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Invite colleaguesWhy depository institutions, with or without affiliated securities firms, can and should manage employee use of personal devices for work-related communications
Abstract
This paper shows how the failure to monitor for and prevent off-channel communications poses risk to traditional depository institutions that are not subject to the jurisdiction of securities-law regulators and shows how those institutions can mitigate that risk. US securities regulators have cracked down on broker-dealer, investment-adviser and futures commission merchant employees' use of unapproved personal devices and applications for business communications, imposing over US$2.8bn in penalties between December 2021 and April 2024. However, because there have not, at the time of writing this paper, been similar enforcement actions against traditional depository institutions that do not have securities affiliates, many traditional banks without securities affiliates have continued with business as usual. Nonetheless, the OCC has recognised that electronic communications can constitute records that must be retained pursuant to specific rules and that banks' failure to maintain adequate record retention systems in general can create significant reputation, transaction, credit and compliance risks. This paper aims to illuminate those risks and offers suggestions about how to address them.
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Author's Biography
Richard H. Harvey is an experienced executive-level legal and compliance leader and a noted expert in developing and implementing risk-based compliance and anti-money laundering programmes for traditional and non-traditional financial institutions. Richard currently serves as Executive Vice President, General Counsel and Director of Compliance Risk for Beneficial State Bank. Prior to joining Beneficial, Richard served as the General Counsel and Chief Compliance Officer for World Open Network. He has also served as the Chief Compliance Officer for Colonial Savings, FA and General Counsel and Chief Compliance Officer at two start-up financial technology companies. Richard is a graduate of the Catholic University of America Columbus School of Law. He served as an enforcement and litigation attorney with the Office of Thrift Supervision from 1986 to 1993. During his career, Richard has held key roles in many areas of bank compliance. He has had responsibility for managing his institution's legal departments, Bank Secrecy Act (BSA), privacy, consumer compliance, safety and soundness and information technology examinations. Additionally, Richard is a certified regulatory compliance manager and anti-money laundering and fraud professional. He currently serves as a faculty member for the American Bankers Association (ABA) School of Compliance Risk Management. Richard has also taught a course on compliance management at the Stonier School of Banking. In 2017, he was selected to serve on the Consumer Financial Protection Board Community Bank Advisory Council. In 2019, Richard was recognised for his service to the financial services industry with the ABA's Distinguished Service Award. Richard is a frequent speaker at conferences and seminars on the topics of compliance risk management, privacy, BSA and anti-money laundering and fair lending. In 2001, Richard testified on behalf of the ABA before the House of Representatives Banking Committee concerning financial institutions' efforts to combat identity theft.
Michael J. Leotta conducts internal investigations and represents corporations and individuals in white-collar criminal law and regulatory enforcement matters. He regularly represents US consumer banks, global correspondent banks, broker-dealers, investment advisers and FinTech companies in a broad range of matters, including defending financial institutions' compliance with the Bank Secrecy Act and related anti-money laundering rules, securities law and the Foreign Corrupt Practices Act. He represents clients in investigations and examinations by the Department of Justice and state prosecutors; domestic and international financial regulators such as the Federal Reserve Board of Governors, the Securities and Exchange Commission, the Financial Industry Regulatory Authority, the Commodity Futures Trading Commission, the Financial Crimes Enforcement Network, the New York Department of Financial Services, and the UK Financial Conduct Authority; state attorneys general; and congressional committees. Before joining WilmerHale in 2011, Michael served for nine years in government, including in the White House Counsel's Office under President Barack Obama, as an assistant US attorney prosecuting fraud and public corruption and as Appellate Chief and Ethics Adviser at the US Attorney's Office for the District of Maryland. Michael recently served as a national chair of the American Bar Association's White Collar Crime Committee and currently serves as a co-chair of its Financial Institution Fraud/Money Laundering and Patriot Act Subcommittee.
Gautam Sachdev is a seasoned risk and compliance professional with more than 16 years of in-house experience in various global and regional roles in the areas of compliance, investigations, risk management, operations, governance, technology and risk assessment in the second line of defence. Gautam has experience working at major financial institutions in Australia, Brazil, the UK and the US. Previously, he was with Macquarie Group as Managing Director, Global Head of Risk Surveillance, and Chief Product Owner for Risk Management, overseeing operations, governance, technology and strategy. Prior to joining Macquarie Group, he held similar roles at Citibank and HSBC. Gautam has an MBA from Northwestern University's Kellogg School of Management and a master of science in electrical engineering from New York University. Recently, he attended Oxford University and completed the programme on leading sustainable corporations. Gautam is a published speaker at various industry forums for risk and compliance topics, with a keen focus on markets compliance, corporate investigations and ESG.