Category

FinTech

06 December 2019

Federal Banking Agencies Release Joint Statement on Use of Alternative Data for Credit Underwriting

On December 3, 2019, the five federal banking agencies1 issued a joint statement (the “Joint Statement”) regarding the use of alternative data for credit underwriting. The Agencies highlighted potential benefits that may arise from the use of alternative data, including the ability to make faster and more accurate credit determinations and the potential to provide credit at a lower rate or to individuals or small businesses that would otherwise be unable to access it. While the Agencies issued approving language regarding the use of certain types of alternative data, they also cautioned that the use of alternative data may have consumer protection implications, including fair lending, prohibitions against unfair, deceptive or abuse acts or practices and the Fair Credit Reporting Act.

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16 October 2019

U.S. Financial Regulators Clarify Oversight of AML/CFT Obligations in Connection With Digital Asset Activities

On October 11, 2019, the leaders of the U.S. Commodity Futures Trading Commission (CFTC), the Financial Crimes Enforcement Network (FinCEN) and the U.S. Securities and Exchange Commission (SEC) (together, the Agencies) issued a joint statement highlighting the application of anti-money laundering and countering the financing of terrorism (AML/CFT) obligations under the Bank Secrecy Act (BSA) to persons engaged in activities involving digital assets (Joint Statement). On the same day, the SEC filed an emergency action to halt a digital asset distribution, citing BSA/AML concerns.1

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19 September 2019

In an Eagerly Anticipated Decision, the Ninth Circuit Sides With Web Scrapers

For years, companies seeking to block web scrapers from collecting the information on their website would invoke the Computer Fraud and Abuse Act (CFAA), a U.S. law that criminalizes accessing a computer “without authorization.” But the U.S. Court of Appeals for the Ninth Circuit has now ruled that merely instructing scrapers that they are not welcome on a public website, either through a restrictive terms of use or a cease-and-desist letter, is probably not enough to render their access “unauthorized” under the CFAA. This decision is encouraging news for the many hedge funds, academic researchers and other data aggregators that use software bots to compile information online.

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18 September 2019

New EU Strong Customer Authentication Standards: Implications for Payment Service Providers

Under the revised Payment Services Directive (2015/2366) (PSD2), the European Banking Authority (EBA) and the European Commission were required to develop and adopt regulatory technical standards on strong customer authentication and common and secure open standards of communication. These regulatory technical standards were passed into EU law as Commission Delegated Regulation (EU) 2018/389 (the RTS), which entered into effect on September 14, 2019.

The RTS has direct effect on payment service providers (PSPs), including card issuers and acquirers, in all EU member states. However, certain EU member states, including the UK, have implemented transitional measures for a phased implementation of the rules in the context of card-based payments for e-commerce transactions.

This post discusses the requirements under the RTS for card issuers and acquirers to authenticate payment service users (PSUs), which is referred to as “strong customer authentication” (SCA).

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13 September 2019

Monetary Authority of Singapore Invites Applications for New Digital Bank Licenses

On August 29, 2019, the Monetary Authority of Singapore (MAS) announced that it will begin accepting applications for new digital bank licenses. Interested parties have until December 31 to submit their applications. This follows the MAS’ initial announcement in June to issue up to two digital full bank (DFB) licenses and three digital wholesale bank (DWB) licenses, effectively opening up digital bank licenses to nonbank players.

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12 July 2019

Digital Asset Securities: Joint SEC and FINRA Statement Aimed at Broker-Dealer Custody

On July 8, 2019, the long-awaited statement (Statement) on custody of digital asset securities was released jointly by the staffs (Staffs) of the U.S. Securities and Exchange Commission (SEC) Division of Trading and Markets and the Financial Industry Regulatory Authority (FINRA).1  The Statement is based on industry discussions with the Staffs and highlights the following:

  1. Certain noncustodial broker-dealer models may have a path forward for FINRA approval.
  2. The Staffs have concerns relating to broker-dealer custody of digital asset securities that remain unanswered, but certain good control locations (i.e., banks, issuers and transfer agents) may provide a viable custody solution under the Customer Protection Rule.2
  3. Market participants should consider other broker-dealer requirements, including books and records and financial reporting rules.

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25 June 2019

Upcoming Webinar: Consumer-Permissioned Data Sharing: Risks, Gaps and Solutions

Data aggregators and fintech providers are now offering services that let consumers manage their finances using information from multiple accounts at multiple financial institutions. This kind of consumer data access raises serious questions about the relationship between financial institutions and consumer-designated third parties. This webinar will cover the risks that come with consumer-permissioned information sharing, current gaps and solutions in the existing legal framework to address these risks and issues that can be addressed contractually between various stakeholders.

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29 April 2019

SEC FinHub’s Digital Asset Framework: A Guide for Issuers and Secondary Trading Markets

On April 3, the U.S. Securities and Exchange Commission (SEC)’s Strategic Hub for Innovation and Financial Technology (FinHub or Staff) released its much-anticipated guidance, the Framework for “Investment Contract” Analysis of Digital Assets (Framework), regarding its views on factors to consider in applying the Howey test to digital assets. In conjunction with the Framework, the SEC’s Division of Corporation Finance published its first no-action letter in connection with the sale of digital assets, providing relief to TurnKey Jet, Inc., for its proposed token sale.

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18 February 2019

Blockchain Technology: SEC Commissioner Peirce Presents an Opportunity to Rethink Regulation

On February 8, 2019, U.S. Securities and Exchange (SEC) Commissioner Hester Peirce delivered a speech addressing the relationship between technological innovation and regulation, in particular addressing some of the pending regulatory challenges surrounding blockchain and digital assets.1 The key takeaways from Commissioner Peirce’s speech, titled “Regulation: A View From Inside the Machine,” 2 are these:

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