K&L Gates Emerging Payment Systems

Transcription

1 K&L Gates Emerging Payment Systems Emerging payment systems are a mixture of existing and developing systems, players, markets, infrastructures and technologies. Their evolution is occurring within a maze of regulations written for other times and participants. Our Emerging Payment Systems practice lawyers understand this and are used to helping clients navigate the legal, regulatory, policy and business issues surrounding nascent platforms, services and technologies, including: Mobile Bill to mobile Cloud platforms Bill payment Cards and Codes (e.g., prepaid, gift, payroll) Virtual and Alternate Currencies Technologies: RFID NFC Mobile Peer-to-Peer VOIP Mobile apps Global Footprint As new payment systems attempt to leap traditional infrastructures to enable payments locally, nationally or internationally, it becomes apparent the movement of money or moneyequivalents is heavily regulated. Our Emerging Payment Systems practice lawyers provide a global, inter-disciplinary solutions-oriented service through the firm s more than 40 offices on four continents. Inter-Disciplinary Approach Emerging payment systems involve advanced distribution systems and technologies that frequently give rise to cutting edge issues crossing multiple legal disciplines, including regulatory (such as financial services, telecommunications, consumer protection, data privacy and security), intellectual property, litigation, tax, corporate and beyond. Our lawyers provide a corresponding international range of legal services regarding these kinds of topics: Anti-Terrorism and Anti-Money Laundering We advise clients on existing and proposed regulations relating to anti-money laundering compliance requirements in the U.S. and internationally. In addition, we provide frequent advice on the global anti-terrorism and trade embargo laws and regulations which may impact the emerging payment industry. Banking Laws With experience representing banks and similar financial institutions, we help nonbank clients structure novel payment methods to avoid unauthorized banking or cause the service provider to be classified as a bank. When banks are involved, we advise on compliance with bank regulatory requirements, as well as how to structure programs in a manner maximizing any availability of pass-through deposit insurance or other depository arrangements. Cards and Codes Emerging payment systems are not just mobile: many include or adapt traditional cards in new forms such as codes or other electronic variations. We help clients issue, accept, contract for, and comply with regulations regarding a wide variety of traditional and emerging products. For example, we assist: issuers of general prepaid cards or e-money (such as in the UK and EU) financial institutions needing compliance assistance retailers negotiating payment processing contracts and dealing with card brand rules retailers issuing store debit cards, gift cards or gift certificates issuers of transit cards swiped on the bus, ferry or van retailers with Payment Card Industry standards questions financial institutions and retailers having payment system questions (e.g., clearinghouse rules such as ACH)

2 Consumer Protection The fi rm has an active consumer fi nancial services practice spread among several offi ces. We advise payment system participants on the full range of consumer fi nancial protection laws. With our presence in Washington, D.C. and Brussels, we are well-positioned to work with regulators on behalf of clientsincluding in the U.S., with the new Bureau of Consumer Financial Protection. Our Consumer Financial Services Group is consistently ranked highly in national rankings of such practices. The 2011 edition of Chambers USA again ranked the Group in the top tier-the highest possible ranking-in the area of Financial Services Regulation: Consumer Finance (Compliance). Data Privacy and Security A variety of privacy laws apply to mobile payment systems, including separate privacy regimes that can apply to telecommunication carriers, fi nancial institutions and non-bank partners. Compliance can be challenging in an arena of small screens, GPS tracking capabilities, disclosure and consent requirements and demands for simplicity, all at the same time. K&L Gates has per-country and international privacy and data protection practices that we adapt to the payments arena in light of the participants and the nature of the technologies, services and customers. This includes our data security breach response practice and our work in the identity management or authentication space. E-Commerce Emerging payment systems typically involve e-contracting and consumer protection disclosures that require compliance with special rules for electronic dealings. These businesses often use the Internet, so rules governing Internet commerce apply as well. We literally wrote the book on e-commerce and assist clients with all aspects of it. See The Law of Electronic Commercial Transactions ( sheshunoff.com/store/f53.html). Our Emerging Payment Systems practice lawyers help clients navigate the legal, regulatory, policy and business issues surrounding nascent platforms, services and technologies. Financing, M&A, Investments and Due Diligence Our corporate practitioners cover a full range of corporate disciplines supporting early stage, emerging and developed businesses. These partners facilitate the structuring, negotiation, and execution of the full range of fi nancing transactions undertaken by our clients in a diverse group of industries, including private equity, venture capital and debt transactions, at all stages of development, both domestic and cross border, as well as IPOs. Our in-depth experience in all forms of commercial transactions has assisted our clients in achieving key strategic and commercial relationships at all levels of the business spectrum. We have one of the legal industry s most substantial full-market corporate transactional and counseling practices. Our mergers and acquisitions lawyers practice on an integrated basis across our offi ces on four continents and can fi eld geographically concentrated or diverse teams, as needed. Foreign Currencies A potential hurdle in cross-border payment is a country s foreign exchange control regime. For example, China s foreign system has been described as free convertibility on the current account items and restricted convertibility on the capital account items.

3 Along with the rapid development of crossborder economic activities, there are various emerging payment solutions, e.g., credit cards with a foreign exchange function, Renminbi (in China) settlement service for foreign e-commerce businesses via online payment solution providers, and a pilot scheme for Renminbi accounts for foreign companies. We provide legal advice to clients on foreign exchange controls with respect to both legal requirements and practical solutions for varying business models. Intellectual Property Patents, copyright, trademarks-a blizzard of intellectual property rights create both opportunities and material risks domestically and internationally. We have broad and deep practices in patent prosecution, copyright and trademark registration, and intellectual property and technology licensing, including software and hardware license and development agreements. Post 2011, ICANN s dramatic expansion of the number and types of possible domain names will materially impact emerging payment systems and the fi rm also has a team focusing on this expanded area. Our trademark attorneys advise on trademark selection and availability. They work closely with clients to create and implement international trademark registration programs tailored to the needs of the client. In addition, they assist clients with enforcement and protection of trademarks, as well as trademark licensing. Our trademark attorneys have extensive experience with trademark issues on the Internet and in connection with emerging technology, including emerging payment systems. Litigation and Enforcement Matters Our litigators have broad and deep experience defending companies in litigation related to highly-regulated products and services, including payment and consumer fi nancial products and services. We have defended consumer fi nancial service providers in signifi cant multi-state investigations and enforcement actions by state attorneys general, and in nationwide consumer class actions. Money Service Business/Money Transmitter Licensing In the U.S. we advise payments industry clients on state and federal licensing and registration requirements, including money service business (i.e., money transmitter) requirements in every state. We are experienced in structuring complex arrangements to minimize licensing obligations. When licensing is unavoidable, a dedicated team of 10 full-time licensing professionals provides a full-service licensing solution for our clients: gathering required information, preparing applications, and working with state regulators to ensure a smooth and rapid approval process. We also advise on e-money and payment services licensing in the UK and EU. Outsourcing Our outsourcing practice represents both customers and providers of outsourcing services relating to emerging payment systems. We have represented global fi nancial services companies in innovative outsourcing transactions with mobile wireless network providers and mobile wireless device manufacturers in the U.S., Europe and Asia. We frequently advise clients on the special liability and security risks and regulatory concerns in these transactions, in addition to negotiating and drafting the transactional documents. Public Policy and Legislative The fi rm is involved in all aspects of the policy lifecycle including early stages of policy formulation and the development and passage (or defeat) of legislation. The fi rm s nationally recognized policy practice regularly represents companies and associations before the U.S. Congress, state legislatures, and federal and state agencies with respect to fi nancial services, privacy, security, e-commerce, telecom, competition and consumer protection laws. Our international offi ces, including our offi ce in Brussels, have complementary practices. Telecom and Technology The fi rm represents clients before state and federal regulatory agencies in the U.S. (including the Federal Communications Commission), Europe and Asia on a full range of regulatory compliance and enforcement matters, including regulations applicable to the provision of mobile wireless payment system services. In addition, the fi rm represents emerging payment system developers and distributors of and strategic partners in payment system technologies in a wide range of technology transactions, including licensing agreements, development agreements, distribution agreements, joint ventures and marketing arrangements. Recent Representative Engagements We represent fi nancial institutions and merchants and other businesses providing or using emerging payment systems, distributors (such as mobile wireless network operators), and payment system hardware and software technology developers. The law applies to types of participants differently and understanding participant roles helps us represent our clients more effi ciently and knowledgably. Here are some examples: Transactional Represented an international mobile payment system platform provider focusing on unbanked markets (e.g., assisting with structuring of international ventures and foreign and domestic regulatory compliance issues). Assisted major providers of cloud computing platforms with legal analysis of provider issues. Drafted user agreements and other transactional documents for prepaid card programs. Negotiated agreements on behalf of a peer-to-peer payment service provider with several mobile device makers to preinstall client s app on mobile devices. Negotiated agreements between a major prepaid card issuer and various universities to embed prepaid functionality in student identifi cation cards. Negotiated marketing agreements between a major prepaid card issuer and various affi nity groups.

4 Drafted transactional documents for online service provider of bar codes redeemable for offl ine, third party products per a swipe of a smart phone. Redrafted service provider PCI tokenization service to work for national retailer. Drafted agreements and transaction documents for a new payroll card product. Negotiated agreements on behalf of a major prepaid card issuer with telecommunication companies and other parties to provide prepaid rebate/ reward cards. Assisted wireless network operator with the launch of its first bill-tophone program for third party content providers, including analysis of legal risks and regulatory requirements and drafting program agreements. Assisted wireless network operator with the launch of its first bill-tophone program for third party content providers, including analysis of legal risks and regulatory requirements and drafting program agreements. Litigation, Investigations and Government Enforcement Actions Represented a major prepaid card issuer in an investigation by the Florida Attorney General into alleged unfair and deceptive trade practices. Defended a payment processing company in state investigations into whether its activities triggered state licensing requirements. Represented carriers whose payment systems were abused by wrongdoers or persons seeking to exploit the system. Regulatory Assisted several clients in structuring new payment service models to avoid state money transmitter and money service business licensing requirements. Counseled leading global mobile wireless service provider how to enable transfer of purchased minutes of use among subscribers in compliance with applicable telecom and fi nancial services regulations. Provided clients with analyses addressing the regulatory advantages and disadvantages of issuing prepaid products out of a bank versus a state-licensed money service business, and various other business model structures. Advised federally-chartered institutions and their operating subsidiaries engaged in payment activities on the impact of the new preemption standards in the Dodd- Frank Wall Street Reform and Consumer Protection Act, and assisted them with state law compliance where required. Advised several mobile payment platforms on telecom and fi nancial services regulatory and licensing issues related to mobile payments. Obtained money transmitter and money service business licenses for a new payment service provider. Public Policy & Legislative Prepared for clients responses to informational queries from the Bureau of Consumer Financial Protection in connection with that agency s pre-regulatory information gathering on prepaid products and consumer payment systems. Prepared position papers for clients on various legislative and regulatory proposals, including the Prepaid Card Consumer Protection Act (a.k.a. the Menendez bill ) and regulatory proposals submitted to the CFPB by consumer groups. Provided clients with gap analyses to assess the impact of various legislative or regulatory proposals. Drafted whitepaper for use by trade organization in explaining why payment legislation should be vetoed by a state governor.

5 For more information, please contact: Washington, D.C. David L. Beam Pittsburgh Robert P. Zinn Charlotte Kevin P. Stichter Steve M. Kaplan Susan S. Jackson Anchorage Austin Beijing Berlin Boston Brussels Charleston Charlotte Chicago Dallas Doha Dubai Fort Worth Frankfurt Harrisburg Hong Kong London Los Angeles Miami Milan Moscow Newark New York Orange County Palo Alto Paris Pittsburgh Portland Raleigh Research Triangle Park San Diego San Francisco São Paulo Seattle Shanghai Singapore Spokane Taipei Tokyo Warsaw Washington, D.C. K&L Gates includes lawyers practicing out of more than 40 fully integrated offices located in North America, Europe, Asia, South America, and the Middle East, and represents numerous GLOBAL 500, FORTUNE 100, and FTSE 100 corporations, in addition to growth and middle market companies, entrepreneurs, capital market participants and public sector entities. For more information about K&L Gates or its locations and registrations, visit This publication is for informational purposes and does not contain or convey legal advice. The information herein should not be used or relied upon in regard to any particular facts or circumstances without first consulting a lawyer K&L Gates LLP. All Rights Reserved _6352