Deutsche Bank AG was fined 163 million pounds ($204 million) by the U.K. Tuesday for helping wealthy Russians move about $10 billion out of the country. But if you were looking for information about who was responsible for the breaches, the British regulator’s report won’t be much help.
The statements from the U.K. Financial Conduct Authority are in stark contrast to the New York Department of Financial Services, which on Monday fined the German lender $425 million over the same conduct. While the U.S. regulator provides anonymized details of employee misdeeds, including a possible bribe to a former supervisor, those features were conspicuous by their absence in the FCA settlement.
One reason for the disparity may be an imminent court ruling on how far the FCA can go in identifying individuals in penalty reports.
For years the FCA has used monikers such as “Trader A” in sanction notices to get around a requirement that a person must be given the chance to respond to allegations if they’re identified — a principle known in the U.K. as third-party rights. The anonymity allowed the agency to illustrate misconduct by publishing chat room transcripts that demonstrated the behavior, while avoiding delays in issuing the penalty.
But a series of bankers in recent years have won lawsuits against the FCA claiming that colleagues — and the media — could easily figure out the identity of Traders A, B and C with just a little bit of effort. Those suits may be having a chilling effect on the regulator while it awaits a Supreme Court ruling in the dispute in a case involving former JPMorgan Chase & Co. executive, Achilles Macris.
“The FCA finds itself in a really difficult position until the Supreme Court clarifies,” the situation, said Farhaz Khan, a London trial lawyer representing another ex-JPMorgan banker caught up in a similar dispute. “It needs to tread a fairly tight line between giving sufficient reasons for a penalty and third-party rights.”
At the heart of the Deutsche Bank case were compliance failures between 2011 and 2015 that allowed clients to carry out so-called mirror trades as a way of getting hold of dollars. The trades — which regulators said were likely thinly-veiled attempts to cover up financial crime — saw clients buy local blue-chip shares for rubles, while selling the same stocks in London for dollars.
The FCA notice said there was no evidence senior management at Deutsche Bank or any employee in the U.K. was aware of or involved in the suspicious trading. Transcripts referenced in the document were attributed to group names such as “DB Moscow.”
“In light of the recent challenges they’ve faced on third-party rights issues, the FCA is clearly being very cautious,” said Michael Ruck, a London lawyer at Pinsent Masons who used to work at the regulator.
In contrast, the New York regulator’s report was filled with details about a supervisor in Moscow, a “close relative” and the conduct of senior compliance employees.
“The supervisor’s close relative, who apparently had a background in historical art, and not finance, was also the apparent beneficial owner of two offshore companies,” the New York DFS said in its 27-page report when discussing the payment of a possible bribe.
A spokeswoman for the FCA declined to comment. Deutsche Bank Chief Administrative Officer Karl von Rohr said in a memo to staff Tuesday that the bank was “making progress” toward resolving investigations over the Russian trades.
Macris was the first banker to challenge the FCA’s previous approach, saying he could be easily identified in a report linked to the high-profile London Whale scandal in 2013. So far, two lower U.K. courts have agreed that a reference to him as “CIO London management” didn’t do enough to conceal his identity.
If the Supreme Court rules in Macris’s favor, FCA notices may be watered-down permanently.
“We are likely to see slightly anodyne or vague final notices until this is resolved, and even after,” Ruck said.