Why Are Fund Administrators Getting Fired at Alarming Rates?

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administrator-8-25-17.pngPrivate fund managers are showing an increasing penchant for firing their fund administrators. A new report by the alternative investments data and research firm Preqin shows that 21 percent of fund managers changed a service provider in 2016, and of those, 36 percent changed fund administrators.

While that figure is alarming in and of itself, the trend for fund administrators is unfortunately heading in the wrong direction, as this is a 29 percent increase from 2015. All indications are that this will continue in 2017, as the report shows that 72 percent of private fund managers review their fund administrators at least annually, with 30 percent doing so every single time they bring a new fund to market.

Have fund administrators lost their way, or are they being scapegoated by their own private fund manager clients? The study lists the primary drivers given by fund managers for this level of firing as:

  • Dissatisfaction with quality of service provided (27 percent)
  • Cost (23 percent)
  • Increased portfolio complexity (23 percent)
  • To cope with regulation (23 percent)

The inability to help clients deal with more complex portfolios and cope with regulation would both contribute to a dissatisfaction with the quality of service being provided. These factors are interconnected.

As such, I would argue that the overwhelming reason that fund administrators were fired in 2016 is because of the lack of service they are providing to their private fund manager clients.

Going one level deeper, I also feel that a lot of this discontent is driven by a lack of modernization. The alternative investment industry is overwhelmingly document-based and manual in nature. The wave of technology-driven automation and efficiency that has swept through other areas of financial services has only recently started to impact alternative investments.

A peek under the hood of how a private fund is managed and administered would reveal an industry seemingly stuck in the 1990s, with manpower typically being the biggest determinant of the speed and quality with which the industry operates.

Private fund managers are tiring of the difficulty they are experiencing with their fund administrators over critical and repetitive actions. Things like getting monthly financial packages completed, formalizing agreements and sharing validated information with stakeholders is too difficult in an age that values simplicity and convenience.

The other factor that is at play here is that fund managers themselves are under increasing pressure from their investors. Many fund administrators and private fund managers alike forget that the same person that is invested in a private equity fund has banking and brokerage accounts at a bank or credit union.

These people are used to being able to see and interact with their information digitally on a laptop or a mobile device, be able to take certain actions in a self-service manner, and access their information at any time. Customers are frustrated about dealing with a fund manager who only delivers performance metrics in a document via email. To make matters worse, the volume of documents increases the more investments that investor has.

So why does it seem like fund administrators are bearing the brunt of the industry’s lack of modernization? The fund administrator is the backbone of it all. They have not only become the conduit for interactions between the investor and the fund manager, but also that for interactions between the fund manager and the fund administrator themselves.

Private fund managers are increasingly looking for their fund administrators to provide them the tools to better manage their funds and service their investors. As evidenced by the Preqin study, private fund managers are showing an easy willingness to change to a fund administrator that they feel gives them what they need.

Fund administrators that are absorbing this message are starting to take the right steps to address the quality of service that they provide to their clients. They are taking actions like creating investor relations teams that can better handle communications with clients and investors.  They are adopting technology that will automate manual processes between themselves and their clients, as well as make the needed transition to be able to present investment metrics in dynamic and interactive digital dashboards rather than in static documents.

These are the types of actions that fund administrators will need to take to ensure they are on the right side of the firing line.

Three Essential Ingredients of a Successful Integration

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integration-8-16-17.pngA successful merger or acquisition involves more than just finding the right match and negotiating a good deal. As essential as those steps are, effectively integrating the two organizations is equally important—and equally challenging.

When participants in Bank Director’s 2017 Bank M&A Survey were asked to name the greatest challenge a board faces when considering a potential acquisition or merger, 26 percent cited achieving a cultural fit between the two organizations as their top concern. Other integration-related issues, such as aligning corporate objectives and integrating technology systems, were also cited by many survey respondents.

Altogether, nearly half (46 percent) of the survey respondents cited integration issues as their leading concern—even more than those who cited negotiating the right price (38 percent).

Banks’ Special Change Management Challenges
As employees adapt to new situations, they must work through a series of well-recognized stages in response to change—from initial uncertainty and concern to eventual understanding, acceptance and support for new approaches. One objective of change management is to help accelerate employees’ progress through these phases.

In the case of bank mergers, however, there is a complicating factor—the required regulatory approval. Once a proposed merger or acquisition is announced, both banks must wait for some time—typically a period of five to nine months—before decisions can be announced and the transition can begin. These delays extend the period of doubt and uncertainty for employees, customers and other stakeholders, and can significantly impede employees’ progress through the normal change management stages.

Three Critical Components
Successful post-merger integration involves hundreds of individual management steps and processes, and the board of directors must oversee the effectiveness of the effort. Directors can implement a few measures to help make the process a smooth one without micromanaging each step. At the highest level, directors should verify that management has established an environment in which success is more likely. Three organizational attributes merit particular attention:

1. Clear, continual communication. Management must develop a detailed communication plan to make sure merger-related stakeholder messaging is timely and consistent. It should provide employees, customers, the community and other stakeholders the information they need to adjust positively to the merger. This plan should spell out key messages by audience, provide a calendar of events, and use multiple communication tools for each of the stakeholder groups. One tool that has proven useful for customers is a dedicated toll-free phone number, staffed by employees specifically trained to answer customer questions. For employees, bi-weekly email messages that describe the integration process and answer questions have proven very useful.

2. Sound, timely decision-making. Basic decisions about how the organization will be structured, who is on the executive team, and how the post-merger bank is going to operate need to be made as quickly as feasible—but without rushing. Striking the right balance can be difficult. Decisions about key operational issues, such as which technology platforms will be used and how business and operational functions will be consolidated, also must be made promptly—subject to the regulatory constraints mentioned earlier.

3. Effective, comprehensive planning. Based on the key decisions regarding the future organization, management should develop detailed plans for the integration. It is tempting to shortcut the planning process and just “get on with it”—especially in organizations that have gone through a merger before. But overconfidence can lead to complacency and missteps. Successful integrations often involve more than 20 individual project teams. Take the time to make sure each team is capable and prepared, has clear timelines and areas of responsibility and understands its interdependency with other teams.

Finally, board members and executives alike should make it a point to see that there is adequate and active contingency planning. When unexpected challenges or conversion mistakes arise—as they always do—the bank must be ready to move quickly and effectively to address the issues.

Does the Sharp Increase in Bank Stock Prices Create a Seller’s Dilemma?

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stock-1-30-17.pngOh, what a difference a year can make. Or more to the point, what a difference just three months can make. At Bank Director’s Acquire or Be Acquired Conference last year, bank stocks were in the proverbial dumpster having been thoroughly trashed by declining oil prices, concerns about an economic slowdown in China and the slight chance that the slowly growing U.S. economy could be dragged into a recession in the second half of 2016.

Oil prices have since firmed up somewhat and the U.S. economy did not experience a downturn in the second half of the year, but all things considered, 2016 was a bumpy ride for bank stocks—until November 8, when Donald Trump’s surprise victory in the presidential election sent bank stock prices rocketing skyward. Valuations have been slowly recovering ever since the depths of the financial crisis in 2008, with some dips along the way. But since election day, stocks for banks above $250 million in assets have increased 21.2 percent to 24.8 percent, depending on their specific asset category, according to data provided by investment bank Keefe, Bruyette & Woods President and Chief Executive Officer Tom Michaud, who gave the lead presentation on the first day of the 2017 Acquire or Be Acquired Conference in Phoenix, Arizona.

What’s driving the surge in valuations is lots of promising talk about a possible cut in the corporate tax rate and various forms of deregulation, including the possible repeal of the Dodd-Frank Act and dismantling of the Consumer Financial Protection Bureau (CFPB). These tantalizing possibilities (at least from the perspective of many bankers), combined with the expectation that a series of interest rate increases by the Federal Reserve this year could ease the banking industry’s margin pressure and further boost profitability, has been like a liberal application of Miracle Grow to bank stock prices.

Michaud made the intriguing observation that investor optimism over what might happen in 2017 and 2018—but hasn’t happened yet—accounts for much of the jump in valuations since the election. “In my opinion, a lot of the good news is already in the stocks even though a lot of it hasn’t happened yet,” Michaud said. In fact, virtually none of it has happened yet. Investors have already priced in much of the increase in valuations resulting from a tax cut, higher interest rates and deregulation as if they have already occurred, which makes me wonder what will happen to valuations if any of these things don’t come through. I assume that valuations would then decline, although no one knows for sure, least of all me. But it should be acknowledged that the attainment of some of the already-priced-in-benefits of a Trump presidency, such as getting rid of Dodd-Frank and the CFPB, would have to overcome fierce opposition from Congressional Democrats while others, such as the combination of a corporate tax cut and a massive infrastructure spending program (which Trump has also talked about) would have to get past fiscally conservative Congressional Republicans. You’re probably familiar with the old saying that investors buy on the rumor and sell on the news. This could end up as an example of investors buying on the promise and selling on the disappointment.

Here’s the dilemma I think this sharp increase in valuations poses in terms of selling your bank or raising capital. If you’re an optimist, you probably will wait for another year or two in hopes of getting an even higher price for your franchise or stock. And if you’re a pessimist who worries about the sustainability of this industry-wide rise in valuations and the possibility that most of the upside from Trump’s election has already been priced into your stock, I think you’ll probably take the money and run.

Embracing Disruption: Why Banks and Fintechs Should Work Together in a Regulated Environment

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At first glance, financial technology companies and banks are competitors with similar products but different business models. Fintech companies need fast growth to survive. They must exercise quick marketing strategies and adaptive technologies. And they excel at reaching customers in new ways and providing more personalized customer service. Banks, on the other hand, rely on well-established customer networks, deep pockets and industry experience for their success. However, if they want to preserve their customer base and continue to grow, banks will have to adapt to what’s happening in the financial technology space.

Fintech companies and banks both face many unique challenges. Fintech companies must often decide how to allocate limited resources between marketing, intellectual property, compliance and cybersecurity concerns. Banks depend on legacy technology, lack market speed and must continue to keep pace with new banking regulations and technologies. Although both fintech companies and banks face significant legal barriers, they have different needs and strengths. Fintech companies need the deep regulatory experience that banks have developed over many decades. Banks need flexibility to adapt new technologies to changes in the compliance landscape. These differing but not incompatible needs present an opportune cross point for partnership.

The following laws and regulations exemplify a small portion of the regulatory challenges and business relationship opportunities for fintech companies and banks. Please be aware that all financial products—especially new financial technology products with uncharted regulatory profiles–may implicate many other laws not discussed below.

  • Money transmission laws: In order for a fintech company to transfer money between two individuals, it must be licensed under federal and state money transmission laws. State money transmitter laws vary greatly and this creates a considerable barrier to entering the market on a national scale. Banks are generally exempt from state money transmitter laws. Fintech companies can meet money transmitter compliance requirements by strategically structuring the flow of money with banks. Alternatively, fintech companies can act as an authorized agent of a licensed money transmitter service provider.
  • Lending and brokerage laws: State law may require a lender, buyer, servicer or loan broker to be licensed to engage in its respective activity. A fintech company may face severe consequences for unlicensed lending or brokerage practices. Banks in many cases are able to engage in these types of activities. Fintech companies and banks can structure a business relationship to ensure that appropriate legal precautions are in place. Even if a fintech company is licensed, it does not have the ability to use and apply the interest rates of its home state, a power that is afforded to national banks. Fintech companies may be stuck with interest rate limitations set by the state where the borrower lives. Thus, a strategically structured relationship between a bank and fintech company may provide other non-compliance advantages for lending and brokerage products.
  • UDAP/UDAAP laws: Unfair, deceptive or abusive acts or practices affecting commerce are prohibited by law. Both fintech companies and banks face exposure to penalties for engaging in unfair, deceptive or abusive acts. Taking advantage of fintech companies’ adaptive technologies may help banks minimize the risk of committing the prohibited practices. For example, fintech companies may help banks design software that utilizes pop up warnings on a customer’s phones before the customer makes an overdraft.
  • Financial data law: Financial data is a growing industry that has seen increasing regulatory oversight. Both fintech companies and banks collect enormous amounts of data and may use it for various legal purposes. Data is the core part of the fintech business; fintech companies collect data and rely on data. However, fintech startups do not have the legal and technical resources of traditional banks to resolve a variety of regulatory and cybersecurity concerns related to the use of data. Fintech companies can partner with banks, particularly with respect to cybersecurity issues. A bank offering products through or with a third party is responsible for assessing the cybersecurity risk related to that third party and mitigating it, and thus parties should consider some important questions upfront, including where the data is located, who owns it and how it is protected.

Despite the many issues and concerns that may arise from the partnership between fintech companies and banks, cooperation colors the future. Fintech companies can take advantage of the industry knowledge that bankers possess, certain regulatory advantages that banks enjoy and the industry’s cybersecurity infrastructure. Banks can take advantage of fintech companies’ ability to create new products, certain regulatory advantages and adaptability to regulations. With an understanding of the legal and regulatory framework of fintech companies and banks, their different business models can be used as an opportunity rather than a barrier to business.

Raising the Bar: Top Challenges Facing Bank Boards

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Regulators are expecting more and more from bank management teams and boards. In this video, Lynn McKenzie, a partner at KPMG, offers solutions to help address the top challenges facing the industry.

  • Legal and Regulatory Compliance
  • Cybersecurity
  • Financial and Regulatory Reporting
  • Vendor Risk Management

How Government Disruption Impacts Fintech Innovation

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It is a given that markets are constantly being disrupted by innovation. I would argue that the financial services marketplace is also being disrupted by legislation and regulation. Let’s face it, the payments sector is hot right now. Issues that were once solely the province of industry publications are now widely covered by mainstream media. This fact is not lost on the legislative and regulatory community.

Last year we saw the creation of the Congressional Payments Technology Caucus, a bipartisan group of lawmakers designed to keep the U.S. Congress informed of the rapid changes in the financial services industry. Over the last year, the caucus has held briefings on issues ranging from EMV Migration to mobile payments. This year, the House Financial Services Committee and Senate Banking Committee have held numerous hearings on payments-related matters as well.

One of the more contentious topics addressed is Operation Chokepoint, a controversial campaign spearheaded by the Department of Justice in conjunction with several federal consumer protection and banking regulatory agencies (including the Federal Trade Commission and the Federal Deposit Insurance Corp.) to hold acquirer financial institutions and their payment processor partners responsible for allegedly illegal acts committed by merchants and other third-party payees.

This perhaps well intentioned program has moved beyond illegal acts to targeting legal activities that are perceived by some prosecutors and regulators as undesirable, which in turn has led to the denial of banking services to businesses that operate lawfully. Legislative attempts to rein in this initiative, led by Rep. Blaine Luetkemeyer, R-MO, have passed the House but face a future that is likely dependent on the outcome of the November elections.

Given this election season and the relatively limited number of working days remaining on the congressional calendar, it is unlikely that any significant financial services or fintech legislation will pass this year. Still, there is considerable opportunity for additional market disruption by federal regulators, particularly the Consumer Federal Protection Bureau (CFPB).

Those involved in the prepaid space await the CFPB’s long delayed final rule on prepaid products that have the potential to adversely impact long established business models-thereby driving some companies out of business.

Despite its popularity and the fact that consumers must opt-in to the program, overdraft services are viewed with skepticism, if not antipathy by the CFPB. The CFPB’s goal is to issue proposed rules on this in the near future. These rules have the potential to drive up cost and reduce access to consumers who have found these services to be beneficial.

Unlike other federal agencies, the CFPB will not be affected by the November elections. Created as part of the Dodd-Frank Act, the bureau was structured as an independent entity funded by the Federal Reserve, which insulates it from the effects of a change in the administration. The term of its current director, Richard Cordray, does not expire until 2018. And though this is currently being challenged in court, the director can only be fired for cause or malfeasance.

It is difficult if not impossible for legislation or regulation to keep up with technology advances and the dramatic changes they are creating in the payments marketplace. Such efforts should be flexible enough to accommodate these changes and not create their own disruption.

How Mobile’s Popularity is Disrupting the Regulators

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The world is going mobile and dragging banking along with it kicking and screaming. I am something of an anachronism as I still go into the branch once in a while and still worry about using my phone to deposit a check. My adult children, on the other hand, use their phone for everything, including all of their banking. They bounce from store to store paying for everything from Starbucks to bar tabs using their phones without a second thought. Banks that want to capture and hold their business will have to be very good at mobile banking and mobile payments.

One of the biggest hurdles bankers face is that as unprepared as they were, the regulators were equally unprepared and are now playing catch up with regards to mobile payments. The regulatory picture today is fairly muddled with a mishmash of state and federal agencies offering guidance and opinions to mobile payment providers and consumers. There are gaps in the current laws where no regulations apply to parts of the process—and other situations where two or more rules apply to the same part of the process. As mobile banking and payments continue to grow, the regulators will be looking to create a more coherent regulatory structure and coordinate their inter-agency efforts to protect consumers at every stage of the process.

At a forum held by the Office of the Comptroller of the Currency in late June, Jo Ann Barefoot, a senior fellow at Harvard University, outlined the current regulatory situation. She told the packed room at the meeting that “Agencies are going to have to develop ways to work together, to be faster, to be flexible, to be collaborative with the industry. The disruption of the financial industry is going to disrupt the regulators, too. This is the most pervasively regulated industry to face tech-driven disruption. The regulators are going to be forced to change because of it.”

In a white paper released at the forum, “Supporting Responsible Innovation in the Federal Banking System: An OCC Perspective,” the OCC noted that “Supervision of the financial services industry involves regulatory authorities at the state, federal, and international levels. Exchanging ideas and discussing innovation with other regulators are important to promote a common understanding and consistent application of laws, regulations, and guidance. Such collaborative supervision can support responsible innovation in the financial services industry.”

While the OCC has noted the massive potential benefits that mobile payments and other fintech innovations can offer to consumers, particularly those who were unbanked prior to the widespread development of mobile banking and payment programs, Comptroller Thomas Curry has cautioned against what he called “unnecessary risk for dubious benefit,” and called for responsible innovation that does not increase risks for customers or the banking system itself. Mobile payments programs that target the unbanked are particularly ripe for abuse and unnecessary risk.

The Consumer Financial Protection Bureau is also heavily involved in overseeing and regulating the mobile payments industry. The bureau noted that 87 to 90 percent of the adult population in the United States has a mobile phone and approximately 62 to 64 percent of consumers own smartphones. In 2014, 52 percent of consumers with a mobile phone used it to conduct banking or payment services. The number of users is continuing to grow at a rapid rate and the CFPB is concerned about the security of user data as well as the growing potential for discrimination and fraud.

CFPB Director Richard Cordray addressed these concerns recently when announcing fines and regulatory action against mobile payment provider Dwolla. “Consumers entrust digital payment companies with significant amounts of sensitive personal information,” Cordray said. “With data breaches becoming commonplace and more consumers using these online payment systems, the risk to consumers is growing. It is crucial that companies put systems in place to protect this information and accurately inform consumers about their data security practices.”

The regulators, like the banks themselves, are latecomers to the mobile payments game. I fully expect them to catch up very quickly. The biggest challenge is going to be coordinating the various agencies that oversee elements of the regulatory process, and it looks as though the OCC is auditioning for that role following the June forum on mobile payments. Cyber security systems to keep customers data and personal information safe and secure is going to be a major focus of the regulatory process in the early stages of the coordinated regulatory efforts.

I also expect the CFPB to focus heavily on those mobile payment providers that were formerly unbanked. These tend to be lower income, less financially aware consumers that are more susceptible to fraud and abuse than those already in the banking system, and the bureau will aggressively monitor the marketing and sales practices of mobile payment providers marketing to these individuals.

The regulatory agencies are starting to catch up with the new world of banking and the mobile payment process will be more tightly controlled going forward.

How the New Regulatory Environment Could Change Bank Mergers and Acquisitions

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mergers-7-25-16.pngThrough many merger cycles, the basic template for M&A deals in the banking sector hasn’t changed very much. Provisions governing the regulatory process included fairly conventional cooperation undertakings, including rights to review. Time periods and drop-dead dates were matched to the regulatory requirements and expectations. The level of effort required on the part of the buyer and the target to obtain regulatory approvals was limited: Neither party would be required to take steps that would have a material adverse effect, typically measured relative to the size of the target. Reverse termination fees, payable by buyers if regulatory approvals were not forthcoming, were rare. Covenants governing the target’s operations between signing and closing were conventional and not unduly controversial.

Deals continue to get done on this basis but in the post-Dodd-Frank era, the regulatory climate is creating new forces that could reshape some of these basic M&A terms. These changes arise for several reasons. First, regulators increasingly see mergers as an occasion to scrutinize the buyer—its compliance record, systems, capacity to integrate and general good standing. In its September 2015 approval of M&T Corp.’s acquisition of Hudson City Bancorp, the Federal Reserve starkly warned that if an examiner identifies a material weakness in an acquiring bank, it will expect the bank to withdraw its application and resolve the issue before proceeding with the transaction.

The specter that the buyer’s challenges or standing can cause the target to be left at the altar has not yet fully worked its way through our M&A contract provisions. This is quite a different sort of regulatory risk, from the target’s point of view, than concerns about potential liabilities of the target or concerns about the competitive effects of the combination, which both parties can evaluate. Already, this regulatory focus has led targets to perform regulatory diligence on buyers, even in cash deals. As the M&A process continues to evolve, targets may try to distinguish between different kinds of regulatory risk and seek explicit protection where the sins of a buyer spoil the ceremony. Alternatively, it may prove too difficult to determine with certainty the cause of a regulatory obstacle, which could lead targets to seek greater protection for any regulatory failure. In either event, the result could be more requests for regulatory break-up fees—targeted or broad-based.

A number of other M&A provisions could be affected as well. For example, as the pendency of agreements becomes longer to allow time for an uncertain regulatory process, the market and intervening events that could change the value of the target or the buyer’s currency become more important, which in turn will increase the importance of material adverse effect conditions, interim covenants, the structure of “fiduciary outs” enabling a target board no longer to recommend an agreed deal, the size of break-up fees, the timing of shareholder votes, and the consequences of a no vote. In stock-for-stock deals between companies of comparable size, there is often a helpful symmetry to the parties’ situations and incentives, which could result in both parties wanting to limit the conditions under which they can back out of a deal—or, conceivably, the reverse. In cash deals or other true acquisitions, that symmetry is absent and each side can be expected to push for protection from the other’s problems. For the buyer, this may mean seeking greater conditionality in the event of adverse developments as well as tougher interim covenants. For the target, it may mean more regulatory protection and greater flexibility to respond to intervening events.

Longer delays and greater volatility also impact techniques for determining the merger consideration in stock deals. A fixed exchange ratio in which the buyer offers an agreed number of its shares in exchange for each share of the target, long a staple, implicitly presumes that the value of the two companies will likely move in sync. As the prospect of asymmetrical changes in value increases—which can be a result of an increasingly vigorous regulatory environment—there is some urge to fix the value of the buyer’s consideration, rather than the number of buyer shares. More fixed value deals will lead to negotiation over “collars” that create minimum and maximum numbers of shares the buyer is obligated to issue in the transaction, and, perhaps, walk-away rights that enable one party or the other to terminate the deal if the buyer’s stock price becomes too high or too low.

It’s too early to assess the impact of the changing regulatory climate on the M&A craft, but there are many reasons to think the current template will evolve, perhaps quite rapidly. That, of course, will put a premium on thoughtful lawyering and creative, practical solutions.

Gaining a Competitive Advantage through Regtech

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The newly-coined term “regtech,” which is a combination of regulation and technology, is a useful concept to a highly-regulated industry like banking. Regtech is distinct from fintech in that regtech refers to a combination of regulatory strategies that a regulated business can use to secure a business advantage.

Banks sail on a sea of pervasive regulation. We see several ways that banks can chart a new course on this sea and make more money through regulatory innovation, beginning with the use of technology to make regulatory compliance more efficient. Most of the literature sees regtech as a single idea: using technology to drive efficiency in regulatory compliance. We think that such efficiencies are a very important part of regtech–but are only part of the story. The topic of compliance efficiency has several elements:

  • Identify areas where the bank’s compliance oversight is not effective–typically because human resources have the wrong priorities or are spread too thin. Many institutions risk fines and enforcement actions and put their long-term viability at risk by tolerating gaps in their compliance oversight–and yet they still manage to spend too much.
  • Identify a technology provider whose software and services are a good fit for your bank’s existing and projected growth.
  • Communicate with regulators to spot any regulatory objections to the technology provider and the overall strategy as early as possible in the process.

For example, the forward publishing function in software available in HotDocs, a popular provider of document assembly technology, allows banks and other financial institutions to maintain their own lending or operational forms. This means that changes to an institution’s form documents can be applied prior to new regulations coming in and accurate, updated templates can be made available to document users on the legally required date. Version control ensures that only the most up to date template is available for use, negating the risk of any old and non-compliant documents being issued. Such an automated system for updating forms based on regulatory changes is a classic example of technology making a compliance task faster, more efficient and effective.

Marrying technology to compliance will result in a much more effective compliance team. They can use their time to review dashboards, clear exceptions and otherwise exercise their experience and judgment instead of wasting time on rote or repetitive busywork. It also makes possible much more valuable internal and external compliance audits as well as meaningful reports to the bank’s board of directors on operational and compliance risks. Being smart in this area of regtech is mission critical for community banks and financial technology companies.

Another new approach is the creation and exploitation of intellectual property based on regulatory insights. Many times, figuring out a way to offer a new product or service, or offer an existing product in in a new way, depends on finding a regulatory interpretation that allows the innovation to proceed.—•?_ There is precedent for patenting new regulatory loopholes, including tax-related loopholes discovered and patented by CPAs and others. Some examples include a derivatives-related patent application, in which one of the authors of this article was a co-inventor, as well as several patents obtained by the consulting firm Promontory Financial, which are based on regulatory insights. Those patents have made possible new business processes and services.

A financial institution that has a flash of insight on how to improve an existing process or develop a new innovation should carefully consider seeking a patent or otherwise surrounding the regulatory insight with as much intellectual property protection as possible. We think that doing so is another great way to use regtech to get a business advantage.

Most banks and financial technology companies have important choices in deciding how and by whom they will be regulated in a particular jurisdiction. If you know you want to be a depository institution, you still need to choose (1) a state or national charter and (2) if a state charter, the chartering state; (3) the type of charter including a commercial bank, savings bank, savings and loan or credit union; and (4) depending on what charter you choose, whether to be a member institution in the Federal Reserve. Also available are a few “bank-lite” charters, such as an industrial loan company (ILC) charter that is available in seven states including Utah, or a trust company charter from one of several states. Some banks would do well to carefully consider changing their charter—and in the process, their regulator–to something that better supports their business goals.

For a business model based on lending money, there are the bank models mentioned above as well as a range of non-depository charters, such as the ILC charter and other state lending licenses. Many of these are only valid in the issuing state, which means that building a national business in the U.S. using multiple state lending licenses can quickly become a complex endeavor. Similarly, for a business model premised on moving money, including money transmission, payments, stored value cards, wallets and remittances to name a few, there is a similar choice between a web of state licenses or a carefully-crafted bank partnership, a blend of the two, or possibly one of the new federal charters being discussed by the Office of the Comptroller of the Currency.

Rent-a-charter is a derogatory term for a partnership between a bank or other chartered or non-chartered institution in which the bank lends its name (and little else) to the other party. Such an arrangement can lead to allegations that the non-chartered party is the “de facto” lender or other real party in interest and that the bank is not exercising sufficient oversight or control over the process. However, bank partnerships are crucial in the financial world and most of the time a business model can be built on a properly-structured bank partnership. The details of the partnership are extremely important and we think rise to the level of true regtech.

These are foundational choices with numerous and conflicting considerations. However, the business that shrewdly chooses its chartering path (and therefore its regulators) can gain a crucial edge on its competitors. For example, some financial technology companies are learning that some business models actually face a more complex and expensive compliance burden by not being a bank than they would have experienced by acquiring a bank charter. Thus, we think that the initial and ongoing chartering strategy is an element of regtech.

And finally, we think good old-fashioned lobbying is properly considered part of regtech. Think about the varied tactics used in Uber and Lyft’s efforts to beat back challenges to their shared ride business model. A large company like Uber, which has immense popularity with consumers, can use that popularity in its lobbying and negotiation with regulators. Might can make right.

For most other companies that lack the market clout of an Uber, lobbying can take more traditional forms such as convincing a range of stakeholders and legislators that statutory reform is necessary and appropriate to achieve a broader social good. Think about recent California legislation exempting free credit building loans (low or no-interest loans designed to help people build a good credit score) from finance lender legislation. Or think about the Consumer Financial Protection Bureau’s current advertising campaign—an effort ostensibly designed to raise consumer awareness of the bureau’s services that also helps build political support during an election year for a controversial agency.

Other situations are better suited for a quiet one-on-one approach. Sometimes this can result in a published interpretation or no-action letter that expressly blesses the proposed innovation. Probably more frequently, a no-names inquiry through lawyers or other representatives can get equally valuable information that has the added benefit of not being publicly available to competitors. With good faith around the key regulatory elements of a proposed innovation, a company can be first to market with a new product or service.

In summary, we think that regtech is not only useful in sparking thought and conversations in the financial industry, it may even spur innovation and profitability.