WilmerHale’s experience in payments regulation stems from years of experience in leadership positions within regulatory agencies and numerous representations of clients before those agencies. We have substantial experience representing clients before the Consumer Financial Protection Bureau (CFPB), the Commodity Futures Trading Commission (CFTC), the Department of Justice (DOJ), the Federal Deposit Insurance Corporation, the Federal Reserve, the Federal Trade Commission (FTC), the Financial Stability Oversight Council, the New York State Department of Financial Services (NYDFS), the Office of the Comptroller of the Currency (OCC), the US Securities and Exchange Commission (SEC), and the US Treasury Department (including the Financial Crimes Enforcement Network, and the Office of Foreign Assets Control), among other regulatory bodies.
Our lawyers are leaders in addressing the most novel and consequential regulatory issues impacting payments. A client may be uncertain as to whether its actions have triggered state money transmission regulatory requirements, or have questions about regulatory expectations for handling consumer claims of unauthorized use or billing errors under Regulation E. Another may need advice on required disclosures for international remittances under Regulation E Subpart B, or have concerns related to data protection and privacy in cross-border payments applications. Yet another may require timely help in navigating anti–money laundering (AML) considerations in the development of a blockchain-based payments system, or the appropriate response to a ransomware demand. Our lawyers—many of them former senior regulators with direct insight into agency priorities—can provide actionable, up-to-the-minute counsel on these and other issues.
Our experience spans consumer protection and remittance regulation, privacy and data protection, AML and economic sanctions, antitrust and competition, securities and commodities regulation, and state and federal money service business regulation, among other areas. We also advise payments and technology companies that take the position that they do not require registration or licensure, and technology companies in forging partnerships with payments companies, to ensure all licensed activity takes place in the appropriate entity.
Investigations and Enforcement
With a global investigations practice regularly acknowledged as one of the best in the world, WilmerHale is well qualified to assist payments clients facing informal government inquiries, civil investigative demands, agency interviews, complex formal investigations, and enforcement proceedings. Our team, which includes a large roster of former prosecutors and senior regulators from the CFPB, CFTC, DOJ, FTC, OCC, SEC, Treasury, executive branch, and offices of state attorneys general, is well-versed in the full range of regulatory disciplines and enforcement matters that impact firms in the payments space.
We have the crisis management capabilities needed to respond effectively to fast-moving, high-stakes investigative demands and enforcement proceedings, and regularly represent clients in regulatory investigations that test cutting-edge issues in the payments space.
WilmerHale’s commercial litigators have represented payments firms and other financial institution clients in a variety of high-stakes litigation matters ranging from breach of contract and licensing disputes to consumer class actions. Our highly reputed litigation practice has been honored as a finalist for The American Lawyer’s Litigation Department of the Year twice in the past five years. We are rare among large, multidisciplinary law firms in offering an elite trial practice and a preeminent appellate and Supreme Court capability. For decades, large technology companies and financial institutions have relied on us to handle their most sensitive and consequential litigation matters. By combining our litigation firepower with our deep cross-disciplinary experience in fintech, blockchain and cryptocurrency, cybersecurity and privacy, consumer protection defense, and business and financial integrity, among other areas, we provide highly effective representation to payments clients navigating complex litigation challenges.
With our leading corporate, emerging company and fintech teams serving clients from San Francisco to New York, and our deep Washington-focused financial regulatory experience, we are well equipped to advise clients in the payments space, including in developing new payments products; negotiating mergers, acquisitions and joint ventures; structuring payment processing, services, outsourcing and technology transactions; and navigating issues related to billing and payments technologies and transactions.
We regularly conduct US regulatory due diligence relating to potential investments in or acquisitions of payments businesses, including domestic and international licensed money transmitters.
Our experience spans the full range of payments systems and methods, from traditional credit and charge cards to prepaid cards, debit cards, phone billing and Automated Clearing House (ACH)/electronic checking, and blockchain-based projects.
Blockchain and Cryptocurrency
WilmerHale has extensive experience providing advice on blockchain technology and cryptocurrency to payments firms of all types. Our work has included advising leading financial institutions, Fortune 50 companies and emerging companies on the development and launch of digital asset settlement platforms, stablecoin payments networks and non-fungible tokens; handling state and federal licensing applications and regulatory filings related to various cryptocurrency products and services; and providing guidance on cryptocurrency regulation to clients ranging from token issuers to non-US government agencies.
Public Policy and Legislative Affairs (PPLA)
WilmerHale’s PPLA lawyers and public policy professionals regularly advise a wide range of payments clients—from Fortune 100 companies to smaller businesses and industry organizations in the financial services sector—on regulatory, legislative, and political strategy, and assist in evaluating and addressing public policy risk.
Our group has significant experience implementing multi-branch strategies to help clients achieve their objectives across the government and with relevant policymakers. In situations where broad-scale legislative action is needed, we develop and manage bipartisan, bicameral campaigns with outreach to key congressional committees, such as the House Financial Services Committee, Senate Banking Committee, House Energy and Commerce Committee, and Senate Commerce Committee, as well as congressional leadership. We also work closely with a range of executive branch agencies, including the Treasury Department and the CFPB, on the implementation of legislation in line with congressional intent.
Our effective advocacy on behalf of clients is driven by our deep experience in senior government roles, the abiding bipartisan relationships members of our team have built across the House, the Senate and the executive branch, and our ability to draw on the sophisticated, multidisciplinary capabilities of our full-service law firm.
- Representing one of the world’s largest peer-to-peer payments networks on a variety of compliance issues, including privacy, data protection, EFTA/Regulation E, UDAAP (Unfair, Deceptive, or Abusive Acts or Practices), and AML and sanctions compliance issues.
- Assisting one of the world’s largest money transfer businesses in navigating AML, sanctions and anti-corruption issues in locations around the world.
- Guiding multinational financial institutions in the ongoing development of their ransomware awareness and resiliency programs and policies, including detailed analysis of the numerous legal implications of actions taken to respond to, and resolve, ransomware attacks.
- Advising one of the world’s largest banks on processes for investigating consumer claims of unauthorized use and errors in payments, including assessing the processes for compliance with EFTA/Regulation E and prohibitions against UDAAP.
- Counseling an online payments company that acquired a large payments processor in Asia on the interplay of US sanctions and AML requirements, local counter-sanctions regulations, and regulations related to the cross-border transmission of information.
- Advising a major media company on the applicability of state and federal money services business regulations to a planned content distribution and payment service.
- Representing a nonbank emerging payments company in its dealings with nearly a dozen state regulators.
- Representing numerous blockchain and cryptocurrency companies on a wide range of regulatory analyses at the intersection of money transmission, securities and bank regulation.
- Providing ongoing counseling to financial institution and other clients on the full spectrum of requirements applicable to electronic payments, including EFTA/Reg E, UCC Article 4A, and the NACHA Rules.
INVESTIGATIONS AND ENFORCEMENT
- Serving as lead counsel to a technology company in cybersecurity and privacy investigations involving Congress and all US state attorneys general, a matter involving global data handling issues, international and domestic litigation, privacy issues under the Fair Credit Reporting Act (FCRA), internal investigations, and internal privacy compliance.
- Representing a large technology company in responding to a market monitoring order on payments issued by the CFPB.
- Representing a large bank in responding to a CFPB civil investigative demand involving compliance with requirements around the handling of consumer claims related to peer-to-peer payments.
- Representing a structured payments company in connection with a CFPB enforcement inquiry raising novel issues of CFPB jurisdiction.
- Assisting cryptocurrency companies in state and federal investigations related to a wide range of matters.
- Assisting a large national bank with a CFPB inquiry related to its international consumer remittance transfer service.
- Advising a large national bank in connection with efforts to recover hundreds of millions of dollars in fraudulent wire transfers executed by a faithless employee at the bank’s client.
- Representing major payment processors in putative class actions challenging the disclosure and implementation of fees and pricing structures.
- Representing payment processors in business-to-business disputes over performance, pricing, and termination of processor and licensing agreements.
- Representing a large national bank in multiple class actions related to prepaid cards, including payroll cards and cards used to deliver government payments.
- Representing a large national bank in UCC 4A litigation regarding a canceled multi-hundred-million-dollar wire transfer.
- Defeating a putative class action brought by a merchant asserting contract-related claims related to payment processing services.
- Representing a money transmitter on a 50-state rollout of a payment processing service.
- Advising clients on significant matters involving their relationships with payment systems organizations.
- Representing a multinational hospitality client in several payment services transactions, including a transaction with one payments company for the provision of global payments processing, one for US-related processing and another for the provision of payments processing in Europe.
- Representing numerous technology companies in developing the strategy for partnerships with payments companies and executing these partnership strategies to ensure that activity requiring licensure remains in the appropriate entity.
- Advising a major financial institution on the procurement of gateway processing services on a white label basis.
BLOCKCHAIN AND CRYPTOCURRENCY
- Representing a large financial services company in the development of a bitcoin exchange-traded fund (ETF), a process that has included submission of a filing with the SEC for a bitcoin ETF.
- Representing an innovative international stablecoin issuer in obtaining a limited purpose trust company charter from the NYDFS.
- Advising a global, systemically important financial institution on the development and commercial expansion of a settlement platform for digital assets.
- Handling multiple engagements related to the proposed launch of a stablecoin payments network, which included analyzing the regulatory framework applicable to the network, engaging with executive branch and congressional officials on the matter, and developing AML and sanctions compliance programs for wallet providers and others participating in the network.
- Advising market participants on CFTC treatment of stablecoins.
- Advising non-US government agencies on the regulation of cryptocurrency.
- Advising a major international hospitality company in its partnership with a cryptocurrency exchange to offer cryptocurrency payment options to customers.
- Advising a major international advertising firm and Fortune 50 company on federal and state regulations applicable to the launch of non-fungible tokens in connection with a major advertising campaign.
- Advising the largest exchanges and trading platforms on compliance with a wide range of state and federal regulations related to cryptocurrency matters.
- Advising numerous cryptocurrency companies and token issuers on applicable state and federal law.