Navigating the payments industry is not as simple as understanding the regulatory framework and applying it to our clients’ business. First, the regulatory framework under which our clients is operating is constantly evolving. In addition to the traditional regulators, such as the Federal Reserve and the FFIEC, other federal and state agencies, such as the FTC, the CFPB, the OCC and state attorney generals, are increasingly regulating, or impacting through their regulations, the payments industry and fintech in general. Related, it is not just about understanding the regulatory environment for our clients, but understanding it with regard to parties with which it contracts and otherwise does business with. It is difficult to negotiate a contract with a national bank without understanding the OCC risk management guidelines under which such banks are forced to operate.
At the same time, technology is moving at a rapid pace, with chip technology, mobile payments and NFC technologies, among others, changing how transactions are initiated. Similarly, it is expected that facial recognition, biometrics and geolocation will play significant roles in the future to ensure that transactions are safer, and such technologies will need to be implemented in a manner that does not burden a consumer focused on ease and speed of use of payment technologies. The reality is, the innovation coming to the payments industry is in its early stages, as start-up companies and large established companies (e.g., SAF, Salesforce and NCR) alike seek to benefit from the industry’s rapid growth.
As all industry participants react to the above pressures, our clients find themselves in the crosshairs. Banks are increasingly conservative, or at least reserving their right to be conservative if and when required by their regulators. At the same time, payment technologies are opening up new types and sizes of merchants, even creating whole new categories of payment industry participants seeking to service such merchants. Needless to say, the above has created an interesting contracting environment.
Our team has helped clients navigate these waters for years. We have developed significant industry experience, not simply related to our clients, but also with regard to the entire system and its players. Benesch’s additional regulatory and data security experience give us the tools to better service our clients’ complex needs.
With the above in mind, we acknowledge that for certain engagements, it would be appropriate for us to partner with regulatory counsel, and Sean has done that in the past (although that particular transaction was short lived). We think these types of engagements can be efficient, allowing our clients to use long-standing counsel with very specific experience with its business (and often at a significant rate advantage), as well as benefit from the specific regulatory experience of another firm.
Our payments industry experience is augmented by a sophisticated Commercial Finance & Banking practice, allowing us to provide legal counsel with perspective on larger trends in the financial services and payments industry. We have consistently helped our payment systems clients create new sources of revenue and assets, increase shareholder value, and create long-term competitive advantages.
Our payments industry professionals advise clients across full spectrum of payments industry issues:
- Capital markets
- Mergers and acquisitions
- Structuring investments and joint ventures
- Financial regulatory
- Intellectual property and technology
- Data security and PCI compliance
- Litigation and dispute resolution
- Trade secrets and non-competition agreements
- Cloud platforms
- Labor and employment matters
Benesch has significant experience advising financial institutions and other companies participating in the payment systems industry. We have advised clients on numerous mergers, acquisitions, divestitures and investments involving all aspects of the payments industry, including payment processing, prepaid and gift cards, betting and gaming, E-Commerce transactions, and PCI compliance.
Intellectual Property & Technology
Our payment system attorneys have experience in patent prosecution, copyright and trademark registration. We have also advised clients on intellectual property and technology licensing, including software and hardware licenses. Benesch attorneys routinely develop international patent portfolios and actively participate in ongoing internal patent audits and invention data mining efforts to increase the strength of and add value to our clients’ patent portfolios.
Financial Regulatory Counsel
Our financial regulatory attorneys have experience representing a wide variety of financial service companies from payments industry players to large financial institutions. Our experience advising financial service providers—from compliance issues to transactional implications to litigation strategy—means we can guide our payments industry clients in establishing and maintaining effective enterprise risk management programs and policies, all with the goal of minimizing litigation and regulatory risk.
Data Security & PCI Compliance
Protecting sensitive information is a critical component of processing payment transactions. Benesch attorneys have advised clients about compliance with the Payment Card Industry Data Security Standards and related data security issues in the context of vendor management, mergers and acquisitions, internal compliance and security breaches.
Benesch litigators serve a diverse range of clients in the financial services industry, including debit and credit card processing companies, bank and credit card lenders, and many retailers. These attorneys have successfully defended clients in a variety of litigation, including putative class actions and Consumer Financial Protection Bureau investigations, various NACHA (Electronic Payments Association) disputes, Federal Trade Commission investigations, and individual and class action claims under the Truth in Lending Act, Fair Credit Reporting Act, Fair and Accurate Credit Transactions Act and Electronic Funds Transfer Act.
Mergers & Acquisitions
Benesch has counseled clients in numerous mergers, acquisitions, divestitures and investments involving all aspects of the payments industry, including payment processing, pre-paid and gift cards, betting and gaming, ecommerce transactions and PCI compliance. We also has significant experience drafting and negotiating joint venture, revenue sharing, referral and sponsorship agreements for industry participants.
More generally, our firm has been assisting multinational, middle market and emerging companies in connection with complex public and private mergers and acquisitions as well as joint ventures for more than 50 years. The types of M&A matters in which Benesch lawyers are engaged covers the full spectrum of negotiated and contested situations, including advance preparation/diligence for prospective targets, asset sales and purchases, mergers, corporate governance advice, joint ventures, leveraged buyouts, private equity, proxy contests, recapitalizations, stock sales and purchases and equity and debt offerings. Benesch’s high degree of sophistication and expertise reflects the decades that our M&A lawyers have spent doing deals domestically and abroad. Together with our high client service standards and entrepreneurial tradition, we are able to provide advice and assistance to our clients on a cost-effective basis.
Our team has completed more than 120 purchase, sale, minority investment or joint venture transactions in the past four years. Many of these have involved businesses where we have been involved in creating the sell- or buy-side strategy in concert with the company’s financial advisor/investment banker. We understand the importance of moving the deal forward, subject to potential regulatory constraints; each transaction has a pace to it that is important if momentum is to be maintained and positive results achieved.
Benesch’s service offerings cover all aspects of the federal and state regulatory system. We also have significant experience with foreign regulatory environments and bodies, whether independent of foreign counsel (e.g., the transfer of information between Europe and the United States) or working with co-counsel (e.g., the UK Anti-Bribery Act). Our experience covers all issues related to the U.S. Securities Act, the U.S. Securities Exchange Act, state blue-sky laws, the U.S. Foreign Corrupt Practices Act, the U.S. Office of Foreign Asset Control, the USA Patriot Act, U.S. anti-money laundering laws, and the U.S. Employee Retirement Security Act (ERISA). Furthermore, our attorneys have significant experience and are monitoring continuing developments relating to current and ongoing regulatory promulgations of, and enforcement actions taken by, the Consumer Financial Protection Bureau, the U.S. Department of the Treasury Financial Crimes Enforcement Network, and the Federal Trade Commission, in each case with regard to financial services, consumer protection and cyber/data security.