Monday, June 20, 2016

FinTech Startups Need to Be Cautious, Proactive Given Regulatory Climate

, Legaltech News

Erin Fonte, an attorney at Dykema Gossett, explains the “5 Stages of FinTech Startup Grief.”


Startups need to consider a lot of risks when thinking about financial technology. In a recent interview with Legaltech News, Erin Fonte, an attorney at Dykema Gossett, explained that many tech companies—located in places like Silicon Valley; Austin, Texas; or North Carolina’s Research Triangle—often will try to build new products out as quickly as possible. It is known as covering the basics of their “minimum viable product” (MVP) roadmap, she said.


“Companies think that they will come back later and fix some of the legal niceties once the product has legs and a user base,” according to Fonte. “However, we caution startups that if you are getting into the world of financial technology, understand you are entering a highly regulated space where … federal and state regulators are focused on the underlying activity that you are engaged in. Failure to make your products compliant by design and address these issues on the front-end can have serious consequences on the back-end.”

She warned that can include delaying launch, enforcement actions and civil monetary penalties from regulators, to a “cram down” in valuation from an acquirer who will have make fixes, and sometimes even criminal penalties.

“You cannot just say ‘so and so is doing it’ and expect that to be an excuse when regulators come knocking,” she said. “Benchmarking has no value when the other company has been equally lax.”

Startups also need to remember they will likely face privacy and data security concerns.

“Security is a huge issue that you will have to address,” Fonte said. “If you are going to store, process or transmit credit or debit card information, that raises Payment Card Industry – Data Security Standard (PCI-DSS) compliance issues.”

The reality is that many attacks are blocked daily by major banks and online financial companies. “Many FinTech companies that want to partner with banks are shocked the first time they see the bank’s due diligence checklist for working with third parties, and how much of that checklist is focused on cybersecurity,” Fonte said. “But, when you hook up to the bank, your product’s vulnerability essentially becomes their vulnerability, and banks and financial institutions are required by law to vet the security of their third party vendors. And to do that, the bank wants to see security audits, such as SSAE16, or SOC 1 or SOC 2, on your systems, including your hosting provider if you are using a cloud hosting provider.”

When it comes to privacy, there is the issue of gathering and using information from your consumer or other customers, too. For instance, using geolocation raises privacy issues and permissions that customers have to provide, according to Fonte.

“If you want to mine the big data of your services and sell to unaffiliated third parties, that is going to raise opt-in/opt-out laws and issues,” she said. “And you are going to be surprised that there are actually contractual restrictions on what you can and cannot do with data you may receive from third parties, such as card networks.”

Moreover, many newer companies are surprised to learn how regulated is the work they are doing. “Financial services is one of the three most heavily regulated industries in the U.S.—energy and healthcare being the other two,” Fonte said. Fonte calls the learning process on this the “5 Stages of FinTech Startup Grief.” She says it includes:

·         Denial: Here a company will say it is “just pushing a button on the app” and “using technology to move money.” Also, “funds are only in our bank account for a split second. How can that be regulated?”

·         Anger: It comes when finding out there could things like criminal penalties for unlicensed money transmissions.

·         Bargaining: That leads these new companies to think (inappropriately) about designing around or hacking around the regulation or licensing requirements.

·         Depression: That comes from spending money on legal costs and delaying launch dates.

·         Acceptance: This is realizing that the licensing requirements and potential criminal penalties are real, and companies need to get compliant.

There is also an issue related to “money transmission,” Fonte said. When this relates to state and federal laws, it means “you taking money from Party A, moving it through a bank account that you own or control (where you or your company is the signer, and even for a split second), and promising to send it to Party B. If so, then that falls within most state and federal definitions of ‘money transmission,’” Fonte said.

Businesses may need to register for money transmission licenses in the states in which they are offering services. “And for online or mobile, that is all 50 states unless you do not offer services based on zip code or other geographic screening of the user,” Fonte said. She adds that typical time frame and costs for obtaining money transmission licensing in all 50 states can range from about $250,000 to $500,000 and take up to a year. In many states, companies need to provide bonding, too.

Overall, financial technology has gotten a lot of attention from investors in recent years, so startups understandably want to get their products to market soon, but they need to proceed with caution. Otherwise, there could be stumbling blocks from regulators and others.

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