For most individuals and small business owners, having a relationship with a bank or credit union is as essential as basic utilities. You could no more open a restaurant without access to the payments system than you could without access to running water. Recently, though, there have been increasing reports of people learning that their accounts have been closed, or finding it difficult or impossible to open an account in the first place, because of the industry they work in, or who they are related to.
The most headline-grabbing examples of late have been porn stars. Adult film actor Teagan Presley and her husband, director Joshua Lehman went public with complaints about JP Morgan Chase closing both their business and personal accounts, allegedly because of their involvement in the adult entertainment industry. Others in the business have reported similar behavior by their banks.
The banks’ moves appear to be linked to a government program, “Operation Choke Point,” meant to address fraud in the payments system by “choking off” access to businesses deemed to present a high risk of illegal activity.
The problem is that the majority of the businesses that are being targets, while perhaps unsavory in the eyes of the government, aren’t illegal.
In an op-ed in The Wall Street Journal last month, American Bankers Association President Frank Keating wrote, “Some of these businesses may indeed be risky. But that doesn't justify pre-emptively declaring them all criminals and freezing their access to the payments system.”
Keating wrote, “Justice is pressuring banks to shut down accounts without pressing charges against a merchant or even establishing that the merchant broke the law. It's clear enough that there's fraud to shut down the account, Justice asserts, but apparently not clear enough for the highest law enforcement agency in the land to prosecute.”
The adult entertainment industry is far from the only area where legal businesses and individuals are finding it difficult to get bank accounts.
Banks are also becoming more and more leery about providing services to companies that provide short term, high-interest “payday” loans. The businesses are, in general, perfectly legal, but the Justice Department and the Consumer Financial Protection Bureau have both been cracking down on them for violations of lending laws, and threatening more expansive legal and regulatory action.
Regulators have also deterred banks from serving customers who operate in 22 different business lines, including “get rich quick” schemes, pharmaceutical sales, certain charities, and more.
Diplomats who have personal or family connections to individuals identified in foreign corrupt activities and other illegal enterprises are often denied accounts when they try to open them with U.S. banks because bankers believe the risk of getting caught up in a federal investigation is not worth whatever profit they might earn on one individual’s account.
In states such as Colorado and Washington, where the sale and use of marijuana has been legalized, bankers are still dubious about providing financial services to pot sellers
The issue here is more complicated, because while sale and use of the drug may be legal under state law, it remains illegal under federal law, and virtually all banks, even those with state charters, are under some degree of federal oversight because they are insured by the Federal Deposit Insurance Corporation. State lawmakers have tried to provide safe havens, and the Treasury Department has issued statements meant to provide assurance to banks that they are allowed to provide services to pot businesses.
Banks, however, remain understandably reluctant. A tenet of banking regulation in the U.S. is that bankers are supposed to “know your customer” – meaning that before an account is opened, banks must do a reasonable amount of due diligence to determine the true identity of people opening accounts, and in the case of businesses, to assure themselves that they are legitimate.
In the case of marijuana sellers, the Department of Justice last year issued what’s known as the Cole Memo, authored by Deputy Attorney General James Cole. The document said the Feds would generally leave marijuana enforcement to the states except in eight different scenarios – including sale and distribution to minors, preventing the involvement of criminal organization in pot businesses, preventing the “diversion” of marijuana from states where it is legal to states where it is not, and others.
Bankers looked at the Cole Memo, asked themselves how they could possibly be sure that their customers were not violating the guidelines, and decided they couldn’t. The value of the business of a couple of pot shops in Denver is far outweighed by the possible damage – reputational and regulatory – that would come from being identified as the banker to business indicted for selling drugs to minors.
As much as the Cole Memo was supposed to provide some assurances to the banking industry, the fact is that there are so many federal agencies with oversight over the industry, many of which don’t appear to agree on specific policies; a memo from one has no effect on the practices of the others.
John Byrne, executive vice president of the Association of Certified Anti-Money Laundering Specialists, said that bankers who belong to his organization often find themselves catering to the lowest common denominator of regulatory tolerance.
“They’ll have one regulator come in for an exam and they get a clean response, then a second will come in, look at the same thing, and issue a formal criticism,” he said. “If regulators are going to second-guess judgment of risk, it’s not worth the resources because there is no guarantee it’s going to be adequate.”
Ironically, Byrne notes, in an effort to root out illegal activity, the Federal government may be having the opposite effect. For decades, banks have worked closely with law enforcement officials to identify suspicious activity within their customer base, and have a long-standing system in place for alerting authorities to illegal activity.
“Banks have been reporting illegal activity to law enforcement for as long as I’ve been in this business,” said Byrne.
By assuming that all businesses operating in certain sectors are potential criminals and removing them from the banking system, law enforcement is likely driving them underground. They may cause many of them to begin transacting business outside the payments system and prevent banks from helping law enforcement identify the fraction of them that may have been engaged in illegal activity in the first place.
“Law enforcement loses because we are getting out of these relationships,” Byrne said.
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