Marketing Together In Fintech-Bank Partnerships

In this edition of Fintech Flash, we discuss ways to enhance the marketing approval process in fintech-bank partnerships. We also touch on why banks must control program marketing, conducting due diligence on marketing capabilities, and memorializing in the program agreement how banks and fintechs work together, including on marketing.

In fintech-bank program agreement negotiations, SLAs on the bank’s marketing material approval timeline often come up. It makes sense, because marketing makes the biggest difference market share-wise for programs, and marketing opportunities come and go fast. 

In this Fintech Flash, we discuss a few ways to enhance the marketing approval process in fintech-bank partnerships. Before doing so, we:

• Level set on why banks must control program marketing
• Touch on counter-party due diligence aimed at assessing marketing capabilities before deciding on moving forward with the partnership and proceeding to a definitive agreement
• Offer thoughts on memorializing in the program agreement how the parties work together, including on marketing

Banks Control Program Marketing

We should start from a place that recognizes banks must control program marketing and the reasons why. From supervisory expectations, and litigation, reputation, and safety and soundness risk mitigation perspectives, banks must oversee, monitor, and control their programs, including program marketing. A good example of program control protection in play is the 2020 Colorado settlement with Avant and Marlette.¹ Under this settlement, the subject lending programs qualify for a safe harbor from further true lender court challenge by Colorado if they meet prescribed criteria, including oversight criteria. The key thrust of the oversight criteria is that the bank must oversee and control the program by having approval authority and audit rights over marketing and other important aspects of the program. The criteria specific to marketing are:

“4. The Bank oversees and retains the ultimate approval authority over all marketing content related to Loans offered and originated by the Bank under the Program, and the Bank has the right to audit such marketing content pursuant to its agreement with the Partner FinTech.² The Partner FinTech will retain any approvals for marketing content received from the Bank for a commercially reasonable period thereafter (but at least as long as required by the Bank’s Applicable Regulators). 

. . . 

7. The Bank has authority to retract or modify prior approvals of marketing content . . . for any reason, at any time.”³

These criteria have become a blueprint for the marketing provisions in banks’ form program agreements, which provide for the bank’s approval of marketing channels and materials before they are used, the bank’s right to conduct marketing audits, and the bank’s ability to revoke or change prior marketing approvals under certain circumstances (e.g., change in law rendering materials out of compliance or a regulator’s written directive). Following this blueprint helped OppFi recently defeat a true lender challenge by the California Department of Financial Protection and Innovation, and its victory hinged in part on FinWise Bank controlling the marketing of the FinWise-OppFi program loans.⁴

Regulators also expect that the banks they supervise will control the marketing of their lending, deposit, and payments partnership programs through their third-party risk management programs, particularly with respect to use of the FDIC name and logo and representations about deposit insurance coverage.⁵

Respecting bank control requirements doesn’t mean the fintech company still can’t drive program creative. Indeed, the program agreement will spell out that establishing marketing channels and developing marketing campaigns and materials for bank consideration and approval are big parts of the marketing services the fintech provides the bank. 

Bank approval of marketing materials is good for programs. Deploying a bank’s second line of compliance defense in marketing material review on a routinely scrutinized activity benefits both the bank and its partner. As we know, enforcement actions often focus as much on how a product or service is marketed as any other aspect of the product or service. 

Conducting Due Diligence on Marketing Capabilities

In due diligence, banks will ask about the fintech’s compliance firepower, including the qualifications of the CCO and other compliance personnel, as well as the complexity of the CMS. As part of CMS validation, banks will ask prospective partners for copies of their marketing policies and procedures. 

Fintechs should size up the bank’s marketing approval process and timing. They may ask questions, like:

• Can you tell us about the bank’s approval process for marketing channels and materials? 
• Do you have dedicated compliance specialists who focus on reviewing marketing materials? If so, how many, and what is their experience?
• What’s the intake process like? Do we send the proposed marketing materials directly to our program liaison, a marketing compliance review specialist, or a dedicated bank marketing department email address? Is there an intake form that’s submitted along with the proposed marketing materials? If so, what’s on the form?
• What approval timeline can we expect? What’s the longest we could experience and why? Does the approval process include the bank providing comments that if incorporated would mean the marketing materials are approved?
• Are there certain marketing channels (e.g., specific social media sites) that you would not approve?
• Have you ever retracted or modified prior approvals of marketing materials or channels on any of your programs? If so, please explain.

If the response to the fourth bullet is “Almost always within X business days,” that answer may become a reasoned basis for an approval SLA discussed in the next section.

Memorialize the Working Relationship in the Program Agreement

Bank partnership arrangements are not legal partnerships. They’re structured such that the fintech is a contractual service provider of the bank. It’s the bank’s program, but both parties participate in running the program to some degree. The fintech administers the program’s day-to-day operation and, as the eyes, ears, and right brain of the program, proposes changes and additions to the program as the market shifts and opportunities present themselves. The bank performs the non-ministerial/bank power functions and oversees, monitors, and controls the program through reporting, auditing, and approval mechanisms. 

To support smooth operations, particularly because arrangements are co-run, it’s important that program agreements memorialize how the bank and the fintech work together. Consider inserting a “Program Management” (or similarly titled) section near the beginning of the program agreement and putting in that section these types of provisions:

• Each party appoints a liaison to run point on its program responsibilities or functions, facilitate day-to-day operation of the program, and discuss any day-to-day program issues that may arise. 
• The liaisons meet periodically to discuss issues, performance, and administration of the program, including, for example, program marketing. 
• Between meetings, either liaison may bring issues to the attention of the other liaison. 
• The liaisons work together to resolve any issue presented and escalate any issues they can’t resolve themselves. 
• The fintech may suggest changes to the program and seek the bank’s approval of proposed changes, and the bank will consider suggestions in good faith. Any approval will not be unreasonably withheld, conditioned, denied, or delayed. 
• If approval of a party is required pursuant to the agreement (e.g., the bank’s approval of new marketing materials or channels) then the party seeking approval will provide written notice of same to the liaison of the other party or follow any other approval process designated by the other party.
• Each party’s liaison or their designee may coordinate review of approval requests and transmit its approval, pursuant to its internal approval procedures. 
• SLAs for the timing of bank approvals, including approval of new marketing materials and channels. SLAs should be realistic and tailored to the type of approval. For example, in a lending bank partnership, approvals to proposed changes in the underwriting guidelines that require bank board consent will take longer than marketing material approvals. It’s not uncommon to see commercially reasonable or reasonable best-efforts qualifiers in SLAs. 
• If the bank intends to make changes to the program as provided in the program agreement, the bank will collaborate and consult with its partner before making changes, and the bank will reasonably consider any suggestions of the partner for incorporation into the change. 
• Each party will act in good faith and in the best interest of the program.

Provisions like these give the fintech a seat at the table, with the bank remaining in control at the head of the table. A seat for the fintech makes sense, because the program is important to its business. 

Partners shouldn’t let the Program Management section become a dead letter. They should ensure periodic meetings occur by requesting them, creating opportunities to discuss what’s working, what can be improved, and what’s on the road map. If marketing approval processes could be enhanced, put it on the meeting agenda. It may be learned that submitting requests in a certain way can speed up approvals. Regular meetings also build familiarity and trust between the parties, making it more likely that a workable path will be found for new initiatives and special requests. 

Make the Review Process Easier

In our experience, fintechs that present marketing requests to their partner bank on a silver platter can get faster approvals. The whole program benefits when the fintech makes the bank’s review process as easy as possible. For example, this can be done by:

• Following Protocol: If the bank uses an intake form and prescribes directions to follow when submitting marketing materials for approval, naturally, use the form and follow the directions. If there is no set guidance, ask your bank liaison if their marketing reviewer has any protocol they would like followed to expedite the approval process. 
• Highlighting New Content for Approval: In many cases, marketing materials submitted for approval contain content that has already been approved. For example, a proposed solicitation email may be largely based on one used for a prior campaign with just a new subject line and a change to the sign-off. Point out the limited, new content and the material already approved. 
• Showing Your Work: Fintechs should develop a compliance checklist as part of their marketing policies and procedures that is completed when internally reviewing marketing materials before they are submitted to the bank for approval. Include the completed checklist and notes with submissions. This helps the bank verify the work rather than redo it from scratch. 
• Providing Compliance Annotations: Incorporate comment bubbles on marketing materials submitted for approval, explaining how compliance issues presented by new content have been addressed. For example, if a term that triggers additional clear and conspicuous or equally prominent disclosures under Regulation Z is used, insert a comment pointing up the regulation and its citation, the trigger term, the additional disclosures added, and how the clear and conspicuous or equally prominent requirement is met. 

Approaching the approval process in this way shows the fintech’s marketing horsepower and can simplify the bank’s review. Reviewer-friendly materials from a trusted source can translate into faster approvals. 

Introduce a Marketing Plan Concept With Preapproved Channels and Content

We’ve had fintech clients in successful programs amend their program agreements at the end of the initial term to incorporate marketing plan provisions. Conceptually, these provisions establish a framework for the bank and the fintech to develop a written marketing plan that preapproves future marketing campaigns and related content, materials, and channels, reducing the need for episodic approvals. Marketing plan provisions may address:

• The roles each party plays in developing the marketing plan, including kick-off and ideation meetings, the fintech as primary draftsperson, and the bank’s ultimate approval
• Development timelines and milestones, as well as periodic updating to reflect new or modified campaigns
• The contents of the plan, such as preapproved strategies, specific campaigns, channels, materials, and content
• Ongoing performance tracking and reporting

A marketing plan approach is a sign of a high level of collaboration between a bank and its fintech partner.

Goodwin’s Fintech Team

Our Fintech team counsels banks, fintech companies, platforms, brands, investors, and other consumer and small business financial services providers on transactional, regulatory and enforcement matters. A big part of our practice is drafting and negotiating bank program agreements. We are major proponents of program agreement arrangements and have seen the benefits these arrangements have brought to the market, including greater consumer access to financial products and services, lower costs, better customer service, and more customer rewards. Our team is led by partners Crystal Kaldjob, Kim Holzel, Alex Callen, Sammy Tang, and Mike Whalen, and is highly ranked by Chambers and Legal 500. 

Footnotes

1. Assurance of Discontinuance entered into by and among the Colorado Administrator of the Uniform Consumer Credit Code; the Attorney General of Colorado; Avant of Colorado, LLC; Avant, LLC; Avant PB SPV, LLC; WebBank; Wilmington Trust, N.A.; Wilmington Savings Fund Society, FSB; Marlette Funding, LLC; and Cross River Bank (Aug. 7, 2020) (“Colorado Assurance of Discontinuance”). ↩

2. We note that the Colorado Assurance of Discontinuance refers to the subject arrangements as bank partnerships and both fintech companies working with the banks as a “Partner Fintech.” We appreciate that these arrangements may be referred to in other ways, such as bank sponsorships. ↩

3. Colorado Assurance of Discontinuance at 6-7. In addition to oversight criteria, the safe harbor has separate disclosure and funding, licensing, consumer terms, and structural criteria that must be met. The disclosure and funding criteria also cover marketing, providing that “marketing materials related to the Program shall also identify that the Bank is the lender of Loans unless not practicable (for example, because of space limitations).” Id. at 8. ↩

4. Opportunity Financial, LLC v. Hewlett, No. 22STCV08163 (Cal. Super. Ct., L.A. Cty., May 19, 2026). ↩

5. E.g., CFPB, Consumer Financial Protection Circular 2022-02 (May 17, 2022). ↩