The business of providing merchants with payment processing services has changed dramatically in a short time. Venable combines its in-depth knowledge of the payment industry with its nationally recognized attorneys practicing in the areas of financial services, privacy and data protection, marketing and consumer protection, legislative advocacy, and litigation to provide clients with solutions that efficiently and effectively resolve their unique business challenges.
Venable intimately understands the changing marketplace and regulatory environments facing banks, processors and ISOs, technology partners, and equipment and service providers to the payments industry.
Few, if any, law firms have more experience than Venable in matters related to “Operation Choke Point” and other law enforcement initiatives targeted at the payments industry. Venable has represented a number of banks and payment processors in connection with the U.S. Department of Justice, Federal Trade Commission (FTC), Consumer Financial Protection Bureau (CFPB), and other federal and state agency actions. Venable also works closely with the Electronic Transactions Association (ETA) on advocacy and industry leadership to advance the interests of the payments industry in these changing times.
Regulatory Compliance Counseling
We advise clients on the applicability of financial and consumer protection regulations across the payments industry. For example, we have provided guidance on the responsibilities of a payment processor as a third-party service provider in the ACH network. With respect to merchants, we have advised payment processors on merchant obligations under various laws and regulations, including Regulation E, the Telemarketing Sales Rule, and the FTC Act, including how to avoid liability based on law enforcement theories that the payment processor assisted and facilitated noncompliant practices.
Within the organizational structure of a client’s particular business, we work with senior executive management, legal counsel, risk professionals, sales representatives, merchant services team members, and other appropriate core staff to identify and mitigate risk.
Law Enforcement Investigations and Actions
Venable counsels clients across the payments industry in responding to federal and state civil investigation demands, subpoenas, and general requests for information. We regularly advise clients on appropriate strategies and tactics when responding to government requests about transactions processed for merchant clients, money held in reserve accounts, and business correspondence between banks, payment processors, ISOs and merchants. When clients face an investigation or enforcement action, we work across the enterprise to provide knowledgeable, creative, and tenacious defense counsel. This approach has helped numerous clients avoid or minimize overly burdensome and potentially damaging discovery responses to government investigative demands, and has put Venable at the forefront of legal arguments central to the payments industry, such as rights to reserve accounts.
Merchant Underwriting and Monitoring
Venable has designed and helped implement programs to conduct merchant underwriting and monitoring, including the development and implementation of risk review and monitoring policies and procedures. Our guidance in this area is informed by our extensive litigation and law enforcement experience involving consumer protection and payment processing. A prime example of the advice we provide is Venable’s role as legal counsel during the formulation of the Electronic Transactions Association’s Guidelines on Merchant and ISO Underwriting and Risk Monitoring.
Contracts – Drafting, Review, and Negotiation
We draft, revise, review, negotiate, interpret, and help enforce key agreements that banks, card associations, payment processors, ISOs, and other organizations in the payments industry use in conducting their business. For example, we have counseled processors on their rights with respect to acquiring banks and the card associations and assisted in negotiating business relationships and strategies with those entities. We also have assisted with negotiations related to merchant compliance and termination.
Venable has strong working relationships with the members of Congress who represent the districts most important to the payments industry, the congressional leadership, and the congressional committees with jurisdiction over the industry, namely the House Financial Services Committee, Senate Banking Committee, House Energy and Commerce Committee, and Senate Commerce Committee.
We assist clients in the payments industry with every aspect of federal government affairs and the legislative process, including political analysis, issue management, direct advocacy, developing and guiding legislation, drafting committee report language, preparing congressional testimony, and identifying and obtaining funding. Our team also monitors legislation and policies on Capitol Hill and in the agencies related to our clients’ interests. We work closely with each client to assess and evaluate key political risks and opportunities, which enables us to establish primary objectives in consultation with the client. We then develop and execute a comprehensive strategy to achieve those objectives.
Privacy and Data Protection
Venable’s Privacy and Data Security practice group is widely regarded as among the very best in the nation. The firm’s privacy team comprises more than a dozen attorneys who focus their practices on the laws, regulations, and policies governing ecommerce and the ever-expanding use and protection of consumer data by corporations and other entities. Areas in which Venable counsels clients in the payments industry on privacy issues include the implementation of best practices and compliance with U.S. and international legal requirements, deployment of anti-fraud technology, legislative advocacy, participation in rulemakings and development of new legal standards, internal and public responses to data breaches, and defending clients in government enforcement actions and private litigation.