Money Laundering Awareness Handbook

money laundering

The Organization for Economic Cooperation and Development issued a handbook that provides guidance designed to help tax examiners and tax auditors detect and deter money laundering: The Money Laundering Awareness Handbook for Tax Examiners and Their Auditors.

The purpose of this handbook is to raise the awareness level of tax examiners and auditors on money laundering, by providing guidance in identifying money laundering during the conduct of normal tax audits.

The handbook does not detail criminal investigation methods. But it does describe the nature of money laundering activities so that tax examiners and auditors can better understand how their contribution can assist criminal investigators in battling money laundering.

The handbook is rather basic. I focused on the section with specific indicators on real estate. It offered some typical examples of how money can be concealed in several different types of real estate transactions. The handbook failed to show how the illegal activities could be identified.

I suppose general awareness of ways to launder money is a good start.

Table of Contents:

  • Money Laundering
  • Role of Tax Examiners and Auditors
  • Money Laundering Indicators for Individuals
  • Tax Return Examination and Pre-Audit Indicators
  • Audit Indicators
  • Specific Indicators on Real Estate
  • Specific Indicators on Cash
  • Specific Indicators on International Trade
  • Specific Indicators on Loans
  • Specific Indicators on Professional Service Providers

FINRA and Social Networking

finra_logo

Wall Street bankers and analysts increasingly want to use social networking to connect and interact with customers. But financial services companies have a hard time trying to comply with the compliance and regulatory requirements.

Social networking sites such as Facebook, Twitter and LinkedIn provide new ways for financial service firms to connect, inform and interact with their customers. They also raise new compliance challenges. As currently designed these sites may not allow you to archive and maintain the communications on your own books and records.

Apparently FINRA understands this. At the Securities Industry and Financial Markets Association Annual Meeting on October 27, 2009, FINRA Chairman and CEO, Rick Ketchum announced that they had formed a Social Networking Task Force. The group is comprised of industry participants to explore how regulation can embrace technological advancements in ways that improve the flow of information between firms and their customers—without compromising investor protection.

So how does that explain the absence of social networking sites in the latest proposed changes to FINRA’s communications rules?

References:

Compliance Bits and Pieces

Here are some interesting compliance stories that have not made their into their own posts:

Canada’s Commitment to Combating the Corruption of Foreign Public Officials: Watching Bill C-31 from the Wrageblog

Bill C-31, An Act to amend the Criminal Code, the Corruption of Foreign Public Officials Act and the Identification of Criminals Act, was introduced to Parliament on May 15, 2009. The timing of the bill’s first reading was clearly tied to the June 2009 release of Transparency International’s Progress Report on the Enforcement of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. The TI Report criticized Canada, calling Canada a laggard, and listing it as one of 21 countries making little or no effort to enforce its anti-corruption laws.

The FCPA’s Murky Knowledge Element by Mike Koehler for the FCPA Professor

In a superb new piece titled, “The ‘Knowledge’ Requirement of the FCPA Anti-Bribery Provisions: Effectuating Or Frustrating Congressional Intent?,” – Kenneth Winer and Gregory Husisian of Foley & Lardner (the “Authors”) conclude that “[t]he DOJ and SEC … now interpret the knowledge requirement so broadly that they have effectively eviscerated the 1988 statutory changes thereby raising an important question: Are the DOJ and SEC frustrating the intent of Congress by ignoring the reason that Congress amended the FCPA?” (see here).

Changes to Cayman AML Guidance Notes from Compliance Avenue

According to recent changes to the Guidance Notes on the Prevention and Detection of Money Laundering and Terrorist Financing in the Cayman Islands (the “Guidance Notes”), offshore funds registered in the Cayman Islands and regulated by the Cayman Islands Monetary Authority (“CIMA”) should designate and appoint a compliance officer (“Compliance Officer”) at the management level, who: . . .

How BAE Got Caught by Richard Cassin for the FCPA Blog

Investigative reporters may be disappearing from newsrooms everywhere, but they still have an important role to play in holding institutions and people accountable for overseas bribery. Rob Evans of the U.K. Guardian contributed an essay to TI’s Global Corruption Report 2009 here. It’s about how he and David Leigh broke the BAE story.

ERISA Bonding Requirements for Hedge Fund Managers by The Hedge Fund Lawyer

Hedge fund managers who manages hedge funds which exceed the 25% ERISA threshold will need to purchase a fidelity bond.  The questions and answers below on the ERISA fidelity bonding requirements were prepared by the Department of Labor which is the governmental agency which is in charge of enforcing the ERISA laws and regulations.

The Time I was Written Up for Blogging by New CommBiz

About a year and a half ago I was written up for blogging. It was kind of a weird moment and I’ve never really talked about it much. It wasn’t that big of a deal but I thought I’d share how it happened and what I learned from it.

Here’s what I did wrong:

  • Technically I responded to a “press inquiry” (nothing freaks out PR people more than employees talking to the press)
  • I talked about the layoffs and certain financial aspects of the company during the “quiet period”

Insider Trading Debates

Raj Rajaratnam

Insider trading is back in the news. The SEC has shown heightened interest in prosecuting these cases, evidenced by the high-profile arrest of Galleon hedge fund manager, Raj Rajaratnam, on civil and criminal charges.

One thing to keep in mind is that insider trading is not defined in the federal securities laws. The SEC has developed insider trading through an interpretation of Section 10(b) of the Securities Exchange Act of 1934 that insider trading is a “deceptive device” under that section and and the anti-fraud provisions of Rule 10b-5.

Given that, there has always been some academic discussion about whether insider trading should be illegal. That discussion moved to the front burner after an opinion piece by Donald J. Boudreaux in the Wall Street Journal: Learning to Love Insider Trading. Donald J. Boudreaux is Professor of Economics at George Mason University and a Senior Fellow at the Mercatus Center.

Mr. Boudreaux latches on to the argument that insider trading allows better information into the markets, allowing for greater economic efficiency. “When insiders trade on their nonpublic, nonproprietary information, they cause asset prices to reflect that information sooner than otherwise and therefore prompt other market participants to make better decisions.” He thinks the capital markets will reward companies that self-impose restrictions on insider trading and punish those that don’t. So, market discipline is better than government regulation and prosecution.

I see some interesting things in this argument. Obviously, we would need prompt and transparent information on when insiders make trades. Delayed reporting undercuts this efficient market argument.

The bigger problem is the shifting of rewards to individuals. It seems inherently unfair that an insider could get a windfall profit from information that is not available to a wider audience. The insider is always going to have better information and should always be ahead of the market.

I could see the perverse effect of insiders purposefully delaying the public release of information to increase their own personal reward. Even worse, they could give false signals to the public in order to sell their shares at a higher level or buy at a cheaper price.

In the end you prosecute companies for poor disclosure, while individuals inside the company profit. You still end up with the government looking over the corporate shoulder at the information they disclose and who benefits from it. Then the government decided whether or not to prosecute.

Regardless, the arguments are purely academic. Insider trading is illegal and compliance officers need to be vigilant to make sure it does not occur. The downfall of Galleon and Raj Rajaratnam should be a stark examples. The indictment on insider trading charges sent them plummeting into the abyss. Galleon has gone from managing billions to possibly going out of business in the course of a week.

References:

Amendments to the Private Fund Investment Advisers Registration Act

Capitol_dome

Enacting legislation is often compared to making sausage. I don’t think that the Private Fund Investment Advisers Registration Act is exception. I spent some time watching the House Financial Services Committee hearing on passing the Private Fund Investment Advisers Registration Act.

There were 13 proposed amendments, 8 of which were agreed to by the Committee. I tried incorporating these amendments into the text to see what happened earlier this week.

You can see my attempt hosted on JD Supra

Here are some quick thoughts:

  • The exemption for venture capital funds was retained.
  • There is a new exemption for investment advisers of private funds with less than $150 million. (There was a rejected amendment trying to have this level at $500 million.)
  • There is a one year transition rule, postponing the registration requirement until one year after the Act is passed.

References:

jdsupra-logo

Windex and Compliance

Katie Liljenquist

People are more fair and more generous when they are in clean-smelling environments, according to a soon-to-be published study: The Smell of Virtue.

The experiment had participants engage in several tasks, the only difference being that some worked in unscented rooms, while others worked in rooms freshly spritzed with citrus-scented Windex.

The first experiment was a test of whether clean scents would enhance reciprocity. Participants received $12 of real money. They had to decide how much of it to either keep or return to their partners who had trusted them to divide it fairly. Subjects in clean-scented rooms returned a significantly higher share of the money. The average amount of cash given back by the participants in the unscented room was $2.81. But the participants in the Windex room gave back an average of $5.33.

The second experiment evaluated whether scents would encourage charitable behavior. Test participants indicated their interest in volunteering with a campus organization for a Habitat for Humanity service project and their interest in donating funds to the cause. Participants surveyed in a Windex room were significantly more interested in volunteering (4.21 on a 7-point scale) than those in a normal room (3.29). In the Windex room, 22% participants said they’d like to donate money, compared to only 6% of those in a unscented room.

Follow-up questions confirmed that participants didn’t notice the scent in the room.

The results are consistent with the “broken windows” theory of crime that argues disrepair in the environment promotes lawless behavior.

Katie Liljenquist, assistant professor of organizational leadership at BYU’s Marriott School of Management, is the lead author on the piece in an upcoming issue of Psychological Science, with co-authors are Chen-Bo Zhong of the University of Toronto’s Rotman School of Management and Adam Galinsky of the Kellogg School of Management at Northwestern University.

References:

Thanks to Mary Abraham of Above and Beyond KM for pointing out this study.

Private Fund Investment Advisers Registration Act is Passed by House Committee

Capitol_dome

The House Financial Services Committee passed H.R. 3818, the Private Fund Investment Advisers Registration Act, introduced by Congressman Paul E. Kanjorski (D-PA), Chairman of the House Financial Services Subcommittee on Capital Markets, Insurance, and Government Sponsored Enterprises. The Committee passed H.R. 3818 by a vote of 67-1.

The press release summarizes the bill as “Everyone Registers. Sunlight is the best disinfectant.” But the text of the bill appears to still have an exclusion from registration for venture capital firms.

References:

Accidental Securities Underwriter

sec-seal

So you made almost $1 million on selling penny stocks through the pink sheets on $75,000. Nice pay day. Then the SEC makes you give it all back.

This is the sad tale of Rodney Schoemann, a professional stock market trader.

Schoemann had previous purchased some restricted shares in Stinger Systems, Inc. that were marked “RESTRICTED” on their face. He apparently thought the company was worth investing in, so he asked to purchase 100,000 unrestricted shares from one of the company’s insiders. Schoemann paid the insider at the company $0.75 per share, which were not marked with a restriction. He later deposited the shares with his broker and sold them to the public.

Unfortunately, those 100,000 were not registered and that insider was in control of the issuer.

An administrative law judge found that Schoemann violated Sections 5(a) and 5(c) of the Securities Act of 1933 in November 2004 by offering and selling the securities of Stinger Systems, Inc.when no registration statement was filed or in effect for those securities and no exemption from registration was available.

Securities Act Section 5(a) prohibits any person, directly or indirectly, from selling a security in interstate commerce unless a registration statement is in effect as to the offer and sale of that security or there is an applicable exemption from the registration requirements. Securities Act Section 5(c) prohibits the offer or sale of a security unless a registration statement as to such security has been filed with the Commission, or an exemption is available.

Schoenmann argued that he was not an underwriter. But individual investors may be deemed “underwriters” within the statutory meaning of that term if they act as links in a chain of securities transactions from issuers or control persons to the public.

Section 2 of the Securities Act has this definition:

The term “underwriter” means any person who has purchased from an issuer with a view to, or offers or sells for an issuer in connection with, the distribution of any security, or participates or has a direct or indirect participation in any such undertaking, or participates or has a participation in the direct or indirect underwriting of any such undertaking; but such term shall not include a person whose interest is limited to a commission from an underwriter or dealer not in excess of the usual and customary distributors’ or sellers’ commission. As used in this paragraph the term “issuer” shall include, in addition to an issuer, any person directly or indirectly controlling or controlled by the issuer, or any person under direct or indirect common control with the issuer.

From the testimony, both Shoemann and the insider thought the shares were freely transferable. The insider did not think he was a control person and Shoemann never inquired the insider to see if he was control person.

Shoemann did see a legal opinion that shares in Stinger Systems, Inc. were freely tradeable. This opinion was submitted to the transfer agent and the Pink Sheets. Advice of counsel is not a defense, since it merely goes to the question of scienter.

A showing of scienter is not required to establish a violation of Section 5. There is strict liability.

The last test was whether Shoemann had purchased the shares for distribution. This test involves intent. Since Shoemann sold all 100,000 shares in the two weeks after he purchased them, he would have a hard arguing that he did not intend to distribute them. So Schoemann served as a link in a chain of transactions where securities moved from the issuer to the public, and in doing so, served as an underwriter.

The deal made financial for Shoemann, but he failed to realize the legal background on the shares. The SEC made him disgorge his $967,901 ($1,042,901 in gross proceeds, minus Schoemann’s initial $75,000 purchase price) from his “violative sales” of Stinger stock. In addition to the disgorgement of profits, he has to pay prejudgment interest of $335,370.98.

References:

How to Read a Privacy Policy

stacking up privacy policies
How Privacy Policies Stack Up (literally)

The Common Data Project surveyed the online privacy policies of the largest internet companies. Their conclusion:

We realize that most users of online services have not and never will read the privacy policies so carefully crafted by teams of lawyers at Google and Microsoft. And having read all of these documents (many times over), we’re not convinced that anyone should read them, other than to confirm what you probably already know: A lot of data is being collected about you, and it’s not really clear who gets to use that data, for what purpose, for how long, or whether any or all of it can eventually be connected back to you.

How does your company’s privacy policy stack up?