Payment Systems Today: Latest Legal and Regulatory Challenges October 14, 2014 Jon Genovese, Vantiv Ellen T. Berge, Esq., Venable LLP Ed Wilson, Esq., Venable LLP Andrew E. Bigart, Esq., Venable LLP 1
Agenda Growth and Diversity of Payment Systems Faster, more efficient, safer clearing & settlements Electronic payments & end of checks Mobile banking Virtual currencies Growth of Payment System Regulation Focus on consumer protection Higher compliance standards Aggressive enforcement Best Practices, Preparedness, and Red Flags 2
Faster, more efficient, safer clearing & settlements Information is transferred before value Information travels end to end, value does not How does information flow? International Financial Information SWIFT Credit/debit card networks & processors Cash & Next GEN: Virtual currencies 3
Faster, more efficient, safer clearing & settlements Value moves bank-to-bank Currency and alternatives exception How? FedWire CHIPS ( Clearing House Interbank Payment System ) ACH ( Automated Clearing House ) Credit/debit card Alternative currencies 4
Credit Card Example: Information Customer Merchant (Website) Accept or Decline Purchase (authorization code) (12 seconds RT) Acquirer/ Processor Card Network (V/M/D/Ax) Card Issuer Bank Credit or Funds Available? 5
Credit Card Example: Information Customer Merchant (Website) Processor s Account at Processor s Bank, FBO Merchant Merchant s Bank Acquirer Processor Card Network (V/M/D/Ax) Card Issuer (Bank) Customer s Account 6
Electronic Payments & End of Checks 140,000,000,000.00 120,000,000,000.00 100,000,000,000.00 80,000,000,000.00 60,000,000,000.00 40,000,000,000.00 20,000,000,000.00 Non-Cash Transactions Per Year - 8.5% per year increase 0.00 2009 2010 2011 2012 7
Electronic Payments & End of Checks $90,000,000,000,000.00 $80,000,000,000,000.00 $70,000,000,000,000.00 $60,000,000,000,000.00 $50,000,000,000,000.00 $40,000,000,000,000.00 $30,000,000,000,000.00 $20,000,000,000,000.00 $10,000,000,000,000.00 $0.00 Non-Cash $ Value of Transactions 2009 2010 2011 2012 Non-Cash $ Value of Transactions $60,518,809,125 $66,140,775,000 $72,285,000,000 $79,000,000,000 8
Electronic Payments & End of Checks Prepaid Card Transaction Volume 3,500,000,000.00 3,000,000,000.00 2,500,000,000.00 2,000,000,000.00 1,500,000,000.00 1,000,000,000.00 500,000,000.00 0.00 Prepaid Card Transaction Volume 2009 2012 1,300,000,000.00 3,100,000,000.00 9
Electronic Payments & End of Checks 80% CARDS V. CHECKS -- % OF NON-CASH TRANSACTIONS 70% 60% 50% 40% 30% 20% 10% 0% 2003 2012 CARDS (ALL TYPES) CHECKS 10
Mobile Banking, Payments & VCs Mobile Banking Mobile Payments Virtual Currencies Spotlight on Payment Processing Industry Why is the government scrutinizing the payments industry? What are the specific concerns? What are you expected to do? What happens if you don t do them? 11
Mobile Banking & Mobile Payments Mobile Banking 12 million people in 2009 45 million by end of 2014 Mobile Payments Explosive Developments Apple Pay MCX In-app payments Explosive Growth Predicted 12
Mobile Banking & Mobile Payments 13
Virtual Currencies 14 Virtual currencies Modern barter Taxed in US as property, not currency Issues Safety and Soundness Storage Money Laundering Cost will increase as regulation catches up to product NY State Rulemaking Transaction speed: Bitcoin: x not less than 5 minutes Credit/debit: x between 2 & 12 seconds
Growth of Payment System Regulation Spotlight on Payment Processing Industry Why Focus? Regulators view processors as gatekeepers Provides merchants and consumers with access to financial systems The means and instrumentalities for merchants to extract money from consumer accounts Processors viewed as enablers for fraudsters New technologies (mobile, virtual currencies) and regulatory application of existing consumer protections standards Data Security 15
Growth of Payment System Regulation: Focus on Consumer Protection Meet the regulators: Federal Trade Commission Consumer Financial Protection Bureau Department of Justice Office of the Comptroller of the Currency Federal Deposit Insurance Corporation Task Forces Made Up of All Five (at least) State attorneys general Money Laundering: FinCEN Economic Sanctions: OFAC Mobile Payments: FCC Data Breach: USSS 16
Growth of Payment System Regulation Higher Compliance Standards Conducting due diligence on merchants, or ignoring strong signals of potential risk uncovered by due diligence Sustaining merchants with high return rates and chargeback rates Ignoring or failing to see other evidence of unauthorized charges Participating directly in a merchant s deceptive conduct Failing to act upon warnings from regulators and consumers Beneficial Owners Coming Requirement? 17
Growth of Payment System Regulation Aggressive Enforcement Subpoenas, civil investigative demands, other investigative inquiries Third party defendant in a case against merchant Law enforcement action as a direct target Penalties Financial disgorgement of fees, consumer redress, civil penalties Injunctive restrictions or prohibitions on future conduct 18
Growth of Payment System Regulation Aggressive Enforcement In re: Wachovia, N.A. (OCC) (2008) Older FTC cases focused on ACH processing Recent cases focus on credit/debit card processing FTC v. CardFlex (2014) FTC v. IRN (2014) FTC v. Process America (2013) CFPB v. Global Client Solutions (2014) CFPB v. Meracord (2013) 19
Best Practices, Preparedness, and Red Flags Know your merchants At the underwriting stage While they continue to process with you Comply with the rules and regulations of the card networks Comply with the contractual requirements of your sponsoring banks Stay current with regulatory developments Bank regulators CFPB 20
Best Practices, Preparedness, and Red Flags Resources Electronic Transaction Association, Guidelines on Merchant and ISO Underwriting and Risk Monitoring & Mobile Payment Solutions Best Practices and Guidelines, www.electran.org/professionaldevelopment Vantiv, Insights & Resources, www. Vantiv.com/insights 21
Payment Systems Today: Latest Legal and Regulatory Challenges Jon Genovese Director of Regulatory Compliance, Vantiv P: 513.900.5209 Jonathan.Genovese@Vantiv.com Ellen T. Berge, Esq. Partner, Regulatory Group, Venable LLP P: 202-344-4704 etberge@venable.com Andrew E. Bigart, Esq. Associate, Regulatory Group, Venable LLP P: 202-344-4323 aebigart@venable.com Ed Wilson, Esq. Partner, Regulatory Group, Venable LLP P: 202-344-4819 dewilson@venable.com 22