Financial Sector Executives as Targets for Money Laundering Liability

Date01 September 2015
Published date01 September 2015
Financial Sector Executives as
Targets for Money Laundering
Jeffrey R. Boles
From interest rate swaps to online banking, recent financial and techno-
logical innovations are transforming economies across the world to the
benefit of many in society. One group in particular capitalizing on the
opportunities offered by these financial and technological advances is
money launderers, those who sanitize criminal proceeds in order to con-
ceal the proceeds’ true illegal source. These individuals now have the
ability to convert their illicit proceeds by moving them virtually any-
where in the world instantaneously through wire transfers, letters of
authorization, or other means of financial transmission, frustrating
nearly all governments worldwide.
Congress deemed money laundering, the “cleaning” of illegally
obtained assets, as “the lifeblood of the drug trade and other criminal
Functioning as “the financial component of transna-
tional crimes,”
money laundering continues to plague most countries;
according to the International Monetary Fund’s estimates, criminals
Assistant Professor, Department of Legal Studies, Fox School of Business, Temple
See Allen D. Boyer & Susan Light, Dirty Money and Bad Luck: Money Laundering in the Bro-
kerage Context,3V
A.L.&BUS.REV. 81, 85 (2008) (describing how criminals have the tech-
nological means to shift money instantaneously across the globe).
S. REP.NO. 99-433, at 4 (1986).
Lan Cao, The Transnational and Sub-National in Global Crimes,22BERKELEY J. INTLL. 59,
67 (2004).
C2015 The Author
American Business Law Journal V
C2015 Academy of Legal Studies in Business
American Business Law Journal
Volume 52, Issue 3, 365–433, Fall 2015
launder roughly USD $600 billion to $1.8 trillion in assets annually,
amounting to two to five percent of global gross domestic product.
economic and social effects potentially devastate societies, as money laun-
dering can destabilize financial institutions, alter international cash flows,
damage interest rates and currencies, facilitate high levels of crime, and
elevate government costs, among other economic and social ills.
In the United States, banks and other financial institutions serve as the
government’s first layer of defense against money laundering, given that
perpetrators typically use the services of financial institutions to further
their laundering activity. The money laundering process entangles the
financial services sector in complex ways, as financial institutions and their
employees may intentionally or unknowingly facilitate money laundering
transactions, yet these institutions also bear significant anti–money launder-
ing (AML) compliance responsibilities, including assisting government
agencies in detecting and investigating the crime where needed. Given the
swift growth of advanced financial products, services, and markets, along
with thorny issues arising from the recent international economic crisis,
financial institutions confront increasingly complex risk management obli-
gations in the realm of anti–money laundering compliance.
Garnering headlines for levying record-breaking fines, federal law
enforcement has maintained an active anti–money laundering enforce-
ment regime over the last decade in part by focusing upon financial
institutions as enablers of money laundering.
As the federal govern-
ment imposes heavy imprisonment terms and fines, asset forfeiture
Michel Camdessus, Managing Director of the International Monetary Fund, Plenary
Meeting of the Financial Action Task Force on Money Laundering, Money Laundering:
the Importance of International Countermeasures, (Feb. 10, 1998) (transcript available at; see also J.C. SHARMAN,THE
sing recent estimates of the prevalence of money laundry, ranging “anywhere from the
low hundreds of billions of dollars to something over a trillion”).
See John McDowell & Gary Novis, The Consequences of Money Laundering and Financial
CON.PERSP. 6, 6–7 (2001), available at
See,e.g., DELOITTE,GLOBAL RISK MANAGEMENT SURVEY 1(2013),available at http://deloitte.wsj.
com/riskandcompliance/files/2013/11/global_risk_management_survey_8thed.pdf (describing
the risk management challenges financial institutions currently face).
See Andrew Grossman, Banks Face New U.S. Moves Against Laundering,WALL ST. J. (Jan. 9, 2014,
8:37 PM),
3330 (detailing increased federal enforcement actions against banks regarding AML efforts).
366 Vol. 52 / American Business Law Journal
actions, and other criminal and civil penalties for those who violate its
voluminous list of AML laws and accompanying regulations, financial
institutions face potentially crippling criminal and civil penalties for
facilitating money laundering or failing to monitor their operations
properly for potential money laundering activity.
Furthermore, the reg-
ulatory requirements these institutions must follow to assist govern-
ments in detecting money laundering activity seem ever growing.
institutions control for these risks largely by sustaining sophisticated
AML programs that typically include appropriate internal policies, con-
trols, and procedures; the presence of a compliance team focused upon
money laundering prevention within the institution; and ongoing
employee training programs.
Irritated with AML noncompliant banks that apparently receive “slap
on the wrist” punishments with no jail time or fines for bank personnel,
some congressional leaders and federal agencies recently turned their
attention to the culpability of senior executives and other employees
within financial institutions who fail to address adequately their institu-
tions’ AML compliance deficiencies. A bill introduced in Congress, the
Holding Individuals Accountable and Deterring Money Laundering Act,
and an ancillary set of federal agency initiatives aim to penalize individ-
uals within financial institutions for their lapses in oversight and man-
agement when their institutions fail to comply with AML
Compliance officers form the main targets for these
personal liability initiatives, as the officers typically supervise the opera-
tions of their institutions’ AML compliance programs.
This article explores the merits of government initiatives that assign
personal liability for money laundering violations committed by institu-
tions in the financial sector. In it I argue that the current set of personal
liability initiatives proposed in Congress and endorsed by federal agen-
cies contain problematic features that conflict with corporate governance
principles, raise troubling ethical issues, and could bring harmful effects
See infra Part II.C (describing money laundering penalties).
See infra Part I.B.1 (outlining key AML regulatory requirements that affect financial
See 31 U.S.C. § 5318(h)(1) (2012) (listing AML compliance requirements for financial
H.R. 3317, 113th Cong. (2013).
2015 / Money Laundering Liability 367

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