But in December 2017, the government allowed HSBC to declare that it had ”fulfilled all its obligations” as part of its deferred crackdown pact – and that prosecutors had definitively dismissed the criminal charges. The Bank of New York Mellon was one of the first major banks to pay a hefty fine to U.S. authorities for negligence in the fight against money laundering. In 2005, two years before the merger with Mellon Financial, the Bank of New York paid $38 million and signed a non-prosecution agreement after a federal investigation concluded that it had smuggled $7 billion worth of Russian illegal money into its accounts.  In previous OFAC resolutions involving other executors, OFAC`s enforcement documents expressly stated that penalties (or parts of sanctions) were considered ”fulfilled” by payments or conditions in agreements with other agencies. See z.B. OFAC Enforcement Information, National Oilwell Varco, Inc. establishes potential civil liability for overt violations of Cuban asset control rules, Iran`s transaction and sanctions provisions and Sanctions (November 14, 2016), www.treasury.gov/resource-center/sanctions/CivPen/Documents/20161114_varco.pdf.OFAC law enforcement information, Alcon Laboratories, Inc., Alcon Pharmaceuticals Ltd. and Alcon Management, SA, Settle Potential Civil Liability for Apparent Violations of the Iranian Sanctions and Regulations (July 5, 2016) www.treasury.gov/resource-center/sanctions/CivPen/Documents/20160705_alcon.pdf. The Agency has continued to extend the Bank`s trial period over several years. Then, in 2019, the bank paid an additional $1.1 billion for persistent sanctions violations against Iran and other countries and agreed to extend its policing pact by another two years.
In addition to the specific provisions of this provision of the guidelines, organizations may object to the application of background improvement on the basis of their rare historical application in previous crime resolutions. According to aggregate annual statistics published by the U.S. Sentencing Commission, the background improvement was applied in only 1.39 percent (12 of 865) that included detailed organizational penalty calculations between 2006 and 2017.  Since the beginning of 2008, To go beyond the data available at sentencing, we reviewed 119 important corporate decisions (including convictions, stay-of-court agreements (”DPAs”) and non-prosecution agreements (”NPAs”) and identified only four resolutions that applied a one- or two-point improvement in history.  The circumstances of these resolutions indicate that the DOJ will generally apply this improvement only in cases where clear recidivism occurs and contras a previous solution resulting from the same type of fault.