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Insights and Expertise

provider a systematic means by which it could port a
whole portfolio of merchants in the event of a serious issue
ing, compliance and contractual issues. with the main provider.
Over the years, Atlas has built a reputation for
helping payments companies translate innovative If the substitute provider has a cumbersome onboarding
ideas into legally workable business models. His process and the ISO's main POS platform disappears,
work often involves negotiating or drafting agree- delays in boarding on the new platform might result in
ments among the many parties that make up the the portfolio slipping away before the ISO has a chance to
payments ecosystem, including banks, processors, save it.
payment facilitators, agents and merchants. He has
also provided expert testimony in legal proceed- 4. Data portability
ings concerning payment processing practices and
industry norms. POS platforms warehouse a significant amount of valuable
merchant data. Setting aside the rights and interests of the
Atlas’s practice reflects the rapidly expanding ISO, merchants owe it to themselves to consider how easy,
scope of financial technology. In addition to tradi- or difficult, it might be to migrate their data to a substitute
tional acquiring law, his work extends into areas POS platform or even to one they build themselves.
such as blockchain, digital currencies and other
emerging payment models. The firm also advises As an advocate for merchants, the ISO could take an
on money services business licensing, anti-money- interest in the merchant's data portability rights under
laundering compliance and FinCEN regulatory the POS platform agreement and the technical feasibility
obligations, areas that have become increasingly of an actual migration. Merchants are often too busy
important as digital payments and virtual curren- running their business to consider these rights. The ISO
cies evolve. has an opportunity to leverage its knowledge of the POS
platform system to highlight advantages in relation to
Throughout his career, Atlas has remained closely data portability.
connected to the payments community. His Legal
ease column continues to explore the legal impli- The hardest part of POS platform data portability is
cations of industry trends, helping professionals cardholder data. If the POS platform is also storing
from every corner of the payments and fintech cardholder data and allowing merchants to use tokens
ecosystem understand how law and technology of those cards to initiate transactions, migrating that
intersect in the evolving payments landscape. cardholder data can be complicated by a number of legal
relationships.
For The Green Sheet and its readers, Atlas has been
more than a contributor. He has been a trusted First, the merchant itself should be disclosing to its end
voice who consistently brings clarity, perspective users that cardholder data is stored and processed by the
and practical wisdom to complex legal questions. POS platform. Second, the merchant should plan for a
In an industry defined by rapid change, his col- scenario where card token data is migrated to another POS
umn has served as a steady guide for ISOs, proces- platform through a secure process.
sors and payments professionals navigating unfa- 5. Talk disaster before Day 1
miliar terrain. The Green Sheet is deeply grateful
for his long-standing commitment to sharing his Continued merchant stability should be part of an
expertise with our readers. ISO's dialogue with a POS provider before a contract is
negotiated or signed. This conversation requires the
POS platform to have a certain amount of maturity and
could be easily migrated to their new preferred platform. humility to consider that their platform could fail. ISOs
In reality, this was problematic for whole portfolios of should dive into this topic in their first meeting with the
merchants. POS platform. The tenor of that conversation could foretell
a lot in terms of what might happen in good times and
Keep in mind that if the POS platform is provided by the bad.
super-ISO or processor of the ISO, there may be multiple
non-solicitation and confidentiality clauses that could Platforms that are able to conceive of their own fallibility
block movement of the portfolio—even in the event of a are sometimes best.
crisis with the main POS platform provider. An ISO should
consider how all of these clauses could get in the way of In publishing The Green Sheet, neither the author nor the publisher are
saving their portfolio if the POS platform goes kaput.
engaged in rendering legal, accounting, or other professional services.
3. Migration clauses with substitute provider If legal advice or other expert assistance is required, the services of a
competent professional should be sought. For further information on
Having a Plan B POS platform provider is not enough. this article, please contact Adam Atlas, Attorney at Law email: atlas@
An ISO should foresee in its contract with the substitute adamatlas.com, Tel. 514-842-0886.
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