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FinCEN Provides Relief to CDD Obligations for Existing Customers

The Financial Crimes Enforcement Network (FinCEN) published long-awaited additional Frequently Asked Questions on April 3, 2018 (the “Guidance”) relating to its Customer Due Diligence (CDD) Rule, which FinCEN promulgated pursuant to the Bank Secrecy Act (the “CDD Rule”).  This comes at a time when most covered institutions are in the final stages of implementing plans to comply with the CDD Rule by its May 11, 2018 compliance applicability date.  FinCEN previously published technical amendments to the Rule on September 29, 2017 and an initial set of FAQs on July 19, 2016.  While such Guidance does not have the weight of authority of statute or regulation, it has traditionally helped to form the basis for examination and enforcement expectations.  Here we will focus on themes in the new Guidance relating to application of the rule to existing customers.

As a reminder, the CDD Rule was originally published on May 11, 2016 after years of public hearings and comment periods.  The rule sets forth CDD as a “fifth pillar” of a BSA/AML compliance program in addition to those established by the Bank Secrecy Act itself:  system of internal controls, the appointment of a responsible officer, training, and independent testing.  CDD entails upfront due diligence and ongoing monitoring, and this rule establishes the collection of Beneficial Ownership information as a required element of CDD for legal entity customers.  In releasing the CDD Rule, FinCEN emphasized that CDD is not technically a new requirement but has always been an expected part of a BSA/AML program that results in effective suspicious activity monitoring and risk mitigation.

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Media Mentions – February 24, 2012

With offices all over the world, Bryan Cave attorneys are often quoted in the news.  Recent Media Mentions of Financial Institutions Group attorneys include:

Andreassen, Hester in Bank Safety & Soundness Advisor

DC Associate Kristine Andreassen and Atlanta Associate Barry Hester were quoted extensively Feb. 20 by The Bank Safety & Soundness Advisor concerning recently revised guidance from the FDIC that, among other things, attempts to keep unsteady community banks from taking too much payment processor risk. The revised guidance doesn’t contain anything “shocking,” but it does signal that payment processing will be a higher exam priority, Andreassen said. Hester confirmed that payment processors are increasingly approaching banks with offers that are too good to be true. “There are more legitimate payment processing systems and methods out there — a lot of excellent opportunities,” but banks need to take the time to properly vet these partnerships, he told the publication.

Atkinson in Charlotte Observer

Charlotte Partner B.T. Atkinson was quoted Feb. 21 by The Charlotte Observer concerning the federal government’s desire to end the politically unpopular Troubled Asset Relief Program. The government cannot force banks to repay TARP funds early under the terms of the capital investments brokered at the height of the financial crisis. To extricate itself, the Treasury is considering selling its stakes to third parties or restructuring their terms. Atkinson said it is more likely that the government would sell its TARP stakes, possibly at auction. He said the Treasury could move forward as early as the third quarter.  Click here to read the full article.

Moeling in Atlanta Journal-Constitution

Atlanta Partner Walt Moeling was quoted February 19 in The Atlanta Journal-Constitution regarding the impact of the deteriorating economy on the small businesses and banks of Henry County, Ga.  Once among the nation’s fastest-growing counties, Henry is now the largest county in Georgia without a hometown bank.  All five locally owned banks failed during the economic downturn.

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Media Mentions – July 2, 2010

Recent media mentions of attorneys in Bryan Cave’s financial institutions practice include:

Atkinson in Virginian-Pilot
Charlotte Partner B.T. Atkinson was quoted June 7 by The Virginian-Pilot in Norfolk, Va., concerning private-equity firms that are investing in troubled banks. Hampton Road Bancshares, parent company of Hampton Road Bank and Shore Bank, recently announced that private equity firms will invest in the company. Click here to read the article.

Hester in American Banker
Atlanta Associate Barry Hester was quoted June 10 by American Banker on a controversial provision of the financial reform bill that would tighten capital restrictions on many banks, including those still participating in the government’s TARP bailout program. “It will immediately result in undercapitalization for a number of banks,” Hester said. “It would be like flipping the switch, where banks that are currently OK would suddenly need to raise more capital. It could be a disaster if it isn’t phased in to let people plan ahead.”

Klingler on,
Atlanta Associate Robert Klingler was quoted June 4 by regarding bank capital standards. Click here to read the article. He also was quoted that same day by on the Small Business Lending Fund, which is designed to inject $30 billion into small banks – defined as those with less than $10 billion in assets – with the idea that they will in turn lend money to small businesses.

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