$8.9 Billion Settlement of $19 Billion Possible Penalty
What Did BNP Paribas Do Exactly?
For a number of years, up to and including 2012, BNPP processed thousands of transactions to or through U.S. financial institutions that involved countries, entities, and/or individuals subject to the sanctions programs listed above. BNPP appears to have engaged in a systematic practice, spanning many years and involving multiple BNPP branches and business lines, that concealed, removed, omitted, or obscured references to, or the interest or involvement of, sanctioned parties in U.S. Dollar Society for Worldwide Interbank Financial Telecommunication payment messages sent to U.S. financial institutions.
The specific payment practices the bank utilized in order to process sanctions-related payments to or through the United States included omitting references to sanctioned parties; replacing the names of sanctioned parties with BNPP’s name or a code word; and structuring payments in a manner that did not identify the involvement of sanctioned parties in payments sent to U.S. financial institutions. While these payment practices occurred throughout multiple branches and subsidiaries of the bank, BNPP’s subsidiary in Geneva and branch in Paris facilitated or conducted the overwhelming majority of the apparent violations.
How Bad Was BNP Paribas Conduct?
OFAC determined that BNPP did not voluntarily self-disclose its violations (it was a whistleblower), and that the apparent violations constitute an egregious case: BNPP’s systemic practice of concealing, removing, omitting, or obscuring references to information about U.S.-sanctioned parties in 3,897 financial and trade transactions routed to or through banks in the United States between 2005 and 2012, including:
BNPP officials have described Darfur as a “humanitarian catastrophe” and, while discussing the Sudanese business, noted that certain Sudanese banks “play a pivotal part in the support of the Sudanese government which…has hosted Osama Bin Laden and refuses the United Nations intervention in Darfur.” BNPP’s senior compliance personnel agreed to continue the Sudanese business and rationalized the decision by stating that “the relationship with this body of counterparties is a historical one and the commercial stakes are significant. For these reasons, Compliance does not want to stand in the way.”
BNPP processed 2,663 wire transfers totaling approximately $8,370,372,624 between September , 2005, and July 24, 2009, involving Sudan. The total base penalty for this set of apparent violations was $16,826,707,625. $8 billion in four years – approximately $2 billion a year.
BNPP processed 318 wire transfers totaling approximately $1,182,075,543 between July 15, 2005, and November 27, 2012, involving Iran. The total base penalty for this set of apparent violations was $2,382,634,677.
BNPP processed 909 wire transfers totaling approximately $689,237,183 between July 18, 2005, and September 10, 2012. The total base penalty for this set of apparent violations was $59,085,000.
BNPP processed seven wire transfers totaling approximately $1,478,371 between November 3, 2005, and approximately May 2009, involving Burma. The total base penalty for this set of apparent violations was $3,952,704.
Who Was Involved?
Benjamin M. Lawsky, New York’s Superintendent of Financial Services,
said, “BNPP employees – with the knowledge of multiple senior executives – engaged in a long-standing scheme that illegally funneled money to countries involved in terrorism and genocide. As a civil regulator, we are taking action today not only to penalize the bank, but also expose and sanction individual BNPP employees for wrongdoing. In order to deter future offenses, it is important to remember that banks do not commit misconduct – bankers do.”
- COO Signed Off on Continuing Illicit Transactions at Meeting Where He Asked Minutes Not to be Taken”;
- North American Head of Ethics/Compliance wrote: “The Dirty Little Secret Isn’t So Secret Anymore, Oui?”
Did Anyone Go to Prison?
No. No charges have been brought.
If Not Prison, Then What Was the Discipline?
Some executives were merely ‘separated’. What does separated mean? Asked to resign? Awarded severance? Kept the high salaries and bonuses derived from the illicit business – yes. What of the COO who “signed off on continuing illicit transactions at a meeting where he asked minutes not to be taken“? He was allowed to retire. He keeps his pension, retirement funds, bonuses …
What BNP states: “As a result of BNP Paribas’ internal review, a number of managers and employees from relevant business areas have been sanctioned, a number of whom have left the Group.”
But what the Department of Financial Services
states:
At DFS’s direction, 13 individuals were terminated by or separated from the Bank as a result of the investigation, including the following senior executives:
- George Chodron de Courcel, Group Chief Operating Officer
- Vivien Levy-Garboua, Current Senior Advisor to the BNPP Executive Committee and Former Group Head of Compliance
- Christopher Marks, Group Head of Debt Capital Markets
- Dominique Remy, Group Head of Structured Finance for the Corporate Investment Bank (CIB)
- Stephen Strombelline, Head of Ethics and Compliance for North America
In total, including those terminated, the Department of Financial Services reports that the Bank disciplined 45 employees, with levels of discipline ranging from dismissals, to cuts in compensation, demotion, and other sanctions, while 27 additional BNPP employees who would have been subject to potential disciplinary action during the investigation had already resigned.
Who Is Paying the Fine?
BNP Paribas shareholders inevitably. No fines have been levied against the employees involved. BNP shareholders include:
| Belgian State (through SFPI (1)) | 10.3% |
| Grand Duché de Luxembourg | 1.0% |
| Employees | 5.5% |
| Retail shareholders | 4.9% |
| European institutional Investors | 46.1% |
| Non-European institutional investors | 30.0% |
| Other and unidentified | 2.2% |
| |
| Total | 100% |
How Will BNP Minimize the Risk of Its Doing It Again?
Under the
settlement agreement, BNPP is required to put in place and maintain policies and procedures to minimize the risk of the recurrence of such conduct in the future. BNPP is also required to provide OFAC with copies of submissions to the Board of Governors relating to the OFAC compliance review that it will be conducting as part of its settlement with the Board of Governors.
BNP states that it has designed new robust compliance and control procedures:
- a new department called Group Financial Security US, part of the Group Compliance function, will be headquartered in New York and will ensure that BNP Paribas complies globally with US regulation related to international sanctions and embargoes.
- all USD flows for the entire BNP Paribas Group will be ultimately processed and controlled via the branch in New York.
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Com o apoio da OAB/SC, Comissão de Direito Tributário, ESA, CRC e IBET-SC, lá vamos nós fechar o ano com chave de OURO!!!
