Treasury and finance professionals are seeing an increasing amount of business email compromise (BEC) scams. What can they do after their organization has fallen victim?
Immediately report the fraud to the bank from which funds were fraudulently transferred. Wire transfers are not always instantaneous. Rather, for a variety of reasons, the bank may delay processing a wire transfer—particularly a transfer of large sums of money. Such delays may give both the victim and the victim’s bank the opportunity to cancel or unwind a fraudulent transfer, if they act quickly enough. Companies that quickly discover and report fraudulent activity to their banks are more likely to recover stolen funds.
Report the fraudulent conduct to law enforcement agencies in the jurisdiction to which the funds were transferred. If possible, defrauded companies should contact these agencies at the same time as they contact their bank, because local police, including police in Hong Kong and China, may be able to freeze the account receiving the stolen funds, thereby stopping the funds from being withdrawn or further transferred.
Inform your company’s in-house counsel of the loss. In-house counsel will need to determine, among other things, whether the loss suffered is covered by the company’s existing insurance policies. If the loss is covered, your company should promptly inform its insurance company of the loss to ensure timely compensation under its policies.
Retain local counsel in the jurisdiction to which the funds were transferred. Local counsel will be able to advise on the best legal strategy to recover the stolen funds—for example, commencing a civil proceeding to obtain a freezing order or a disclosure order. Local lawyers can also facilitate communications with local law enforcement agencies, thus increasing the chances of funds being frozen before they are further dissipated.
What is the best way to report to and follow up with local authorities?
Communicating with law enforcement agencies in a different time zone and in a different language can be challenging and inefficient. Victims of fraud also often make the mistake of reporting crimes through an authority’s online reporting system, which can cause delays in processing the report (and thus increase the risk of the funds leaving the account before steps can be taken to freeze the account). We have found that taking the following steps will maximize a company’s chances of early and effective police intervention:
- Contact law enforcement agencies through an agent that lives in the jurisdiction and speaks the native language—preferably local lawyers who are accustomed to dealing with the police and can quickly take steps to begin recovery of the stolen funds should they have been successfully frozen.
- If possible, communicate with law enforcement officials face-to-face, as this will help in expediting their investigations.
- Provide law enforcement officials with detailed information about the fraud and related wire transfers, including any and all evidence in support. For example, any email correspondence with the fraudsters and wire confirmations showing the name and bank accounts of the recipients.
How does a company obtain a freezing order from local courts?
It is often the case that the victim of the fraud cannot (or does not want to) rely on local enforcement to freeze the recipient’s bank account. This may be due to the police not having sufficient powers in the relevant jurisdiction to freeze the account, or the amount that has been stolen is of a sufficient value that the victim wants take additional action to try and secure the funds. In this case, the victim should apply to the local court for a freezing order. Freezing orders—known as a Mareva injunction in Hong Kong or a property preservation order in China—prohibits the recipient of stolen funds from disposing of its assets, including withdrawing the stolen funds from the account. The bank will also freeze the account upon being served with such an order, making it impossible for the account holder to access the funds in the account.
In most BEC and invoice fraud cases, the victim can apply for a freezing order on an urgent and ex parte basis—i.e., the victim is not required to notify the account holder about the application unless and until a freezing order is issued by the court. Although this significantly speeds up the process, note that it can take up to a day or two to compile all of the evidence needed and prepare the application, during which time funds can be transferred or withdrawn. It is thus important to retain local counsel early to aid in these efforts, so as not to further delay the process.
Given their draconian nature, there are often potential obstacles and pitfalls to be to be aware of when preparing an application for a freezing order. While the standard for granting such an order is high in most jurisdictions, if the victim can produce concrete evidence of the fraud, most courts will be inclined to issue a freezing order, at least at the ex parte stage. Also, some courts require that the victim provide a sum of money to the court—i.e., a bond—to obtain a freezing injunction. Companies should discuss with counsel whether and under what circumstances a freezing order might be possible and what requirements will need to be met to make such an application.
Michael S. Kim is co-founder and Randall Arthur and Kelly Spatola are attorneys with Kobre & Kim.
A longer version of this article appears in the June edition of AFP Exchange.
For further insights into business email compromise, be sure to read BEC Scams: Treasury's Number One Fraud Threat, part of AFP's Treasury in Practice Series.