Open source content: moneyservicesbusinesslaw.com
MSB Research Tool: MSBStatus.com
Leave a founder and a calculator alone in a room for 10 minutes and out comes a unicorn payments company. Let’s test this theory.
1. Uber, Didi Kauaidi, Lyft. Uber and most of its competitors are classic biller models. Some, such as Uber, may actually be going further and becoming MSBs. The Uber Gift Card terms, for example, allow a payer to deliver up to $2,000 of value from one user to another through a promotion code. Uber still has no FinCEN registration.
2. Airbnb. Using classic biller model language, Airbnb terms state: “Airbnb Payments serves as the limited authorized payment collection agent of the Host for the purpose of accepting, on behalf of the Host, payments from Guests […].” Airbnb has had its FinCEN MSB registration since 2014.
6. WeWork. WeWork is perhaps the unicorn that best distinguishes itself from a payments company, because its members are tenants of WeWork and actually purchase WeWork services, as per its terms of service.
8. ApplePay. In the inverse of all the other examples, everyone thinks of ApplePay as a payments business except Apple itself which thinks it’s just a gateway. The ApplePay terms refer to it as creating a virtual representation of a card for which Apple is not responsible.
2. Can and ISO Aggregate? Sort of. In the old days, ISOs had to treat merchants as stand-alone entities, each getting their own unique merchant account. The new Payment Services Provider (PSP) concept has allowed ISOs to step into the shoes of acquiring banks and actually create sub-merchants and MIDs for each of them. The PSP remains liable for the transactions of each of the sub-merchants, but the PSP has the ability to quickly board merchants. See, for example, Square, Stripe and WePay.
3. Why isn’t ApplePay an MSB? Good question. It looks like ApplePay has managed to soak up all four corners of a payment transaction, less only the settlement of funds. It stores and tokenizes cardholder data, merchant transaction data within a proprietary gateway. Apple might eventually have to slog through the licensure process like everyone else in at least some states that cast the net wide on what constitutes money transmission, like Maine.
4. How much is your payments business worth? Generally, a multiple of the monthly revenue net of agent payouts. You should also look at the residuals on a static pool of clients. For example, look at the monthly revenue on your clients of one year ago and compare that to the revenue on those same old clients today. The difference between those two numbers is called ‘attrition’. You’ll want attrition to be as low as possible. There are many other factors, but concentration of clients of one kind or another will put downwards pressure on valuations.
5. Is Bitcoin Illegal. No it’s not. Just like other forms of barter, it is not illegal to sell goods or services in exchange for Bitcoin. For example, a merchant selling computers can sell a computer for Bitcoin and not be in breach of the law. Where legal issues arise is on the accounting and tax treatment of the Bitcoin received and the process by which, if any, the merchant then elects to turn the Bitcoin into ‘real’ currency. Virtual currency exchanges, being businesses that exchange Bitcoin for real currency are also likely to need MSB licensing.
ETA. Our next show is the acquiring industry’s annual gathering, Transact15 March 31-April 2.
Adam Atlas Attorney at Law is licensed in New York and Quebec. Nothing in this e-mail should be construed as a legal opinion or commentary on laws other than in the two jurisdictions where the author is admitted.