Over the past few years, fintech, the confluence of financial services, technology, and the law, has created a boom that has reverberated from Silicon Valley to Wall Street to Main Street, reshaping customer expectations and demand for convenient and less expensive access to financial products and services, providing new opportunities for investors while driving innovation into virtual banking, cloud-based lending, and all forms of digital payments.
Buckley Sandler has a deep knowledge of the laws, regulations, innovative business models, and technology and market standards necessary to help:
- Companies develop and launch new products and services, including advising on the use of technology to resolve issues regarding regulation
- Investors identify, quantify, and manage risks when investing in the fintech marketplace
- Various eco-system participants structure electronic financial services transactions and create, preserve, and transfer billions of dollars of assets, including through the sales of loans, participations, and receivables
- Companies and service providers develop and implement successful strategic partnering and outsourcing arrangements, including bank partner, servicing, and other critical third-party relationships
With a full service practice group dedicated to electronic and mobile technology platforms, Buckley Sandler is strategically positioned to meet client demands. Our work in this area covers a diverse array of practices and disciplines.
We are nationally recognized authorities on the laws, regulations, and industry standards that impact the delivery, presentation, management, and execution of electronic signatures and records. We advise clients on requirements affecting the entire life cycle of electronic records and their underlying transactions, and in all electronic mediums. Our team members played key roles in the development of the laws enabling e-commerce transactions, including the federal Electronic Signatures in Global and National Commerce Act (ESIGN) Act and the Uniform Electronic Transactions Act (UETA). We also were instrumental in the creation of the broadly adopted Standards and Procedures for Electronic Records and Signatures manual (SPeRS) and are the authors of The Law of Electronic Signatures (Thomson Reuters) which is in its 8th edition.
Buckley Sandler regularly assist clients, non-banks, and chartered institutions with issues relating to mobile disclosure delivery and e-contracting, advertising and marketing compliance, risk management, strategic partnerships and other transactions, data ownership, licensing, and compliance with consumer protection statutes and regulations. We also provide guidance on all aspects of the laws governing payment processes, including electronic fund transfer, remittances, Automated Clearing House (ACH) transactions, remote check creation, remote deposit capture, and compliance with payment network requirements and industry standards for payments.
We represent leading and emerging consumer and commercial marketplace lenders and other alternative credit providers, as well as investors in their companies and loan products, on a range of regulatory, transactional, structuring, and product development matters. We also advocate for our clients in the context of supervisory and enforcement actions as well as civil litigation. Our comprehensive knowledge of underlying products, statutes, regulations, and market standards, combined with our experience in electronic payments systems, mobile commerce, data security, vendor management, and related transactions makes us uniquely positioned to advise clients in this innovative industry.
Our team advises issuers and providers of prepaid access (e.g., gifts, payroll, flexible spending, health spending, rebates, rewards, travel, or for prepaid cards general use) on the application of state and federal money transmitter laws, compliance with anti-money laundering/Bank Secrecy Act (AML/BSA) laws and regulations, and structuring and negotiating critical third-party relationships. We work with businesses at the beginning stages of program development and continue to guide them through the full product life cycle, advising along the way on marketing and consumer protection strategies, state licensing, federal registration, required disclosures, privacy issues, strategic partnerships, and many other areas.
We review unique and sophisticated payments platforms and advise on the best strategy for achieving money transmitter licensing compliance and obtaining licenses or exemptions to licensing. We assist payment innovators, investors, and businesses involved in virtual currency enterprises with the development of anti-money laundering/Bank Secrecy Act (AML/BSA) policies, procedures, training programs, licensing, registration, implementation of assessment reviews in connection with Financial Crimes Enforcement Network (FinCEN) and state law requirements, and various transactions, including critical third-party relationships and acquisitions.
We advise companies on the issues germane to the regulatory regimes applicable to virtual currencies, cryptocurrencies, and blockchain. We assist clients in applying for and obtaining the necessary state money transmitter licensing and/or structure various partnerships with other eco-system players. As this is a rapidly evolving industry, we closely monitor developments impacting virtual currency companies and their compliance initiatives, such as proposed or adopted state and federal regulatory and legislative developments.
As blockchain technology continues to evolve as a transformative force in the global economy, Buckley Sandler is uniquely positioned to provide leadership and guidance regarding the myriad legal and regulatory issues that have arisen along with the technology. Increasingly, blockchain/fintech companies are providing services that traditionally have been highly regulated, resulting in many regulatory agencies indicating interest in developing relevant licensing frameworks. Our services in this area include independent testing and gap analysis to determine compliance, assistance with vendor selection, policy and procedure design and implementation, chartering and licensing assistance, risk assessment, exam preparation, due diligence for onboarding and investment, and outsourced general counsel assistance.
We advise banks and non-banks, including fintech companies, on compliance with AML laws and regulations of the BSA and state money transmitter laws. We often assist clients with development of AML/BSA policies, procedures, and training programs, as well as performing implementation assessment reviews in connection with Financial Crimes Enforcement Network (FinCEN) and state law requirements, and bank reviews. We also provide training from the business line to the board, as well as compliance testing and audit.
Buckley Sandler advises entities that collect, process, store, and transfer sensitive personal information on matters involving the full spectrum of privacy and data risk issues affecting their business operations, including board governance matters. We perform gap analysis and risk assessments, develop information and cyber security programs, and draft policies and procedures. We also draft affiliate marketing plans and public statements involving privacy and information security. We advise clients on legal requirements and regulatory expectations on third-party selection oversight issues involving data ownership, use, and sharing.
Buckley Sandler attorneys have helped our clients seek and obtain more than 30 bank charters. There is increasing interest by marketplace lenders, payment companies, virtual currency entities, and other fintech companies to obtain a bank charter or acquire an existing bank, or possibly obtain a future non-bank charter from the Office of the Comptroller of the Currency (OCC) or other banking regulators. We are working with fintech clients to understand the evolving regulatory framework, evaluate options, and, where appropriate, pursue value-added transactions or charters allowing them to establish a platform providing nationwide authority that will enable them to scale their business for maximum success while efficiently managing regulatory risk.
We regularly advise and assist fintech companies and financial institutions in connection with various corporate and transactional activities, including mergers and acquisitions, strategic investments, corporate governance and corporate structuring issues and agreements, critical third-party relationships (including bank partner, servicing agreements, and network participation agreements), consumer-related agreements, and asset purchase and sale agreements, involving related issues such as "true lender" risk.
Expertise in e-commerce, fintech, regulatory examinations, and investigations, and FTC compliance in particular.Legal 500
Margo H. K. Tank and R. David Whitaker Authored a White Paper on, "Enabled by Lenders, Embraced by Borrowers, Enforced by the Courts: What You Need to Know About eNotes"
I. Purpose of the White Paper Over the past 30 years, the residential mortgage lending industry has largely transitioned to electronic systems for managing documents related to the origination and servicing of residential mortgage loans. These digitization efforts have, however, been primarily...Articles
Special Alert: OCC Issues Supplement to Third-Party Oversight Guidance, Emphasizes Bank Responsibilities in Managing Risks in Fintech Relationships
On June 7, 2017, the Office of the Comptroller of the Currency (OCC) issued Bulletin 2017-21 as a supplement to Bulletin 2013-29 , the OCC’s 2013 risk management guidance related to third-party relationships. The OCC’s latest release answers 14 frequently asked questions (FAQs) and marks the second...Articles
Elizabeth E. McGinn, Antonio J. Reynolds, and Jessica M. Shannon Authored a Bloomberg BNA Article, "Consumer Privacy Should Be Top-of-Mind for FinTech Firms to Avoid Scrutiny"
With many people underserved by traditional lending institutions, including the close to 45 million adults in the U.S. who the Consumer Financial Protection Bureau estimates are “credit invisible” or have had past credit challenges, emerging FinTech lenders and online lending platforms (FinTech...Articles
On April 26, 2017, the Conference of State Bank Supervisors (CSBS) initiated a lawsuit against the Office of the Comptroller of the Currency (OCC) in the U.S. District Court for the District of Columbia challenging the OCC’s statutory authority to create a special purpose national bank (SPNB)...Articles
Margo H. K. Tank and R. David Whitaker Authored a SIGNiX Blog, "The Secret Sauce for Electronic Records: System Audit Logs"
Most software platforms for presenting and signing electronic records (a “platform”) capture and preserve information concerning the delivery and signing process for each record presented on the platform. The file preserving this information is often referred to as an “audit log.” Audit logs serve...Articles
Special Alert: OCC Issues Highly-Anticipated Guidance for Evaluating Charter Applications from Fintech Companies
On March 15, 2017, the Office of the Comptroller of the Currency (OCC) issued further guidance regarding how it will evaluate applications by fintech companies to become Special Purpose National Banks (SPNBs). In its release, the OCC summarized the more than 100 comments it received in response to...Articles
Special Alert: District Court Confirms Telephonic Consent to Preauthorized ACH Debits Complies with ESIGN and EFTA
On February 17, a U.S. District Court in Nashville, TN found that a creditor complied with both the Electronic Signatures in Global and National Commerce Act  (“ESIGN”) and the Electronic Fund Transfer Act  and its implementing regulation, Regulation E  (collectively “EFTA”) when it...Articles
David Baris, Margo H. K. Tank, and Lori J. Sommerfield Authored a Law360 Article, "ADA Compliance for Financial Institutions In The Crosshairs"
During the second half of 2016, numerous financial institutions of all sizes began receiving demand letters from plaintiffs firms representing disabled individuals and seeking settlements for violations of website accessibility standards related to Title III of the Americans with Disabilities Act (...Articles
It’s no secret that digital is overtaking the finance industry, and mortgage is no exception. However, while end-to-end digital mortgage solutions exist that ensure secure management of documents and loans throughout the entire process, from loan execution through post-lifecycle management,...Articles
The Law of Electronic Signatures and Records is an essential guide to electronic signatures and records laws, including the context in which the laws were adopted and the ways in which the authors believe the drafters intended them to be interpreted. Buckley Sandler attorneys Margo Tank, David...Articles
On November 7, the Chairman of the FDIC, Martin J Gruenberg, addressed the Local Initiatives Support Corporation (LISC) in New York, New York regarding financial inclusion and expanding economic opportunity for the underbanked. In his speech, Gruenberg discussed the agency’s most recent report,...InfoBytes
On October 31, Fannie Mae issued Announcement SEL-2017-09 , highlighting recent updates to its Selling Guide , that generally affirm the ability to conduct activity using electronic records. Among other things, the update (i) confirms that sellers and servicers are authorized to originate, service...InfoBytes
District Court Denies Summary Judgement to Both Parties, Cites Issue of Material Fact Concerning Prepopulated Electronic Signature
On October 18, a federal judge in the U.S. District Court for the District of South Carolina denied summary judgment to both parties because there was a genuine issue of material fact regarding whether a “meaningful offer” of underinsured motorist coverage (UIM) was made. The insured’s electronic...InfoBytes
On October 26, the House Small Business Committee Subcommittee on Economic Growth, Tax, and Capital Access (Subcommittee) held a hearing entitled, “Financing Through Fintech: Online Lending’s Role in Improving Small Business Capital Access” to understand how small businesses obtain capital, examine...InfoBytes
On October 19, the Conference of State Bank Supervisors (CSBS) announced that 33 financial technology companies have agreed to serve on the CSBS Fintech Industry Advisory Panel. The goal of the panel is to identify ways to help modernize the state regulatory system. According to CSBS, the 33...InfoBytes
Federal Reserve Governor Calls for Collaboration Between Banks and Fintech Firms for Safe and Secure Payment System
On October 18, Federal Reserve Board Governor, Jerome H. Powell, spoke at the 41st Annual Central Banking Seminar regarding the impact of technology on retail banking and payment services. Powell noted that rapidly changing technology for more timely and convenient payment methods, “should not come...InfoBytes
On October 19, OCC Acting Comptroller of the Currency Keith A. Noreika spoke at Georgetown University’s Institute of International Economic Law’s Fintech Week to discuss innovation within the financial technology sector and its impact on the evolution of the financial services marketplace. “[W]hat...InfoBytes
CFPB Issues Principles Concerning Security and Transparency for Financial Data Sharing and Third-Party Aggregation
On October 18, the CFPB published guidelines entitled “ Consumer Protection Principles ” (Principles), which are “intended to reiterate the importance of protecting consumers” when companies, including “fintech” firms, banks, and other financial institutions, get authorization from consumers to...InfoBytes
On October 17, the U.S. Commodity Futures Trading Commission (CFTC) announced the release of “ A CFTC Primer of Virtual Currencies ” (Primer) issued by its LabCFTC division. As previously discussed in Infobytes , the LabCFTC initiative rolled out in May of this year to engage innovators in the...InfoBytes
On October 6, prompted by the “evolving technological innovations that impact the financial services sector” and the rise of “technology focused companies offering financial services via new delivery mechanisms,” the Pennsylvania Department of Banking and Securities (Department) issued a reminder...InfoBytes
Buckley Sandler Adds Depth to FinTech Capabilities with Addition of Jeffrey S. Hydrick to Corporate Transactional Practice
WASHINGTON, DC (August 5, 2015) Buckley Sandler LLP is pleased to announce that Jeffrey S. Hydrick has joined the firm’s Corporate Transactions practice as Counsel in our Washington, DC, office, effective August 3, 2015. An experienced practitioner and noted expert on mobile payments and bank-...Press Releases
WASHINGTON, DC / LONDON, ENGLAND (September 8, 2014) – Buckley Sandler LLP , a leading financial services and criminal & civil enforcement defense law firm, announced today the opening of its first international office, located in London. James T. Parkinson has relocated from the firm’s...Press Releases
Our FinTech Team
Recent Blog Posts
November 9, 2017
FDIC Chairman Speaks About Financial Inclusion
November 3, 2017
Fannie Mae Updates Selling Guide
November 3, 2017
District Court Denies Summary Judgement to Both Parties, Cites Issue of Material Fact Concerning Prepopulated Electronic Signature
October 31, 2017
Small Business Economic Hearing on Financing Through Fintech
October 27, 2017
CSBS Announces Membership of Fintech Advisory Panel