The California Department of Business Oversight (CDBO) recently concluded that the point of sale consumer financing programs offered by Sezzle, Inc., and another, unnamed party constituted making loans for purposes of the California Financing Law (CFL). A number of payment providers and technology companies have been developing innovative payment options, including consumer financing options, that are facilitated by advances in technology and mobile connectivity. Some market participants have structured their products such that a license should generally not be required under state law. The CDBO’s actions, however, may require companies to revisit that analysis and consider their licensing obligations.
On July 31, 2018, the U.S. Office of the Comptroller of the Currency (OCC) announced its decision (the Fintech Charter Decision) to begin accepting applications from financial technology (fintech) companies for special purpose national bank charters.1 The OCC has indicated it will not grant a charter to a fintech company that wishes to accept deposits or engage in fiduciary activities (for business plans that involve purely fiduciary activities, a limited purpose trust charter may provide an alternative vehicle). The Fintech Charter Decision is discussed in greater detail in a prior Sidley Banking and Financial Services Update.2
On September 14, the New York State Department of Financial Services (DFS) filed a federal court complaint seeking to enjoin further actions by the OCC to implement the Fintech Charter Decision and related actions, arguing that such acts are lawless, ill-conceived and destabilizing of financial markets. DFS also argued that such acts are beyond the OCC’s statutory authority and in violation of the Tenth Amendment to the U.S. Constitution, alleging that the police power to regulate financial services and products delivered within a state’s own geographical jurisdiction is among a state’s fundamental sovereign powers.3 (more…)
On August 7, a group of regulators from 11 jurisdictions published a consultation (the Consultation) on the Global Financial Innovation Network (the GFIN), which aims to promote international cooperation on innovation and the use of technology in financial services (FinTech) and in regulatory processes (RegTech).
The group — which includes the U.S. Consumer Financial Protection Bureau, the UK Financial Conduct Authority (the FCA), the Hong Kong Monetary Authority (HKMA) and the Monetary Authority of Singapore (MAS) — is one of the first major collaborative efforts on FinTech and RegTech issues among regulators in developed financial services markets. The Consultation builds on the FCA’s proposal earlier this year to create a “global sandbox” for innovative financial services firms.
This post summarizes the proposed role of the GFIN, the issues on which its founding regulators are consulting and how these may affect financial services firms.
On May 24, 2018, President Donald Trump signed into law the Economic Growth, Regulatory Relief, and Consumer Protection Act (the Act). The Act is effective immediately except as otherwise stated in certain provisions.
The Act makes many significant modifications to the postcrisis financial regulatory framework, although it leaves the core of that framework intact.
One major consequence of the Act may be an increased potential for mergers, acquisitions and organic growth among regional and midsize banks, as well as community banks, because of provisions that increase the thresholds that must be met before various financial regulatory requirements apply.
On April 3, 2018, the Financial Crimes Enforcement Network (FinCEN) issued new frequently asked questions (FAQs) regarding its customer due diligence rule (CDD Rule).
The CDD Rule applies to banks, broker-dealers in securities, mutual funds, futures commission merchants and introducing brokers in commodities (collectively, covered financial institutions or CFIs).
The CDD Rule includes four core elements of customer due diligence, each of which should be included in the anti-money-laundering (AML) program of a CFI: (1) customer identification and verification, (2) beneficial ownership identification and verification, (3) understanding the nature and purpose of customer relationships to develop a customer risk profile and (4) ongoing monitoring for reporting of suspicious transactions and, on a risk basis, maintaining and updating customer information. The second element — the beneficial ownership requirement — is new. FinCEN has described the other elements as preexisting AML program requirements for CFIs, although the third and fourth prongs were, at most, implicit requirements.
FinCEN issued new FAQs on the CDD Rule on July 19, 2016. These FAQs are timely because the May 11, 2018 compliance date for the CDD rule is fast approaching.
Here, we summarize several key takeaways regarding the beneficial owner requirement from the new FAQs.
On March 15, 2017, the Office of the Comptroller of the Currency published a draft supplement to the Comptroller’s Licensing Manual that sets forth details of the OCC’s proposal to accept applications from financial technology companies for special purpose national bank charters. The OCC’s guidance makes clear that it intends to hold fintech companies to the same chartering standards as entities seeking a traditional national bank charter and that there will be no “light-touch” supervision of chartered fintechs. While there may be debate over whether the guidance provides a viable alternative for organizing fintech firms, the OCC’s move signals their desire to modernize their licensing framework to keep pace with an evolving financial services industry. The OCC invites comment on the draft supplement through close of business on April 14, 2017.
The Office of the Comptroller of the Currency (OCC) has confirmed its intention to explore issuing limited-purpose national bank charters to fintech firms engaged in banking activities — commonly called the “fintech charter.” Earlier this year, the OCC had signaled this possibility. Now, through the release of a policy paper titled “Exploring Special Purpose National Bank Charters for Fintech Companies” (FinTech Paper) and a speech by the Comptroller on Dec. 2, the OCC has taken a more formal step.
On Oct. 19, the Board of Governors of the Federal Reserve System (the Board), the Office of the Comptroller of the Currency (the OCC) and the Federal Deposit Insurance Corporation (the FDIC, and collectively with the Board and the OCC, the Agencies) issued a joint advanced notice of proposed rulemaking (ANPR) inviting comment regarding enhanced cyber risk management standards for large and interconnected entities under their supervision and those entities’ service providers. As financial technology continues to advance, the largest, most complex financial institutions have relied more and more on technology to carry out their banking activities and to provide critical services to the financial sector and the U.S. economy. In the event of a cyber attack on a covered entity, the ANPR is intended to enhance the covered entity’s ability to continue to function and to reduce the overall impact on the financial system resulting from interconnectedness.
On Tuesday, Sept. 13, the Office of the Comptroller of the Currency (OCC) published a notice of proposed rulemaking and request for public comment (the Proposed Rule) introducing a regulatory regime to govern the receivership of national banks that are not insured (uninsured banks) by the Federal Deposit Insurance Corporation (FDIC). See OCC, Receiverships for Uninsured National Banks, 81 Fed. Reg. 62,835, 62,835 (Sept. 13, 2016) (the Proposed Rule). While the Proposed Rule would apply to the existing pool of 52 uninsured national trust banks, its broader impact would be to establish a receivership regime that would support the creation of new forms of limited purpose, uninsured banks for the financial technology (FinTech) industry. The Proposed Rule would not apply to uninsured federal branches and agencies of foreign banks under the International Banking Act of 1978. Proposed Rule at 62,838. (more…)
On March 21, the federal banking agencies and the Financial Crimes Enforcement Network (collectively, the Agencies) published interagency guidance to issuing banks on the application of the joint regulations implementing the customer identification program (CIP) requirements set forth in Section 326 of the USA PATRIOT Act (the CIP Rule) to their prepaid cards. The guidance clarifies that a bank should apply its CIP to the cardholders of certain prepaid cards issued by the bank and other prepaid access devices that meet the criteria in the guidance. The guidance is largely consistent with current industry practice.