliance and regarding trading by company employees in the company's securities. These investigations were spurred by a report issued in December 2016 by a short seller, which accused the company of paying bribes to win a major contract in Albania. The company has denied that allegation, and stated in its Form 8-K filing that it is cooperating with the government’s investigations.
CFTC reaches spoofing settlements with banks; joint investigation with DOJ leads to civil and criminal charges against traders
On January 29, three global banks agreed to pay a combined $46.6 million fine to settle civil allegations by the Commodity Futures Trading Commission (CFTC) that their traders engaged in a practice known as spoofing to manipulate futures markets, which involves placing bids or offers with the intent to cancel before execution. While neither admitting nor denying any wrongdoing in connection with the settlements, the banks agreed, among other things, to pay the fines, maintain controls in order to detect and prevent spoofing among traders, and implement new training programs. As part of a larger investigation conducted by the CFTC and the criminal divisions at the DOJ and FBI, the CFTC stated within the same announcement that civil enforcement actions were filed against six individuals for alleged spoofing violations. Additionally, according to a press release issued the same day, the DOJ announced criminal charges against eight individuals who allegedly participated in various deceptive trading practices, including the six traders named in the CFTC’s civil complaints. The DOJ alleged the defendants’ spoofing trades were designed to defraud individuals and entities by artificially depressing or inflating the prices of futures contracts traded on several exchanges.
Criminal charges unsealed against former American hedge fund firm executive
The DOJ recently unsealed criminal charges against former hedge fund executive. This indictment follows a civil suit filed in January 2017 against him and others by the SEC regarding FCPA violations. In 2016, the DOJ and SEC also pursued a joint FCPA enforcement action against his former employer, alleging various bribes, self-dealing, and other malfeasance relating to the procurement of mineral, oil, and other natural resource contracts in African counties.
While the SEC’s initial January 2017 civil matter against him alleged FCPA violations, the recently announced criminal indictment does not directly charge him with violating the FCPA. He is alleged to have obstructed the DOJ and SEC’s investigations of his former company and made false statements, but also to have committed investment advisor fraud.
DOJ unseals 11-count FCPA indictment against Maryland executive
In an indictment unsealed on January 5, the DOJ charged a former executive of a Maryland company with 11 criminal counts, including seven counts of violating the FCPA and one count of conspiracy to violate the FCPA. The allegations relate to an alleged scheme to bribe an official at a Maryland-based Russian energy company that is a subsidiary of a large Russian corporation, as well as the sole supplier and exporter of Russian Federation uranium and uranium enrichment services. The former executive alleged sought to improperly obtain awards of nuclear transportation contracts from the Maryland based company to his company. Several other key players in the case already have pleaded guilty, including his former business associate as well as the official. Although sentencing for a number of the parties is forthcoming, the official already has been ordered to forfeit $2.1 million following his guilty plea. The initial investigation began in 2007 as part of a joint DOE-OIG and FBI probe into the official for laundering the funds derived from the scheme into offshore accounts.
Senate Banking Committee: The impact of cryptocurrency in AML/BSA enforcement
On January 17, the Senate Committee on Banking, Housing, and Urban Affairs held a second hearing with witnesses from the Treasury and Justice departments to further address the need to modernize and reform the Bank Secrecy Act and anti-money laundering (BSA/AML) regime. The hearing, entitled “Combating Money Laundering and Other Forms of Illicit Finance: Administration Perspectives on Reforming and Strengthening BSA Enforcement,” follows a January 9 hearing before the same Committee on related issues (see previous InfoBytes coverage here). Committee Chairman Mike Crapo, R-Idaho, opened the hearing by stating the need to understand the government’s position on “strengthening enforcement and protecting the integrity of the U.S. financial system in a new technological era,” while also recognizing the challenges technology creates for law enforcement. A primary topic of interest to the Committee was “the rise of cryptocurrencies and their potential to facilitate sanctions evasion and perhaps, other crimes.”
The first witness, Treasury’s undersecretary for terrorism and financial crimes, Sigal Mandelker (testimony), noted that money laundering related to cryptocurrencies is “an area of high focus” for Treasury, and highlighted actions taken by Treasury’s Financial Crimes Enforcement Network (FinCEN), such as the release of guidance announcing that “virtual currency exchangers and administrators” are subject to regulations under the BSA. Regulated entities, Mandelker stated, are required to file suspicious activity reports (SARs) and are subject to FinCEN and IRS examinations and enforcement actions. Mandelker further commented that Treasury is “aggressively tackling” illicit financing entering the U.S. system and elsewhere, and stressed that other countries face consequences if they fail to have an AML/Combating the Financing of Terrorism regime that meets Treasury standards.
The second witness, DOJ acting deputy assistant attorney general M. Kendall Day (testimony), informed the Committee of the recent hiring of a digital currency counsel who is responsible for ensuring prosecutors are up-to-date on the latest money-laundering threats in the digital currency field. Day also commented on recent DOJ prosecutions in this space, and emphasized the need for enhanced information sharing for law enforcement, including the benefit of deriving information from SARs.
Real estate broker and nephew of former UN Secretary-General pleads guilty to FCPA charges
On January 5, 2018, the Department of Justice announced that a real estate broker and nephew of former UN Secretary-General, pleaded guilty to charges that he tried to bribe a Qatari official in connection with a sale of a high rise building complex in Vietnam. He pleaded guilty to one count of conspiracy to violate the FCPA and one count of violating the FCPA before U.S. District Judge Edgardo Ramos of the Southern District of New York. He was charged with his father, who was an executive at a South Korean construction company, and an arts and fashion blogger in December 2016.
In his guilty plea, the nephew admitted to joining a conspiracy to make $2.5 million in bribe payments to a Qatari official between February 2014 and May 2015 in an effort to sell the South Korean construction company-owned buildings in Vietnam, which were worth $800 million. The nephew admitted that he andhis father agreed to pay $500,000 to a Qatari official to persuade the official to use the Qatari sovereign wealth fund to purchase the building. The $500,000 was then transferred to the arts and fashion blogger, who posed as an agent for the foreign official, but instead of passing the payment to the foreign official, he double-crossed his codefendants and stole the $500,000.
Although the scheme involved a South Korean construction company and a Qatari foreign official, the Indictment alleged that the nephew qualified as a “domestic concern” pursuant to 15 USC 78dd-2(h)(1) because he was a lawful permanent resident of the United States and resided in New Jersey at the time.
The nephew faces up to five years in prison on each count. The blogger previously pleaded guilty to charges of wire fraud and money laundering for his role in the scheme, and was sentenced to 42 months in prison. The father has been charged, but not yet arrested.
Singapore-Based Shipyard Operator Agrees to $422 Million Penalty to Resolve Foreign Bribery Case
On December 22, 2017, Singapore-based shipyard operator and shipping vessel repair company, and its wholly owned U.S. subsidiary, agreed to pay a combined total penalty of $422 million to resolve foreign bribery charges by the DOJ. Authorities in the United States, Brazil, and Singapore alleged that the companies engaged in a decade-long scheme to pay tens of millions of dollars in bribes to officials in Brazil, including those of a state-owned oil company. As part of the resolution, the company entered into a deferred prosecution agreement while its U.S. subsidiary pleaded guilty, as did a former senior member of the company’s legal department. The settlement is one of the largest FCPA enforcement penalties and also represents DOJ’s first coordinated FCPA resolution with Singapore. The settlement represents a 25 percent reduction off the bottom of the applicable U.S. Sentencing Guidelines fine range due to substantial cooperation by the companies with the investigation and the taking of remedial measures, including disciplining employees and implementing an enhanced compliance system.
Former Aircraft Manufacturer Sales Executive Pleads Guilty to Saudi Arabian Bribery
A former sales executive of a Brazilian-based aircraft manufacturer pleaded guilty on December 21 in connection with a scheme to pay bribes to a Saudi Arabian government official. The sales executive, a U.K. resident living in the United Arab Emirates, pleaded guilty to a count each of violating the FCPA, conspiracy to violate the FCPA, wire fraud, conspiracy to commit wire fraud, money laundering, conspiracy to launder money, and making a false statement. As part of his plea, he admitted that he engaged in a scheme to have the manufacturer pay bribes to a foreign official in exchange for assistance in getting an aircraft sales contract. The sales executive also admitted getting a kickback as part of the scheme and lying to law enforcement officials about the kickback.
The manufacturer previously paid $205 million to the DOJ and SEC in October 2016 to resolve related FCPA violations in Saudi Arabia, Mozambique, and the Dominican Republic.