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Amex's Seven-Year Glitch; Did laundering investigation take too long?

By Cheyenne Hopkins , American Banker Online

Despite repeated violations of anti-money-laundering rules, regulators waited more than seven years to take action against American Express Co., fining it $65 million this week.

Industry observers said the delay may prompt another round of congressional hearings on whether regulators are doing enough to enforce the Bank Secrecy Act and other antilaundering statutes.

"Seven years is too long," said L. Richard Fischer, a lawyer at Morrison & Foerster LLP. "There's no question about that. Even in a complex situation, that shouldn't take more than a year or a few years to come into compliance."

Problems at the credit card giant's American Express International unit in Miami stretch back to at least 1999, according to regulator filings. The Justice Department, which has reached a deferred prosecution agreement with Amex, said the subsidiary "willfully violated anti-money-laundering requirements" from December 1999 through April 2004.

Investigators identified Amex accounts used to launder about $55 million of proceeds from illegal Colombian drug sales through a black-market peso exchange, a moneylaundering system through which South American "money brokers" facilitate the exchange of U.S. dollars for local currency.

The Federal Reserve Board had also cited the unit for poor anti-laundering controls in each of its annual examinations from 2003 to 2006.

It was not the company's first BSA violation and fine. In 1994 Amex agreed to pay $35.2 million to settle AML charges involving drug traffickers in Mexico. The Miami unit promised then to spend millions to improve its compliance.

"Someone, perhaps Congress, should be asking why this is the second serious incident of money laundering at the same" company, said Stephen Kroll, a former Financial Crimes Enforcement Network official and Democratic counsel for the Senate Banking Committee who now lectures at American University. American Express' "prior record and the seriousness of the deficiencies outlined in the fact statement should cause someone to raise questions - which may have answers - about the quality of supervision in this case."

The more recent problems extended beyond the Miami unit. The $65 million fine, which was taken by Fincen, the Fed, and Justice, included a $5 million penalty against American Express Travel Related Services Co. Inc., a money-services business in Salt Lake City, for failure to file timely suspicious activity reports.

Amex said that a lack of staff caused a backlog of unfiled SARs in September 2006 and that additional data problems caused it to suspend filing SARs in early 2007. Investigators say that as a result, the money-services business failed to file SARs on about 1,000 people involved in transactions worth $500 million.

Additionally, the New York Banking Department signed an agreement last week with American Express Bank Ltd. for BSA violations and ordered the bank to fix deficiencies and review its transactions from July 2006 to December 2006. The Banking Department said that case was not connected to the Miami unit's problems.

An American Express spokeswoman said the company has "already made substantial efforts to augment and strengthen our compliance programs and will continue to do so. We are firmly committed to the agreements we have reached and to conducting our business with the highest standards of integrity, compliance, and control."

A Fed spokeswoman declined to comment for this article.

But the myriad deficiencies with American Express and its units had several observers wondering why supervisors failed to act much sooner.

"There is a very fundamental question here: Why did it take so long?" Mr. Fischer said. "If it starts to become a trend of regulators taking too long to take enforcement action, it could cause" scrutiny from policymakers.

The case also raised the specter of Riggs National Corp., which was fined $41 million for BSA violations, but which also had been allowed to have its problems fester. Lawmakers including Sen. Carl Levin, who is now chairman of the Senate Permanent Subcommittee on Investigations, severely criticized the Office of the Comptroller of the Currency for failing to act sooner.

But it is unclear if lawmakers will look at the Amex case when they already have a host of financial services issues on their plate, including subprime mortgage lending and credit cards.

Peter Djinis, a lawyer in Sarasota, Fla., and a former Fincen official, said he doubts this case will receive the congressional spotlight other large AML cases received, because regulators were active.

"We can all debate whether they should have done it sooner or enough," he said. "They were aware of the problems and trying to actually do something about it. That means they were examining the underlying criminal activity. Obviously they weren't unnoticed."

Banking industry representatives also argued the case was unique and probably will not draw the same amount of attention as past incidents.

"For me, from the work that the regulators had been trying to do and the work industry has been trying to do - this is one of those rare situations that escalated," said Richard Riese, director of the American Bankers Association's center for regulatory compliance.

Other observers said that the case raised questions but that it was not clear regulators were remiss in failing to act sooner.

David Caruso, the chief executive and managing director of Dominion Advisory Group LLC in Centreville, Va., who was hired to help Riggs solve its problems, said regulators may have waited to take action against Amex while the Justice Department finished its investigation.

"In my experience having been an officer in a bank under [Justice Department] investigation, that takes precedence over regulatory action," he said. "Don't assume from the August '07 issuance of this action that the regulators weren't in a position that they couldn't have done this two or three years ago."

Carmina Hughes, executive director at Daylight Forensic and Advisory LLC and a former Fed anti-laundering official, said the bank's actions raised obvious red flags, but it is unclear whether regulators should have done more.

She noted that the Justice Department cited the bank's lax control of accounts with offshore bearer share corporations - securities firms in which ownership is not identified. Investigators also said the bank failed to conduct a risk assessment of its operations until 2002, maintain account monitoring, and verify information on clients provided by bank relationship managers.

Investigators also found numerous accounts in the names of offshore shell companies to process the market exchange and many accounts that were inconsistent with the nature of the account holder's business as understood by the bank.

"It's really hard to say without seeing examination reports what [regulators] were finding, but clearly what strikes me was these bearer share organizations," Ms. Hughes said.

Still, observers said the fine showed that regulators are serious about punishing financial institutions that do not fulfill their anti-laundering responsibilities.

"If banks thought that somehow the priority of anti-money-laundering requirement is waning, it's pretty clear just the opposite is taking place," Mr. Djinis said.

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