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David Beam is a partner in Mayer Brown’s Washington DC office and a member of the Consumer Financial Services group. His practice encompasses a broad range of matters related to payments and credit regulation. He provides clients with regulatory compliance and related business planning advice; conducts regulatory due diligences of investment and acquisition targets; structures joint ventures and other business arrangements; obtains approvals, licenses and regulatory guidance from US federal and state financial regulators; and prepares terms and conditions for financial products and services. Additionally, he defends companies in connection with federal and state governmental audits, investigations and enforcement proceedings and assists with litigation matters, including putative class action proceedings.

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Last week was busy for the financial technology industry (Fintechs) and non-bank regulators.

New York joined the Conference of State Bank Supervisors (CSBS) in filing a lawsuit against the Office of the Comptroller of the Currency (OCC), and announced plans to adopt a uniform licensing system for Fintechs. CSBS issued its support of the lawsuit, announced Vision 2020 for Fintechs, and invited industry to participate in developing the uniform licensing system (the Nationwide Multistate Licensing System, or NMLS) chosen by most state regulatory agencies as the universal platform for licensing and supervising the Fintech business sector.

Learn more about Vision 2020 and NMLS 2.0 in Mayer Brown’s Legal Update.

On January 31, 2017, the CFPB released its Prepaid Rule Small Entity Compliance Guide to facilitate comprehension of and the implementation of the new prepaid rule on October 1, 2017. As described in our prior Legal Update, the CFPB issued the final prepaid rule in October 2016 which amends Regulation E to cover prepaid accounts including payroll card accounts, government benefit accounts, and other types of prepaid products.  The Compliance Guide details requirements of the new rule and provides examples to help illustrate key aspects including what constitutes a prepaid account, the entities subject to the new rule, disclosure obligations, and error resolution procedures, among others.

Just one day after the CFPB’s release of the Guide, Senator David Perdue (R-GA) introduced a joint resolution of disapproval aimed at wiping the prepaid rule off the books pursuant to the Congressional Review Act.  Under the CRA, Congress may overturn new federal agency regulations by reviewing them within a certain time period, passing a joint resolution of disapproval in each chamber, and obtaining the president’s signature.  On February 3, Representative Tom Graves (R-GA) followed suit, introducing a similar joint resolution in the House of Representatives.  Stay tuned for updates on whether the prepaid rule’s future may truly be in jeopardy.

Five Mayer Brown attorneys in the Financial Services Regulatory & Enforcement group presented at the American Bar Association Business Law Section Annual Meeting in Boston last week.

Ori Lev spoke on a panel discussing the CFPB’s enforcement track record.  The panel addressed a study by Professor Chris Peterson of the S.J. Quinney College of Law at the University of Utah that provided an empirical analysis of the CFPB’s enforcement cases and Ori’s analysis of the CFPB’s use of its new abusiveness authority.

Matthew Bisanz moderated, and Jeff Taft participated on, a Banking Law Committee panel discussion of current cybersecurity issues for large financial institutions, including the regulatory and enforcement posture of the federal banking agencies; examiner expectations; government response to cyber events at financial institutions; and the relevance of the CFPB’s consent order against Dwolla to larger banking organizations.

David Beam moderated a panel on legal issues presented by various applications of blockchain technology, particularly in connection with consumer financial products.  Panelists included representatives of American Express Company, Capital One, and the Federal Trade Commission.

Alicia Kinsey spoke on a panel discussing BSA/AML compliance challenges for community banks, which included a discussion of FinCEN’s new customer due diligence rule, NYDFS AML/sanctions rule on transaction monitoring and filtering programs, as well as observations on AML compliance issues from regulators from the FRB and NCUA.

Tomorrow, September 13, 2016, Mayer Brown partner Jeff Taft will be speaking at the inaugural Marketplace Lending Policy Summit in Washington, D.C.  Jeff will be on a panel covering “Hot Legal Topics in Marketplace Lending.”

David BeamKeisha Whitehall-Wolfe, and Eric Mitzenmacher also will be attending the conference.

 

On Tuesday, August 2, 2016, at 2:00pm EDT, Mayer Brown and Paybefore.com will present a webinar on the CFPB’s actions against payment processors for allegedly facilitating illegal transactions by their clients. The presenters will be Mayer Brown attorneys David Beam, Ori Lev, and Jeremy McLaughlin, and the moderator will be Paybefore’s Evan Schuman.  The webinar will discuss the CFPB’s enforcement actions against payment processors, explain the factors that led the CFPB to conclude that the payments companies were culpable, and discuss practical steps companies can take to avoid the same fate.

Register for the event here.

Montana is now officially the only state in the United States that does not have a law regulating money transmitters. On June 9, 2016, South Carolina Governor Nikki Haley signed into law the South Carolina Anti-Money Laundering Act (the “Act”).  Among other things, the Act imposes licensing and other obligations on businesses engaged in money transmission.  The Act takes effect the later of one year after approval by the Governor or upon publication in the State Register of final regulations implementing the Act. Continue Reading South Carolina Enacts Money Transmitter Law

The controversial decision in Madden v. Midland Funding, LLC, was “incorrect” and “reflects an unduly crabbed conception of [National Bank Act] preemption,” said the Solicitor General and the Office of the Comptroller of the Currency (“OCC”) in the amicus brief filed with the United States Supreme Court on Tuesday.  Still, the Solicitor General and the OCC advised the Court not to review the decision of the Second Circuit in Madden.  They concluded that this just isn’t the right case for the Court to resolve the important questions of whether and under what circumstances the National Bank Act preempts state usury laws for assignees of loans made by national banks. Continue Reading Madden Update: Solicitor General Says the Second Circuit Got it Wrong—But that the Decision Should Still Stand for Now

According to the CFPB’s latest rulemaking agenda, the agency is pushing back to “this summer” release of the final rule on prepaid accounts. The release had previously been expected this May or June, after it was pushed back from a March expected release.

The Bureau issues the proposed role in November 2014. Generally, it proposed to subject prepaid products to the Electronic Fund Transfer Act and Regulation E and to amend Regulation Z to regulate prepaid accounts with overdraft or credit features.

Some segments of the marketplace lending business model (a subset of the growing FinTech industry sometimes referred to as peer-to-peer lending), might become subject to additional regulation if the federal and state regulatory agencies take to heart the results of a recent Treasury  Department report. Continue Reading Treasury Department Issues Marketplace Lending Report, Outlines Possible Regulatory Path