Here Syedur Rahman of business crime solicitors Rahman Ravelli questions the effectiveness of big fines and the likelihood of criminal prosecutions in the future.
Standard Chartered has hit the headlines for the size of the fines imposed on it on both sides of the Atlantic.
But behind all the big numbers and the column inches it is hard not to wonder if such a costly slap on the wrists is now being viewed by the big banks as nothing more than the cost of doing big business.
Standard Chartered has been ordered to pay a total of $1.1 billion by US and UK authorities to settle allegations of poor money laundering controls and sanctions breaching. It is paying $947M to American agencies over allegations that it violated sanctions against six countries and has been fined £102M by the UK’s Financial Conduct Authority (FCA) for anti-money-laundering breaches; including shortcomings in its counter-terrorism finance controls in the Middle East.
These fines had been expected. Standard Chartered said two months before the fines were imposed that it had put $900M aside to cover them. But this isn’t the first time that Standard and Chartered has had to pay out for its wrongdoing.
Seven years ago, it paid a $667M fine in the US. Like its latest US penalty, it related to alleged sanctions breaches. At the time, it also entered into a deferred prosecution agreement (DPA) with the US Department of Justice and the New York county district attorney’s office over Iranian sanctions breaches beyond 2007. That DPA would have expired by now but has been extended until April 2021 in the wake of the latest allegations.
Will this be the end of Standard Chartered’s problems and the start of a new allegation-free era? It is hard to believe so. But it is fair to point out that it is not the only bank to be hit by huge fines for wrongdoing and then be found to be repeating its illegal behaviour. Which is why it is hard to believe that fines are having any real impact on the way that some of the biggest banks function. If they are prepared to keep paying the fines and / or giving assurances about keeping to the terms of a DPA while reaping the benefits of breaking the law it is hard to see the cycle of behaviour changing.
Let’s be clear, any failure by Standard Chartered to abide by the terms of its DPA could see it facing criminal prosecution. And any bank’s weak approach to money laundering is now increasingly likely to be pounced on by the authorities. The Standard Chartered investigation was a co-ordinated multi-jurisdictional effort by the FCA, the US agencies and the United Arab Emirates. And while Standard Chartered’s full cooperation with the FCA saw it receive a 30% discount on its fine, relying on cooperation to gain a lesser punishment cannot be viewed as a safe approach.
The authorities around the world that investigate the activities of banks and other financial institutions are now more coordinated than ever. They have more legal powers than ever before and are unlikely to be reluctant to use them against those in the financial marketplace that come to be seen as repeat offenders.
There is no clear indication or evidence that the era of big fines may be about to pass or that the authorities are set to view convictions as a more effective deterrent to financial crime than hefty financial penalties. There may also be difficulties when it comes to corporate liability which, in the UK, requires proof that those involved in the wrongdoing are sufficiently senior to be considered the ‘controlling mind and will’ of the company.
But if fines continue to be ineffective in curbing the behaviour of certain banks it can surely only be a matter of time before the authorities rethink their approach to enforcement.
Much that has been written about the General Data Protection Regulation (GDPR) relates to the burden of obtaining proper consents in order to process data. This general theme has provoked questions about whether and how financial institutions can process data to fight financial crime if they need consent of the data subject. While there are certainly valid questions, GDPR is much more permissive to the extent data is used to prevent or monitor for financial crime. Richard Malish, General Counsel at Nice Actimize, explains.
Clients and counterparties will oftentimes be more than happy to consent to data processing in order to participate in financial services. But consent can be withdrawn, so offering individuals the right to consent will give the impression that they can exercise data privacy rights which are not appropriate for highly-regulated activities.
Rather than relying on consent, the GDPR also permits processing which is necessary for compliance with a legal obligation to which the controller is subject and (2) processing which is necessary for the purposes of the legitimate interests pursued by the controller or by a third party.
Some areas of financial crime prevention are clearly for the purpose of complying with a legal obligation. For example, in most countries there are clear legal obligations for monitoring financial transactions for suspicious activity to fight money laundering. The European Data Protection Supervisor stated in 2013 that anti-money laundering laws should specify that "the relevant legitimate ground for the processing of personal data should… be the necessity to comply with a legal obligation by the obliged entities…." The 4th EU Anti-Money Laundering Directive requires that obliged entities provide notice to customers concerning this legal obligation, but does not require consent be received. And the UK Information Commissioner's Office gave the example of submitting a Suspicious Activity Report to the National Crime Agency under PoCA as a legal obligation which constitutes a lawful basis.
Very few commentators have attempted to cite a legal authority for anti-fraud legal obligations. The Payment Services Directive 2 (PSD2) requires that EU member states permit personal data processing by payment systems and that payment service providers prevent, investigate and detect payment fraud. But PSD2 has its own requirement for consent and this protection may fail without adequate implementing legislation in the relevant jurisdiction. Another possible angle is that fraud is a predicate offense for money laundering, and therefore the bank has an obligation to investigate fraud in order to avoid facilitating money laundering.
"Legitimate interests" are also permitted as a basis for processing. However, this basis can be challenged where such interests are overridden by the interests or fundamental rights and freedoms of the data subject which require protection of personal data. Financial institutions may not feel comfortable threading the needle between these ambiguous competing interests.
However, the GDPR makes clear that several purposes related to financial crime should be considered legitimate interests. For example, "the processing of personal data strictly necessary for the purposes of preventing fraud also constitutes a legitimate interest" and profiling for the purposes of fraud prevention may also be allowed under certain circumstances. It is also worth recognizing that many financial market crimes such as insider trading, spoofing and layering are oftentimes prosecuted under anti-fraud statutes.
Compliance with a foreign legal obligations, such as a whistle-blowing scheme required by the US Sarbanes-Oxley Act, are not considered "legal obligations," but they should qualify as legitimate interests.
While legal obligations and legitimate interests do not cover all potential use cases, they should cover most traditional financial crime processing. Some banks have been informing their clients that a legal obligation justifies their processing for AML and anti-fraud. Others have included legal obligations and/or legitimate interests as potential justifications for a laundry list of potential processing activities.
Financial institutions should use the remaining days before GDPR's effective date to provide the correct notifications to data subjects and confirm that their processing adequately falls under a defensible basis for processing. And with this basic housekeeping performed there is hopefully little disruption to their financial crime and compliance operations.
Zhaopin Limited recently released its 2016 White-Collar Worker Year-End Bonus Survey Report. The report found that more than 50% of white-collar workers in China did not get year-end bonuses in 2016. More than 11,500 white-collar workers participated in the survey.
According to Zhaopin's survey, 50.9% of survey respondents did not get any year-end bonus in 2016, down from 66% in 2015. 39.5% of white-collar workers had received their bonuses by the end of 2016, much higher than 13.4% in 2015.
Cash is still the most common form of year-end bonus for white-collar workers. Some companies offered physical gifts as annual bonuses, including company-made products, cameras, liquor, pork, fish, fruits, sauna coupons, inflatable dolls, rice cookers, tissue paper, and lottery tickets.
White-collar workers' satisfaction with year-end bonuses in 2016 remained at a low level of 2.18 (measured from 0 to 5, with 5 as the highest), although slightly higher than 2.07 in 2015, Zhaopin found. Employees in state-owned enterprises had the highest satisfaction score at 2.46, while workers at private companies had the lowest satisfaction score of 2.07.
In terms of work experiences, employees with less than one year's experience had the highest satisfaction (2.45) with the annual bonus, as their expectations were relatively low. The satisfaction with year-end bonuses declined as work experience increased because more experienced white-collar workers had higher expectations, said Zhaopin experts.
The average year-end bonus for white-collar workers in 2016 was RMB12,821, higher than RMB10,767 in 2015, but lower than RMB13,613 in 2014, according to Zhaopin's survey.
The finance industry offered the highest average year-end bonus in 2016, at RMB17,241, followed by RMB16,839 for the real estate/construction industry. The eEducation/arts and crafts industry had the lowest average year-end bonus at RMB7,433.
White-collar workers in Beijing got the highest average year-end bonus, at RMB15,846, followed by RMB14,640 in Shanghai and RMB14,605 in Shenzhen.
The more work experience, the higher the year-end bonuses for white-collar workers, Zhaopin found. The average year-end bonus for employees with more than ten years of experience was RMB20,471, compared with RMB5,675 for employees with less than one year of experience.
Among different types of companies, state-owned enterprises had the highest average year-end bonus at RMB17,318, while private companies had the lowest average year-end bonus, at RMB11,271.
The average year-end bonus for senior-level managers was RMB28,639, compared with RMB10,009 for ordinary employees.
In terms of occupations, white-collar workers in marketing/PR/advertising had the highest average bonus at RMB16,354, followed by RMB14,850 for R&D. Employees working in administration/logistics had the lowest average year-end bonus of RMB8,144.
(Source: Zhaopin Limited)
