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As we noted in a client alert late last week, the federal banking agencies released on August 13, 2020, a joint statement on enforcement of Bank Secrecy Act/Anti-Money Laundering (“BSA/AML”) requirements.  At the time, the Federal Deposit Insurance Corporation made reference to a possible separate “Statement on Enforcement of the Bank Secrecy Act” from FinCEN.  FinCEN released that statement earlier today.  We summarize below three key takeaways from the FinCEN statement:
  1. The FinCEN statement asserts (emphasis added) that:  “When FinCEN takes an enforcement action, it will seek to establish a violation of law based on applicable statutes and regulations.  FinCEN will not treat noncompliance with a standard of conduct announced solely in a guidance document as itself a violation of law.”  The underlined sentence reflects a position on the role of guidance that other agencies have also emphasized in recent years.  But, given a number of FinCEN regulations are quite high-level and have been extensively interpreted in the FFIEC BSA/AML Manual and other guidance, it remains to be seen how FinCEN will apply the underlined sentence in practice.
  2. The FinCEN statement lists the types of actions FinCEN may take in light of an identified violation, including an informal “warning letter” for less serious violations (i.e., in lieu of a cease and desist order or civil money penalty).
  3. The FinCEN statement identifies the factors FinCEN will consider in determining the appropriate disposition of an AML violation.  Those factors are generally what one would expect — e.g., the pervasiveness, seriousness and practical effects of the violation; the institution’s self-identification, disclosure, and cooperation in connection with the violation (or lack thereof); the institution’s history of prior violations; and actions taken by other agencies with overlapping jurisdiction, including bank regulators.

The full text of the FinCEN statement is available here.

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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.