PacNet is aware of the indictment issued in the United States District of Nevada against its employees Rosanne Day, Paul Davis, Renee Frappier and Miles Kelly. The indictment is factually flawed and PacNet and its employees intend to fight the charges and prove their innocence. As the indictment notes, the allegations are focused on a small portion of PacNet’s business that PacNet voluntarily exited prior to any action by the United States.
The indictment further ignores the fact that the U.S. Justice Department has submitted evidence and has relied upon the effectiveness of PacNet’s compliance program in other cases to prove that certain PacNet clients actively deceived PacNet to evade its compliance program. The indictment also ignores the fact that the Canadian government, major financial institutions, and auditing firms were provided full access to PacNet’s business records and client roster as part of regular reviews and audits of PacNet’s operations and compliance program. The indictment likewise ignores the fact that PacNet provided confidential reports to a law enforcement agency of the Canadian government about certain of its clients at the same time that the U.S. Justice Department now alleges PacNet conspired with such clients.
PacNet never knowingly processed payments for a fraudulent mailing. If a customer complained, PacNet refunded its money and charged the mailer. PacNet stands by its compliance program. Moreover, PacNet previously cooperated with the U.S. Government and was licensed by the U.S. Government to place certain client funds into the court registry after the U.S. Government identified those clients which may have engaged in inappropriate conduct according to the U.S. Government.
PacNet Services was created in 1994 to serve a growing need among catalogue sales companies and international publishers to accept payment in their customers' home currencies.
In 1994, "globalization" was a buzz word, and many companies within the US and around the world were wondering how best to tap into opportunities to sell their products internationally.
The internet was in its infancy; direct mail was the primary vehicle for international sales and cheques were the preferred method of payment. PacNet, one of the world's first international fintech companies, provided a way for companies to accept cheques in their customers' home currency, yet receive funds in their company-designated bank account quickly and without high fees.
As globalization continued apace and more and more companies recognized the opportunities presented by international markets, PacNet added payment services such as multi-currency card processing, bank transfers and cheque issuing to facilitate international e-commerce and consumer refunds.
PacNet Services was a well-respected, cutting-edge, fully licensed and compliant international payment processing company, among the first to recognize the importance of providing consumers and businesses with convenient local-currency payment options. The company ceased doing business on 22 September, 2016.
On 22nd September 2016, the United States Government, Department of Treasury’s Office of Foreign Assets Control designated PacNet Services, approximately 33 group companies and subsidiaries, and 12 individuals as a “Transnational Criminal Organization” and added their names to its list of Specially Designated Nationals. As a result, it was impossible to continue business and the Group commenced an orderly shut-down of all its business activities.
The designations were based on an allegation that PacNet Services conspired in fraudulent activities of “Direct Mail” marketers active in the United States and elsewhere. PacNet and its officers vigorously deny the allegation and have presented factual evidence to OFAC that the action was unjust and undeserved. No accusations or allegations whatsoever were made against Chexx Inc or Counting House. They were, nevertheless, included in OFAC's actions.
Prior to September 22, 2016, neither PacNet Services nor its affiliates, directors, or officers had ever been accused—much less charged and convicted—of any criminal offense arising from its business activities. To the contrary, PacNet Service's history of compliance and cooperation with law enforcement agencies and anti-money laundering initiatives was publicly recognized and appreciated.
Over the following 13 months the group debated vigorously with the Office of Foreign Asset Controls to remove the names of the affected directors and employees from the SDN list. Despite each person being removed from the list with unprecedented speed, the reputations and livelihoods of the affected individuals were irreparably damaged by OFAC's actions. The negative consequences, including Civil Forfeiture actions, endure to this day.
The consequences of OFAC's actions have been catastrophic. Reputable companies were destroyed, careers were ruined, financial services have been denied to those named to the list, hundreds of people were affected by loss of their job or the job of a supporting family member. Legal cases continue to be argued in jurisdictions where OFAC's allegations have been incorrectly interpreted as evidence of wrong-doing.
A surprising number of organizations believe that OFAC is a judicial body and that companies or individuals named to their list of sanctions have been charged and tried or otherwise given due process. However, this belief is incorrect, as many jurisdictions are slowly beginning to understand.
Despite OFAC's designation of the PacNet Services Group of Companies as a Transnational Criminal Organization, and the sanctioning of 12 PacNet employees, no PacNet Services company nor any employee, director or shareholder of any PacNet Services company has ever been charged with any crime, in any jurisdiction, at any time in PacNet Service's history.
On 19th September 2017, OFAC and the PacNet Services Group signed an agreement under which OFAC would remove all remaining entities and individuals from the SDN list. There was no fine, no penalty, and no agreement by the companies that any wrongdoing had occurred. However, on the insistence of OFAC, the agreement did include a clause which prevents the PacNet Services Group of Companies from suing OFAC for damages.
The PacNet Services Group is in the process of dissolving the companies in an orderly manner. Any client funds in which the US Government claimed a law enforcement interest were paid under an Interpleader action into the District Court for the Eastern District of New York.
Incredibly, after PacNet Services filed the interpleader in compliance with its agreement with OFAC, the US government attempted to seize client funds. PacNet received court permission to file a complaint and request censure of the US Government's actions and some of the individual lawyers involved. A former Chexx Inc client, i-Payout, joined the court action in support of PacNet's complaint. Click here to read PacNet Service's reply brief to the District Court of New York.
On 26 October 2017, OFAC announced removal of the entire PacNet Services Group of Companies from its sanctions list. However, the announcement lacked the sensationalized media coverage dedicated to the original designations. There has been a disappointing lack of media curiosity and discussion regarding OFAC's unprecedented and outrageous actions in designating PacNet Services, a reputable organization with no criminal history, as a Transnational Criminal Organization and its subsequent speedy removal of all associated individuals and companies from its list.
From 2010, PacNet Services was engaged in litigation with the Irish government over a particular delivery of cash. In a resounding High Court judgment delivered after nine years on January 25, 2019, Mr. Justice Simons ruled that the preceding four years of proceedings were unnecessary and disposed of the case entirely in favour of PacNet.
Mr. Justice Simons also ordered the Director of Public Prosecutions to pay the full costs of the applicant parties, which are substantial.
As a knock-on effect of the OFAC sanctions and inaccurate press reports, freezing orders were placed on company assets in three jurisdictions: Ireland, the Isle of Man and the United States. The American orders were lifted with the removal of OFAC sanctions. On 3 September 2018, the IOM Court lifted its freezing order, ruling that there was no demonstrated connection with any illegal activity whatsoever.
The OFAC designation was ill-considered, incorrect, and unlawful. The investigation leading to the OFAC designation was marred by impropriety, incompleteness, and a failure to consider contrary and strongly exculpatory facts readily available to, and in the possession of, the United States Government.
The consequences of OFAC's actions to the PacNet Services Group of Companies, their employees and each of the individuals originally named to OFAC's sanction list have been catastrophic and unjust. OFAC's actions have also unfairly impacted clients, banks and unrelated companies within the fintech sector. OFAC's allegations are commonly interpreted as evidence of wrong-doing. It is wrong to assume that OFAC is a judicial body and that companies or individuals named to their list of sanctions have been charged, tried or otherwise given due process.
PacNet's designation and recent unrelated OFAC actions strongly suggest that, rather than being used as an emergency measure to address threats to national security, as required by federal law, OFAC sanctions are being used inappropriately to further non-security agendas.
Below are links to the official de-listing notifications for each PacNet Services related individual or entity named in OFAC's press release of 22 September 2016. All individuals and entities originally named to the OFAC sanctions list were removed from the list between the dates of 16 February 2017 and 26 October 2017. No PacNet Services Group related entity or individual remains on the list.
26th October, 2017
4th October, 2017
22nd August, 2017
21st June, 2017
6th June, 2017
16th May, 2017
6th April, 2017
16th February, 2017