E-Commerce: Financial Products and Services.

  • ID: 2127940
  • Book
  • Region: United States
  • 800 Pages
  • ALM Media, LLC
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The rapid growth of the Internet has transformed the way we buy and sell goods and services. It has also made many long-standing laws and regulations obsolete and given rise to new ones. E-Commerce: Financial Products and Services offers complete practical guidance on how to conduct financial services within this changing legal framework.

You'll find detailed discussion of such topics as: risks in Web marketing and e-commerce; electronic contracts; jurisdiction issues; financial privacy and data protection; the changing approach to software patents; acquiring IT hardware, software and services; Internet-based banking products such as “stored value” payment mechanisms; methods of payment in e-commerce; online securities brokerage; bringing the insurance industry to the Internet; and more.

For attorneys who advise banks, brokerage firms, insurance companies, IT service providers and those charged by their companies with initiating Web-based delivery of financial products, E-Commerce: Financial Products and Services will prove an extremely helpful starting point and reference for handling any issue.
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PART 1
The "Basics" of E-Commerce

Chapter 1
Marketing and Advertising in E-Commerce
- 1.01 Introduction
[1] Growth of the World Wide Web
[2] The Forms of E-Commerce on the Web
- 1.02 Assessing the Legal Issues of E-Commerce
[1] Possible Legal Issues
[2] Make a List
- 1.03 Web Site Design and Content Issues
[1] Setting the Stage: Interactivity Drives Legal Obligations and Liability
[2] Online Marketing and Advertising Considerations
[3] Posting of Web Site Content
[4] Storage of Web Site Content
- 1.04 Communications with Users
[1] Live Visual Communications and Text Messaging
[2] Electronic Mail
[3] Chat Rooms
[4] Electronic Bulletin Boards
- 1.05 Web Site Agreements
[1] Types of Web Site Agreements
[2] Conspicuous Placement of Agreement
[3] User Assent to Terms and Conditions
- 1.06 Federal Laws Expressly Affecting Online Advertising and Marketing
[1] Indecency of Web Site Content
[2] Defamation for Statements Made at a Web Site
[3] Taxes on E-Commerce
[4] Copyright Infringement Liability in E-Commerce
[5] Protecting Children in E-Commerce
[6] Protection of Trademarks and Domain Names
[7] Privacy Protections
- 1.07 Federal Trade Commission and E-Commerce
[1] The Federal Trade Commission Act—Authority for Online Enforcement
[2] FTC Proposed Rules and Guides for Electronic Media
[3] FTC Mail and Telephone Order Merchandise Rule
[4] Federal E-mail Restrictions – The CAN-SPAM Act of 2003
- 1.08 State and Foreign Action in E-Commerce
[1] E-Commerce in California
[2] Unsolicited E-Mail
[3] State Deceptive Practices Acts
[4] Uniform Acts
[5] Privacy Protections
[6] Foreign Regulation of E-Commerce
- 1.09 Other Legal Developments in E-Commerce
[1] Efforts of Business Self Regulation
[2] Antitrust Concerns
[3] Online Franchise Law Concerns
[4] Protecting Against Liability for Service Failures
[5] Screening Web Site Content
[6] Disabled Access Laws

Chapter 2
Contract Formation in E-Commerce
- 2.01 Introduction
- 2.02 Federal Law
[1] Introduction
[2] Electronic Signatures in Global and National Commerce Act
- 2.03 State Law
[1] Introduction
[2] State Electronic Signature Laws
[3] Uniform Acts
- 2.04 Common Law
[1] Introduction
[2] Shrinkwraps / Enforceability
[3] Clickwraps / Enforceability
[4] Shareware / Enforceability
-2.05 Intervening Law
[1] Other Applicable Federal and State Laws
[2] Foreign Law / Survey of Selected Foreign Electronic Signature Laws
[3] International Initiatives
-2.06 Best Practices
[1] Overview
[2] Steps to Follow to Achieve the Best Practices Electronic Contract Formation

Chapter 3
Jurisdiction and Choice of Law in E-Commerce
- 3.01 The Problems the Internet Poses for Traditional Jurisdiction Law
- 3.02 The Law of Personal Jurisdiction
[1] Introduction
[2] The Trend to Expand Jurisdiction Over Distant Parties
-3.03 Evaluating "Contacts" in Internet Cases
[1] Applying the Limits of Due Process to Cases Involving Internet Activity
[2] The Continuum of Internet Jurisdiction Cases
- 3.04 The Purposefulness Inquiry Is at the Center of Existing Jurisdictional Doctrine, and Creates a Reasonable Scope for Jurisdiction
- 3.05 Settling the Issue Through Choice of Forum Provisions
- 3.06 In Rem Jurisdiction Under the Anti-Cybersquatting Consumer Protection Act

Chapter 4
Data Protection and Privacy in E-Commerce
- 4.01 Overview
[1] Privacy Concerns in the Electronic World
[2] Privacy and Financial Institutions
- 4.02 Privacy Protection Under Federal Law
[1] Introduction
[2] Financial Privacy Statutes
[3] Pending Financial Privacy Legislation
- 4.03 Privacy Protection Under State Law
[1] Overview
[2] Financial Data Privacy Statutes
[3] State Consumer Fraud Statutes
[4] State Privacy Litigation Enforcement
- 4.04 Privacy Laws Abroad
[1] International Overview: Legislation or Self-Regulation?
[2] The EU Data Directive
- 4.05 United States Self-Regulatory Approach
[1] Introduction
[2] Federal Trade Commission
[3] FTC Enforcement Actions
[4] Third-Party Privacy Programs
- 4.06 Financial Institutions: Agency and Industry Initiatives
[1] Regulations Implementing Title V of Gramm-Leach-Bliley
[2] Interagency Guidelines on Pretext Phone Calling
[3] Interagency Guidelines for Safeguarding Customer Information
[4] Federal Trade Commission Standards for Safeguarding Customer Information
[5] FFIEC Statement on Risk Management of Outsourced Technology Services
[6] Proposed FCRA Regulations
[7] Office of the Comptroller of the Currency
[8] Federal Deposit InsuranceCorporation: Guidance on Collecting Customer Information Over the Internet
[9] Office of Thrift Supervision: Policy Statement on Privacy and Accuracy of Personal Customer Information
[10] Banking Industry Privacy Principles
[11] National Association of Securities Dealers
[12] Consumer Electronic Payments Force
[13] Interagency Statement Requirements

Chapter 5
Protecting Intellectual Property in E-Commerce: Software Patents
- 5.01 Introduction
- 5.02 History of Software Patents
[1] Patent Protection Generally
[2] Prior to 1972 the PTO Improperly Restricted Software Patents
[3] The Supreme Court Rules Inconsistently in Software Patentability Decisions
- 5.03 Arguments For Granting Full Patent Protection to Software
[1] Copyright and Trade Secret Protection Are Not Strong Enough
[2] Software Patents Will Arm Even the Smallest Companies with Significant Leverage Against the Software Giants
[3] The Patent System Should Protect Hard Work and Investment
- 5.04 The Federal Circuit Corrects Past Inconsistency in Treatment of Software Patents
[1] The Alappat Decision
[2] The Warmerdam Decision
[3] The State Street Decision
[4] The AT&T Decision
- 5.05 The Future of Computer Patent Protection

Chapter 6
Acquiring the Information Technology for Electronic Commerce
- 6.01 Introduction
- 6.02 Contracting Themes
[1] The Vendor's Form
[2] Contractual Impediments
[3] Providing Product, Not Meeting Needs
[4] Vagueness
[5] Remedies
[6] General Provisions
-6.03 Software Licenses
[1] In General
[2] The Value Pricing Trend
[3] License Pitfalls
[4] Granting the License
[5] Source Code
[6] Acceptance
[7] Confidentiality
[8] Termination
[9] Indemnification
[10] Warranties
[11] Providing Maintenance and Ser-vice
-6.04 Consulting
[1] The Benefits to the Institution
[2] Locking in the Benefits of Consulting
[3] Ownership of the Work
[4] Confidentiality
[5] Distinguishing between Vendor and Institution Employment
-6.05 Equipment
[1] Buying Equipment
[2] Maintaining Equipment
[3] Leasing Equipment
[4] Disposal
-6.06 Outsourcing
[1] Analyzing Outsourcing
[2] The Vendor's Position
[3] Services
[4] Pricing
[5] The Institution's Current Employees
[6] The Vendor's Employees
[7] Assets Used for the Outsourced Function
[8] Intellectual Property
[9] Communication Mechanisms
[10] Liability
[11] Termination
[12] Outsourcing Summary

PART II
The "Specifics" Of E-Commerce

Chapter 7
E-Commerce Activities of Financial Institutions Including the Delivery of Loan, Deposit and Stored Value Products to Consumers
- 7.01 Introduction
- 7.02 Internet Activities of Financial Institutions and Financial Holding Companies
[1] National Banks
[2] Savings and Loan Associations
[3] State-Chartered Bank
[4] E-Commerce Activities for Financial Holding Companies
- 7.03 Offering Consumer Credit Products Over the Internet
[1] On-line Applications
[2] Real Estate Secured Loans
[3] Open- and Closed-end Unsecured Loans
[4] Consumer Leases
[5] Credit Services Organizations
[6] Communications Concerning the Consumer’s Account
- 7.04 Offering Deposit Products Via the Internet
[1] Account Opening
[2] Advertising Restrictions
[3] Deposit Broker
- 7.04A Offering Other Financial Services to Consumers Over the Internet
[1] Specific Applications of the EFTA and Regulation E to E-Commerce
[2] Account Aggregation Services
- 7.05 Stored Value and Other Internet Payment Mechanisms
[1] FDIC Insurance
[2] Applicability of the Electronic Funds Transfer Act
[3] State Law Issues
[4] Money Laundering Concerns

Chapter 8
E-Commerce and Payment Systems
- 8.01 Introduction
- 8.02 Retail Payments in E-Commerce
[1] Checks
[2] Credit Cards
[3] Debit-Based Systems
[4] Stored Value Products
- 8.03 Institutional Payments in E-Commerce
[1] Article 4A
[2] Fedwire
[3] Automated Clearing House
[4] The New York Clearing House Association
[5] Clearinghouse Interbank Payment System
[6] Society for Worldwide Interbank Financial Telecommunication
- 8.04 Outstanding Payment System Policy Issues
[1] Is Digital Cash "Money"?
[2] Escheat
[3] Cyberlaundering
[4] Money Transmitter Laws
[5] Deposit Insurance Coverage and Other FDIC Concerns

Chapter 9
E-Commerce in Securities Brokerage and Investment Advice
- 9.01 Retail Securities Brokerage Markets: Establishing a Retail Broker-Dealer Web Site
[1] Jurisdictional and Registration Issues
[2] SRO Advertising Rules
- 9.02 Account Opening
[1] Informed Consent
[2] Notice, Access, and Delivery
[3] Account Information
[4] Suitability
[5] Security of Personal Financial Information
[6] Privacy of Non-Public Information
[7] Electronic Signatures
[8] Money Laundering
- 9.02A Public Offerings
[1] Wit Capital Letter
[2] Paperless Offerings - American Life Insurance
- 9.03 Order Execution
[1] Best Execution
[2] Price Improvement
[3] Extended Hours Trading
[4] Decimalization
- 9.04 Research
[1] Disclosures
[2] Regulation Analyst Certification
[3] Rule 15a-6
[4] Electronic Research Tools
- 9.05 Market Information
- 9.06 Calculators
- 9.07 Document Delivery
- 9.08 Electronic Communications
[1] Electronic Mail
[2] Instant Messaging
[3] Guidelines for Supervision and Review
- 9.09 Record Preservation
- 9.10 Bulletin Boards and Chat Rooms
[1] Bulletin Boards
[2] Chat Rooms
- 9.11 Intranets
- 9.12 [Reserved]
- 9.13 The Legal Framework for Investment Companies
- 9.14 Electronic Delivery of Information
[1] Overview
[2] SEC Pronouncements Concerning Electronic Delivery of Information to Investors: Brown & Wood No-Action letter; October 1995 Release
[3] May 1996 Releases and Other Relevant Guidance
[4] Fund Profile: Proposed Rule 498
[5] Electronic Delivery and the April 2000 Release
- 9.15 Advertising and Sales Literature
[1] In General
[2] Use of a Combination of Advertising on the Internet
[3] Marketing over the Internet by Investment Advisers
- 9.16 Supervision of Broker-Dealer Electronic Communications
[1] Securities and Exchange Commission
- 9.17 The Use of Web Sites by Mutual Funds and Third Parties
- 9.18 State Blue Sky Issues
[1] Securities Offerings
[2] NASAA’s Interpretive Order on Internet Advertising
- 9.19 Companies Excluded from the Definition of Investment Company
- 9.20 International Issues
- 9.21 Overview: Investment Advisors
- 9.22 The Framework for the Regulation of Investment Advisers
[1] The Definition of an Investment Adviser
[2] Exclusions and Exemptions from the Definition of Investment Adviser
[3] Investment Adviser Registration Requirements
- 9.23 Use of Electronic Media to Satisfy Investment Adviser Delivery Requirements
[1] The Framework for Use of Electronic Media by Investment Advisers
[2] Required Communications
[3] Electronic Delivery of Advertisements
- 9.24 The Use of Electronic Media to Provide Advisory Services
[1] Online Advisory Services
[2] Portfolio Management
[3] Administrative Services
- 9.25 Jurisdictional Issues Affecting Investment Advisers Who Use the Internet
[1] Personal Jurisdiction
[2] Registering Investment Advisers with the SEC
- 9.26 The SEC’s Web Site

Chapter 10
E-Commerce in Insurance
-10.01 Introduction
[1] The Challenge for Electronic Insurance Transactions
[2] Benefits of Insurance On the Internet
-10.02 The Development of Insurance Activities on the World Wide Web
[1] Electronic Marketing and Sale of Insurance
[2] Insurance Coverage for Internet Activities
-10.03 Legal Hurdles to Online Insurance Activities
[1] Nature of Certain Insurance Products
[2] Insurance Agents
[3] Insurance Laws
-10.04 The Marketing of Insurance On the Internet
[1] Jurisdiction
[2] Advertising and Solicitation
[3] Referrals
-10.05 The Sale of Insurance Over the Internet
[1] Online Insurance Contract Formation
[2] Change in Policy Terms
-10.06 Outlook for Online Insurance

APPENDICES
Appendix A: Recommendation of the OECD Council Concerning Guidelines for Consumer Protection in the of Electronic Commerce
Appendix B: Order in re: Ticketmaster Corp., et al. v. Ticket.Com. Inc
Appendix C: California Business and Professions Code -- 17538.4, 17538.45
Appendix D: Electronic Signatures in Global and National Commerce Act
Appendix E: Uniform Electronic Transactions Act
Appendix F: Uniform Computer Information Transactions Act
Appendix G: N.Y.S. Insurance Dept.— Circular Letter No. 33 On The Marketing and Sale of Insurance by Means of Electronic Commerce

Index
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Andrew J. Morris



Andrew J. Morris, a partner in Mayer, Brown, Rowe & Maw’s Washington, D.C. office and is a member of the firm’s Litigation and Electronic Commerce Practice Groups. His practice involves a range of commercial matters, including securities, professional liability, intellectual property, corporate governance and business torts. Mr. Morris has written numerous articles on commercial litigation and procedural topics. Before joining the firm, Mr. Morris served as a federal prosecutor, was an associate in a private practice, and clerked for a judge on the United States Court of Appeals. Mr. Morris earned law degrees with honors from Oxford University and the University of Virginia Law School and his B.S. with honors from the University of Virginia.

Brian W. Smith

Brian W. Smith is a partner of Latham & Watkins’ Washington, D.C. office. Mr. Smith is former Chief Counsel of the Office of the Comptroller of the Currency and Senior Vice-President, General Counsel, and Corporate Secretary for MasterCard International, Inc. He has written and lectured widely on the financial services industry and the laws and regulations affecting it. He is cited in the 2001-2002 Chambers Global directory as one of the world’s leading e-commerce lawyers particularly in the area of finance services. Mr. Smith is a member of the American Bar Association’s Banking Law and Cyberlaw Committees, serves on the board of advisors of several leading industry publications and has been selected by the American Banker as one of Washington’s most influential people in financial services. He received his J.D. from St John’s University School of Law, his M.S. from Columbia University Graduate School of Business, and his B.A. from St. John’s.
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