The Chief Compliance Officer of a money transmitter agreed to pay a $250,000 penalty and a 3-year bar from serving in a compliance function in connection with anti-money laundering compliance failures. As part of his settlement with FinCEN and the U.S. Attorney, the CCO also admitted to failing to stop potential money laundering despite being “presented with information that strongly indicated that the outlets were complicit in consumer fraud schemes” and implementing an inadequate AML program. The settlement concludes the case which had initially imposed a $1 Million fine, which could have been as much as $4.75 Million based on the statutory penalty of $25,000 for each failure to file a Suspicious Activity Report. The Acting U.S. Attorney explained the decision to prosecute a CCO: “Compliance officers perform an essential function, serving as the first line of defense in the fight against fraud and money laundering.”
OUR TAKE: Compliance officers that assume anti-money laundering duties are subject to prosecution and significant fines by both FinCEN and the DoJ (in addition to FINRA and other financial regulators). Nobody condones the CCO’s conduct in this case, but one question many compli-pros have asked is why has the CCO been singled out for personal liability? Why didn’t the feds pursue the operations folks that vet clients or the senior executives in charge? And, why does the CCO pay a fine when he did not financially benefit from the misconduct?
The Chief Compliance Officer of a broker-dealer was barred from the industry for mis-using his position to assist his brothers’ securities fraud scheme. According to the SEC, the brothers engaged in a long-running securities fraud to fleece foreign investors with phony offerings, fake names and bogus fees. The SEC charges that the respondent used his privileged position as a broker-dealer’s chief compliance officer to create accounts and move funds without supervision. The SEC asserts that he created “house” accounts and mis-labeled wires to hide the scheme. The SEC charges that the CCO thereby aided and abetted violations of the anti-fraud, reporting, and books and records rules. The SEC waived the disgorgement order but ordered a permanent bar based on his conduct and his incarceration on related criminal charges.
OUR TAKE: It is the CCO’s job to monitor others to prevent misconduct, but who watches the CCO? With unfettered access and knowledge, a CCO has a higher duty to follow and enforce the securities laws. Firms should also ensure that somebody reviews the CCOs personal dealings.
The SEC commenced an enforcement action against a broker-dealer’s chief compliance officer/anti-money laundering officer for failing to file Suspicious Activity Reports. The SEC alleges that the CCO/AML Officer had actual knowledge of red flags of illegal penny stock trading and money laundering. Such red flags included physical deposits of large blocks of penny stocks followed by rapid liquidation, simultaneous trading in two customer accounts, quick changes in issuer business plans, and clearly misleading company press releases. Also, the SEC maintains that a quick Google search would have raised other red flags including prior enforcement actions and articles alleging pump and dump activity. The SEC accuses the CCO/AML Officer for aiding and abetting and causing his firm’s violations of Rule 17a-8, which requires a broker-dealer to comply with the SAR requirements of the Bank Secrecy Act.
OUR TAKE: The regulators have been keen to impose personal liability on CCOs for violations of the Anti-Money Laundering rules including failures to file SARs. In fact, FinCEN can impose a $25,000 fine on an AML Officer for each failure to file an SAR (See e.g. U.S. Dept of Treasury v. Haider).
SEC Chief of Staff Andrew (Buddy) Donohue recently described the future challenges facing compliance officers. Mr. Donohue expressed concern about shrinking top-line growth in the asset management industry that could compromise the ability of compliance officers to obtain the funding necessary to implement the compliance program. He also questioned the emerging trend of compliance taking a more active role to ensure compliance rather than assisting in identifying regulatory issues and developing policies and procedures. Mr. Donohue warned that compliance must be viewed as a partner, not a “scapegoat or cost center.” Mr. Donohue also inventoried the ever-expanding knowledge required including laws of multiple jurisdictions, overlapping statutes, and new technologies. He advised compliance officers: “It is critical that you make it a priority to develop the necessary technical expertise, keep up with changing market dynamics, fully appreciate all of the firm’s businesses and follow regulatory developments and their impact on your firm and its operations.” Despite his comments, Mr. Donohue expressed hope that his comments won’t “scare you away from a career in compliance.”
OUR TAKE: With over 40 years’ industry and regulatory experience, Mr. Donohue is a respected voice on regulatory and compliance issues. Every CEO and Board should read this speech and ask whether their CCOs have the attention and resources to meet these challenges.
The SEC fined and censured a registered investment adviser for failing to conduct annual compliance reviews and appointing a chief compliance officer without relevant experience. The SEC asserts that the respondent, which registered in 2010, never conducted an annual review of its compliance policies and procedures as required by the compliance rule (206(4)-7). In fact, according to the SEC, neither the firm nor the CCO were even aware of the requirement. The SEC also faults the firm for appointing as chief compliance officer an inexperienced administrative assistant who spent most of her time on administrative duties.
OUR TAKE: Compliance programs, at their most fundamental, must include the implementation of effective policies and procedures reasonably designed to achieve compliance with the Advisers Act, the appointment of a qualified and dedicated chief compliance officer, and annual reviews of the compliance program. The SEC will bring an enforcement action for a weak compliance program even in the absence of any other regulatory violation or client harm.