The Choking Continues After 'Choke Point'

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In recent years, the global phenomenon of derisking has stripped hundreds of thousands of individuals and businesses of bank accounts, robbed communities of bank branches, and forced banks to close.

Banamex USA, for example, announced it would shutter on the very same day that it agreed to pay $140 million to federal and California regulators. Meanwhile, Oxfam International stated in a press release this year that three million Somalis who depend on remittances from the West may starve, blaming "bank account closures that have been largely driven by government regulation."

Disturbingly, the U.S. Department of Justice and the primary regulator of more than 4,700 U.S. banks, the Federal Deposit Insurance Corp., together operated what was effectively a government-mandated derisking program through last year. In Operation Choke Point, the FDIC and the Department of Justice drove banks to end relationships with entire classes of legitimate businesses deemed "high-risk." The House Oversight Committee's report notes that senior DOJ officials believed that Operation Choke Point was causing banks to abandon entire industries.

You might think this is all history now. In mid-2014, a steady stream of criticism pressured the FDIC into retracting a list of more than 30 "high-risk" (but mostly legal) businesses, ending the supposed "misperception" that these "merchant categories were prohibited or discouraged." (Although that list had been published about two years before Operation Choke Point, it was closely associated with the campaign because it was included in a Justice Department slide deck where the name was first used.) And in January 2015, a FDIC letter urged banks to take a "risk-based approach" to "individual customer relationships" rather than rejecting "entire categories of customers."

Many in the media concluded from these developments that Operation Choke Point had ended. Indeed, a July 7, 2015 letter from the Department of Justice's Office of Professional Responsibility (responding to congressional accusations that Operation Choke Point violated the law) refers to Operation Choke Point in the past tense. The letter implies that Operation Choke Point ended with the sending of the "last" document subpoenas in August 2014.

But did Operation Choke Point truly end?

Certainly, as the Office of Professional Responsibility letter admits, some Operation Choke Point investigations continue.

On a more fundamental level, however, Operation Choke Point continues at full force. The gist of Operation Choke Point is that regulators threatened investigations and ruinous fines against banks that continued to service "high-risk" customers in disfavored industries. U.S. regulators have continued applying this policy, even if "Operation Choke Point" is officially over.

One industry targeted by Operation Choke Point (listed as a "high-risk" category on the FDIC website) was "Money Transfer Networks." Regulators have continued tacitly encouraging, if not forcing, banks to abandon money transfer customers as an industry.

In February 2015, California Merchants Bank announced in response to regulatory pressure that it would cease helping transfer businesses send money to Somalia. The Consent Order imposed by the Department of the Treasury upon the bank had focused on the bank's money service business customers. In a particularly onerous requirement, the Consent Order demanded that the bank "ensure the legitimacy of the sources and uses of customer funds" for money service businesses in Somalia (even though the United States formally warns citizens to "avoid all travel" to Somalia). As a result, the regulator forced the bank to abandon an entire class of customers, effectively achieving the same result as that intended under Operation Choke Point.

In March 2015, the Financial Crimes Enforcement Network labeled Banca Privada d'Andorra a money laundering concern, effectively destroying the bank. Part of Fincen's justification for branding the bank a "money laundering concern" was the bank's interactions with "high-risk" business customers. Fincen emphasized that 62% of the bank's transactions with U.S. correspondent banks "involved only four high-risk customers" and that its correspondent banking transactions often serviced "unlicensed money transmitters, and other high-risk business customers." Yet Fincen made no attempt to show that these particular "four high-risk customers" were involved in money laundering or other crimes. Just as in Operation Choke Point, the regulator hit the bank with an investigation and ruinous punishments in part because of "high-risk" but legal business customers.

Another "high-risk" area is correspondent banking. At the 33rd Cambridge Symposium on Economic Crime in September in the U.K., the chief legal officer of one of the world's largest banks stated that he had recently finished directing the closure of 146 correspondent bank accounts. He estimated that this represented roughly 20% of all of his bank's correspondent bank accounts, and also noted that his bank had closed all four correspondent banks in one European nation. Here, too, regulatory risk leads to mass derisking that devastates communities.

The regulators claim to want an individualized approach to high-risk customers. But in actual practice, the regulators continue to pressure and punish banks with customers in legitimate industries that the regulator labels "high-risk."

The choking continues.

Geoffrey Sant is special counsel at Dorsey & Whitney LLP and teaches banking litigation at Fordham Law School. Bailey Williams has years of experience working at an investment bank and in the financial industry.

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