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Bank Secrecy Act
In recent years, white-collar criminal enforcement has been marked by a string of high-profile prosecutions of banks for violations of the Bank Secrecy Act, the most recent against BNP Paribas. See United States Attorneys' Bulletin, “Prosecuting Financial Institutions and Title 31 Offenses,” Vol. 61, No 5 at p. 19 (Sept. 2013) (listing banks that have been prosecuted). The BSA, enacted in 1970, requires domestic financial institutions to establish and maintain effective anti-money laundering (AML) programs. The law has been amended over time, notably following the 9/11 attacks, to enhance AML requirements and widen the range of institutions required to have AML programs.
Notwithstanding a series of multi-billion dollar settlements, the government's enforcement efforts have met with criticism. Yves Smith, “Opinion: Punish Bankers Not Banks for Crimes,” CNN.com (July 11, 2014); John Schults, “BNP Paribas Agrees to Record $8.8bn Settlement for US Sanctions Violations,” Reuters (June 30, 2014). In addition to claiming that the banks themselves have not been sufficiently punished, critics have lamented that individuals are not being held accountable for criminal conduct ' a common complaint about government enforcement efforts since the 2007-08 financial crisis. In fact, individuals have been prosecuted for BSA violations, but not in the recent cases against global financial institutions that have captured media headlines.
Perhaps the relative dearth of individual prosecutions lies, quite appropriately, in the nature of the criminal violations at issue ' in essence, the BSA imposes obligations on organizations to take certain actions, rather than prohibiting individuals from taking certain actions. And, further, maybe it lies in the practicalities of investigating the extraterritorial conduct of global financial institutions. We should not be surprised, therefore, that civil penalties have begun to receive heightened interest among enforcement authorities as a means of sanctioning and deterring individual misconduct, a development seen in other areas of white-collar enforcement since the financial crisis.
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