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WhatsApp With Transparency? Off-Channel Communications Settlements Leave Questions

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Following a thorough investigation, financial regulators recently unveiled a series of settlements with major institutions resulting from employees’ use of unauthorized or “out-of-channel” apps such as WhatsApp for work communications. The sweep was widely publicized and, at a high level, the resulting accusations are not necessarily surprising. However, a closer look at the regulations reveals a few takeaways about the regulators’ approach to resolving multiple cases with similar issues, and that approach appears to be largely unique, with limited transparency.

On September 27, 2022, the Securities and Exchange Commission and the Commodity Futures Trading Commission announced charges against 15 broker-dealers and an affiliated investment adviser for their alleged failure to maintain and preserve employee communications on unauthorized messaging platforms. “SEC Charges 16 Wall Street Firms with Widespread Recordkeeping Failures,” SEC Press Release (September 27, 2022); “CFTC Orders 11 Financial Institutions to Pay Over $710 Million for Failures in Recordkeeping and Supervision for Widespread Use of Unapproved Communication Methods,” CFTC Press Release (September 27, 2022). The financial institutions agreed to pay a total of $1.8 billion and retain the services of compliance consultants. As the CFTC boasted, “[t]it imposes fines individually eclipsing the next largest penalties imposed for record-related violations. “Commissioner Christy Goldsmith Romero’s Statement Regarding Holding Wall Street Accountable,” CFTC Public Statements and Remarks (September 27, 2022).

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