Bank of Ghana Takes Regulatory Actions in Ghanaian Banking Sector

On August 15, the Bank of Ghana, Ghana’s central bank (Bank), announced that it was taking additional regulatory actions to address the failure of seven Ghanaian banks whose licenses had been revoked during the past year.  The Bank stated that

persons whose actions contributed to the collapse of the 7 banks will not be shielded, but will be made to face the full rigour of the relevant laws of Ghana. The Bank of Ghana will pursue administrative and civil action against such persons, and will liaise with relevant investigative and prosecutorial agencies of the State to take appropriate action as needed.

The Bank’s Deputy Governor, Elsie Awadzi, added that “[w]e are working very hard on submitting a dossier on each of these banks to the law enforcement agencies . . . to further investigate criminal behaviour or what could potentially be criminal behaviour and to prosecute.”

Since August 2017, when it revoked the licenses of UT Bank Ltd. and Capital Bank Ltd. due to severe deficiencies in capital and liquidity, the Bank initiated additional investigations into five additional banks: Unibank, Royal Bank, Beige Bank, Sovereign Bank, and Construction Bank.  On August 1, 2018, the Bank appointed a receiver to manage the assets of all five banks and revoked their licenses because they had become insolvent.

In announcing the revocations of the latter five banks, the Bank reported severe improprieties regarding each of the banks:

  • Unibank: “Shareholders, related and connected parties had taken amounts totaling GH¢3.7 billion [US$782,550,000] which were neither granted through the normal credit delivery process nor reported as part of the bank’s loan portfolio. In addition, amounts totaling GH¢1.6 billion [US$338,400,000] had been granted to shareholders, related and connected parties in the form of loans and advances without due process and in breach of relevant provisions of Act 930 [the Banks and Specialised Deposit-Taking Institutions Act, 2016]. Altogether, shareholders, related and connected parties of uniBank had taken out an amount of GH¢5.3 billion [US$1.12 billion] from the bank, constituting 75 percent of total assets of the bank.”
  • Royal Bank: “A number of the bank’s transactions totaling GH¢161.92 million [US$34,246,080] were entered into with shareholders, related and connected parties, structured to circumvent single obligor limits, conceal related party exposure limits, and overstate the capital position of the bank for the purpose of complying with the capital adequacy requirement.”
  • Sovereign Bank: “. . . Sovereign Bank’s licence was obtained by false pretences through the use of suspicious and nonexistent capital.”
  • Beige Bank and Construction Bank: “[B]oth banks obtained their banking licences under false pretences through the use of suspicious and non-existent capital.”

In its August 15 release, the Bank also stated that its regulatory actions include an overhaul of the Bank’s supervisory framework and processes.  As part of that overhaul, the Bank established a new office called the Office of Ethics and Internal Investigations.  Significantly, it noted that the new Office was to “investigate all allegations of misconduct by staff including any role in respect of the collapse of the defunct banks.”  Finally, it stated that it issued a number of directives to strengthen corporate governance, risk management, and the capital base of banks.

Prime Minister Netanyahu To Face Final Round of Questioning in Bezeq Corruption Investigation

Israeli Prime Minister Benjamin Netanyahu is to face a final round of questioning today in the so-called “Bezeq” (also known as “Case 4000”) corruption investigation, according to the Times of Israel.  The Bezeq investigation is one of four corruption investigations by Israeli police in which the Prime Minister is either a target or a suspect:

  • “Case 1000”: In this investigation, the Prime Minister allegedly “’systematically’ demand[ed] benefits worth about NIS 1 million ($282,000) from billionaire benefactors, including [Israeli businessman and film producer] Arnon Milchan and Australian resort owner James Packer, in exchange for favors.”
  • “Case 2000”: In this investigation, the Prime Minister allegedly had an “illicit quid-pro-quo deal . . . [with] Yedioth Ahronoth newspaper publisher Arnon Mozes that would have seen the prime minister weaken a rival daily, the [American businessman] Sheldon Adelson-backed Israel Hayom, in return for more favorable coverage from Yedioth.”
  • “Case 3000”: In this investigation, Israeli state officials allegedly “were paid bribes to influence a decision to purchase four patrol boats and three Dolphin-class submarines costing a total of 2 billion euros from German shipbuilder ThyssenKrupp, despite opposition to the deal by the Defense Ministry.” Although the Prime Minister has given testimony in this investigation, both Israeli Attorney General Avichai Mandelblit and Israeli police have stated that the Prime Minister is not a suspect in the case.
  • “Case 4000”: In this investigation, the Times reported that “[i]nvestigators suspect Netanyahu advanced regulatory decisions benefiting Shaul Elovitch, the controlling shareholder in Bezeq, the country’s largest telecommunications firm — despite opposition from the Communication Ministry’s career officials — in exchange for positive coverage from Elovitch’s Walla news site.”

Israeli police reportedly are leaning toward recommending indictment of the Prime Minister in Case 4000.  In June 2018 testimony before a Knesset Committee, however, Attorney General Mandelblit said that police recommendations to indict the Prime Minister on bribery charges in both cases 1000 and 2000 “would ‘absolutely not’ necessarily lead to indictments.”   He explained that investigations of this complexity take time, and that the Case 4000 investigation had caused reexamination of the previous cases.

The Times also reported that Attorney General Mandelblit, who will make the final decision whether to indict the Prime Minister, “intends to examine all three cases [1000, 2000, and 4000] at the same time — which will be possible only after he receives the state attorney’s conclusions on the three cases.  That is likely to happen only rather late in 2019, possibly after the next Knesset elections — currently slated for November 2019 but which may very well be held earlier.”

Australian Securities & Investments Commission Issues Report Relating to Adviser Fraud Affecting Deposit Accounts

On August 9, the Australian Securities & Investments Commission (ASIC) issued Report 584, which analyzed the compliance measures and controls that banks should have in place to address the risk of fraud and other risks associated with access by third parties (such as financial advisers, stockbrokers, and accountants) to customers’ money in deposit accounts.  ASIC stated in the report that its review was prompted by concerns raised about the use of adviser-operated deposit accounts by an Australian financial planner now in liquidation, Sherwin Financial Planners Pty Ltd, that was part of the Sherwin Financial Group (Sherwin Group).  By the time of its collapse in January 2013, ASIC reported, the Sherwin Group owed nearly AU $60 million to approximately 400 clients.  The founder of Sherwin Financial Planners was later convicted and sentenced in 2017 to 10 years’ imprisonment.

ASIC defined the scope of its review to include five leading Australian banks that design and promote deposit accounts to financial advisers, stockbrokers, and accountants “to allow them to transact on a customer’s behalf, including on self-managed superannuation funds (SMSFs).”  In particular, it examined eight adviser-operated deposit account products that those five banks issued.  It explained that it “looked at how the banks monitored use of the accounts to ensure customers’ money was not being placed at risk,” including review of “whether the banks offering these accounts had sufficiently robust compliance measures and controls in place to address the risk of fraud and other risks where an adviser has authority to withdraw the customer’s money.”

ASIC’s principal finding was that it “did not find widespread misconduct in relation to adviser-operated deposit accounts offered by the banks.” It went on to say that “we consider that the banks could do more to manage the risks to customers associated with third party access to money in customers’ accounts. Even though the instances of fraud are not widespread, the potential impact of fraud on individual customers is significant.”  ASIC therefore set forth ten recommendations – some of which it indicated some banks were already implementing – for banks in relation to adviser-operated deposit accounts:

  • “Application forms for adviser-operated deposit accounts should more clearly state the level of access so that customers understand the extent of any authority given to the adviser to transact on the account.
  • “Follow-up communications should be sent directly to the customer after an account is opened with details of any authority given to the adviser.
  • “Customers should be able to easily change the level of adviser access on the account.
  • “Customer contact details should be recorded accurately and separately from the adviser’s contact details.
  • “Customers should receive account statements directly or have online access to their accounts.
  • “Customers should be notified whenever an adviser initiates a transaction request on the account.
  • “Banks should undertake initial checks and ongoing monitoring of advisers using adviser-operated deposit accounts and their transaction requests.
  • “Monitoring systems should include specific triggers to detect suspicious transactions for assessment.
  • “Banks should notify ASIC of suspected misconduct.
  • “Where appropriate, remediation should be provided to customers who have lost money due to unauthorized transactions by their adviser.”

The ASIC made clear that some of its recommendations “are good practice guidance for banks and are not legal requirements.” Even so, banks in Australia, and even in other regions, can make good use of the report, by comparing its recommendations to their current compliance measures and controls pertaining to customer accounts that third parties can control and see whether those measures and controls are sufficiently robust.

Zürcher Kantonalbank Enters into Deferred Prosecution Agreement with U.S. Attorney’s Office on Tax-Evasion Facilitation

On August 13, the U.S. Attorney’s Office for the Southern District of New York announced the filing of a Deferred Prosecution Agreement (DPA) with Zürcher Kantonalbank (ZKB), a Swiss-based financial institution, and of an information charging ZKB with one count of conspiracy to willfully and knowingly (1) defraud the IRS, (2) file false federal income tax returns, and (3) evade federal income taxes.  The DPA and the information stem from ZKB’s helping U.S. taxpayer-clients to evade their U.S. tax obligations, file false federal tax returns, and otherwise hide hundreds of millions of dollars in offshore bank accounts held at ZKB.

Under the terms of the DPA, ZKB must pay $98.5 million and cooperate with  prosecutors in providing detailed information about accounts in which U.S. taxpayers have a direct or indirect interest and in making treaty requests to Switzerland or other countries for account information.  In addition, Stephan Fellmann and Christof Reist, two ZKB bankers who are Swiss citizens and who had been indicted in 2012 on related charges, each pleaded guilty to one count of conspiracy to willfully fail to file returns, supply information, or pay tax.  A third ZKB banker, Otto Hüppi, remains a fugitive.

The U.S. Attorney’s Office’s release stated that ZKB helped U.S. taxpayer-clients evade taxes

by opening and maintaining undeclared accounts for U.S. taxpayers at ZKB, and by allowing third-party asset managers to open undeclared accounts for U.S. taxpayers at ZKB.  ZKB held approximately 2,000 undeclared accounts on behalf of U.S. taxpayer-clients, who collectively evaded over $39 million in U.S. taxes, between 2002 and 2013.

In furtherance of a scheme to help U.S. taxpayers hide assets from the IRS and evade taxes, ZKB undertook, among other actions, the following:

  • ZKB entered into approximately 349 “code word agreements” with U.S. taxpayer-clients under which the bank agreed not to identify the U.S. taxpayers by name on bank documents, but rather to identify the U.S. taxpayers by code name, in order to reduce the risk that U.S. tax authorities would learn the identities of the U.S. taxpayers. ZKB understood that a primary reason why U.S. taxpayers sought these “code word” accounts was to evade detection by U.S. tax authorities.
  • ZKB opened and maintained accounts for many U.S. taxpayer-clients held in the name of non-U.S. corporations, foundations, trusts, or other legal entities (collectively, “structures”), thereby helping those U.S. taxpayers conceal their beneficial ownership of the accounts. Some of the structures had no business purpose (“sham structures”), but rather, existed solely for the purpose of helping ZKB’s U.S. taxpayer-clients hide their offshore assets.
  • ZKB agreed to hold bank statements and other mail relating to approximately 750 accounts of U.S. domiciled taxpayer-clients at ZKB’s offices in Switzerland, rather than send them to U.S. taxpayer-clients in the United States, which helped ensure that documents reflecting the existence of the accounts remained outside the United States and beyond the reach of U.S. tax authorities.
  • ZKB solicited new business through the website http://www.swiss-bank-accounts.com, which was operated by a third party, and which resulted in the opening of accounts at ZKB for U.S. taxpayer-clients whose accounts were undeclared.

It is instructive to compare and contrast the ZKB DPA resolution with the 2016 DPA resolution of similar tax-evasion facilitation charges by the U.S. Attorney’s Office for the Southern District of New York with another Swiss financial institution, Bank Julius Baer (Julius Baer):

  • Nature of Charges: Like ZKB, Julius Baer was charged with conspiring with many of its U.S. taxpayer-clients and others to help U.S. taxpayers hide billions of dollars in offshore accounts from the Internal Revenue Service (the “IRS”) and to evade U.S. taxes.
  • Types of Corporate Conduct: Like ZKB, Julius Baer used “code word agreements” with U.S. taxpayer-clients and opened and maintained accounts for many U.S. taxpayer-clients held in the name of non-U.S. structures.
  • Size of Penalties: Julius Baer’s penalty per its DPA was $547 million, in part because the size of Julius Baer’s assets under management (AUM) and profit associated with its undeclared U.S. taxpayer accounts was substantially greater than ZKB’s AUM and profits.
    • AUM: At their respective high-water marks in 2007 and 2008, Julius Baer had approximately $4.7 billion in AUM relating to approximately 2,589 undeclared accounts held by U.S. taxpayer-clients, while ZKB had approximately $794 million in AUM relating to undeclared accounts held by U.S. taxpayer-clients.
    • Profits: From 2001 through 2011, Julius Baer earned approximately $87 million in profit on approximately $219 million gross revenues from its undeclared U.S. taxpayer accounts, including accounts held through structures. From 2002 through 2013, ZKB earned approximately $21 million in profits on approximately $24 million gross revenues from its undeclared U.S. taxpayer accounts, including accounts held through structures.
  • Extent of Banks’ Cooperation with Authorities: Julius Baer began by at least 2008 to implement institutional policy changes to cease providing assistance to U.S. taxpayers in violating their U.S. legal obligations, sought to self-report its conduct relating to U.S. taxpayers to U.S. law enforcement authorities, and took what the U.S. Attorney’s Office characterized as “exemplary actions to demonstrate acceptance and acknowledgement of responsibility for its conduct.” Those actions included a “swift and robust internal investigation” and furnishing the U.S. Government with “a continuous flow of unvarnished facts gathered during the course of that internal investigation.” It even encouraged certain of its employees — including two client-advisers who later pleaded guilty to conspiracy to defraud the IRS, to evade federal income taxes, and to file false federal income tax returns – “to accept responsibility for their participation in the conduct at issue and cooperate with the ongoing investigation.”

In marked contrast, after Fellmann, Reist, and Hüppi were charged in the Southern District of New York in 2012  with conspiracy to defraud the United States and the IRS for their role in ZKB’s offense, ZKB officials took a series of actions that, based on the description by the U.S. Attorney’s Office, smack of endeavors to obstruct justice:

  • “Although ZKB retained independent U.S. counsel for the bankers, beginning in 2013 and continuing through 2015, ZKB’s in-house counsel and, at times, ZKB employees from the Human Resources department and other departments, regularly met with FELLMANN and REIST. At those meetings, which were not attended by FELLMANN and REIST’s independent U.S. counsel, ZKB, among other things, made statements that caused FELLMANN and REIST to feel dissuaded from reaching out to the U.S. Attorney’s Office in order to explore the possibility of cooperating.  In addition, ZKB’s in-house counsel suggested to FELLMANN that he did not have any information of value to contribute to the U.S. Attorney’s Office’s ongoing investigation.  Furthermore, based on conversations with ZKB, FELLMANN and REIST felt that their continued employment at ZKB and ZKB’s ongoing payment of their legal fees would be threatened should they take steps that were viewed by ZKB as inconsistent with the bank’s own interests.  Due in part to these discussions with ZKB, FELLMANN and REIST did not seek to cooperate with the investigation until the summer of 2015, approximately two and a half years after being indicted.”

Fellmann and Reist are scheduled to be sentenced on November 30, 2018.

Corruption and Piracy in the Caribbean and Latin America

For some time, anti-corruption professionals and scholars have been aware of the linkage between corruption and piracy on the high seas, most frequently reported in recent years for the waters in or near Southeast Asia, West Africa, and Somalia.   The Washington Post, however, reported yesterday that there is an upsurge in piracy in Latin America and the Caribbean.  According to a nonprofit organization, Oceans Beyond Piracy, there were 71 major piracy incidents in the region in 2017 (the vast majority occurring in Caribbean waters), including robberies of merchant vessels and attacks on yachts.  That total represents a 163 percent increase over 2016.

The most notable surge in the region’s piracy has been off the coast of Venezuela, which is suffering from inflation nearing 1 million percent, spreading malnutrition, rampant disease, failing power grids, police and military abandoning their posts, and increased repression and corruption.  The Post observed that often these acts of piracy in the region “appear to be happening with the complicity or direct involvement of corruption officials,” particularly in the waters off Venezuela.

Some pirates in the region have been satisfied simply to rob other vessels or hold people for ransom. Other attacks have reportedly involved extreme violence against the victims.  The Post reported that in April 2018, for example, masked men boarded four Guyanese fishing boats 50 miles off the coast of Guyana.  “The crews, according to survivors’ accounts, were doused with hot oil, hacked with machetes and thrown overboard, then their boats were stolen.  Of the 2 victims, five survived; the rest died or were left unaccounted for.”

Further details about this regional trend, as well as trends in high-seas piracy elsewhere, are available in Oceans Beyond Piracy’s The State of Maritime Piracy 2017, and in the six-part 2016-17 National Geographic series Lawless Oceans.