• April 26, 2024

The Only Comprehensive Resource on U.S. Economic Sanctions

FinCEN Withdraws Section 311 Designation for BPA

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Word of advice: Don’t get labeled a foreign financial institution of primary money laundering concern because it will be a tough and miserable slog to remove such designation.

See Banca Privada d’Andorra (“BPA”) for a case in point: On March 10, 2015, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN) designated BPA a foreign financial institution of primary money laundering concern under Section 311 of the USA PATRIOT Act and issued a Notice of Proposed Rulemaking that would prohibit U.S. financial institutions from opening or maintaining correspondent or payable-through accounts for the bank, as well as for foreign banks that used such accounts at a U.S. financial institution to process transactions involving Banca Privada d’Andorra.

BPA’s Section 311 designation stemmed from what FinCEN alleged was “several years” worth of “high-level managers at BPA [knowingly facilitating] transactions on behalf of third-party money launderers acting on behalf of transnational criminal organizations (“TCOs”).” The TCOs were predominantly Russian and Chinese. Under the alleged scheme, BPA processed hundreds of millions of dollars through correspondent accounts that it held at four U.S. banks. High-level managers at BPA would customize services to its third-party money-laundering clients to disguise the origin of the funds, all the while receiving payments and other benefits from their criminal clients.

The effect of the designation was catastrophic. Within a week of its Section 311 designation, one of BPA’s subsidiaries (Banco de Madrid) filed for bankruptcy, while BPA itself was on “financial life support.” Having no direct presence in the United States, “BPA relied on international correspondent banks for links to the U.S. financial system.” But upon being designated under Section 311 of the USA PATRIOT Act, banks quickly cut their ties to BPA and brought to a close BPA’s access to the U.S. financial system.

In short, the damage was direct and immediate. Some of BPA’s controlling shareholders took to criticize the U.S. Treasury Department for failing to give BPA the necessary time to resolve the U.S.’s concerns on its own, but to no avail.

That brings us to this week’s events. On February 19, 2016, FinCEN announced that it was withdrawing its designation of Banca Privada d’Andorra under Section 311 “as BPA no longer operates in a manner that poses a threat to the U.S. financial system.” In other words, BPA might yet be resuscitated and brought back to life. How did it manage to do so?

It was an ugly affair, that’s for sure. According to FinCEN’s press release, a series of factors led FinCEN to remove BPA’s designation under Section 311, including:

[A]uthorities in Andorra assumed control of BPA management and operations; arrested the [CEO] on money laundering charges; and are in the final stages of implementing a resolution plan that is isolating the assets, liabilities, and clients of BPA that raise money laundering concerns.

Under the resolution plan, the assets, liabilities, and clients of BPA that do not raise money laundering concerns (i.e., the “good assets”) will be transferred to a bridge bank, known as Vall Banc, that is currently under the control of an Andorran government agency, Agencia Estatal de Resolucio de’Entitats Bancaries (AREB).

These are some fundamental changes. It apparently took the intervention of a foreign government to assure FinCEN that Banca Privada d’Andorra no longer posed a threat to the integrity of the U.S. financial system. That is not the kind of recourse that all financial institutions will have.

Is there a lesson to all this? Yes: If you survive a Section 311 designation, don’t expect to come out of the designation the same bank as when you went into it.

Tyler Cullis

Mr. Cullis is an Associate Attorney at Ferrari & Associates, P.C. where he is engaged in the practice of U.S. economic sanctions, including trade compliance, regulatory licensing matters, and federal investigations and prosecutions. Mr. Cullis has extensive experience counseling clients on matters falling under the purview of the United States Department of the Treasury’s Office of Foreign Assets Control (OFAC) and the U.S. Department of Commerce’s Bureau of Industry and Security (BIS). He has provided counsel to U.S. and foreign parties on complex cross-border transactions and compliance with U.S. economic sanctions; conducted corporate internal investigations and developed sanctions compliance policies; and submitted license applications and voluntary self-disclosures to OFAC. Mr. Cullis has advised global financial institutions, multi-national corporations, U.S. and foreign exporters and insurers, as well as private individuals regarding U.S. sanctions matters, including matters involving Russia, Iran, and Cuba.