Misguided Bank Lawsuits Deepen Remittance Crisis
More U.S. banks are dropping Somali money transmitters as regulators crack down on the risk of terrorist financing at remittance houses serving the war-torn East African nation. Banks are familiar with regulatory tight spots, but rarely do their responses have life and death consequences, as is the case here.August 29
Politicians who blindly supported restrictive AML guidelines now proclaim disgust as a global bank severs relationships with firms that send money to Somalia. But Barclays is merely exercising understandable caution.July 24
Banks have been dealing with stringent anti-money laundering and terrorist financing rules for more than a decade. These regulations have heavily impacted people in countries like Somalia, where many family members of U.S. immigrants rely remittances to pay for food, housing and other essentials. On June 22, the U.S. Conference of Mayors, led by the mayors of Minneapolis and Seattle, called on the government to relent in its overly aggressive enforcement of AML rules. Seattle Mayor Ed Murray argued, "Like many immigrants, Somali-American families want to send financial support to their loved ones back home the federal government must find a path to allow these remittances to continue."
The pleas of Mayor Murray and his colleagues may find support in the Departments of Treasury and State. Indeed, Murray urged Secretary of State John Kerry to resolve this issue last month. However, even if the U.S. government eases its enforcement against banks processing wire transfers to developing countries, banks may remain reluctant to continue or restart these banking services. The plaintiffs' bar, supported by the courts, has sued so many banks under the Anti-Terrorism Act of 1990 that many banks may feel it is not financially worth it to provide services to these needy communities.
Should U.S. regulators moderate their approach toward fund transfers to risky regions, banks would still face an increasingly aggressive U.S. plaintiffs' bar that tries to blame banks for any transfers that directly or indirectly reach any organization linked to terrorism. The problem is that it is simply not possible or reasonable for a U.S.-based bank to take on the role of investigating terrorism cells in locations like Somalia, Syria or the Palestinian territories. If banks are going to be sued for failing to spot terrorist cells faster than national intelligence agencies, the response for most banks will be to pull out of troubled regions.
Ironically, the law that plaintiffs have been citing to sue banks was intended to be used only against actual terrorists. Since its enactment in 1990, the Anti-Terrorism Act has evolved from a means of punishing terrorists and terrorist groups into a vehicle that punishes banks within and outside the U.S. with large civil judgments.
The Anti-Terrorism Act defined the "intentional terrorism" which it was designed to punish as "violent acts or acts dangerous to human life." This definition does not and should not apply to banking services. However, due to the judicial overreach of the Seventh Circuit Court of Appeals in the Boim v. Holy Land Foundation case, decided in 2008, banks are now "on the hook" if they participate, knowingly or not, in transactions that benefit parties found to be terrorists.
In Boim, the court claimed that banks that process financial transfers that reach terrorists perform an act equivalent to giving a loaded gun to a child.Under this appealing but inapt analogy, banks that allow money to reach terrorists are ruled to have themselves committed an act of terrorism.
Other U.S. intermediate appeals courts have adopted this analogy as well, most notably the Second Circuit sitting in New York in the National Westminster Bank case. Therefore, until the U.S. Supreme Court sees fit to overrule Boim, it is highly unlikely that banks will be willing to conduct transactions with regions like Somalia no matter how much humanitarian need there may be.
None of the ongoing ATA cases have yet reached Supreme Court review. Nevertheless, the solicitor general, the government's advocate-in-chief, has already indicated grave concerns about courts' application of the ATA in a 2014 filing with the Supreme Court.
It seems likely that the Supreme Court will eventually hear a case involving the ATA. If that happens, the banking industry as well as humanitarian organizations and groups like those represented in the Mayors Conference must file friend-of-the-court briefs and speak out in the media. Because of overzealous regulators and misguided court decisions, it has become far too difficult to send much-needed money to troubled regions. The best chance for relieving looming humanitarian disasters in regions like Somalia is for concerned groups to speak up.
William Primps, a partner in the New York office of Dorsey & Whitney LLP, represents large financial institutions in federal court litigation.