The AML act became law on January 1, 2021.

Filing Anti-Money Laundering Claims: Overview

As part of the National Defense Authorization Act of 2020 (“NDAA”), Congress passed a major overhaul of the nation’s money laundering laws, known as the Anti-Money Laundering Act (“AML”). The AML Act includes a new AML whistleblower law. The law permits the Secretary of Treasury (“SOT”) to issue rewards of “up to 30%” of sanctions obtained in whistleblower-initiated prosecutions to whistleblowers who qualify under the law.

However, the payment of rewards is discretionary, and the Secretary of Treasury can effectively deny rewards to otherwise qualified whistleblowers. Additionally, unlike other reward laws, there is no minimum payment required.

The law has other significant problems, that are fully explained in the National Law Journal, Congress Must Fix the AML Whistleblower Law (Jan. 26, 2021).

Because of the discretionary nature of the AML Act’s whistleblower reward law, whistleblowers who report violations of AML rules should consider filing whistleblower cases under other reward laws, that guarantee a minimum payment and have a strong track record of protecting and rewarding whistleblowers. These laws include the IRS whistleblower law and the Dodd-Frank Act (“DFA”).

Below is our short how-to guide on filing anti-money laundering claim(s).

Key Takeaways

  • Under the new AML Act the Secretary of Treasury (SOT) has discretion to pay whistleblowers “up to 30%” of the collected proceeds obtained by the government in a whistleblower-triggered case.
  • However, there is no requirement that meaningful rewards be paid, and there is no automatic funding mechanism to pay the rewards. Thus, unlike the Dodd-Frank Act, the IRS whistleblower law, and the False Claims Act, qualified whistleblowers are at risk of getting no compensation.
  • As an alternative, mandatory awards between 15-30% may be available under the IRS whistleblower law. The IRS whistleblower law covers money laundering crimes investigated by the IRS.
  • Mandatory awards between 10-30% may also be available under the Dodd-Frank Act, whenever publicly traded companies and banks are implicated in the crimes.
  • Under the new discretionary AML Act’s whistleblower law, claims are filed with the Secretary of Treasury (“SOT”). However, the SOT is expected publish regulations regarding filing procedures.
  • Confidential and Anonymous Claims can be filed under the DFA and the AML Act. Additionally, the IRS will strictly protect the confidentiality of whistleblowers.
  • All of the laws that potentially cover AML violations permit non-U.S. citizens to file reward claims.
  • All of the laws that potentially cover AML violations have anti-retaliation protections, but the type of protection is controlled by each specific law.

The Anti Money Laundering Claims Process

Filing a reward claim based on AML violations is extremely complex, as there are at least three reward laws that may be applicable to the claim, and each has separate filing rules. Additionally, the Secretary of Treasury has not published rules concerning the newly enacted AML Whistleblower Law, and assistance from an attorney is essential for correctly filing cases under that law. Finally, in order to file an anonymous claim under the Dodd-Frank Act or the AML Whistleblower Law, the rules require that the whistleblower be represented by an attorney licensed to practice law in the United States.

We advise contacting a whistleblower protection attorney if you have information about money laundering and thinking of blowing the whistle and applying for awards.

Below is a short and concise overview of the filing process:

1. File Your Anonymous Claim

File a confidential and/or anonymous claim with the appropriate law enforcement agency, pursuant to the specific rules governing these filings. The U.S. Securities and Exchange Commission (covering publicly traded companies, including most large banks) requires the filing of a Form TCR, as does the Commodity Futures Trading Commission (CFTC). The IRS requires the filing of Form 211. The Secretary of Treasury (“SOT”) currently does not have rules for filing under the AML Act. Until such rules are published, claims should be filed with the IRS using Form 211 and directly with the SOT. You may also want to file your claims under the AML Act with the Financial Crimes Enforcement Network (FinCEN). However at this present time, FinCen does not have rules or procedures for accepting whistleblower claims.

2. Cooperate with Investigation

Make sure you obtain an official acknowledgment from the SEC, IRS, CFTC, FinCEN, and/or the SOT confirming receipt of your complaint or claim application. Thereafter, fully cooperate with the investigations conducted by these law enforcement agencies. The IRS, SEC and CFTC has detailed rules governing their programs. Make sure you follow these published rules. It is anticipated that the SOT will publish procedures shortly.

3. Consider Filing “Related Action” Claims

All of the laws that cover AML include a “related action” provision. The “related action” provision permits whistleblowers to qualify for a reward even if another law enforcement or regulatory agency issues a sanction. Related action claims are often based on related criminal prosecutions conducted by the Department of Justice. Follow the rules of the SEC, IRS, CFTC, and SOT whenever filing a related action claim.

4. Apply for the Award

All of the whistleblower award laws follow a two-step process. The first is filing the initial claim or complaint with the SEC, IRS, CFTC and/or SOT. This filing should provide “original information” to the appropriate law enforcement agency, consisting of the information or evidence the whistleblower has necessary to trigger an investigation into AML violations or information that will help these agencies successfully prosecute persons or banks involved in money laundering.

The second step occurs after a wrongdoer is sanctioned. Once an individual or company is sanctioned (i.e. pleads guilty, enters into a deferred prosecution agreement, is subjected to an administrative enforcement action, etc.), a formal reward application should be filed. As part of this application the whistleblower can request up to 30% of the sanctions obtained from the wrongdoer.

All agencies have specific rules on applying for rewards, criteria for justifying an award, and specific time-requirements for filing an application. The AML Whistleblower Law sets forth criteria for determining the size of an award. The SOT is expected to adopt rules or procedures for filing award applications.

Frequently Asked Questions

Can AML whistleblowers be fired?

The new AML Act includes an anti-retaliation law that requires cases to be filed with the U.S. Department of Labor within 180-days of an adverse action. However, this law does not directly cover employees who work for FDIC insured banks or credit unions. Employees at these institutions must file in federal court under older and less effective whistleblower protection laws. These older laws are 12 U.S.C. §§ 1790b and 1790c (employees at insured credit unions) and 12 U.S.C. § 1831j (employees at FDIC insured institutions). The IRS, CFTC and SEC whistleblower laws all have modernized anti-retaliation provisions.

What anti-retaliation protections are for employees at FDIC insured institutions or federally insured credit unions?

The existing whistleblower protections laws for employees at FDIC insured institutions or credit unions, codified at 12 U.S.C. §§ 1790b and 1790c and 12 U.S.C. § 1831j, are very problematic. The laws do not contain provisions for the payment of attorney fees or costs to prevailing whistleblowers. Also, internal whistleblower disclosures are not explicitly covered under these laws.

The scope of a protected disclosure is very narrow under these laws. Under 12 U.S.C. § 1831j, employees at FDIC insured institutions must raise their concerns regarding violations of banking laws with the FDIC, the Federal Housing Finance Agency, the Federal Reserve Board, the Comptroller of Currency and/or the Attorney General.

Under 12 U.S.C. §§ 1790b and 1790c, employees at insured credit unions must raise their allegations of banking law violations with the National Credit Union Administration Board, and/or the Attorney General. Significantly, reports to either the Secretary of Treasury or to FinCEN are not covered under these older laws.

These two older laws do not have provisions permitting anonymous or confidential submissions. Congress’s failure to cover credit unions or FDIC insured financial institutions under the new (and far more effective) AML Act’s anti-retaliation law is a major problem with the AML Act.

However, because the IRS and the securities laws have much stronger anti-retaliation provisions, employees should carefully consider whether their AML allegations may be covered under either of these laws, and if so, file disclosures using the IRS and Dodd-Frank laws. In this manner employees should be able to benefit from the stronger anti-retaliation laws covered under these statutes.

Other Important Things to Remember

Money laundering often involves violations of several laws. Thus, do not only file a case under the new AML Act. Carefully consider and research whether other agencies may also have jurisdiction to investigate and sanction the banks, other financial institutions, or the individuals involved. Additionally, those who engage in money laundering often are involved with other crimes, covered by other reward laws, such as foreign bribery and tax evasion. Make sure you are covered under all applicable laws.

Filing AML cases – IRS Whistleblower Law and the Dodd-Frank Act

The AML Act’s whistleblower law is extremely weak. The Secretary of Treasury’s ability to grant awards is currently limited to funds made available by Congress through the appropriations process. Even if funds are made available, the SOT is not required to compensate whistleblowers with any minimum amount. De minimus awards granted, even a little as one penny, cannot be appealed.

Furthermore, most bank whistleblowers (i.e., those who work at FDIC insured institutions and employees at credit unions) are not covered under the AML Act’s anti-retaliation law.

Thus, until Congress fixes the AML Act’s provisions, AML whistleblowers are strongly advised to look at other reward laws. AML whistleblowers should use the reward laws that require that significant awards be paid to qualified whistleblowers when considering whether or not to blow the whistle on AML violations. The IRS and Dodd-Frank Act’s whistleblower laws also have more effective anti-retaliation provisions covering employees who seek rewards under these alternative remedies.

AML Resources and Links

Protect yourself by learning about the AML act, whistleblower laws, and reading additional frequently asked questions.

Commodity Futures Trading Commission
Three Lafayette Centre
1155 21st St. NW
Washington, DC 20581
www.cftc.gov
www.whistleblower.gov (website for Office of the Whistleblower)

Internal Revenue Service
Whistleblower Office
SE: WO 1111
Constitution Ave. NW
Washington, DC 20224
http://irs.gov/compliance
www.irs.gov/uac/whistleblower-informant-award (Office of the Whistleblower
web page). The IRS Whistleblower Office’s website has information on informant awards.

U.S. Department of Labor
Occupational Safety and Health Administration (OSHA)
200 Connecticut Ave. NW
Washington, DC 20210
www.osha.gov
www.whistleblowers.gov (OSHA Whistleblower Programs web page)
The OSHA website contains information regarding the IRS whistleblower anti-retalaition law and the Sarbanes-Oxley Act’s corporate whistleblower law. The website will soon update with information on the AML Act’s whistleblower law.

U.S. Securities and Exchange Commission
SEC Office of the Whistleblower
100 F St. NE
Mail Stop 5971
Washington, DC 20549
Fax number: 703-813-9322
www.sec.gov/whistleblower
The SEC’s Whistleblower Office has an online process for filing complaints with the SEC and also contains information and links related to the Dodd-Frank whistleblower provisions. The website contains information on how to file whistleblower reward claims in accordance with SEC rules.