Erin F. Fonté

Payments Systems and Digital Commerce:

Erin represents retailers, financial institutions, non-bank payment systems and financial services companies, and other third-party businesses engaged in “anywhere commerce,” including point-of-sale, online e-commerce, and mobile commerce, as well as “set-top” commerce via television or game systems.

• Credit cards, debit cards and ACH networks:
  • Counsels issuing banks and retailers on agreements and transactions relating to ACH and debit, credit and stored-value card related agreements and transactions.
  • Negotiates payment-processing contracts.
  • Counsels financial institutions on merchant-acquisition matters.
  • Negotiates co-branding, issuer, processor, and third-party sales and distribution agent agreements.
  • Advises financial institutions, vendors, processors and merchants on ACH and physical and remote deposit-capture, check-based payments, transactions, disputes and related agreements.

• Alternative and emerging payments:
  • Advises on the design and launch of closed-loop, open-loop and reloadable prepaid/stored-value card programs.
  • Provides legal analysis and advice, from a business and regulatory standpoint, regarding the full spectrum of alternative and emerging payment technology and systems, including person-to-person (P2P) and account-to-account (A2A) transfers and payment mechanisms, prepaid/stored-value cards, gift cards, general-purpose reloadable cards, electronic invoicing and billing systems, traditional and mobile loyalty/rewards cards, and mobile banking and mobile payments.

Mobile Payments, Mobile Wallets and Financial Technology (FinTech):

Erin represents financial institutions, alternative payments providers and mobile wallet companies regarding regulatory and contractual matters for mobile financial services and mobile payments. Among other areas, she provides analysis and advice regarding mobile banking and mobile payments landscape products, including regulatory and technological issues, including methods of using different technology at the point-of-sale (such as cloud versus QR bar codes versus “near-field communication” (NFC) technology).

• Represents a client developing and implementing mobile wallet products that seek to combine online and point-of-sale payment functions with loyalty/rewards, targeted ads and offers, and financial spend and budgeting services.
• Counseling a national mobile wallet provider on regulatory issues and compliance, privacy and data security, and intellectual property matters, including advice regarding product development and launch.
• Advising an app developer who is creating a mobile-wallet “white label” software development kit for use by various mobile wallet providers providing counsel on joint-development and customer agreements.
• Represents numerous financial institutions with regard to creation and implementation of mobile banking apps, including mobile deposit-capture features and alternative payment services such as person-to-person (P2P) transfers.
• Represents a mobile banking platform developer with regard to regulatory, compliance, and privacy and data security issues, as well as mobile banking customer-facing terms and conditions, and provides guidance on financial institution contracts (as third-party vendor).
• Represents various online and mobile small-dollar lenders.
• Represents emerging financial technology companies providing traditional financial services.

Banking and Financial Services:

Erin advises payments and banking and financial services clients regarding statutes, regulations, guidelines, financial institution letters, legal opinion letters, and interpretive rulings and policy statements involving state agencies and federal regulatory bodies/agencies such as the:

• Consumer Financial Protection Bureau (CFPB)
• Federal Financial Institutions Examination Council (FFIEC)
• Federal Reserve Board (FRB)
• Office of the Comptroller of the Currency (OCC)
• Federal Deposit Insurance Corporation (FDIC)
• National Credit Union Administration (NCUA)
• Federal Trade Commission (FTC)
• Texas Department of Banking
• California Division of Financial Institutions

She also counsels payments, banking and financial services clients regarding legal and regulatory issues related to financial services, including requirements of and compliance with:

• The Gramm-Leach-Bliley Act (GLBA)
• Federal anti-money laundering laws, the US PATRIOT ACT and Office of Foreign Assets Control (OFAC) regulations
• State and local laws in jurisdictions such as California, Illinois, Michigan, Minnesota, Texas and Washington, D.C.
• Uniform Commercial Code (UCC) Article 4A
• Electronic Funds Transfer Act (EFTA)/Regulation E
• Check21 Act/check imaging
• Regulation CC (funds availability)
• Truth in Lending Act/Regulation Z
• NACHA and other card and payment association rules and requirements
• Various state money-transmission laws (including virtual currency regulations)
• Various federal and state privacy laws and data security breach laws

Banking and Financial Technology Agreements:

• Represents banking and financial services clients regarding banking-related agreements covering software services (including outsourcing), accounts receivable/payable management via electronic data interchange (EDI), and one-stop payments management for retail customers.
• Advises banking, financial services and corporate clients with regard to treasury management services (such as ACH, wire transfers, Check21 and remote capture issues), internet banking (including user agreements), ATM/check card services, merchant payment card and credit card processing services, end-user license agreements, website terms of use and privacy policies (including ensuring compliance with Gramm-Leach-Bliley Act, Children’s Online Privacy Protection Act (COPPA), European Union requirements and California-model privacy laws).
• Advises financial institutions in third-party vendor negotiations regarding mobile banking and mobile-banking “white label” platforms and related third-party due diligence.

Data Privacy and Security:

Erin represents various banking, financial services, corporate and retail clients regarding:

• Compliance with state data breach notification laws, including analyzing breach incident computer forensic reports, state-by-state analysis of applicable notification laws, interaction and consultation with various state regulatory authorities, drafting data security breach notification letters and related frequently asked questions, and providing research and advice regarding credit monitoring options and products.
• Compliance with Federal Right to Financial Privacy, Fair Credit Reporting Act (FCRA), Fair and Accurate Credit Transactions Act (FACTA), California Song-Beverly Act, federal CAN-SPAM Act, state email laws, federal and state laws regarding restriction on use of driver’s license information, state credit-freeze laws and other statutes.
• Problems and losses due to financial fraud conducted by electronic funds transfers, including via the ACH network, wires and debit and credit cards.

Retail:

Erin counsels retail, restaurant, banking and other corporate clients on a broad range of regulatory, legal and business matters relevant to the retail industry, including loyalty/rewards programs, advertising and offers, data analytics and “big data,” marketing and promotions, electronic payments and other issues:

• Advises on privacy issues related to mobile devices that use geo-location or geo-fencing functions for real-time couponing and deals, as well as customer and participant data collection.
• Provides counsel on legal and regulatory issues applicable to gift cards, promotional cards and other stored-value products, including card program structure, card disclosure language, and terms and conditions of use.Entry of UK-based supermarket chain into the US market. Worked directly as outside corporate counsel with 45+ inhouse business clients to draft and negotiate agreements for the United States multi-state launch and operations of major UK-based supermarket chain, including commercial banking, credit card, payment processing and ATM machine agreements; private label and branded product supplier agreements; corporate payables agreements; and various consulting services and survey and reporting services agreements.
• Counsels a mobile-based advertising and marketing and loyalty/rewards company with regard to regulatory, compliance and privacy and data security issues.
• Provides legal advice to retailers and merchants on closed-loop gift card products, including physical and virtual cards and card accounts, and advice regarding unclaimed property issues and escheat laws.
• Advises on payment-processing agreements and point-of-sale/point-of-purchase software and hardware, including mobile payment acceptance issues, and regulatory and compliance on security requirements such as PCI-DSS.
• Counsels on fuel pump and “pay at the pump” payments and advertising issues.

Digital and E-Commerce:

Erin represents software, computer hardware, banking, Internet and retail corporate clients (including traditional and online-only clients) regarding e-commerce technology transactions and distribution activities such as licensing, sales, marketing, distribution, alliance, vendor, subcontractor, outsourcing and payment processing agreements (including service level agreements); use of the Internet for marketing activities; formation of strategic alliances, cross-marketing arrangements, website development agreements, website hosting agreements, website privacy policies and conditions of use; protection and licensing of copyright, trademark and service mark intellectual property; software licensing and enduser licensing:

• Represents e-commerce and m-commerce website and app developers with regard to payment processing and payment acceptance options.
• Represents a local “daily deal” company with regard to terms and conditions of use, and related privacy/data security issues.
• Advises businesses seeking to “mobilize” their workforce via payment acceptance on mobile devices, contracting via mobile device and providing a “paperless” invoicing process.

• Recommended for Finance: FinTech, Legal 500 United States, 2020-2024
• Named a “Client Service All‐Star” by BTI, 2022
• Expert Panel, The Law Reviews, 2020
• Recognized as the Corporate/Transactional Award Winner by the Travis County Women Lawyers’ Association, 2019
• University of Texas President’s Council
• University of Texas Junior Fellow
• Named a Leading Banking and Finance Lawyer by Chambers USA, 2015

• State Bar of Texas
• College of the State Bar of Texas, Board of Directors (former)
• State Bar of California
• Austin Bar Association
• Southwest Association of Bank Counsel, Former President
• Federal Reserve Board Faster Payments Task Force, Member