WHATSAPP: U.S. REGULATORS CHARGE HSBC AND SCOTIA CAPITAL WITH RECORD-KEEPING FAILURES

The SEC on May 11 charged HSBC Securities (USA) Inc. (“HSBC”) and Scotia Capital (USA) Inc. (“Scotia Capital”) for longstanding failures by both firms and their respective employees to maintain and preserve electronic communications. In settlement of the charges, HSBC and Scotia Capital acknowledged that their conduct violated recordkeeping provisions of the federal securities laws and agreed to pay penalties of $15 million and $7.5 million, respectively. Concurrently, the CFTC issued an order against Scotia Capital and an affiliate for failing to “maintain, preserve, or produce records that were required to be kept under CFTC recordkeeping requirements”, imposing combined penalties of $15 million.

The SEC’s investigation of HSBC and Scotia uncovered the regular use of off-channel communications at both firms with employees frequently communicating business matters on their personal devices using messaging platforms such as WhatsApp. Neither firm maintained nor preserved the majority of these communications, in violation of the SEC’s recordkeeping requirements. The CFTC’s order, also issued May 11, found that Scotia and its affiliate, for a period of years, failed to prevent employees, including those at senior levels, from communicating using unapproved communication methods, including personal text and WhatsApp.

In addition to the financial penalties, the SEC ordered HSBC and Scotia to cease and desist from committing further violations of the relevant recordkeeping provisions, and both firms agreed to retain compliance consultants to conduct full reviews of their policies and procedures relating to the retention of electronic communications.