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FCPA, CEOs and risk assessments

Tom Fox | August 15, 2017

Jesse Eisinger and his new book The Chickenshit Club have rekindled the debate on whether the U.S. government was robust enough in its failure to seek prosecution of any business leaders who helped to bring on the financial crisis. In the FCPA world, we often see CEOs resign during or after a scandal involving corruption is made public. Certainly, in the wider world of corporate scandals, we have seen several high-flying CEOs resign for scandals that erupted during their watch. Witness Martin Winterkorn, formerly CEO of Volkswagen; John Stumpf, formerly CEO of Wells Fargo; and Travis Kalanick, formerly CEO of Uber as Exhibits A, B, and C.

Now we have another example, as reports indicate Ian Narev may resign as CEO of Australia’s largest bank, the Commonwealth Bank of Australia. The bank had been severely criticized for “failing to report more than 53,000 “serious and systemic” breaches of antimoney laundering laws that involved at least four criminal syndicates and more than 44 million Australian dollars.

Narev’s salary had already been docked, but the board of directors took the next step to “ensure the market is fully informed and to provide certainty to the business” around the bank’s succession planning. The issue involved a long running problem with the bank’s innovate, intelligent deposit system that allowed deposits but did not report those exceeding the amount required under Australian law. This allowed criminals to literally launder millions through the bank and the Australian banking system. The problem was known to the bank since the automated teller’s introduction in 2012.

Most interestingly from the compliance perspective was the allegation by the Australian Transaction Reports and Analysis Center (Austract) that not only did the bank fail to report the suspicious transactions as required by law but also regulators accused “the bank of not assessing the risk of money laundering or terrorist financing using the new machines before introducing them.”

Now imagine in the United States if CEOs were accused of not performing a risk assessment in FCPA cases …