FINCEN Anti-Money Laundering (AML) Compliance Audits & Investigation Defense
Our Lawyers and Former Federal Agents Provide AML Compliance and Defense Services for Banks, Brokerages, and Other Businesses
Federal anti-money laundering (AML) laws, including the Bank Secrecy Act, apply to a broad range of institutions and businesses. While Congress originally enacted these laws to aid in the fight against terrorism and other criminal enterprises, today federal prosecutors use these laws to target entities (and individuals) for many different types of crimes. Federal authorities also vigorously enforce AML compliance, and non-compliance can lead to substantial penalties even in the absence of suspicious transactions or other unlawful activity.
As a result, financial institutions, brokerages, and other businesses need to make AML compliance a priority. They must also be prepared to defend themselves during federal AML investigations. At Oberheiden P.C., our AML lawyers, former federal prosecutors, and former federal agents provide comprehensive AML compliance and defense services for entities nationwide. We can help your institution or business establish (and maintain) compliance, and we can serve as defense counsel for investigations involving the U.S. Department of Justice (DOJ), Financial Crimes Enforcement Network (FinCEN), Commodity Futures Trading Commission (CFTC), and other agencies.
Establishing (and Maintaining) FINCEN AML Compliance – AML Consulting Firm
With regard to AML compliance, institutions and businesses face a host of obligations. While many of these obligations are general in nature – applying to all institutions and businesses that process financial transactions or do business with foreign entities – there are also various additional obligations that apply within specific industry sectors. For this reason, when it comes to establishing AML compliance, one of the first critical steps is simply to determine what obligations apply.
Broadly speaking, however, all institutions and businesses that are subject to AML compliance must take the same basic steps in order to meet their general and specific obligations under the Bank Secrecy Act and other pertinent statutes. These steps include:
1. AML Compliance Program
All institutions and businesses that are subject to AML compliance need to adopt comprehensive compliance programs. These programs must be custom-tailored to institutions’ and businesses’ specific operations, risks, and obligations. For example, while brokerage firms may need to address compliance with National Futures Association (NFA) Rule 2-9(c) and Financial Industry Regulatory Authority (FINRA) Rule 3310, other businesses may need to focus more heavily on the Specially Designated Nationals and Blocked Persons (SDN) regulations enforced by the Office of Foreign Assets and Control (OFAC).
Regardless of an institution’s or business’s specific AML compliance obligations, the core components of an effective AML compliance program will include:
- Documented policies and procedures
- Designation of AML compliance officer
- Employee education and training
- Implemented measures to prevent and detect suspicious activity
- Periodic review and updates
- Internal auditing and enforcement
- Independent review
2. Customer Identification Program (“KYC”)
Section 5328(l) of the Bank Secrecy Act and 31 CFR §1026.220 require financial institutions and brokerage firms to adopt customer identification programs. These programs, commonly known as “know your customer” or “KYC” programs, must be designed to enable institutions and firms to form a “reasonable belief” that they know their customers’ true identities.
While institutions and firms can rely on other entities to perform KYC functions, they must meet certain requirements in order to do so. Among other things, they must ensure that (i) the entity has an AML compliance program, (ii) the entity certifies to AML compliance annually, and (iii) that reliance on the entity is “reasonable under the circumstances.”
3. Suspicious Activity Reporting
Suspicious activity reporting is a key aspect of AML compliance. Originally established under the Bank Secrecy Act, financial institutions’ and other businesses’ suspicious activity reporting requirements have been enhanced through various subsequent pieces of federal legislation. Today, institutions and businesses must address the requirements of the Money Laundering Control Act and Annunzio-Wylie Anti-Money Laundering Act, among others, in order to fully satisfy their suspicious activity reporting obligations.
4. AML Due Diligence
Beyond KYC compliance and suspicious activity monitoring, financial institutions, brokerages, and other entities need to engage in various other aspects of AML due diligence as well. Various federal authorities instruct entities to adopt specific, risk-based due diligence programs, and these programs must call for enhanced due diligence in appropriate circumstances.
5. Monitoring and Enforcement
In addition to implementing appropriate policies, procedures, and protocols, entities that are subject to AML compliance must also monitor and enforce compliance on a consistent basis. In addition to conducting periodic and ad hoc internal audits, for many entities this means having independent reviews conducted as well. Entities must also determine when updates to their AML programs are necessary, and they must timely adopt any updates or modifications that are necessary in order to maintain comprehensive compliance.
Anti-Money Laundering Investigation Defense
If your institution, brokerage, or business is under investigation for suspected AML violations, a prompt and strategic response is required. Our federal defense lawyers and former federal agents handle AML investigations involving the DOJ, FinCEN, CFTC, FINRA, and other authorities. We can help you avoid or mitigate any potential penalties, but it is important that you contact us promptly so that we can intervene in the investigation right away.
Depending on the specific allegations involved, AML investigations can lead to either civil or criminal prosecution. The Bank Secrecy Act is a criminal statute, and violations can potentially lead to fines and prison time for owners and executives. However, it is possible to avoid these consequences in many cases; and, at Oberheiden P.C., we focus on resolving our clients’ AML investigations before they lead to federal charges.
We serve as defense counsel for all types of AML investigations and compliance audits. This includes (but is not limited to) investigations targeting allegations such as:
- Failing to adopt adequate AML and customer identification programs
- Failing to identify, prevent, or report suspicious transactions
- Facilitating transactions used to finance terrorism or other criminal enterprises
- Engaging in transactions with SDNs without OFAC waivers
- Engaging in money laundering
Regardless of the specific allegations involved, if your institution, brokerage, or business is under investigation for suspected AML violations, you do not have time to waste. At the AML consulting firm of Oberheiden P.C., we can get to work immediately, and our federal defense lawyers and former federal agents can work quickly to begin steering the investigation toward a favorable resolution.
FAQs: Anti-Money Laundering Compliance and Defense
When is a bank, brokerage, or other business required to adopt an AML program?
Banks, brokerages, and other businesses are required to adopt AML programs when their operations involve financial transactions with potential money-laundering implications. The Bank Secrecy Act is extremely broad in scope; and, as a result, practically speaking most banks and brokerages need to give due consideration to AML compliance.
Other businesses can also face AML compliance obligations under a wide range of circumstances. If you have any questions or concerns about AML compliance, we encourage you to contact us for more information.
How can I determine my bank, brokerage, or other business’s AML compliance obligations?
Identifying an entity’s specific AML compliance obligations requires a detailed understanding of both the entity’s operations and the relevant AML laws and regulations. Putting these two together, entities can then determine what they need to do to avoid unwanted scrutiny from the DOJ, FinCEN, and other relevant authorities.
At Oberheiden P.C., our career defense lawyers, former federal prosecutors, and former federal agents are intimately familiar with the AML laws and regulations. We can use this familiarity to promptly assess your entity’s needs and develop a custom-tailored AML compliance strategy.
What are the AML due diligence requirements for financial institutions and brokerage firms?
At a high level, AML due diligence involves adopting, “specific, risk-based, and where necessary, enhanced policies, procedures and controls that are reasonably designed to detect and report, on an ongoing basis, any known or suspected money laundering activity.” Here, too, specific entities’ obligations will vary widely, and the key to avoiding unwanted federal scrutiny is to adopt an AML due diligence program that is suited to the entity’s specific needs.
When are “enhanced” due diligence efforts required?
Enhanced due diligence efforts are required when an account or transaction raises certain specific concerns in the area of AML compliance. For example, the CFTC advises that financial institutions and brokerages should adopt enhanced due diligence procedures for, any correspondent account of a foreign bank that operates under:
- An offshore banking license;
- A banking license issued by a foreign country that has been designated as “non-cooperative”; or
- A banking license issued by a foreign country that has been designated as “warranting special measures due to money laundering concerns.”
When should banks, brokerages, and other businesses engage defense counsel for AML investigations?
When facing an AML investigation involving the DOJ, FinCEN, CFTC, or any other agency or authority, it is important to engage defense counsel right away. At Oberheiden P.C., the sooner we can intervene, the sooner we can identify the specific allegations at issue and develop a targeted defense strategy. If your bank, brokerage, or other business is facing federal scrutiny for possible AML violations, we strongly encourage you to contact us for a confidential consultation.
Discuss Your Institution’s or Business’s AML Needs in Confidence with a FINCEN Compliance Lawyer at Oberheiden P.C.
Do you have questions about FINCEN AML compliance? Do you need to engage defense counsel for an AML investigation? To speak with a senior FINCEN compliance lawyer or former federal agent at Oberheiden P.C. in confidence, call 888-680-1745 or get in touch with us online now.