February 22, 2014

Inside Business Law

January and early February saw four great stand-alone committee meetings by the Consumer Financial Services Committee, the Cyberspace Law Committee, the Derivatives & Futures Law Committee, and the Mergers and Acquisition Committee.

The Consumer Financial Services Committee 2014 Winter Meeting

The Consumer Financial Services Committee, chaired by Nicole F. Munro, held its 2014 Winter Meeting in Park City, Utah, from January 11 through 14, 2014. In addition to numerous working subcommittee meetings, the committee presented CLE programs on a wide variety of topics related to consumer finance. The materials from those programs, including audio recordings of several of the panels, are available through the Section’s program materials website. A few highlights are the following:

New Technologies and Old (and New) Legal Issues

Veronica McGregor chaired and Eric Johnson and Mark Furletti vice-chaired “New Technologies and Old (and New) Legal Issues”, a panel of Mark Furletti, Veronica McGregor, Malini Mithal, Tara Sugiyama Potashnik, and Mercedes Tunstall discussing the legal issues associated with new technologies involving the delivery of consumer financial services including (1) connected devices and the “Internet of Things,” (2) mobile cramming and WAP billing, and (3) the use of prepaid cards in card-not-present transactions over mobile phones.

Tribal Sovereign Immunity and Consumer Protection: Who Can Regulate a Tribe That Provides Financial Services to Consumers?

David Beam chaired and Lauren Campisi and David Scheffel vice-chaired a panel discussion titled “Tribal Sovereign Immunity and Consumer Protection: Who Can Regulate a Tribe that Provides Financial Services to Consumers?”, among Richard P. Eckman, Jennifer H. Weddle, Christopher Peterson, and Malini Mithal. The panel discussed whether and to what extent online lending activities of tribes are subject to federal and state consumer financial protection laws and the jurisdiction of federal and state regulators over tribal lenders. The panel outlined disputes that have arisen between tribes and federal and state regulators over tribal lenders, analyzed the positions being advanced by both sides in litigation, addressed likely outcomes of those cases, and discussed the implications for tribes and consumers. 

The Rise of Claims Under the False Claims Act and FIRREA against Mortgage Lenders and Servicers – A Look at the Law and the Litigation

Sandy Shatz chaired and David Permut and Melissa Klimkiewicz vice-chaired “The Rise of Claims Arising Under the False Claims Act and FIRREA against Mortgage Lenders and Servicers – A Look at the Law and the Litigation”, a panel moderated by Melissa Klimkiewicz, with speakers William J. Harrington and Andrew W. Schilling. In the wake of the last banking crisis, enforcement authorities turned to the False Claims Act and FIRREA as ways to recover from the originators of loans leading up to the crisis. The panelists, who were on the front lines of developments in this area, discussed the lessons learned from these cases and commented on existing and potential future enforcement actions.

The Cyberspace Law Institute and Winter Working Meeting

The Cyberspace Law Committee, chaired by Jonathan Tiger Rubens, held its Cyberspace Law Institute and Winter Working Meeting in Denver, Colorado, from January 31 through February 1, 2014. The Cyberspace Law Institute presented numerous panels and round tables addressing legal, business, and consumer issues affected by emerging technologies. Program materials from the institute are available through the committee’s website. Some of the highlights of the presentations at the Institute are as follows:

Brainspray and the Law

Theodore F. Claypoole presented “Brainspray and the Law,” a discussion of the scientific, technical, and legal issues raised by the harvesting of brainspray, externally readable brain signals, for medical or commercial purposes, and the ways in which lawyers can work to shape the development of the right laws concerning this new scientific development.

Bitcoins: Where They Came From and Where They Are Headed

Andrew Shipe presented “Bitcoins: Where They Came From and Where They Are Headed,” a discussion of the evolution of bitcoin, from an algorithm generated by a group of anonymous computer geeks to a digital currency that has captured international attention, and the future of bitcoin, including the SEC filing for a bitcoin trust issuing ETFs backed by bitcoin and the developing alternative digital currencies, such as Peer Coin and Litecoin.

Snooping, Spying, and Cyber Espionage: Civil Liberties vs. Theft of Trade Secrets

Konrad L. Trope and Jim Spertus presented “Snooping, Spying, and Cyber Espionage: Civil Liberties vs. Theft of Trade Secrets.” They discussed the threats posed to data networks by the standards imposed by various governments upon telecommunications systems in order to assist law enforcement – specifically the history of wiretapping by governments around the world, the current technology protocols imposed by world governments for facilitating government eavesdropping, and how those protocols might be the very reason that rogue regimes so often bombard the Internet security walls of private industry.

The Derivatives & Futures Law Committee Winter Meeting

The Derivatives and Futures Law Committee, chaired by Susan C. Ervin, held its 2014 Winter Meeting in Naples, Florida, from February 6 through 8, 2014. In addition to several receptions, dinners, and luncheons, the meeting featured 10 interesting CLE panels. A few of the highlights of the meeting were:

Algorithmic and High Frequency Trading

“Algorithmic and High Frequency Trading,” a panel chaired by Gary DeWaal, with panelists Vince McGonagle, Stephen J. Obie, Stephen L. Ratner, Patricia L. Levy, Paul M. Architzel, Allison Lurton, and Jim Moran, examined issues concerning algorithmic and high frequency trading (HFT) in derivatives markets. Among other things, the panel touched upon the concerns presented by algorithmic and HFT, the industry’s current efforts to address those concerns, the adequacy of those efforts, and additional standards and regulations that should be adopted.

EMIR & MiFID 101

Andrea Corcoran chaired a panel consisting of Ronald Filler, Richard Tredgett, Nadia Swann, and Christopher K. Bowen titled “EMIR & MiFID 101.” The panel presented a primer on EMIR and MiFID (e.g., mandatory clearing, including frontloading; CCP authorization; reporting, documentation, segregation, margin, securitizations) and discussed headaches faced by practitioners dealing with EMIR and MiFID.

Cross-Border (U.S. Developments and Potential Conflicts with Foreign Law)

Jacqueline Mesa chaired “Cross-Border (U.S. Developments and Potential Conflicts with Foreign Law),” a panel consisting of Annette L. Nazareth, Christopher Bates, Michael J. Otten, Jack I. Habert, and Chris Allen. The panel discussed recent developments regarding the application of the Dodd-Frank Act requirements and CFTC’s regulations to cross-border activities, including the implications of the CFTC’s recent substituted compliance determinations and the effects of the commission and staff guidance on various cross boarder situations.

The Mergers and Acquisitions Committee 2014 Stand Alone Meeting

The Mergers and Acquisitions Committee, chaired by Mark A. Morton, held its 2014 Stand-Alone Meeting in Laguna Beach, California, from January 31 through February 1, 2014. It was a working meeting, focused on numerous subcommittee and task force meetings. Along with the numerous subcommittee meetings, the Mergers and Acquisitions Committee’s Joint Task Force on Governance Issues in Business Combinations, Joint Task Force on Financial Advisors, Task Force on Two-Step Auctions, and Task Force on Financial Advisors all had productive meetings. The stand-alone meeting also provided a great opportunity for committee members to meet to further the committee’s ongoing development of the Revised Model Asset Purchase Agreement.