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FinCEN Proposes Broad AML Obligations for Investment Advisers

August 31, 2015

Authors

Jeff Ziesman

FinCEN Proposes Broad AML Obligations for Investment Advisers

August 31, 2015

by: Jeff Ziesman

As part of its continuing but slow expansion of the types of financial institutions that are subject to anti-money laundering (AML) obligations under the Bank Secrecy Act and USA PATRIOT Act, FinCEN proposed on August 25, 2015, to require certain investment advisers to establish and maintain AML programs and file suspicious activity reports (the Proposed Rules).  The Proposed Rules go further than FinCEN’s 2002 and 2003 proposals for investment advisors, which generally were limited to proposing AML program requirements only, without additional suspicious activity reporting and certain other record keeping requirements.

In explaining its rationale for the Proposed Rules, FinCEN acknowledges that advisers work with financial institutions that are already subject to BSA requirements, such as when executing trades through broker-dealers to purchase or sell client securities, or when directing custodial banks to transfer assets.  FinCEN notes, however, that these institutions may not have sufficient information to assess suspicious

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FinCEN’s Beneficial Owner Proposal Conflicts with FCRA

April 2, 2015

Authors

Bryan Cave

FinCEN’s Beneficial Owner Proposal Conflicts with FCRA

April 2, 2015

by: Bryan Cave

On August 4, 2014, FinCEN released proposed rules that would require banks and certain other financial institutions to identify the “beneficial owners” of their business entity customers and to verify the identity of each such beneficial owner (the “Proposal”).  If the Proposal results in final rules that are substantially identical to the proposed rules, financial institutions might be unable to comply without violating the federal Fair Credit Reporting Act (“FCRA”).

Under the Proposal, “beneficial owners” would generally include at least one manager of the entity and each individual owning 25% or more of the entity.  This could mean up to five individuals if no manager also owns 25% or more of the entity.

The Proposal would require a financial institution first to identify the customer’s beneficial owners.  This should be reasonably manageable because institutions would be able to provide a certification form to its customer and require that the customer

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How Well Do I Know You – Let Me Count the Ways

August 21, 2014

Authors

Jerry Blanchard

How Well Do I Know You – Let Me Count the Ways

August 21, 2014

by: Jerry Blanchard

FinCen Updates Customer Due Diligence Requirements

Modern entertainment, whether it be books or movies,  oftentimes grapple with the issues of “who are you?” As a story line develops the audience is kept guessing as characters turn out to have different motivations or identities than what they were first perceived to have. Political thrillers oftentimes involve agents of shadowy groups behind which the true masterminds operate. How much effort will it take to reach the truth? FinCEN has recently come out with some proposed guidance that addresses this issue in the context of the legal entities that financial institutions do business with.

In a proposed rulemaking published in late July, FinCEN proposed a new regulatory requirement to identify beneficial owners of legal entity customers. Going forward, the essential elements of customer due diligence will include: (i) identifying and verifying the identity of customers; (ii) identifying

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FinCEN Announces September 28 Customer Due Diligence Roundtable; Releases Prepared Remarks from July Hearing

September 20, 2012

Authors

Bryan Cave

FinCEN Announces September 28 Customer Due Diligence Roundtable; Releases Prepared Remarks from July Hearing

September 20, 2012

by: Bryan Cave

FinCEN recently announced that it would hold the second in a series of outreach events on the advanced notice of proposed rulemaking (ANPR) published in March 2012 on customer due diligence (CDD) and beneficial ownership requirements for financial institutions. FinCEN is seeking further clarification on a number of issues and to engage with representatives from affected financial institutions on these issues at the roundtable discussion. 

The roundtable discussion is scheduled for September 28, 2012 at the U.S. Commodity Futures Trading Commission offices in Chicago, Illinois. The morning session (9:00 a.m. to 12:00 p.m. Central time) is for futures commission merchants and introducing brokers; the afternoon session (1 p.m. to 4 p.m. Central time) is for all other interested financial institutions. Requests to attend the roundtable are due by September 21. 

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FinCEN Seeks Comments on Potential New Customer Due Diligence and Beneficial Ownership Regulations

March 1, 2012

Authors

Bryan Cave

FinCEN Seeks Comments on Potential New Customer Due Diligence and Beneficial Ownership Regulations

March 1, 2012

by: Bryan Cave

On February 29, 2012, FinCEN released an advance notice of proposed rulemaking on customer due diligence and beneficial owners, proposing to make a customer due diligence obligation explicit for ALL customers (to “clarify, consolidate and harmonize” the federal banking agencies’ expectations) and extending the requirement to collect (and possibly verify) beneficial owner information for most or all customers as well.

FinCen’s advance notice of proposed rulemaking (ANPRM), seeks public comment on a range of questions regarding the development of a customer due diligence (CDD) regulation that would “(i) codify, clarify, consolidate, and strengthen existing CDD regulatory requirements and supervisory expectations, and (ii) establish a categorical requirement for financial institutions to identify beneficial ownership of their accountholders, subject to risk-based verification and pursuant to an alternative definition of beneficial ownership.” Comments received in response to the ANPRM will likely be influential in FinCEN’s development of a more formal

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FinCEN Outreach to Community Banks

October 20, 2009

Authors

Bryan Cave

FinCEN Outreach to Community Banks

October 20, 2009

by: Bryan Cave

FinCEN has announced a new outreach effort targeted at depository institutions under $5 billion in total assets to determine how these institutions comply with the Bank Secrecy Act and the specific compliance hurdles they confront.   If your institution has assets under $5 billion, please see our client alert about FinCEN’s outreach proposal.

As part of its ongoing outreach efforts, FinCEN is now seeking to engage smaller to moderate size depository institutions who are working to implement the four pillars of the Bank Secrecy Act regulatory regime: (1) policies, procedures and internal controls; (2) designation of a compliance officer; (3) ongoing training; and (4) independent testing.

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