But TD Bank’s problem — which led to the largest AML-failures penalty ever — was not just about ignoring red flags. The more fundamental problem is that TD Bank tried to do its anti-money-laundering compliance on the cheap, and the prosecutors and regulators hate that. The Justice Department says:
[The TD Bank Global Anti-Money Laundering (GAML) group]’s budget was a primary driver of its decisions about projects, hiring, staffing, and technology enhancements throughout the relevant period. GAML executives strove to maintain what TD Bank Group referred to as a “flat cost paradigm” or “zero expense growth paradigm,” meaning that each department’s budget, including GAML’s, was expected to remain flat year-over-year, despite consistent growth in TD Bank Group’s revenue over the relevant period. This budgetary pressure originated with senior bank executives and was achieved within GAML and US-AML by [its chief AML officer] and [its Bank Secrecy Act officer], both of whom touted their abilities to operate within the “flat cost paradigm without compromising risk appetite” in their self-assessments. GAML’s base and project expenditures on USAML were less in fiscal year 2021 than they were in fiscal year 2018 and were not sufficient to address AML deficiencies including substantial backlogs of alerts across multiple workstreams, despite TDBNA’s profits increasing approximately 26% during the same period. In 2019, [the chief AML officer] referred to the Bank’s “historical underspend” on compliance in an email to the Group senior executive responsible for the enterprise AML budget, yet the US-AML budget essentially stayed flat. GAML and US-AML employees explained to the Offices that budgetary restrictions led to systemic deficiencies in the Bank’s transaction monitoring program and exposed the Bank to potential legal and regulatory consequences.
That, I think, is why the fine was so big. The message that this case is meant to send to banks is “if your compliance team wants more money to build a better AML program, you’d better give it to them, because otherwise we will fine you orders of magnitude more money than you would have spent.” The attorney general said:
TD Bank chose profits over compliance, in order to keep its costs down.
That decision is now costing the bank billions of dollars in criminal and civil penalties.
The deputy attorney general added:
We are putting down a clear marker on what we expect from financial institutions — and the consequences for failure.
When it comes to compliance, there are really only two options: invest now – or face severe consequences later.
As I’ve said before, a corporate strategy that pursues profits at the expense of compliance isn’t a path to riches; it’s a path to federal prosecution.
One job of a bank is to stop crime, which means that banks employ thousands of people who essentially work for the US Department of Justice. But the Department of Justice has no direct control over how many of those people there are, how much they get paid or what resources they have. Law enforcement agencies cannot directly set the banks’ budgets for anti-money-laundering programs, even though those budgets really are part of law enforcement. It is, perhaps, a frustrating situation: The Justice Department would like banks to spend more money catching criminals, and it can’t quite make them.
Except obviously it can. The Justice Department can’t directly set banks’ AML budgets, but it can do it indirectly, and it just did. If you are a bank compliance officer and you want to hire 2,000 people and get some shiny new computers, you can go to your regulators and say “do we need to spend this money on AML,” and they will say “that would be better,” and you will go to your chief executive officer with a transcript of the TD Bank press conference, and you will get whatever you want.
