March 2023 - cypherpunks - lists.cpunks.org

BREAKING: Ex-Wells Fargo Retail Bank Head Pleads Guilty, Fined $17M
by Gunnar Larson 15 Mar '23

15 Mar '23

Federal authorities said Wednesday that Carrie Tolstedt, the former head of Wells Fargo's community banking division, has agreed to plead guilty to obstructing regulators' probe of the banking giant's past sales practices misconduct and pay a related $17 million civil penalty. ---------- Forwarded message --------- From: Banking Law360 <news-alt(a)law360.com> Date: Wed, Mar 15, 2023, 3:04 PM Subject: BREAKING: Ex-Wells Fargo Retail Bank Head Pleads Guilty, Fined $17M To: <g(a)xny.io> Federal authorities said Wednesday that Carrie Tolstedt, the former head of Wells Fargo's community banking division, has agreed to plead guilty to obstructing regulators' probe of the banking giant's past sales practices misconduct and pay a related $17 million civil penalty. [image: Law360 US] <https://www.law360.com/banking?nl_pk=18419650-a93f-42ac-aefb-969852c4f61f&u…> BREAKING NEWS WEDNESDAY, MARCH 15, 2023 [image: Law360 iOS App] <https://itunes.apple.com/us/app/law360-legal-news-analysis/id934560389> [image: Law360 Android App] <https://play.google.com/store/apps/details?id=com.law360_native> [image: Follow Law360 on Facebook] <https://facebook.com/Law360> [image: Follow Law360 on LinkedIn] <https://www.linkedin.com/company/law360> [image: Follow Law360 on Twitter] <https://twitter.com/BankingLaw360> ------------------------------ <https://sli.law360news.com/click?s=734107&li=7&m=9f998b7695d367427670a5642c…> <https://sli.law360news.com/click?s=734108&li=7&m=9f998b7695d367427670a5642c…> <https://sli.law360news.com/click?s=734110&li=7&m=9f998b7695d367427670a5642c…> BREAKING: Ex-Wells Fargo Retail Bank Head Pleads Guilty, Fined $17M <https://www.law360.com/banking/articles/1586384?nl_pk=18419650-a93f-42ac-ae…> By Jon Hill Federal authorities said Wednesday that Carrie Tolstedt, the former head of Wells Fargo's community banking division, has agreed to plead guilty to obstructing regulators' probe of the banking giant's past sales practices misconduct and pay a related $17 million civil penalty. 1 document attached | Read full article » <https://www.law360.com/banking/articles/1586384?nl_pk=18419650-a93f-42ac-ae…> <https://sli.law360news.com/click?s=734127&li=7&m=9f998b7695d367427670a5642c…> <https://sli.law360news.com/click?s=734128&li=7&m=9f998b7695d367427670a5642c…> <https://sli.law360news.com/click?s=734130&li=7&m=9f998b7695d367427670a5642c…> <https://sli.law360news.com/click?s=734143&li=7&m=9f998b7695d367427670a5642c…> <https://sli.law360news.com/click?s=734144&li=7&m=9f998b7695d367427670a5642c…> <https://sli.law360news.com/click?s=734146&li=7&m=9f998b7695d367427670a5642c…> ------------------------------ <https://sli.law360news.com/click?s=734135&li=7&m=9f998b7695d367427670a5642c…> <https://sli.law360news.com/click?s=734136&li=7&m=9f998b7695d367427670a5642c…> <https://sli.law360news.com/click?s=734138&li=7&m=9f998b7695d367427670a5642c…> Not sure if your firm subscribes? Ask your librarian. We hope you found this message to be useful. However, if you'd rather not receive future emails of this sort, you may unsubscribe here <https://www.law360.com/unsubscribe?k=18419650-a93f-42ac-aefb-969852c4f61f>. Please DO NOT reply to this email. For customer support inquiries, please call +1-646-783-7100 or visit our Contact Us <https://www.law360.com/about/contact> page. Privacy Policy <https://www.law360.com/privacy_policy> | Cookie Policy <https://www.law360.com/cookie_policy> Law360 | Portfolio Media, Inc, 111 West 19th Street, 5th Floor, New York, NY 10011

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Signature Bank Faced Criminal Probe Ahead of Firm’s Collapse
by Gunnar Larson 15 Mar '23

15 Mar '23

Was the Mayor of New York City laundering money through Signature Bank with NYCCoin? Signature Bank Faced Criminal Probe Ahead of Firm’s Collapse https://www.bloomberg.com/news/articles/2023-03-15/signature-bank-faced-cri… US prosecutors were investigating Signature Bank (SBNY)’s work with crypto clients before regulators suddenly seized the lender this past weekend, according to people familiar with the matter.

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NASA Unveils New Spacesuits for Astronauts Returning to the Moon
by Gunnar Larson 15 Mar '23

15 Mar '23

NASA Unveils New Spacesuits for Astronauts Returning to the Moon https://www.bloomberg.com/news/articles/2023-03-15/nasa-unveils-new-moon-su…

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Moody’s Downgrades Entire U.S. Banking System; Credit Suisse Plummets. Welcome to Banking Crisis 3.0
by Gunnar Larson 15 Mar '23

15 Mar '23

https://wallstreetonparade.com/2023/03/moodys-downgrades-entire-u-s-banking… By Pam Martens and Russ Martens: March 15, 2023 ~ The “Related Articles” linked below (a tiny sampling of relevant articles) will remind our readers just how long and in how many different ways we have been attempting to warn that the U.S. banking system was incompetently structured and at risk of systemic contagion. We have also repeatedly warned that the crony, captured Fed was the worst possible banking supervisor and should be stripped of its bank regulatory powers and restricted to setting monetary policy. We have repeatedly cautioned, citing experts in the field, that the Fed’s stress tests were little more than a placebo and would not prevent the next banking crisis. (Check out our numerous articles at this link. Scroll down.) On July 29 of last year we wrote that Wall Street Megabanks’ Multi-Billion Dollar Blunders Suggest Money Controls as Good as George Bailey’s Uncle Billy and summed up our analysis with: “This is the stuff of banana republics – not a financial system befitting a superpower.” On a regular basis, we emailed these articles to key staff of the Senators and House Reps who sit on the Senate Banking and House Financial Services Committees. Late Monday, the credit rating agency, Moody’s, downgraded the entire U.S. banking system outlook to negative from stable. (Let that sink in for a moment – a downgrade of the entire U.S. banking system.) The news of the Moody’s downgrade did not hit the wires until yesterday, which should have cratered the most vulnerable bank stocks. Instead, there was a highly suspicious short squeeze that fueled a big rally in the prices of publicly-traded banks. That unwarranted optimism has now been reversed this morning with Dow futures down more than 600 points just after 8:00 a.m. in New York; major banks in Europe temporarily halted from trading after steep selloffs; and troubled Swiss behemoth bank, Credit Suisse, down 24 percent to a new all time low of $1.74 in morning trade in Europe following multiple trading halts. For the systemic contagion posed by Credit Suisse, see our February 10 article: Credit Suisse Tanks Yesterday to $3.02; It’s Lost Over 90 Percent of Its Market Value Since 2007; It’s Not Alone. We say in our headline above that this is Banking Crisis 3.0 because this is the third time (excluding the emergency measures taken in 2020 as a result of the COVID pandemic) that the Federal Reserve has deployed emergency measures to bail out the U.S. banking system in the past 15 years. (Prior to the repeal of the Glass-Steagall Act in 1999, which prevented the combination of Wall Street trading houses with federally-insured banks, there had been no major Fed bailouts for 66 years.) The banking crisis of 2008 was widely covered by the media, which even went to court to get the Fed to come clean on the dollar amounts and names of the banks that received trillions of dollars in secret, cumulative loans from the Fed. (See our report last year: Mainstream Media Has Morphed from Battling the Fed in Court in 2008 to Groveling at its Feet Today.) But because Congress failed to restore the Glass-Steagall Act after the 2008 financial crash – the worst since the Great Depression – the Fed was back to secretly bailing out the trading units of the behemoth depository banks in September 2019. Mainstream media – across the board – censored this critical story. See our report: There’s a News Blackout on the Fed’s Naming of the Banks that Got Its Emergency Repo Loans; Some Journalists Appear to Be Under Gag Orders. That censorship allowed Congress to kick the can down the road, leading to this even greater Banking Crisis 3.0 today. Related Articles: Secretary Yellen, We’ve Got a “Staggering” Problem: New Report Shows Foreign Banks Have Secret Derivative Debt that Is “10 Times their Capital” Evidence Grows that Crypto and Federally-Insured Banks Are a Combustible Mixture Casino Banking: Wall Street Mega Banks Traded More in their Federally-Insured Bank than the Total for their Bank Holding Company Shhh! Don’t Tell the Fed or Mainstream Media that Systemic Contagion at Wall Street Banks Is Already Here Another Dangerous Virus Hits the U.S. – Wall Street Bank Contagion Wall Street Banks Tank Yesterday as Contagion Threat Grows Contagion – What the Next Wall Street Crisis Will Look Like Add 4,281 Hedge Fund Clients to What Makes JPMorgan Chase the Riskiest Mega Bank in the U.S. New Study: Wall Street Banks Are Doubling Down on Risk by Selling Credit Default Swaps on their Risky Derivatives Counterparties Internal Charts Show Treasury Agency Assigned to Measure Risk in U.S. Markets Slept through the Repo Crisis of 2019 and the Fed’s $19.87 Trillion Bailout The Fed Has Misled the Public about the “Strength” of the Wall Street Mega Banks: This Chart Shows the True Picture An Insider Blows the Whistle on How the Fed Has Allowed Crypto to Invade Federally-Insured Banks

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Perry Metzger in bed with CIA station-chief, Puerto Rico
by professor rat 15 Mar '23

15 Mar '23

Perry E. Metzger @perrymetzger · 6h There's only one reasonable answer. Quote Tweet Ryan Lackey @octal · 12h <<< Reposts not mole-hunts for Satoshi-suspect DAVID MOLNAR

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Identity politics threat to cypherpunks
by professor rat 15 Mar '23

15 Mar '23

I missed that bit where Perry left his own list after a conversation with Mong Ambiguous as is - but now we all know where P's been recently its good if he censors his own list: yes? Or at least orthogonal to us. As for Bruce allmighty - I put out an APster deadpool on him 20 years ago. Anyone is welcome to contribute. GRAMPS " actual libertarian voluntaryism anarchism " sounds like a redundancy or worse - a crude, stupid and unhygienic attempt to give mouth-to-arse resuscitation to the rotting corpse of John Galton. Randite, Paultard, Austro-libertarian, Gold Krugerrand Bow-Tie Ancap morons go fuck yourselves. I have no ax to grind with Matt Blaze - yet. I am watching you though Matt. Choose wisely. Bryan Bishop @kanzure Mar 12 "cypherpunks write code" was the motto of the cypherpunks precisely because not enough "cypherpunks" were actually writing code. . . ." This moron is so dumb its a wonder he can breathe. Read the fucking archives, moron. Rightwing stinktank Eudoxa mentioned died a couple of years before Mongo. When are you going to join your ideological brethren Gramps? Your brain has already passed.

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Cryptocurrency: Europe Data Act Requires Kill Switches on Smart Contracts
by grarpamp 15 Mar '23

15 Mar '23

EuroPols just earned themselves universal idiocy and condemnation from crypto... https://cointelegraph.com/news/europarliament-approves-data-act-that-requir… [–]Bucksaway03Platinum | QC: CC 318 | CRO 5 13 points an hour ago "The smart contract shall include internal functions which can reset or instruct the contract to stop or interrupt the operation" Ie. Putting the centralisation back into decentralisation permalink embed save report reply [–]cheeruphumanityPlatinum|QC:CC653,DOGE205,r/CCs.75|r/CMS7|Futurology16 6 points an hour ago Who would use a dapp if the devs could steal your money anytime? We need to vote in better people. permalink embed save parent report reply [–]ablablababla 3 points an hour ago How will they even implement that? That seems difficult to enforce permalink embed save parent report reply [–]arcalusPlatinum | QC: CC 182 5 points 58 minutes ago Wouldn’t be that hard to enforce if the coin is registered on any exchange. Then they can audit the code of the most relevant projects, thereby eliminating any who don’t meet the criteria. permalink embed save parent report reply [–]timbulance 2 points an hour ago Yeah I don’t think they fully understand permalink embed save parent report reply [–]Bucksaway03Platinum | QC: CC 318 | CRO 5 1 point an hour ago Poorly by giving someone the keys to the kingdom permalink embed save parent report reply [–]AESTHTKPlatinum | QC: CC 841, ETH 369 | MANA 8 2 points 53 minutes ago Internal to what 😅 permalink embed save parent report reply [–]FrogmangyTin | CC critic 2 points 53 minutes ago So the goverment wants to be able to rug pull the coin themself permalink embed save parent report reply [–]OfulinacPlatinum | QC: CC 32 4 points an hour ago Kill switches are a dangerous madness permalink embed save report reply [–]AnimeFlamingo 5 points an hour ago I’d like to know how this works technically, is it like a proxy contract? If so, what’s the difference? permalink embed save report reply [–]JustreadingcommentPlatinum | QC: CC 255 9 points an hour ago Aka dumb contracts permalink embed save report reply [–]milonuttigrainPlatinum | QC: CC 1719 | Pers.Fin.NZ 17 3 points an hour ago Centralised shit contract permalink embed save parent report reply [–]ovettaTin 1 point an hour ago Mutable permalink embed save parent report reply [–]JustreadingcommentPlatinum | QC: CC 255 2 points an hour ago What! How does that work permalink embed save report reply [–]The_Chorizo_BanditSilver | QC: CC 846, XRP 41 | TRX 28 2 points an hour ago Is that even possible? Like does it work from a logistical standpoint? permalink embed save report reply [–]cheeruphumanityPlatinum|QC:CC653,DOGE205,r/CCs.75|r/CMS7|Futurology16 5 points an hour ago It might be possible to program for individual apps but it would make them unusable. Nobody would put their money in a dapp that could steal the money anytime. permalink embed save parent report reply [–]RocketMoonShotPlatinum | QC: CC 16 | Accounting 121 1 point an hour ago It's like a trap door. permalink embed save parent report reply [–]Nagax456Tin 2 points an hour ago Lol whats the point of a contract? permalink embed save report reply [–]Titozar13Platinum | QC: CC 42 2 points an hour ago That's against decentralization and is what governments want. permalink embed save report reply [–]StonedRexPlatinum | QC: CC 181 2 points an hour ago Not smart contract anymore permalink embed save report reply [–]timbulance 1 point an hour ago Dumb contracts permalink embed save parent report reply [–]RocketMoonShotPlatinum | QC: CC 16 | Accounting 121 2 points an hour ago Killswitch Engage permalink embed save report reply [–]DadofHomeSilver | QC: CC 248, ETH 16 | LRC 39 | TraderSubs 14 2 points an hour ago 2 choices : (1)Parliament is extremely ignorant of anything computer related , and just incompetent and reactionary .. (2) they are purposely malicious and undermining the space . permalink embed save report reply [–]Shiratori-3Bronze | QC: CC 20 | CRO 43 | ExchSubs 43 2 points an hour ago So they want a rug pull mechanism built in? Doesn't sound like it will end too well .. 😅 permalink embed save report reply [–]BrocoliAssassinSilver | QC: BTC 218, CC 105 | CelsiusNet. 25 2 points an hour ago Awesome, sounds like a horrible idea! permalink embed save report reply [–]pizza-chitfiat miner and burner 2 points an hour ago Who the fuck would use a smart contract that can be altered?? permalink embed save report reply [–]Hamster823 - 4 years account age. 10 - 50 comment karma. 2 points 43 minutes ago Isn't this actually extremely bad news for any smart contract crypto? Centralisation in all decentralised smart contracts, who would trust a Dapp where the developer can interrupt or kill switch the smart contract? I heard someone say that this could class smart contract coins as security's as they will have a centralised governance Smart contracts aren't region specific so abiding by Euro law means kill switch/interruption would have to be worldwide? permalink embed save report reply [–]AESTHTKPlatinum | QC: CC 841, ETH 369 | MANA 8 2 points 18 minutes ago Smart contracts must be printed out, and signed by both parties. permalink embed save report reply [–]bwoksa 2 points an hour ago So that means more scam coins and rugpulls ? permalink embed save report reply [–]Ball_bearingTin | Superstonk 57 2 points an hour ago They are just complying with the law. permalink embed save parent report reply [–]coinfeeds-botApproved CC Bot 1 point an hour ago tldr; The European Parliament passed the Data Act on March 14. The bill was intended to "boost innovation by removing barriers obstructing access to industrial data." Among its provisions is an article that would require smart contracts to be alterable. The act also granted smart contracts equal protection with other forms of contract. This summary is auto generated by a bot and not meant to replace reading the original article. As always, DYOR. Get more of today's trending news here. permalink embed save report reply [–]cheeruphumanityPlatinum|QC:CC653,DOGE205,r/CCs.75|r/CMS7|Futurology16 3 points an hour ago A smart contract is not a contract dummies. It's an app. We need better expressions in the crypto space. Not crypto currencies, crypto assets. Not smart contracts, dapps. permalink embed save parent report reply [–]Whole_Visible 1 point an hour ago Lol. All that hype about crypto startups looking to the EU because of regulatory uncertainty in the US permalink embed save report reply [–]TrokarilozTin 1 point an hour ago Ethereum Classic and others. Time to shine permalink embed save report reply [–]AutisticGayBear69Tin | r/WSB 15 1 point an hour ago How do they plan on enforcing this? permalink embed save report reply [–]flawlessfear1Tin 1 point an hour ago So contracts nobody will want part of. Cool ill stick to bitcoin permalink embed save report reply [–]Marrr_tyPlatinum | QC: CC 439 | LRC 7 1 point 12 minutes ago That doesn’t sound smart permalink embed save report reply

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Cryptocurrency: Mnemonics Often Forgotten, Hardware Wallets Die And Get Cracked
by grarpamp 14 Mar '23

14 Mar '23

The crypto community is accustomed to using mnemonic phrases and sees them as essential. We identified this as an issue from the very outset, as it raises the barrier to entry for beginners and heightens the risk of losing cryptocurrency. https://cointelegraph.com/news/how-a-new-cold-wallet-model-may-solve-the-mn… https:/tangem.com/ Memorized strings, of any type, are rarely up to 256-bit equivalency, and are easily forgotten. Hardware dies, and gets exploited. Simple brain patterns, as secret lookup keys into much deeper bit-equivalent spaces, serve and survive better.

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New Anti-Money Laundering Whistleblower Law Makes Economic Sanctions Violations Reportable - Export Controls & Trade & Investment Sanctions - United States
by Gunnar Larson 14 Mar '23

14 Mar '23

https://www.mondaq.com/unitedstates/export-controls--trade--investment-sanc… To more effectively counter transnational corruption and economic sanctions evasion, recent changes to the U.S. anti-money laundering ("AML") whistleblower regime expand and reinforce whistleblower protections and rewards in the Bank Secrecy Act of 1970, as amended ("BSA").1 These changes to the BSA/AML whistleblower framework have significant implications, not only for "financial institutions" (as defined in the BSA) already subject to regulation under the BSA, but for all individuals and entities seeking to comply with U.S. economic sanctions administered by the U.S. Department of the Treasury ("Treasury") Office of Foreign Assets Control ("OFAC"). By expanding the scope of violations reportable under the BSA's whistleblower provision to include economic sanctions violations, the new AML whistleblower law seeks to provide U.S. law enforcement agencies with an influx of useful tips to help uncover criminal networks and track down hidden assets, including those used and held by sanctioned Russian oligarchs. Additional changes, such as establishing a mandatory minimum whistleblower payout in certain circumstances, provide greater incentives for insiders to come forward to report BSA/AML and economic sanctions violations. Given that similar U.S. whistleblower laws have proven very effective, especially in recent years, the number of suspected violations reported by whistleblowers is expected to increase rapidly.2 These changes have transformed the BSA's whistleblower provision from a seldom-used regime of little significance into U.S. law enforcement's latest tool for uncovering worldwide sanctions evasion. As such, it is imperative that businesses with AML or economic sanctions exposure understand the changes and reassess their corporate compliance programs to adapt to the latest developments and also to prepare for future modifications to the law. AML Whistleblower Improvement Act On December 29, 2022, President Biden signed the Anti-Money Laundering Whistleblower Improvement Act ("Whistleblower Improvement Act" or "the Act") into law as part of the Consolidated Appropriations Act of 2023.3 The Whistleblower Improvement Act, which Congress passed unanimously on December 23, clarifies and expands on previous efforts to revamp the BSA/AML whistleblower regime, most notably, in the Anti-Money Laundering Act of 2020 ("AMLA").4 The AMLA was a comprehensive piece of legislation aimed at strengthening protections against money laundering, terrorism financing, and other illegal activities. The AMLA is also responsible for establishing the majority of the current BSA/AML regime's features; however, the finishing touches were put on the BSA/AML whistleblower program by the Whistleblower Improvement Act.5 Importantly, the Act authorizes, in any "covered judicial or administrative action," the Secretary of the Treasury to pay a whistleblower award of "not less than 10 percent" and "not more than 30 percent, in total, of what has been collected of the monetary sanctions imposed," to a whistleblower (or group of whistleblowers) that "voluntarily" provides "original information" to the individual's employer, the Treasury Secretary, or the Attorney General, that results in a successful enforcement action with sanctions exceeding $1 million.6 Expanded Scope of Reportable Violations to Include Economic Sanctions Violations Perhaps the most significant change provided by the Act is changing the definition of a "covered judicial or administrative action" to include any action brought by the Secretary of the Treasury or the Attorney General that results in monetary sanctions exceeding $1 million under an expanded list of enumerated authorities.7 This list now covers the BSA as well as many of the legal authorities upon which U.S. economic sanctions are based, including the International Economic Emergency Powers Act ("IEEPA"), certain provisions of the Trading With the Enemy Act ("TWEA"), and the Foreign Narcotics Kingpin Designation Act ("Kingpin Act").8 Accordingly, violations of these U.S. laws are now reportable violations under the BSA/AML whistleblower regime. Enhanced Monetary Incentives for Whistleblowers The Act strengthened the monetary incentives for whistleblowers by requiring that whistleblowers who voluntarily bring forward original information that leads to the imposition of sanctions exceeding $1 million be entitled to a minimum award of 10% and a maximum award of 30% of the financial penalties. Under the previous regime, no mandatory minimum whistleblower recovery provision existed, and prospective whistleblowers were understandably reluctant to come forward without the assurance of a future payday. Though the BSA/AML whistleblower regime established by the AMLA was modeled after the very successful Securities and Exchange Commission ("SEC") whistleblower program, it still lacked a few key components that were hindering its ability to provide evidence for U.S. law enforcement. Critically, the regime established by the AMLA lacked a mandatory minimum recovery provision and its own dedicated fund for whistleblower awards. Senator Chuck Grassley (R-IA), a cosponsor of the Act who has played a hand in creating several U.S. whistleblower programs, explained that adding these two components will help "ensure whistleblowers who step up to expose money laundering and U.S. sanctions violations receive fair compensation."9 $300 million Financial Integrity Fund for Whistleblower Awards The Act established a revolving fund in the U.S. Treasury known as the Financial Integrity Fund. This fund will be used to pay awards to whistleblowers pursuant to the Act, without the need for further appropriation. Monetary sanctions collected by the Treasury Secretary or Attorney General will be deposited in or credited to the fund (unless the balance of the fund already exceeds $300 million). Establishing this $300 million fund motivates prospective whistleblowers to come forward by showing them the pool of money that has been set aside for whistleblower awards. The Act's changes to the BSA/AML whistleblower regime have already changed the volume of whistleblower submissions. Since the passage of the Act late last year, Treasury's Financial Crimes Enforcement Network has seen a surge in the number of whistleblower submissions, with more than 100 tips coming in over the course of just three weeks.10 This is a dramatic increase from the program's first two years, which netted only 100 total tips and made zero whistleblower payments.11 BSA/AML Whistleblower Protections The Act did not significantly alter any of the whistleblower protections already set forth in the AMLA. However, it is worth recalling the basic framework of whistleblower protection under the BSA/AML regime. The BSA is clear: employers may not directly or indirectly retaliate against an employee who provides information to certain designated entities in accordance with the law.12 Any individual who alleges discharge or other discrimination may seek relief by filing a complaint with the Secretary of Labor or, in certain circumstances, bringing action against the employer in the appropriate U.S. district court. If successful, relief may include reinstatement, double back pay with interest, and compensatory damages, including payment for litigation costs, expert witness fees, and attorneys' fees. Whistleblowers and Corporate Compliance Whistleblowers play an invaluable role in exposing misconduct in the workplace and promoting transparency and accountability throughout an organization. By calling out suspected wrongdoing, whistleblowers shine a light on shady practices that may otherwise go unnoticed, uninvestigated, and uncorrected. To ensure their disclosure will be protected, prospective whistleblowers should be aware of the applicable law before taking action. Conversely, businesses should be mindful of their obligations under the applicable law, which generally include a prohibition against punishing employees for making whistleblower complaints. By providing a supportive work environment for employees to report potential misconduct and demonstrating that whistleblower complaints will be taken seriously, businesses can transition from a "culture of secrecy," where fearful or apathetic employees are less likely to speak up and misconduct is allowed to fester, to a "culture of compliance," where mindful employees are empowered to act as the company's first line of defense who inform management of potential misconduct so it can be swiftly and appropriately remediated. Businesses should also make clear to their employees that reporting misconduct through internal channels will not result in retaliation. Employees who raise good faith allegations of misconduct are an asset to the company and should be treated as such. By taking internal complaints seriously and not punishing whistleblowers, businesses can incentivize employees to use internal reporting mechanisms, which can lead to fewer lawsuits and lower settlement costs in the long run. It is in the best interest of both employees and businesses to understand the legal landscape of whistleblower protection and to promote a culture of compliance through open and supportive communication channels. By doing so, everyone benefits from a safer and more transparent work environment. Conclusion When it comes to the new BSA/AML whistleblower regime, businesses with economic sanctions exposure should not overlook the increased whistleblower risks they likely now face including, in particular, the possibility of an insider disclosing information to the Treasury Secretary or Attorney General that may harm the company's interest. The prospect of a whistleblower threat may also impact a company's decision onwhether to submit a voluntary self-disclosure to OFAC or the U.S. Department of Justice. Accordingly, businesses with economic sanctions exposure may wish to review and improve their compliance programs to ensure their internal controls and reporting mechanisms are well-designed, risk-based, and effective in practice. Companies should also monitor breaking developments in this space, which will include a Treasury rulemaking implementing the BSA whistleblower provision that is expected in the near future. The increased incentives for reporting BSA and economic sanctions violations, coupled with the expansion of the types of reporting subject to the whistleblower rewards, make it more important than ever for companies to review their internal compliance programs and ensure that they are in a position to address significant BSA/AML and economic sanctions lapses on their own terms. Footnotes 1. The BSA is codified at 12 U.S.C. § 1829b et seq. and 31 U.S.C. § 5311 et seq. 2. Senator Chuck Grassley, one of the Act's cosponsors, has been involved with the creation of numerous U.S. whistleblower programs. "The whistleblower programs I've helped create have seen roaring success, with the False Claims Act saving taxpayers $70 billion, the SEC whistleblower program saving over $4.8 billion and the IRS whistleblower program saving over $6 billion," Grassley stated in a recent press release. "I'm optimistic that our new program encouraging individuals to come forward for suspected sanctions violations will be successful as well." Grassley-Led Legislation Supporting Whistleblowers, Combatting Money Launderers and Sanctions Violators Passes Senate, Press Release (Dec. 8, 2022), https://www.grassley.senate.gov/news/news-releases/grassley-led-legislation… . 3. The full text of the Consolidated Appropriations Act of 2023, Pub. L. No. 117-328, is available at https://www.congress.gov/bill/117th-congress/house-bill/2617/text. The Whistleblower Improvement Act appears at Section 401, Title IV, Division AA of the Consolidated Appropriations Act, and amends Section 5323 of Title 31 of the U.S. Code (Whistleblower incentives and protections). Specifically, the Act amends § 5323 by striking and replacing the text of subsection (b) (Awards) and making other technical and conforming amendments to subsections (a), (c), and (g). 4. See AMLA, Pub. L. No. 116-283, div. F, title LXIII, § 6314 (prior amendments to 31 U.S.C. § 5323). 5. The BSA whistleblower provision is codified at 31 U.S.C. § 5323. Both the AMLA and the Act amended the BSA whistleblower provision. 6 Specifically, 31 U.S.C. § 5323 is amended to include the following relevant language at subsection (b)(1): "In any covered judicial or administrative action, or related action, the Secretary [of the Treasury]. shall pay an award or awards to 1 or more whistleblowers who voluntarily provided original information to the employer of the individual, the Secretary [of the Treasury], or the Attorney General, as applicable, that led to the successful enforcement of the covered judicial or administrative action, or related action, in an aggregate amount equal to- not less than 10 percent, in total, of what has been collected of the monetary sanctions imposed in the action or related actions; and not more than 30 percent, in total, of what has been collected of the monetary sanctions imposed in the action or related actions." 7. 31 U.S.C. § 5323(a)(1), as amended by the Act, defines the term "covered judicial or administrative action" to mean "any judicial or administrative action brought by the Secretary of the Treasury.or the Attorney General under this subchapter, chapter 35 or section 4305 or 4312 of title 50, the Foreign Narcotics Kingpin Designation Act (21 U.S.C. 1901 et seq.), or .), [sic] and for conspiracies to violate the aforementioned provisions that results in monetary sanctions exceeding $1,000,000." 8. See IEEPA, P.L. 95-223 (Oct. 28, 1977), 91 Stat. 1626, codified as amended at 50 U.S.C. § 1701 et seq. (2022); TWEA, P.L. 65-91 (Oct. 6, 1917) §§ 4305, 4312, 40 Stat. 411, codified as amended at 50 U.S.C. §§ 4305, 4312 (2022); Kingpin Act, P.L. 106-120 (Dec. 3, 1999), 113 Stat. 1606, codified as amended at 21 U.S.C. § 1901 et seq. (2022). 9. Sabrina Willmer, Banks With Russia Ties Targeted by US Treasury Whistleblowers, Bloomberg Law (Feb. 14, 2023), available at https://news.bloomberglaw.com/securities-law/banks-with-russia-ties-targete… . 10. Id. at 3. 11. Id. 12. See 31 U.S.C. § 5323(g)(1) (Prohibition against retaliation) (providing that "[n]o employer may, directly or indirectly, discharge, demote, suspend, threaten, blacklist, harass, or in any other manner discriminate against a whistleblower in the terms and conditions of employment or post-employment because of any lawful act done by the whistleblower."). The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Good Samaritan Or Negligent Undertaking? Be Wary. - Professional Negligence - United States
by Gunnar Larson 14 Mar '23

14 Mar '23

https://www.mondaq.com/unitedstates/professional-negligence/1291848/good-sa… Attorneys should be on the lookout for negligent undertaking causes of action disguised or pled as negligent training or other similar negligence-related claims. Although related, the cause of action for negligent undertaking has additional, independent elements required to succeed on the merits. Texas courts have recognized the cause of action for negligent undertaking, in limited circumstances, and have imposed a duty where an actor undertakes to provide services to another—whether gratuitously or for compensation. It is often used in an effort to create a duty where one normally would not exist.1 Although rooted in negligence, negligent undertaking requires the additional evidentiary showing that: The defendant undertook to perform services that it knew or should have known were necessary for the plaintiff's protection; The defendant failed to exercise reasonable care in performing those services, and either: the plaintiff relied upon the defendant's performance or the defendant's performance increased the plaintiff's risk of harm.2 For example, in a pleading containing a cause of action for negligent training, a plaintiff may artfully claim that a defendant negligently "undertook the duty to train" an individual in an attempt to disguise this cause of action, when in reality, there may be two separate causes of action pled. Moreover, identifying a cause of action for negligent undertaking and distinguishing it from an ordinary negligence allegation is important when preparing for trial or a dispositive motion—such as a no-evidence motion for summary judgment. The failure to identify the elements specific to a negligent undertaking claim—compared to an ordinary negligence claim—would be detrimental to a no-evidence motion for summary judgment because the movant must identify one or more of the essential elements of the subject claim for which there is no evidence in moving for summary judgment.3 Additionally, given the fact that Texas courts have held that an employer's internal policies or procedures will not create a negligence-based duty where none otherwise exists,4 plaintiff's counsel may argue that negligent undertaking is a viable claim to create an alternative avenue of liability depending on the facts and circumstances of the case. Notably, although not necessarily successful, negligent undertaking claims have emerged in different areas of law. Some examples include social host liability, contractual duties, and job-related training. See e.g., Nall v. Plunkett, 404 S.W.3d 552 (Tex. 2013); see also e.g., Knife River Corp.-S. v. Hinojosa, 438 S.W.3d 625 (Tex. App.—Houston [1st Dist.] 2014, pet. denied); see also e.g., Poynor v. BMW of N. Am., LLC, 441 S.W.3d 315 (Tex. App.—Dallas 2013, no pet.). Thus, when reviewing a complaint containing negligence-related causes of action, counsel should be on the lookout for language that pertains to the "undertaking" to perform services or other negligent undertaking specific elements as a cause of action for negligent undertaking may be skillfully embedded in another related negligence-based cause of action. Awareness of this cause of action will allow counsel to readily identify this claim and zealously protect their clients' interests. Footnotes 1. See Nall v. Plunkett, 404 S.W.3d 552, 554 (Tex. 2013). 2. Id. at 555–56. 3. See TEX. R. CIV. P. 166a(i). 4. See Entex, A Div. of Noram Energy Corp. v. Gonzalez, 94 S.W.3d 1, 10 (Tex. App.—Houston [14th Dist.] 2002, pet. denied); see also Jacobs–Cathey Co. v. Cockrum, 947 S.W.2d 288, 291–92 (Tex. App.—Waco 1997, writ denied) (holding that company's internal policy of removing debris left at its work sites by other parties did not impose upon the company a legal duty to parties injured by unremoved debris); Estate of Catlin v. Gen. Motors Corp., 936 S.W.2d 447, 451 (Tex. App.—Houston [14th Dist.] 1996, no writ) (holding that company's safety policies restricting consumption of alcohol on its premises did not create legal duty that would subject the company to liability for failing to comply with those policies); cf. Owens v. Comerica Bank, 229 S.W.3d 544, 547 (Tex. App.—Dallas 2007, no pet.) ("The Texas Supreme Court has refused to create a standard of care or duty based upon internal policies, and the failure to follow such policies does not give rise to a cause of action in favor of customers or others.") (citing FFE Transp. Servs., Inc. v. Fulgham, 154 S.W.3d 84, 92 (Tex. 2004)); see Cleveland Reg'l Med. Ctr., L.P. v. Celtic Properties, L.C., 323 S.W.3d 322, 351–52 (Tex. App.—Beaumont 2010, pet. denied). The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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