FinCEN Withdrawal Vindicates Ciercos' Challenge

WASHINGTON, Feb. 19, 2016 /PRNewswire/ -- FinCEN's withdrawal of its Section 311 notices against Banca Privada d'Andorra is a momentous victory for BPA's customers, employees, and all of its shareholders, including the majority shareholders, the Cierco family. Since FinCEN issued its illegal notices nearly one year ago, the Ciercos have fought vigorously to clear their name, bringing suit in federal court against the U.S. Department of Treasury and FinCEN to force the withdrawal the notices.  FinCEN's announcement that they have withdrawn the notices vindicates the Ciercos and BPA.

Eric Lewis, lead global coordinator on behalf of the Ciercos said, "The Ciercos should never have had to sue to get justice. This was a dispute between regulators and BPA paid the ultimate price. FinCEN failed to consider that BPA was one of the premier banks in Europe with industry standard money laundering controls in place. It is beyond ironic that FinCEN has justified its action in withdrawing its notices by pointing to the substantial 'good assets' of BPA.  Had FinCEN considered those 'good assets' at the beginning of this process, as it was required to do by law, it would never have issued the 311 notices."

In October 2015, the Ciercos filed suit against the Department of the Treasury and FinCEN and its senior officials in the United States to compel FinCEN to withdraw its notices.  The core of the Ciercos' case was the fact that FinCEN's notices were illegal, because FinCEN had failed to consider (as it was required to by law) BPA's extensive legitimate banking business, which would be substantially injured by FinCEN's actions. Indeed, the Ciercos suit pointed out that FinCEN routinely refuses to consider the legitimate business of the banks it targets under Section 311.

In a complete about face, FinCEN has now withdrawn its notices in a blatant effort to avoid any judicial scrutiny of the legality of its actions.   The withdrawal coincides with the court's consideration of both FinCEN's motion to dismiss the case and the Ciercos' demand for a judgment in their favor.  On March 11, 2016, FinCEN would have had to respond in court to the Ciercos' claim that the notices were illegal, a claim which FinCEN has never denied.   By withdrawing the notices, FinCEN avoids the risk that it will be forced to either defend its actions, or acknowledge publicly that the notices themselves were illegally issued.

Since this saga began, the Ciercos have been very clear about the lack of evidence and sought answers for several troubling developments in the 311 process:

1) FinCEN's actions were based on incidents that BPA had identified and reported to its regulators more than a year before.   The Andorran regulators failed to share BPA's March 2014 letter to them with FinCEN and failed to tell FinCEN that BPA had indeed reported these incidents and taken all necessary action.

2) BPA was regularly audited for anti-money laundering compliance by international audit firms, including KPMG and Deloitte, which certified their anti-money laundering policies and procedures.  Furthermore, the Andorran regulator certified BPA's AML program in 2009 and 2012.  

3) Maria Cosan, the current director of INAF, was in charge of KPMGs anti-money laundering audit of BPA's for several years leading up to her appointment as Director of INAF in January 2013.  During the 2012 AML audit, KPMG was made aware of the three primary cases cited in FinCEN's Notice of Finding. KPMG brought in senior level people from across Europe to ensure that there were no systemic money laundering issues at BPA. They found none. 

4) After the Section 311 notices were issued, the Andorran government brought in PricewaterhouseCoopers to conduct an extensive and expensive audit of every account at BPA.  The results of this audit have not been released to the public, but it has been widely reported that the audit failed to turn up any evidence of money laundering within BPA.

FinCEN actions today demonstrate that BPA did nothing wrong, and now the Ciercos demand justice and the return of their bank. They demand fairness, justice and accountability.

Given FinCEN's reversal, BPA demands that INAF immediately halt its unjustified proceedings in transferring any assets to Vall Banc, and pursue remedial negotiations that achieve justice and fairness for the Cierco family.   It has been nearly one year and the Ciercos, the employees of BPA, the people of Andorra, and the global financial community have a right to know why this drastic action was taken against a law abiding financial institution.  

This is not just an issue for the Ciercos in challenging the illegal expropriation; the credibility and commitment to the rule of law of Andorra are at stake here.  Andorra has stated publicly it is powerless to act against the dictates of FinCEN.  Now FinCEN has backed down.  It is time to set things right.