Fintech 2021

Last Updated March 18, 2021

USA

Law and Practice

Authors



Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates advises financial institutions and their investors and counterparties around the world on their most complex, high-profile matters, providing the guidance they need to compete in today’s business environment. The financial technology industry presents businesses and private equity, venture capital and other investors with extraordinary opportunities as well as challenging legal and regulatory issues. Skadden has helped clients to navigate this complex environment since the industry’s inception. The FinTech practice draws on the firm’s global platform and market-leading corporate finance, financial regulation and enforcement, intellectual property and technology, privacy and cybersecurity, and M&A capabilities, making it uniquely qualified to offer clients exceptional depth of experience and full-service capabilities. Skadden would like to thank financial institutions regulation and enforcement partners Brian Christiansen and Eytan Fisch, and counsel Collin Janus; M&A and financial institutions partner Jon Hlafter; derivatives of counsel Jonathan Marcus; investment management associate Prem Amarnani; financial institutions of counsel Patrick Lewis; financial institutions associates Tim Gaffney and Han Lee; and M&A associate Marcel Rosner for their invaluable contribution to this chapter.

"Fintech" is a broad term that captures a wide range of activities and business models involving the use of technology in the delivery of financial services. Fintech can be used in reference to virtually every subsector of financial services, including the front, middle and back-office functions of banking, non-bank lending, insurance, securities and investment management, derivatives, blockchain, cryptocurrency, compliance and risk management.

COVID-19 Causes Decrease in Venture Investment, but after Several Strong Years

The impact of COVID-19 negatively affected US deal-making activity in 2020, including in the fintech space. The first half of 2020 bore the biggest brunt of the COVID-19 pandemic, which saw a significant decrease in venture investments. But this decline appears dramatic only because of just how robust venture activity had been in the fintech sector over the past few years. Despite a global decrease in investment activity and uncertainty resulting from the impact of the COVID-19 pandemic, total venture investment in fintech in the United States still remained above 2017 levels, even during the worst of the crisis, with USD9.3 billion of total investment in the first half of the year.

Despite significant headwinds arising from COVID-19, the pandemic has not fundamentally changed the factors that have made fintech attractive to many investors and, in fact, has accelerated existing trends towards digitisation and automation. And this was borne out in the second half of 2020, which demonstrated a rebound in activity from the first half of the year. The third quarter witnessed the largest total investment in fintech start-ups in a quarter since mid-2018 and the fourth quarter marked a record high quarterly deal volume, with 435 transactions totalling USD117.4 billion in value, marking a 169% increase in deal volume from Q4 2019, with 216 transactions and USD43.7 billion in deal volume.

Much of this money is being invested in later-stage fintech firms, demonstrating the continued maturation of the US fintech market. However, this activity is not just limited to the unicorns of the fintech world. In a promising sign for a strong fintech pipeline going forward, venture investments in angel or seed rounds in the third quarter of 2020 grew by 20% compared to the second quarter of the year.

Like in 2019, much of this investment activity came from corporate venture investors, reflecting a continuing view among corporations that the fintech space represents an important strategic priority in which to invest their capital.

Pandemic Emphasises Attractions of Fintech

The pandemic is accelerating certain trends that make the fintech space attractive. Since the start of the pandemic, consumer demand for remote/digital banking has accelerated as the utilisation of ATMs, cash and in-person banking has decreased, trends that seem unlikely to reverse. To adapt to the change in consumer preferences, traditional bricks-and-mortar businesses need digital platforms to quickly shift to online retail operations to both retain existing customers and grow their customer base.

Investors are also drawn to fintech firms in part due to the lean operating models and structures: the total cost of operation of a fintech firm may be as much as 70% lower than for a legacy bank with a large branch network. A lower cost profile is attractive for corporates that are always seeking leaner operating models, especially in times of economic uncertainty. Further, innovations in artificial intelligence (AI) and machine learning abound, enhancing fintech firm offerings and adoption. That investments continued to pour into the fntech space during the pandemic is a further testament to the importance corporate investors attribute to growth in the fintech space for the future of finance.

Fintech Funding Rounds Set to Drive M&A Activity

As the US economy emerges from the COVID-19 pandemic, the authors expect to see more funding rounds in 2021 throughout the various stages of a fintech firm’s funding cycle, which has the potential to fuel the M&A market for the foreseeable future.

However, while the authors think the more important long-term narrative is the rebound in fintech investment in the second half of the year, the difficulties faced by fintech firms in the first half of the year present important considerations for companies and investors. Pre-pandemic, there were already concerns that some fintech firms may not increase their already high valuation in their next financing round and could be forced to raise funds at a lower implied equity value than in prior rounds (a "down round"). And the impact of COVID-19 highlighted those concerns, causing investors to increasingly approach investments conservatively.

The economic and governance rights of existing investors proved important as the pandemic disrupted business and operation models because existing investors are seeking to avoid economic dilution and maintain their pre-existing governance rights in a down round. The authors believe this will continue to be important as the industry matures, and as investors have experienced actual down rounds. In last year’s version of this chapter, the authors noted – anecdotally – that they were aware of several fintech companies at risk of down rounds during 2019. This proved true in 2020, as valuations for late-stage venture investments decreased by 7.5% compared to 2019 levels.

Fintech sector M&A started 2020 with a bang and quickly cooled as the COVID-19 pandemic took hold. In the first quarter, 300 transactions were announced with USD80.6 billion in deal volume, compared to 309 transactions with USD13.9 billion in deal volume announced in the second quarter. Fintech M&A bounced back in the third quarter, with 265 transactions announced and USD36.7 billion in deal volume, and soared to a record high in the fourth quarter, with 435 transactions and USD117.4 billion in deal volume, accounting for 47% of the total annual deal volume.

A major tailwind to fintech M&A in 2020 was the rise in prevalence of special purpose acquisition vehicles (SPACs) – a publicly listed shell company formed for the purpose of acquiring an existing business. Acquisition by a SPAC is generally less burdensome than effecting an IPO while achieving public listing. Fintech firms were a favoured target of SPACs in 2020: there were nine acquisitions of fintech firms by SPACs in the first three quarters of 2020, compared with two in all of 2019. The authors expect the SPAC trend to continue in 2021 and, as of the time of writing this chapter, a SPAC business combination with SoFi for USD8.65 billion had been announced.

Increasing Focus on Stablecoins as Industry Matures

Traditional forms of investment in blockchain projects continued to advance in 2020 as the industry showed signs of maturing from the “initial coin offering” (ICO) period of 2017 and 2018. Much of the investments continue to be for funding development projects for the underlying blockchain technology, but an increasing number of projects are focused on stablecoins, in which a cryptocurrency is pegged to a fiat currency or other digital assets to stabilise its value or is stabilised through a computer algorithm. Projects to "tokenise" non-digital tangible assets such as real estate and securities are also attracting increased investment by traditional sources of funding, as are projects in the decentralised finance (DeFi) space. In addition, cryptocurrencies such as bitcoin continue to attract attention. It remains to be seen which, if any, of the hundreds of available cryptocurrencies will survive and become true mediums of exchange.

For further discussion of the blockchain and digital asset regulatory environment, see 12 Blockchain.

Fintech includes a wide range of activities across the traditional subsectors of financial services, including banking, non-bank lending, insurance, securities and investment management, derivatives, blockchain, cryptocurrency, compliance and risk management. The business models employed by fintech companies also vary widely.

For example, in the consumer credit space, many non-bank fintech companies will follow one of two basic business models: obtaining various state-based licences in order to act as principal or acting as a service provider to an unaffiliated bank. Each of these basic business models has advantages and disadvantages, and there are many variations of them. In addition, fintech companies are increasingly pursuing the formation or acquisition of bank charters. Banks are generally exempt from state-based licensing requirements, and they are able to accept Federal Deposit Insurance Corporation (FDIC)-insured deposits, which is an attractive form of funding. However, banks, their parent companies and their affiliates are subject to a comprehensive additional layer of regulation and supervision.

Like the fintech sector itself, the US legal and regulatory regime governing financial services and fintech is complex and not unified. Numerous governmental and regulatory bodies often have varying, overlapping and sometimes ambiguous jurisdiction over different types of entities and activities.

In many cases, fintech companies are subject to legal and regulatory requirements arising under both federal law and the differing laws of the 50 individual states. These requirements are rapidly evolving, as legislatures, regulators and law enforcement agencies adapt the legacy regulatory framework to address innovative and non-traditional products, services and delivery channels. The need to identify, monitor and comply with this disparate and evolving US regulatory framework can be challenging for many fintech companies.

Compensation models vary significantly across fintech, depending on the life-cycle stage of the fintech company, the nature of its activities, and any regulatory requirements or guidance. The regulatory requirements or guidance vary significantly based on the subsector and nature of service being provided. For example, federal securities laws and state insurance laws have important provisions related to the receipt or sharing of commissions. Banking regulators also have guidance related to sound incentive compensation practices.

As a legal matter, the US financial regulatory framework is generally driven by the nature of a company's activities – and not whether the company is styled as a fintech company or a more traditional legacy player. This aspect of the US financial regulatory framework has been a challenge for many fintech companies, the activities of which may not fit neatly into one of the traditional "silos" of US financial regulation (eg, banking, securities, insurance). The culture of rapid innovation, trial-and-error approach and risk appetite that often exist within fintech companies can also be in tension with the more conservative approach taken by financial regulators, who generally expect formal written policies and procedures, testing, and robust compliance and internal control infrastructure to be in place before an initiative is launched.

A number of US regulatory agencies have formed offices or announced initiatives related to fintech.

For example, the Consumer Financial Protection Bureau has adopted several processes by which fintech and other companies can seek no-action relief, compliance assistance, or a sandbox safe harbour for contemplated consumer-oriented financial services. The Securities and Exchange Commission (SEC) has formed a Strategic Hub for Innovation and Financial Technology to encourage responsible innovation in the financial sector, including in evolving areas such as distributed ledger technology and digital assets, automated investment advice, digital marketplace financing, and AI and machine learning. The Office of the Comptroller of the Currency has also formed an Office of Innovation. And California reorganised and renamed its principal financial regulatory agency to become the California Department of Consumer Protection and Innovation with an Office of Financial Technology Innovation.

The substance, maturation and industry utilisation of these various governmental initiatives have varied widely.

For any particular fintech company, the relevant US regulatory agencies will depend on the legal characteristics of the company and the nature of its activities. For example, banking organisations are subject to federal regulation by one or more of the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, or the Federal Deposit Insurance Corporation. The issuance and sale of securities, broker-dealers and investment advisers are subject to federal regulation by the SEC and self-regulatory organisations, such as the Financial Industry Regulatory Authority (FINRA). Commodities and certain derivatives activities are subject to federal regulation by the Commodity Futures Trading Commission (CFTC).

Other federal agencies are charged with the enforcement of federal laws related to certain subject areas, such as the Consumer Financial Protection Bureau (consumer protection), the Financial Crimes Enforcement Network (anti-money laundering), the Office of Foreign Assets Control (economic sanctions) and the Committee on Foreign Investment in the United States (foreign investments that may affect national security).

State laws are also highly relevant to fintech companies. These laws vary significantly from state to state. And the policy objectives and priorities of state governments also vary significantly from state to state. Some state financial regulators, such as the New York State Department of Financial Services and the California Department of Financial Protection and Innovation, have been very active in their licensing, supervision and enforcement activities.

Outsourcing of activities and functions by regulated financial institutions is very common in the United States. Indeed, the business model and legal structure for many fintech companies is predicated on the fintech company acting as a third-party service provider to a regulated financial institution, such as a bank.

The outsourcing model has regulatory implications for both the regulated financial institution and its fintech service provider. For example, services or activities performed by a non-bank company for a US bank are generally subject to examination and enforcement by the federal banking regulators to the same extent as if those outsourced services or activities were performed by the bank itself. Federal banking regulators have also promulgated extensive guidance to banking organisations related to third-party and vendor risk management.

No information is available in this jurisdiction.

Financial services companies, including fintech companies, are regularly the target of enforcement action by the US regulatory agencies and law enforcement. These actions can include substantial monetary penalties, requirements to reimburse customers or counterparties, requirements to take remedial action and change business practices, and loss of licence. Particular areas of current enforcement focus include consumer protection, privacy, anti-money laundering and economic sanctions, cryptocurrency and cybersecurity.

The US financial services laws and regulations are regularly changing. In addition, leadership changes at a key agency can also have a significant effect on that agency's supervisory and enforcement priorities. For example, it is expected that the Consumer Financial Protection Bureau under the Biden administration will be far more aggressive in its consumer protection rule-making and enforcement activity.

Fintech companies may be subject to review not only by applicable regulators, but also by the regulated financial institutions that they serve, major shareholders and auditors. If a fintech company seeks to raise capital or conduct merger or acquisition activity, it may also be subject to due diligence by its prospective investors, potential acquirers, underwriters or financial advisers. This type of diligence often includes a review of the fintech company's regulatory posture and compliance programme.

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Robo-advisers use algorithms based on a variety of inputs – such as the investor’s age, investable assets, investment horizon, risk tolerance and other factors – combined with modern portfolio theory-based investment strategies to provide wealth and investment management services without the human element of, and typically at a lower cost than, a traditional financial adviser.

Traditional financial advisers and robo-advisers provide similar types of services, and therefore both (to the extent that they provide advisory services in the USA) are typically registered as investment advisers with the SEC or one or more state securities authorities. Both must also comply with the securities laws applicable to SEC or state-registered investment advisers. The staff of the SEC’s Office of Compliance Inspections and Examinations (OCIE) has provided guidance that, as a statutory fiduciary, when an investment adviser has the responsibility to select broker-dealers and execute client trades, each has an obligation to seek to execute securities transactions for clients in such a manner that the client’s total costs or proceeds in each transaction are the most favourable, taking into account the circumstances of the particular transaction.

As a general matter, many robo-advisers tend to focus on exchange-traded fund (ETF) investments, which reflects the increasing preference among the next generation of investors for low-cost, passive, diversified investments. The clients of robo-advisers tend to be younger, cost-conscious, hands-off investors who may initially have less capital available to invest. Because of the increased online presence of this next generation of investors, robo-adviser business models focus more on addressing the needs of their clients primarily through a greater online and social media presence. Many legacy players themselves have built their own robo-advisers, so they are able to offer a comprehensive set of products and services that appeal to a wide variety of investors.

Given the increasing role of electronic advice among providers of wealth and investment management services, OCIE has indicated in its examination priorities for 2021 that one of its areas of focus will continue to be on robo-advisers, in particular with respect to SEC registration eligibility, cybersecurity policies and procedures, marketing practices, and adherence to fiduciary duty, including adequacy of disclosures and effectiveness of compliance programmes.

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No information is available in this jurisdiction.

Many online lenders are organised as non-bank entities. Lending activities by non-banks are governed not only by federal laws, but also significantly by state laws. Non-bank lenders must be mindful of the jurisdictions where their borrowers and applicants are located, as this factor significantly affects the legal and regulatory requirements applicable to the lender.

It is understandably difficult for regulators to keep pace with the rapid changes in online lending technologies. As such, the manner in which regulatory regimes are applied to online, mobile and other innovative delivery channels is evolving and often uncertain. Some states and federal authorities have amended their laws or regulations in this area, but those changes have often been incremental. The principal objective of these changes is the protection of borrowers and other customers. Although some laws apply only to consumer-purpose or residential mortgage lending, some key provisions generally apply to all types of lending, albeit sometimes with different specific parameters. For example, most types of non-bank lending are subject to maximum interest rates established under state law (usury rates), fair lending laws, data security requirements and the federal prohibition on engaging in unfair or deceptive acts or practices (UDAP).

State laws include non-bank licensing requirements that vary significantly from state to state. Even within a single state, the licensing requirements tend to vary based on the type of lending and the type of activity (eg, lending, servicing, brokering, collections). In many states, licensing of non-banks is required only for consumer or real estate-oriented lending activities. However, there are a smaller number of states (including California) that require licensing even for business-oriented, non-real estate lending.

Licensed non-bank lenders are generally subject to supervision, examination and enforcement jurisdiction of the state regulator where they conduct business, which is typically the state banking authority. The regulatory regime for such non-bank lenders differs from that applicable to banks. For example, licensed non-bank lenders are generally not subject to bank-like regulations regarding capital and liquidity, service to the community under the Community Reinvestment Act and deposit insurance assessments.

Many online lenders in the USA that are organised as non-bank entities have partnered with an unaffiliated bank. This bank partnership model seeks to take advantage of certain regulatory advantages (eg, federal pre-emption of state-by-state licensing and usury limits) and operational features (eg, access to traditional card and payment systems) available to banks. The specifics of each bank partnership vary and must navigate risks related to a complicated and fact-sensitive interplay of federal and state laws (eg, "true lender" risk).

In recent years, online lenders and other industry participants have begun to employ a growing variety of underwriting models. Lenders are implementing advanced algorithms and AI in their underwriting processes to evaluate the credit of consumers, small businesses and other borrowers. These processes rely on a variety of data, such as FICO credit scores, bank transaction data, model-based income, social media, rent history, employment history, phone-number stability, browsing history and behavioural data. Federal and state laws have been slow to keep pace with technological developments used in the underwriting credit models.

Lenders (particularly when lending to consumers) should be mindful that the application of many federal and state laws to new and innovative types of underwriting inputs is evolving and uncertain. For example, the use of non-traditional data sources or automated processes could result in an unforeseen or unintentional "disparate impact" on a protected class of borrowers or applicants and create a potential risk under fair lending laws or a risk of UDAP.

Lenders rely on a variety of funding sources for loans, including deposits, peer-to-peer, lender-raised capital and securitisations.

Non-bank entities are not permitted to accept deposits. Therefore, banks are unique in their ability to accept deposits as a source of funding. Because they are generally insured by the FDIC, deposits are generally viewed as a stable and low-cost source of funding. Banks are subject to extensive supervision, regulation and enforcement from the applicable federal and state banking regulators. Nonetheless, non-bank lenders have been exploring bank charters, such as the Office of the Comptroller of Currency’s FinTech Charter and industrial bank charters, which may provide benefits to their specific business models that outweigh the costs associated with being a regulated bank.

As compared to banks, non-bank lenders generally have more limited balance sheet capacity and may rely more on funding from sources such as equity raises, long-term debt, secured borrowing, securitisations and peer-to-peer funding. Marketplace lenders have historically employed a peer-to-peer funding model, where specific loans are funded mostly by individual investors. Securitisation is also a significant source of funding for non-bank lenders. Securitisation requires an assessment of applicable federal and state securities law, and generally requires extensive disclosure to prospective and existing investors.

Marketplace lenders generally serve as an intermediary for individuals, institutional investors and others to providing funds for a loan. The processes vary and continually evolve but generally are facilitated by an online platform that connects the potential borrower with investors. These platforms allow the loan funding process – from customer acquisition to underwriting and origination, and through servicing – to be entirely digitised. Borrowers may have reduced borrowing costs, more seamless customer experiences and shorter lead times to closing as a result of electronic delivery channels.

As noted above, lending is regulated by a number of federal and state regulators in the USA and the nature of regulation varies across the bodies, and depends on the type of lender. This regulatory environment was generally developed in the context of traditional lending through physical delivery channels and has not necessarily kept pace with electronic or other innovative delivery channels.

Payment processors are not required to rely upon existing payment rails, and as consumers and corporations demand faster or “real-time” payments, payment service providers may consider addressing these demands either by building upon the existing model or starting anew. The Clearing House, for example, announced a partnership to enable The Clearing House to provision and manage Mastercard-branded tokens on behalf of banks. Alternatively, some in the fintech space have chosen to build their own payment systems, such as ATCE Holdings's EtudePay Payments System, which is a real-time payments rail delivered on its own settlement platform for processing transactions.

In any case, banks remain key players in the broader payments industry. Therefore, the ability to convince banks to adopt new payment systems is an important consideration when building upon existing models or starting anew. As the industry evolves, both existing and new payment rails are being employed in novel ways to support traditional payment flows, while facilitating up-and-coming payments technology.

A payment processor based in the USA generally will be under the oversight of multiple regulators, including regulators at both the federal and state level. The scope of such oversight depends on the services that the payment processor is providing, as well as the relationships it has with other financial institutions.

Compliance with requirements established by the Office of Foreign Assets Control and the Financial Crimes Enforcement Network (FinCEN) are important considerations regarding cross-border payments. Cross-border payments and remittances also must comport with various industry operating standards. For example, the payment card industry issues requirements applicable to merchants who process, store or transmit credit card information in an effort to ensure a secure transaction environment is maintained. A payment processor may also need to comply with the rules or standards applicable to the various credit card networks, such as the interchange fees that credit card networks may charge merchants. In short, there are numerous rules and standards that a payment processor must be aware of to operate in the USA.

No information is available in this jurisdiction.

No information is available in this jurisdiction.

In the USA, blockchain-based assets, such as digital tokens and cryptocurrencies, are currently characterised as "securities" or, broadly speaking, "something other than securities". Blockchain-based assets that are securities (ie, security tokens) are, to the extent traded on an exchange, required to be traded on an SEC-registered national securities exchange or an alternative trading system (ATS). Conversely, blockchain-based assets such as bitcoin and other "pure" cryptocurrencies that are not currently characterised as securities are not subject to such a requirement. Therefore, trading platforms are subject to regulation based upon the type of asset that trades on such platform.

Based on recent estimations, there are hundreds of cryptocurrency exchanges and trading platforms around the world (collectively referred to herein as "trading platforms") and new ones seem to launch regularly. The explosion in number of these trading platforms has recently drawn significant attention from US regulators. Although standards vary, as a general matter, many trading platforms will not list any token that could potentially be viewed as a security, but will instead opt to list "utility tokens" or "pure" cryptocurrencies. This allows trading platforms to avoid the regulatory requirements associated with securities.

Trading platforms that advertise themselves to be so-called peer-to-peer trading platforms may fall within the definition of an "exchange" under the federal securities laws (which is broadly defined) and consequently such trading platforms may be subject to a variety of penalties, including monetary fines and orders to cease operations. The rules under the Securities Exchange Act of 1934 (the "Exchange Act") provide for a functional test to determine whether a trading platform is, in fact, operating as an exchange.

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See 7.1 Permissible Trading Platforms for information on cryptocurrency exchanges.

The SEC does not set listing standards; rather, the various trading platforms set their own standards for listing and continuing to trade securities. Trading platforms that are willing to list securities tokens will often require that the token be linked to a high-quality, differentiated and value-adding product or service; have high-quality code that is as much as possible not susceptible to hacking; and have detailed information regarding technical specifications and legal rights and restrictions.

Given the rapid growth of the blockchain-based assets market and the risks it poses to retail investors who may not understand the difference between these relatively new assets and more traditional assets, OCIE has reiterated in its examination priorities for 2021 that it will continue to identify and examine SEC-registered market participants engaged in this space.

Market integrity, which is often viewed as a fundamental aspect of traditional financial markets, continues to be an area of concern in crypto markets. Given the increasing number of trading platforms worldwide, unlike in traditional financial markets, there is not yet a consistent approach to identity verification of investors (ie, KYC and AML procedures), professional standards, surveillance systems or infrastructure to ensure fairness. In an effort to address some of these issues, at the beginning of 2020, an association of industry participants known as the Blockchain Association launched a “Market Integrity Working Group”, which is tasked with the responsibility of ensuring fairness, equity and accountability of cryptocurrency markets.

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See 7.1 Permissible Trading Platforms for information on peer-to-peer trading platforms.

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No information is available in this jurisdiction.

No information is available in this jurisdiction.

High-frequency and algorithmic trading strategies (HFT strategies) are increasingly being utilised by proprietary trading shops and hedge funds (trading firms) as an enhancement to implementation of traditional trading strategies. At a high level, HFT strategies involve the application of software-based algorithms to trade in and out of high-volume positions of equities and other financial products at speeds faster than achievable by their human counterparts. HFT strategies vary significantly and can be used for exchange-based and OTC (or off-exchange) trades, as well as trades in currently unregulated markets such as the cryptocurrency markets.

Depending on the role and activities of the particular trading firm utilising HFT strategies, different regulatory regimes may apply to such firm. Hedge funds using HFT strategies are generally treated the same as hedge funds using other strategies and therefore may be regulated as investment advisers and required to register with the SEC or one or more state securities authorities. Such hedge funds must comply with securities laws applicable to SEC or state-registered investment advisers.

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Some trading firms employing HFT strategies operate as market makers or dealers, in which case such a firm would be required to register with the SEC as a broker-dealer. Certain broker-dealers rely on Rule 15b9-1 of the Exchange Act, which exempts them from the statutory requirement to become a member of FINRA. As a result of the exemption, FINRA has no jurisdiction over these broker-dealers and is therefore unable to enforce compliance with federal securities laws and rules.

The SEC has proposed amending this exemption, as it prevents FINRA from being able to monitor use of HFT strategies and manipulative behaviour, but as of the end of 2020, the proposed amendment has not been adopted. Despite such trading firms being members of their respective exchanges, the exchanges are not able to regulate OTC activity as typically they only have access to the trade data for trades conducted on their own exchanges.

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No information is available in this jurisdiction.

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No information is available in this jurisdiction.

The term "insurtech" covers a wide variety of technological innovations that aim to harness the power of technology to reinvigorate an age-old industry. Disruptors such as Oscar, Root and Lemonade seek to displace the traditional provider-customer relationship for a newer, app-based dynamic. Mature market players, in turn, have embraced innovations to fill a wide range of niches, ranging from policy pricing to fraud detection. Although the fractured regulatory environment insurance companies are subject to may stymie any one-size-fits-all solution, the inexorable march of progress nonetheless continues.

Underwriting processes often vary by product and industry participants. Innovative participants have begun relying on technologies such as big data, AI, wearables and telematics to improve underwriting and provide more accurate conclusions. That said, regulations in a particular jurisdiction may require that rates be filed with, and approved by, the appropriate insurance regulator. Such regulator may also prohibit specific factors from being considered, or may even prescribe the precise factors that must be considered, sometimes at odds with overall technical trends.

As the regulation of insurance in the USA is largely state-based, the regulations may vary significantly. For example, while some states expressly permit credit scores to be considered when rate-setting for property and casualty policies, numerous other states apply strong limitations. Some states expressly permit genetic data to be used in the life and disability space. Others expressly prohibit it. Other regulations, including those related to data privacy and anti-discrimination laws, may also impact the underwriting process. As a result, the process is often a bespoke one by necessity, taking consideration of the variances between jurisdictions. The National Association of Insurance Commissioners, consisting of representatives from each US state, has set up a number of workgroups and task forces to consider regulatory changes in response to technological developments in the industry.

Industry participants and regulators treat different types of insurance in significantly different ways. For example, they require different licences and different regulations governing the production of such business. This necessarily imposes impediments to any unified national solution. Instead, market participants often need to tailor their products and services to meet not one but 50 different approaches to insurance regulation.

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No information is available in this jurisdiction.

Blockchain technology, which uses a distributed ledger system and a consensus protocol to verify transactions, has the potential to transform any industry that today relies on a single trusted third party. Nowhere is this more true than across the financial services sector. Over the past several years, numerous firms in the financial services sector have been building out proof of concept platforms that rely on blockchain technology, with some projects already active. This trend is likely to continue and expand.

In most cases, financial services firms are using so-called private, permissioned blockchains when transacting amongst themselves because these ecosystems limit who can join and employing the power of public permissionless blockchains when exploring consumer-facing projects. Potential applications include global payments, clearing and settling, syndicated loans, trade finance, convertible bonds and proxy voting. A number of financial institutions have also filed, and in some cases been granted, US patents on different blockchain applications.

In the USA, regulators are coping with how existing regulations, drafted to apply to centralised ecosystems, apply to decentralised systems where the actors may not be readily identifiable. The concept of blockchain regulation is, of course, anathema to many proponents of the technology who believe that its transparency and decentralisation mean that there is no need for traditional regulation. Set forth below are some key developments in the US regulatory landscape, with the caveat that this is a quickly evolving field.

Federal Legislation

As of the end of 2020, no fewer than 40 bills addressing blockchain technology have been introduced in the US Congress. Several bills, in particular, stand out. The Securities Clarity Act seeks to clarify that an asset (including a digital asset) does not become a security as a result of being sold or transferred pursuant to an investment contract, a noteworthy step towards mitigating the uncertainty around application of the so-called Howey Test (discussed below) to digital tokens. The Digital Commodity Exchange Act proposes to create a single, opt-in federal regulatory scheme for digital asset trading platforms under the exclusive jurisdiction of the CFTC based on the regulatory model for traditional commodity exchanges. Finally, the Stablecoin Tethering and Bank Licensing Enforcement (STABLE) Act seeks to subject prospective issuers of stablecoins to a host of new regulatory obligations.

On 1 January 2021, the US Congress passed, over the President’s veto, the Anti-Money Laundering Act of 2020, which expressly expresses the “sense of Congress” that virtual currencies can be used for criminal activity; includes the term “value that substitutes for currency” in key provisions of the Bank Secrecy Act (BSA), thereby codifying FinCEN’s existing position that certain virtual currency businesses are subject to the act; and directs the Government Accountability Office to study the role of emerging technologies and payment systems, including virtual currencies, in human trafficking, drug trafficking and money laundering. The focus on virtual currencies in the Anti-Money Laundering Act may signal the US Congress's interest in staying active in this arena in addition to steps taken by regulators. The Anti-Money Laundering Act also strengthens the US government’s anti-money laundering capabilities more generally and creates a Bank Secrecy Act whistle-blower programme, both of which may lead to increased cryptocurrency-related enforcement.

In late 2020, FinCEN proposed two new rules that, if implemented, will directly affect virtual currency businesses. In October 2020, FinCEN and the Federal Reserve announced a notice of proposed rule-making to amend the Recordkeeping Rule and Travel Rule regulations under the BSA. The proposed amendments would reduce the applicable threshold for international funds transfers from USD3,000 to USD250 and, consistent with FinCEN’s existing guidance, formally extend these rules to cover convertible virtual currencies (CVC) and digital assets with legal tender status (LTDA).

In December 2020, FinCEN issued a proposed rule that would impose new reporting, record-keeping and verification requirements on banks and money services businesses with respect to certain virtual currency transactions. The proposed rule would require banks and money services businesses to file a report with FinCEN for transactions exceeding USD10,000 in value that involve CVC or LTDA held in a wallet not hosted by a financial institution (a so-called unhosted wallet) or a wallet hosted by a financial institution in specific jurisdictions identified by FinCEN. The proposed rule, if implemented, would also require banks and money services businesses to keep records of a customer's CVC or LTDA transactions and counterparties, including verifying the identity of their customer, if their customer’s counterparty uses an unhosted or otherwise covered wallet and the transaction is greater than USD3,000.

State Legislation

Although federal laws are still in their relative infancy, more than 30 states have enacted cryptocurrency or blockchain-related legislation as part of efforts to become hubs for blockchain innovation. Some states – including Arizona, North Dakota, Oklahoma and Washington – have amended laws so that records or contracts secured through blockchain technology are deemed enforceable electronic records. In January 2020, the Illinois Blockchain Technology Act went into effect, which affirms the contractual enforceability of smart contracts and other records for which blockchain technology was used.

Application of Howey Test to Cryptocurrency

In 2019, the SEC released guidance regarding how to determine whether cryptocurrencies constitute securities. The SEC relies on the Howey Test as the current regulatory framework, first articulated in SEC v WJ Howey Co, 328 US 293 (1946). Under the Howey Test, courts analyse whether the instrument or offering in question satisfies all three of the following prongs:

  • “an investment of money”;
  • “in a common enterprise”; and
  • “with profits to come solely from the efforts of others”.

The SEC first applied the Howey Test to cryptocurrency on 25 July 2018 in its so-called DAO Report, in which the SEC concluded that a particular cryptocurrency called DAO Tokens was a security subject to regulation. Since then, there have been a number of SEC orders and court decisions applying Howey to analyse other digital asset offerings: Unikrn, Release No 10841; Salt Blockchain, Release No 10865; Paragon Coin, Inc, Securities Act Release No 10574 (16 November 2018); CarrierEQ, Inc, D/B/A AirFox, Securities Act Release No 10575; and SEC v Blockvest, LLC et al, No 18-CV-2287-GPC (11 October 2018). In some of these cases, cryptocurrency developers have been required by the SEC to register under the Exchange Act, pay fines and offer rescission to investors. SEC enforcement action in this space picked up considerably in 2019 and 2020, with a number of settlements announced.

SEC Enforcement Actions

The SEC has continued its trend of pursuing high-profile enforcement actions against prominent digital asset developers for alleged unregistered offers and sales of securities. See, eg, SEC v Kik, 19-cv-5244(AKH)(S.D.N.Y.); SEC v Telegram, 19-cv-9349(PKC)(S.D.N.Y.); and SEC v Ripple, 20-cv-10832(AT)(S.D.N.Y.). In the Telegram matter, the SEC obtained a preliminary injunction enjoining the defendant from distributing its cryptocurrency token, called Grams, to purchasers. The action was subsequently settled. In the Kik matter, the SEC secured summary judgment on the ground that Kik’s offering of digital tokens, called Kin, violated the federal securities laws. Most recently, in December 2020, the SEC instituted an action against Ripple Labs and two of its executives, alleging violations of Sections 5(a) and 5(c) of the Securities Act of 1933 and claims for aiding and abetting such violations. The complaint alleges that the defendants offered and sold a digital asset, called XRP, without a valid registration statement.

Finally, in October 2020, the SEC filed an action against computer programmer and entrepreneur John David McAfee for allegedly leveraging his fame to make more than USD23.1 million in undisclosed compensation by recommending at least seven ICOs to his thousands of Twitter followers. The SEC accused Mr McAfee of violating Sections 17(a) and 17(b) of the Securities Act of 1933 and Section 10(b) of the Securities Exchange Act of 1934. The complaint also named Mr McAfee’s bodyguard, Jimmy Gale Watson, Jr, who allegedly negotiated the deals with the ICO issuers, helped Mr McAfee monetise the proceeds of his promotions and directed his then wife to tweet fake interest in an ICO that Mr McAfee was promoting at the behest of the offeror.

The SEC has also focused on trading platforms, seeking to have them register as exchanges and imposing fines (Zachary Coburn, Securities Act Release No 84553 (8 November 2018)).

Beyond enforcement, the SEC has also encouraged developers to engage in voluntary discussions with staff regarding their projects and compliance issues. To that end, the SEC established FinHub in October 2018, which is specifically designed to provide guidance to developers in this space. In December 2020, the SEC announced that FinHub would become a standalone office, with its new director reporting directly to the SEC chairperson.

CFTC Interpretations and Enforcement

For its part, the CFTC has taken the position that cryptocurrencies that are not securities are commodities. This position has been supported by multiple federal court decisions. For example, in CFTC v McDonnell, 287 F Supp. 3d 213 (EDNY 2018), a federal district court in New York held that the CFTC can regulate cryptocurrencies as a commodity because they are “‘goods exchanged in a market for a uniform quality and value” and they also “fall well within the common definition of ‘commodity’ as well as the [Commodity Exchange Act’s] definition of ‘commodities.’” Similarly, in CFTC v My Big Coin Pay, 334 F Supp 3d 492 (D Mass. 2018), a federal district court in Massachusetts held that cryptocurrencies are subject to CFTC regulation as a commodity class because futures trading exists on bitcoin, a subset of that class.

If a blockchain asset such as a cryptocurrency is a commodity, the CFTC has enforcement authority to police fraud and manipulation in spot markets for the asset. If there are derivatives contracts on blockchain assets (ie, futures, swaps and options), the CFTC will have full regulatory authority over those contracts. For example, futures contracts on bitcoin currently offered on some futures exchanges are subject to the full regime of futures regulation under the Commodity Exchange Act.

Thus far, the CFTC has focused its enforcement authority on protecting retail customers engaged in unregulated spot transactions in cryptocurrencies. However, the CFTC will face more complex questions with respect to the scope of its authority over blockchain as innovators begin exploring the use of smart contracts to facilitate decentralised trading in derivatives. To prepare for these types of questions, the CFTC upgraded its financial technology research wing in October 2019. Known as LabCFTC, the wing is dedicated to promoting the development of new financial technologies in order to ensure that innovators can easily access and understand the CFTC’s regulatory framework and the agency’s approach to oversight.

In 2019, the CFTC moved ahead with approving and allowing more digital asset/virtual currency products. For example, the CFTC approved the applications of two entities to register as a designated contract market and a derivatives clearing organisation, respectively, to offer or clear virtual currency derivatives products.

The CFTC approved LedgerX’s DCM application in June 2019 to offer bitcoin spot and physically settled derivatives contracts, including options and futures, to retail clients of any size. LedgerX had previously been registered as a derivatives clearing organization (DCO) in July 2017 to clear fully collateralised digital currency swaps. The CFTC also approved Eris Clearing’s DCO application in July 2019 to clear fully collateralised virtual currency futures.

In October 2019, CFTC Chairman Tarbert publicly stated that ether, like bitcoin, is a commodity that falls under the CFTC’s jurisdiction. Previously, in December 2018, the CFTC had sought public comments on the Ethereum network and the cryptocurrency ether to better inform the commission’s understanding.

On 21 October 2020, the CFTC Division of Swap Dealer and Intermediary Oversight (DSIO) published an advisory (the "Advisory") for futures commission merchants (FCMs) regarding the segregation of virtual currency in customer accounts. The Advisory was published in response to requests from market participants for DSIO to explain how the customer protection provisions of the CEA and the CFTC regulations apply to virtual currencies deposited by futures customers or cleared swaps customers with FCMs to margin futures, options on futures and cleared swaps.

On 24 March 2020, the CFTC adopted an interpretation of the term “actual delivery” with respect to retail virtual currency transactions (the "2020 Guidance"). Under the 2020 Guidance, transactions in cryptocurrencies with retail customers conducted with margin, leverage or other financing must be traded on a CFTC-licensed futures exchange, unless the cryptocurrency is free of any liens, other interests or legal rights of the offeror or seller, and the purchaser has full control of the virtual currency within 28 days of the transaction. Trading platforms, custodians and other market participants considering entering into cryptocurrency transactions on margin or with financing should ensure they are familiar with the 2020 Guidance to avoid running afoul of the Commodity Exchange Act.

To the extent blockchain assets held by a fund are considered securities, the Investment Advisers Act of 1940, as amended, applies and to the extent such assets are considered commodities, the Commodity Exchange Act applies. The investment advisers of such funds that invest in blockchain assets that are considered securities are typically registered with the SEC or one or more state securities authorities and must comply with the securities laws applicable to SEC or state-registered investment advisers. In this firm's experience, such funds are exclusively structured as "Section 3(c)(1)" or "Section 3(c)(7)" private funds. A trading platform on which blockchain assets that are securities are traded is required to be an SEC-registered national securities exchange or an ATS.

DOJ Enforcement

The US Department of Justice has also signalled increased scrutiny of cryptocurrency. On 8 October 2020, the DOJ issued its Cryptocurrency Enforcement Framework, the first comprehensive statement of its approach to investigating and prosecuting cryptocurrency-related crimes. The framework evinces concern about “business models and activities” in the cryptocurrency space that “may facilitate criminal activity”, particularly peer-to-peer exchanges and anonymity-enhanced cryptocurrencies. Notable DOJ enforcement activity in this area in 2020 included DOJ and CFTC actions against BitMEX, a cryptocurrency exchange and derivatives trading platform, for Bank Secrecy Act and CFTC registration violations; and a DOJ criminal prosecution and parallel FinCEN civil enforcement action against Larry Dean Harmon, the founder and operator of two alleged convertible virtual currency “mixers” or “tumblers”. “Mixing” and “tumbling” are techniques that combine potentially identifiable digital coins with other coins to make it difficult to trace the source, owner or recipient of the first set of coins.

See 12.2 Local Regulators' Approach to Blockchain for information on classification of blockchain assets.

See 12.2 Local Regulators' Approach to Blockchain for information on issuers of blockchain assets.

See 12.2 Local Regulators' Approach to Blockchain for information on blockchain asset trading platforms.

No information is available in this jurisdiction.

See 12.2 Local Regulators' Approach to Blockchain for information on virtual currencies.

Blockchain technology has the potential to revolutionise how personal information is stored and processed. However, the benefits of blockchain technology will need to be reconciled with California’s new privacy law, the California Consumer Privacy Act (CCPA), that went into effect in January 2020. Further guidance might be required on whether one can exercise a right of deletion on a blockchain-based system. US companies building out blockchain applications in the fintech space will need to take privacy laws such as the CCPA into account and monitor this area of the law closely.

Open banking, an emerging space within fintech, can be thought of as a system whereby financial institutions’ data can be shared with third parties, such as data aggregators and app providers, through application programming interfaces. Open banking may be a gateway to providing more services to customers and is generally considered a more secure method for sharing financial account and transaction data than so-called screen scraping, but it also introduces its own concerns.

Relative to Europe and certain Asian countries, the USA lags behind in its development of laws and regulations around open banking. Some have viewed the fragmented nature of financial regulation in the USA as an impediment to the development of a comprehensive regulatory scheme. Some argue that the lack of an industry standard or regulatory framework in the USA for open banking is an obstacle to the development of its full potential.

As with many emerging areas, there is a debate as to whether the private sector or the public sector should lead the pathway forward. While the US Treasury and others have advocated for a private sector-led solution to open banking, others have raised concern that a solution determined by financial services companies – rather than consumers – may adversely impact the types of services that fintech data aggregators and consumer application providers may be able to develop.

When entering into open banking relationships with financial institutions, data aggregators, app developers and others, it will be important to consider a multitude of data-related issues, including consumer protections, protections for data privacy and security, data ownership, allocation of liability in the event of breach and responsibilities for responding to any breach.

Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates

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Trends and Developments


Authors



Bradley Arant Boult Cummings LLP is a full-service law firm with a reputation for skilled legal work, exceptional client service and results-oriented strategic advice. With more than 500 attorneys, the firm serves as a vital partner to domestic and foreign clients ranging from market leaders to emerging companies across a variety of industries. The cross-disciplinary fintech team assists clients in achieving their business objectives in a heavily regulated environment. It understands the nuances of applicable laws and regulations that affect clients’ businesses. It helps maximise client growth through mergers, acquisitions and other transactions, and assists clients in launching new products and services. The firm advises on federal and state lending and payments laws, including money transmitter licensing, anti-money laundering and sanctions compliance, cybersecurity, data protection, consumer protection requirements and risk management. The team includes former bank regulators, in-house counsel, information technology executives and prosecutors, recognised experts in emerging and alternative payments systems, and certified anti-money laundering specialists.

Crisis has set the stage for fintech companies in 2021, creating both new opportunities and potentially unprecedented challenges to innovation. While the coronavirus pandemic continues to accelerate the digital transformation of financial services and drive the adoption of new technologies and business models, political turmoil in the United States has heightened racial tensions and sharpened the focus on threats of domestic terrorism complicating daily operations. Astounding data breaches have underscored the fragility of existing infrastructures both in the public and private sectors. At the same time, regulators encourage the deployment of new technologies that offer glimpses of potential solutions.

Our day-to-day lives have been fundamentally altered in many ways, and fintech companies have not been spared. The legal and regulatory environment in which they are trying to innovate continues to evolve, and despite efforts to streamline regulation, the complexities of compliance seem to be compounding. Although no company can ever be fully prepared for every crisis or poised for every opportunity, now is an appropriate time to evaluate whether fintech companies operating in the United States are ready for 2021 and beyond.

Is Fintech Ready for the New Face of Washington, DC?

The start of any new presidency in the United States always generates many questions about the direction of policy and how it will impact different industries. Many aspects of financial services innovation have been relatively unencumbered by significant new regulations in the past four years. But that may be about to change. The polarisation and paralysis of policy-making that dominated United States politics in recent years frustrated many agendas, especially those focused on consumer-related issues. Precariously postured questions related to emerging technologies and the need for quick legislative action to address the COVID-19 pandemic sets the stage for potentially significant new laws that could impact fintech companies.

The election of President Joseph R. Biden, Jr. and the addition of several new senators allow the Democratic Party to start 2021 with control over two of the three branches of the federal government. Although operating with a razor-thin majority, the Democratic-controlled administration can now take substantial steps to shape the legal and regulatory landscape in which fintech companies operate over the next four years. However, while the chances of the party advancing its legislative agenda are better now than they have been in several years, the co-operation of at least some Republicans in Congress (or the occurrence of a major financial crisis) will still be needed to pass major legislative reform like the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010.

On the legislative front, the top two priorities of President Biden and the Democratic Congressional leadership are reining in the coronavirus pandemic and mitigating its economic impact. Based on experience, pandemic relief legislation may serve as a vehicle for enhancing consumer protections related to debt collection, student lending, loan servicing and credit reporting.

After lacking the power of the majority for several years, the Democratic senators now have the opportunity to accelerate their political agendas in other areas, stepping up their oversight activities and investigative efforts by, among other things, issuing more informational requests and subpoenas to companies. In the current climate, tech companies will likely receive a disproportionately higher number of such requests. Given the implications and associated costs of a Congressional investigation, fintech companies need to manage these processes carefully.

What Will Happen to Rule-Making and Regulatory Guidance Issued over the Past Four Years, and Especially in the Past Few Months?

A new Congress can also reverse administrative rule-making through formal legislative action or through more informal processes that may include hearings, requests for information or other tactics. Like many of his predecessors, President Biden issued an immediate order to suspend for 60 days all pending rule-making to provide his new administration with time to review the regulatory actions of its predecessor. These reviews may be conducted on a centralised basis through the White House or on a more decentralised basis by new leaders of each agency. During this period, agency heads may move to alter, revise or even reverse previously promulgated regulations, some of which may be favourable to fintech companies and some of which are not.

For example, Office of the Comptroller of the Currency (OCC) regulations regarding the true lender doctrine, the valid when made doctrine, and the recently enacted fair access to financial services have drawn negative attention from Democratic lawmakers and could be ripe for revision. Consumer Financial Protection Bureau (CFPB) regulations – including the recently issued debt collection rule, payday lending rule and qualified mortgage rule – have drawn similar scrutiny. While revising or rolling back rules is not something that can be accomplished overnight, there is precedent, including significant precedent from Trump-era regulators, for taking these types of actions.

Likewise, new agency heads can be proactive and alter the course of proposed regulations, although there is no certainty of such an outcome, and the results may be influenced by many events. For example, operating under the auspices of the United States Department of the Treasury, the Financial Crimes Enforcement Network (FinCEN) issued a “midnight” proposal at the beginning of the two-week holiday period encompassing Christmas and New Year’s Day. As proposed, the new regulation would impose new and significantly burdensome reporting and record-keeping obligations on banks and money services businesses offering virtual currency services. Asking 24 specific questions requiring detailed answers, and truncating the public comment period to an unusually short 15 days, FinCEN effectively interrupted the holiday break of many company employees, many of whom were working from home in the middle of a pandemic. The result was the submission of almost 8,000, mostly angry comments within the final two weeks of the Trump administration. For many early-stage cryptocurrency businesses, the cost of implementing the proposal, if ever finalised, could put them out of business.

How Will Potential Shifts in the Priorities of United States Regulators Affect a Fintech Company?

As a corollary to the last question, new leadership at the regulatory agencies will often also result in a reordering of regulatory priorities. Indeed, if legislative prospects are somewhat dimmed by an evenly split Congress, pressure may increase on the regulatory agencies to take bold action to protect consumers and investors and address other more traditional Democratic priorities. Regulators such as the CFPB are likely to focus on issues that impact special populations such as students, older Americans, and military members.

For companies offering cryptocurrency services or using blockchain or distributed ledger technologies (DLT), shifts in regulatory priorities at several agencies could determine the course of these companies and technologies for the next several years. For example, in the last six months of the Trump administration, the crypto-friendly acting Office of the Comptroller of the Currency (OCC) took several actions to significantly accelerate national bank adoption of blockchain technology and the use of cryptocurrencies. The OCC’s decision to conditionally allow a virtual currency business operating under a state trust charter to convert to a national bank trust charter six days before the end of the Trump administration was not without controversy. The new Comptroller will play a key role in determining the speed of expanded use of blockchain technology and stablecoins in national banks and integration of cryptocurrency businesses with the banking industry.

The new chairpersons of the Securities and Exchange Commission (SEC) and Commodity Futures Trading Commission (CFTC) similarly play significant roles in determining the agenda of their respective agencies. They determine the direction of pending regulatory initiatives on crypto-assets and what legislative proposals on the subject to support. They also play a key role in determining the agency’s enforcement policy, including whether to continue with pending cases and other matters under investigation, and when to initiate new investigations.

Historically, United States regulators have been less likely to provide regulatory flexibility and encourage innovation through tools such as no-action letters, compliance sandboxes, trial disclosure programmes and other similar mechanisms. While Trump-era regulators began to increase regulatory flexibility for fintech companies, significant Democratic lawmakers have been sceptical of those actions. Indeed, Congresswoman Waters, the chairwoman of the House Committee on Financial Services, as well as other Democratic leaders have been highly critical of these efforts.

Nonetheless, it is unlikely we will see a significant rollback of the initiatives taken during the past four years by the federal agencies, including FinCEN, and some state regulators to interact with fintech companies both formally and informally. The regulators have aggressively encouraged dialogue with fintech companies to help the agencies understand better fintech developments. Recognising how the technology may cut across agency jurisdictions, the head of the SEC Innovations unit has even offered, as appropriate, to help invite other regulators into meeting with her offices.

Does the Company Fully Understand Its Data Privacy Obligations and the Implications of a Compliance Failure?

The nature and scope of a company’s privacy obligations continued to expand during 2020, both in the United States and internationally, and that expansion is likely to continue in 2021. Just a few short years ago, personal information included specific pieces of sensitive personal information that directly identified an individual, such as their social security number or credit card number. Historically, privacy laws, particularly in the United States, focused on preventing identity theft or misuse of sensitive personal information. That is no longer the case. The definition of personal information has vastly expanded, and certain laws now define sensitive personal information to include any information that can “identify, relate to, describe, be associated with, or be reasonably capable of being associated” with an individual. Moreover, an influx of privacy-related litigation will continue to shape and shift the legal requirements that fintech companies must consider when innovating and implementing services that involve the collection, use, sharing or retention of personal information. While the ambit of privacy law continues to expand, fintech companies are increasingly collecting and processing significant amounts of personal information, often on behalf of other financial institutions. In this environment, fintech companies must apply resources to ensure they are complying with both privacy laws and the contractual obligations imposed by their partners.

2020 was a watershed year for privacy in the United States. On 1 January 2020, the United States’ first comprehensive privacy law, the California Consumer Privacy Act (CCPA), took effect. On 4 November 2020, California passed the California Privacy Rights Act (CPRA), which significantly expands the CCPA. Although the CPRA’s additional requirements do not go into full effect until 2023, the changes are extensive, and fintech companies should start working now to ensure compliance. Fintech companies that utilise automated processing and decision-making technologies need to pay particular attention to the CPRA, as it creates new rights that allow consumers to opt out of the use of automated decision-making technology, including “profiling”, in connection with decisions related to a consumer's work performance, economic situation, health, personal preferences, interests, reliability, behaviour, location or movements. The CPRA creates a new California privacy agency tasked with creating regulations that allow consumers to request meaningful information about the logic involved in the decision-making processes and a description of the likely outcome based on that process.

Even smaller fintech companies, which may not meet the scope and applicability standards of the CCPA or CPRA, should carefully consider strategic compliance as part of their investment, market, and mergers and acquisition strategies. Smaller fintech companies, particularly those who serve as servicer providers for regulated financial services companies, must carefully consider whether their clients are obligated to comply and whether their clients will push compliance obligations down to their service providers. Regulators have increasingly required financial services companies to impose certain compliance obligations, such as CCPA and CPRA compliance, on their service providers, and this trend will likely continue in 2021.

The expansion of privacy requirements has served as a catalyst for a growing group of fintech companies that have been able to assist partner companies in meeting privacy-related obligations. This compliance-oriented group of fintech companies likely will continue to expand in 2021.

Finally, fintech companies that service a global client base, particularly clients that are active in the European Union (EU), must continue to ensure and monitor compliance with the General Data Protection Regulation. In some cases, the establishment of a subsidiary or affiliate in the EU may help facilitate compliance.

Is the Company Making Appropriate Investments in Cybersecurity, and Is It Prepared to Respond to a Data Breach?

2020 showed no signs of a slowdown in cyber-attacks. In fact, there was an uptick in attacks, with criminals debuting a multi-phased evolution of ransomware with data exfiltration. The increase in quantity and quality of cyber-attacks makes cybersecurity one of the most important issues for fintech companies to consider.

Fintech companies are likely to see even more pressure from their business partners and regulators to the extent they are regulated on cybersecurity as well. In December 2020, the OCC, Federal Reserve Board and Federal Deposit Insurance Corporation jointly proposed a new rule, similar to a New York rule, that would require supervised banking organisations to provide notification of significant cybersecurity incidents to their primary federal regulator within 36 hours. Noteworthy for fintech companies, under the proposed rule, service providers would be required to notify at least two individuals at the financial services organisation immediately after the fintech company experiences a computer security incident that it believes in good faith could disrupt, degrade or impair services provided for four or more hours. While current law focuses on incidents that compromise sensitive customer data, this proposed law would substantially alter the reporting requirements to include incidents that have the potential to disrupt operations, even for a few hours.

Fintech innovations can be ground-breaking and vital to the financial services ecosystem. However, those technologies will be viewed by others through the lens of privacy and cybersecurity. While the use of data aggregation and analytics can be an invaluable asset for financial institutions and their customers alike, the collection, use, storage and protection of that data must be assessed to mitigate the risks of violating privacy or exposing the company (and its business partners) to criminal cyber-attacks that could result in regulatory consequences, litigation, reputational damage and loss of business.

Is the Company Appropriately Licensed or Authorised to Conduct Business?

Whether a fintech company is considering the initial launch of its business or looking to add new products, bring on new vendors, work with new partners, expand into new states, or open up new channels, the company should first ask whether engaging in the proposed activity or offering a proposed service requires any kind of specialised licence or charter under either federal or state law.

Whether the activity involves lending, money transmission brokering of securities or other financial services, the second question is where it needs to be licensed or chartered. If the company is serving customers in multiple states, is a licence required in each state or at the federal level? The follow-up questions are typically how long it takes to get such licences and how much it will cost.

Unfortunately, answering these questions typically requires a state-by-state analysis and/or possibly a deep dive into federal law. A company is not required to ask regulators or incur legal fees to determine whether it needs to be licensed. However, if it needs to have a licence in any particular state to engage in the business of transferring money or value that substitutes for money, and does not have such licence(s), it could find itself facing federal and state criminal charges, being assessed for monetary penalties, having assets seized and forfeited, and even being jailed. Other types of unauthorised conduct of business – such as lending – may be subject to penalty as well.

If a licensee is being acquired or there is some other type of change in control, it is likely most regulators will require some type of prior notice or approval of the transaction. The failure to obtain such approval could result in criminal charges in some states.

Is the Fintech Company Compliant with All Applicable Laws and Prepared to Be Scrutinised for Such Compliance?

Another question that needs to be answered is whether the company is prepared to comply with all applicable laws. After struggling with the threshold question of whether their business activities are subject to a state licensing scheme, the companies often find themselves confronting the operational challenges of fully complying with multiple state compliance regimes that include safety and financial soundness, consumer protection, anti-money laundering compliance and data security regulations. Depending on the regulatory regime, the company may be subject to examination by one or more state regulator(s).

Tracking relevant laws and maintaining a multi-state compliance programme is always a challenge. As the coronavirus pandemic took hold in the United States, this task became even more complicated as virtually every state regulatory authority began issuing regulations, as well as formal and informal guidance on a wide range of regulatory compliance issues. This flood of information exacerbated the difficulties in tracking and complying with varied, and sometimes conflicting, legal requirements issued by a variety of states.

Those companies subject to examination should be prepared to answer questions in their 2021 state exams on whether they effectively implemented the state’s coronavirus-related guidance. State-licensed fintech companies should carefully assess how well they addressed state regulatory guidance, particularly guidance with a direct consumer impact, and remediate any issues so that they are prepared to explain their coronavirus response.

Fuelled by competition with a host of federal regulators wrestling over who is best positioned to license and regulate various types of fintech companies, state regulators continue their efforts to improve co-ordination of their examination, licensing and enforcement efforts. This co-ordination helps reduce the regulatory burden associated with maintaining multiple state licences, but it also increases the likelihood of a multi-state regulatory enforcement action should a problem arise. Over the past ten years or more, the number of multi-state actions has grown significantly, including a series of significant settlements with state-licensed mortgage lenders. Companies that failed to appropriately address the consumer impact of the coronavirus may find themselves vulnerable to such actions in this new regulatory regime.

Is the Company Prepared to Be Examined by a Regulator?

Fintech companies are potentially subject to several types of regulatory examinations even if they do not have a primary federal or state regulator. A fintech company may be subject to an examination by the Internal Revenue Service for compliance with the federal Bank Secrecy Act – even if it is not registered with FinCEN as a money services business. Likewise, it could be subject to an examination by the CFPB without regard to how it is regulated. In both cases, the need to be prepared for these examinations in advance is critical as the regulators expect compliance from the first day the business started interacting with customers. In addition, fintech companies that provide services to banks may be subject to examination by bank regulators.

The combination of new agency heads at the federal level, an increased focus consumer protection, and the never-ending efforts of criminals to exploit new technology and crisis will likely result in even more robust regulatory examinations in the coming years. While each regulator has their own scope of authority and approach to exams, fintech companies should always apply some basic rules for successfully navigating a regulatory exam. First, virtually every agency that conducts regulatory exams publishes a fairly detailed examination handbook. This handbook is generally the regulator’s exam playbook, so it is critical that exam-focused personnel be familiar with relevant materials and ensure that any critical information is distributed throughout the company. Second, fintech companies must be prepared to provide thoughtful information in a timely manner. Regulators generally expect companies to provide significant amounts of initial documentation within 15-30 days of being notified of the examination and to provide prompt responses to follow-up questions. Timely responses are critical, but all relevant stakeholders (ie, the business unit, legal and compliance) should be permitted adequate time to review the submissions.

Companies should take time (i) to prepare appropriately for the personal interaction with the examiner and be prepared to tell their compliance story, (ii) actively review the examination results with the examiner, and (iii) consult with counsel before signing off on a final report. For example, the final IRS BSA exam report is submitted to FinCEN automatically upon completion. Upon review, FinCEN may use the report to initiate enforcement actions.

Companies with innovative or unfamiliar business models or new technologies should be prepared to explain the business model and how the company addresses compliance challenges. This is a challenge for cryptocurrency businesses, where regulatory and examination staffs often lack the breadth and depth of expertise in the technology as it is evolving so quickly.

Conclusion

Fintech continues to evolve at warp speed. The legal and regulatory environment may not evolve at the same speed or in the same direction as the technology. The challenges that legal and regulatory compliance present to the business need not be a negative factor; in many cases, this compliance can provide substantial benefits. Regardless, if the fintech entrepreneur applies the same talent and energy that make the business successful to addressing the legal and regulatory challenges, creative and compliant solutions will emerge, often from the technology itself.

Bradley Arant Boult Cummings LLP

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Law and Practice

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Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates advises financial institutions and their investors and counterparties around the world on their most complex, high-profile matters, providing the guidance they need to compete in today’s business environment. The financial technology industry presents businesses and private equity, venture capital and other investors with extraordinary opportunities as well as challenging legal and regulatory issues. Skadden has helped clients to navigate this complex environment since the industry’s inception. The FinTech practice draws on the firm’s global platform and market-leading corporate finance, financial regulation and enforcement, intellectual property and technology, privacy and cybersecurity, and M&A capabilities, making it uniquely qualified to offer clients exceptional depth of experience and full-service capabilities. Skadden would like to thank financial institutions regulation and enforcement partners Brian Christiansen and Eytan Fisch, and counsel Collin Janus; M&A and financial institutions partner Jon Hlafter; derivatives of counsel Jonathan Marcus; investment management associate Prem Amarnani; financial institutions of counsel Patrick Lewis; financial institutions associates Tim Gaffney and Han Lee; and M&A associate Marcel Rosner for their invaluable contribution to this chapter.

Trends and Development

Authors



Bradley Arant Boult Cummings LLP is a full-service law firm with a reputation for skilled legal work, exceptional client service and results-oriented strategic advice. With more than 500 attorneys, the firm serves as a vital partner to domestic and foreign clients ranging from market leaders to emerging companies across a variety of industries. The cross-disciplinary fintech team assists clients in achieving their business objectives in a heavily regulated environment. It understands the nuances of applicable laws and regulations that affect clients’ businesses. It helps maximise client growth through mergers, acquisitions and other transactions, and assists clients in launching new products and services. The firm advises on federal and state lending and payments laws, including money transmitter licensing, anti-money laundering and sanctions compliance, cybersecurity, data protection, consumer protection requirements and risk management. The team includes former bank regulators, in-house counsel, information technology executives and prosecutors, recognised experts in emerging and alternative payments systems, and certified anti-money laundering specialists.

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