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INTRODUCTION
The upheaval that continued to roil the financial industry in 2009 has affected virtually all aspects of banking. During the past year, the regulation of deposit operations has been marked by significant changes at the legislative and regulatory levels. This Survey summarizes recent legal and regulatory developments affecting bank deposits and payment systems, focusing on: (i) developments involving deposit account overdrafts, including changes to Federal Reserve Board ("FRB") Regulation DD, Truth in Savings ("Regulation DD"),1 FRB Regulation E, Electronic Fund Transfers ("Regulation E"),2 and recent litigation; (ii) developments with respect to deposit insurance; (iii) changes to FRB Regulation D, Reserve Requirements of Depository Institutions ("Regulation D");3 (iv) recent legislation affecting stored value card products; (v) regulations implementing federal law restrictions on unlawful internet gambling; and (vi) regulatory guidance for managing remote deposit capture services.
OVERDRAFT RULES AND LITIGATION
In May 2008, the FRB and other federal agencies proposed amendments to Regulation AA, which would have prohibited banks from assessing fees for an overdraft service unless the consumer was given notice and the right to opt out of such service and the consumer did not opt out.4 Concurrently, the FRB proposed amendments to Regulation DD to implement the opt-out requirement and to address overdraft-related disclosures.5 In January 2009, the final Regulation DD rules were published in the Federal Register (without opt-out provisions),6 while the original Regulation AA proposal was modified and proposed as a Regulation E amendment.7 In November 2009, Regulation E final rules were published.8
REGULATION DD FINAL RULE
The Regulation DD amendments, effective January 1, 2010: (i) require all institutions, not just those promoting overdraft services, to disclose on periodic statements the overdraft and return item fees being imposed; and (ii) prohibit banks from including overdraft amounts in account balance disclosures provided to a consumer through an automated system.9 Periodic statements sent to consumers must disclose the total fees charged, both for the statement period and for the calendar year to date, for insufficient funds and for returning items unpaid.10 These aggregate fee disclosures must be disclosed in close proximity to the itemized fees already disclosed on the statement.11
The Regulation DD amendments also provide that, when disclosing balance information to a consumer through an automated system (such as an automated teller machine...