Digital Transformation: eSignature and ePayment News and Trends - May/June 2024

Today’s ever-shifting business environment means that consumers, businesses, employers, and employees all expect to transact digitally. To remain efficient and competitive, companies must digitally transform their businesses. Successful transformation and maintenance require careful planning and up-to-date knowledge to ensure smooth integration with existing business technology, positive customer experience, and ongoing regulatory compliance.

This newsletter includes legal insights and brief summaries of recently enacted federal and state laws, federal and state regulatory activities, fresh judicial precedent, and other important news to keep you up to date in the ever-evolving electronic environment.

If you’d like to discuss one of these items, or a project you’re considering, please reach out to one of the editors – and, if there is a topic you’d like us to cover in a future Insight, we’d love to hear from you.

ESIGN consumer disclosures must be provided and consent obtained to meet TCPA prior express written consent requirements

By Margo H.K. Tank, R. David Whitaker, Liz Caires, and Emily Honsa Hicks

Because of the federal Electronic Signatures in Global and National Commerce Act (ESIGN) and equivalent state laws, companies are delivering via electronic means important disclosures and other information that traditionally needed to be presented "in writing." In addition, the medium of choice for communicating with consumers electronically is rapidly migrating from email to text messaging. As a result, understanding the requirements of the Telephone Consumer Protection Act (TCPA) and how those requirements may be implemented electronically under ESIGN are a must.

The application of ESIGN to other laws and understanding its overlay approach can be a source of confusion for many. The US District Court of the District of Maryland recently analyzed the TCPA and ESIGN in detail, and its findings underscore that, when prior express written consent is required under the TCPA, ESIGN consumer disclosures must first be provided and ESIGN consent obtained if TCPA consent is to be obtained using electronic means. This holding provides a good roadmap for ESIGN compliance. Read more.

 

REGULATORY DEVELOPMENTS

FEDERAL

CFPB

CFPB finds BNPL lenders to be credit card providers. The Consumer Financial Protection Bureau (CFPB) on May 22 issued an interpretive rule that confirms that Buy Now, Pay Later (BNPL) lenders are credit card providers. Accordingly, BNPL lenders must provide consumers some key legal protections and rights that apply to conventional credit cards under the Truth in Lending Act, namely:

• Investigate disputes: BNPL lenders must investigate disputes that consumers initiate. Lenders must also pause payment requirements during the investigation and sometimes must issue credits.
• Refund returned products or canceled services: When consumers return products or cancel services for a refund, BNPL lenders must credit the refunds to consumers’ accounts.
• Provide billing statements: Consumers must receive periodic billing statements like the ones received for classic credit card accounts.

CFPB issues Nonbank Registration Rule requiring nonbanks to register with agency. On June 3, the CFPB issued a rule that will require nonbank “covered persons” to register with the CFPB any final, written public orders obtained or issued against such covered persons in connection with the offering or provision of a consumer financial product or service. The new rule takes effect September 16 and applies to any such order, including any written order or judgment in an investigation, matter, or proceeding issued by agencies or courts, whether or not issued as a consent order. To meet the criteria, an order must:

• Identify a covered nonbank by name as a party subject to the order
• Be issued, at least in part, in any action or proceeding brought by any Federal agency State agency, or local agency
• Contain public provisions that impose obligations on the covered nonbank to take certain actions or to refrain from taking certain actions
• Impose obligations on the covered nonbank based on an alleged violation of a “covered law,” which includes, but is not limited to, federal consumer financial laws, other laws enforced by the CFPB, and certain unfair, deceptive, or abusive act or practice laws, rules, or orders at both federal and state levels identified in the final rule, and
• Have an effective date on or after January 1, 2017 (and remain in effect on September 16, 2024).

Consent orders or stipulated orders brought under consumer protection laws must be reported, whether or not the covered person admits or denies any wrongdoing.

Additionally, CFPB-supervised covered nonbanks with over $5 million in annual receipts are required to submit an annual compliance attestation signed by a senior executive for each applicable order, confirming compliance with the order(s) and reporting any instances of noncompliance. Entities must maintain records sufficient to provide reasonable support for the written statement for five years after the submission. Executive attestations, however, will not be publicly available in the CFPB’s registry and will be treated as CFPB confidential supervisory information.

A covered nonbank is relieved of further registration obligations, as well as annual attestations, if applicable, with respect to an order if it files a final notice with the CFPB describing the order’s expiration or termination, or if the order is modified such that it is no longer a covered order.

The Non-Bank Registration Rule has three timing deadline tiers for when covered persons must register, starting with “larger participants” by January 14, 2025.

NHTSA

NHTSA issues interpretative letter affirming eOdometer statements. On May 8, the National Highway Traffic Safety Administration (NHTSA) issued a Letter of Interpretation affirming the legality of electronic signatures on physical odometer disclosure documents and digitized versions of such physical documents under federal law and regulations. NHTSA issued the letter in response to a request by Carvana (the online car sales platform) in September 2022 and stated that:

[T]he signature requirements applicable to physical documents apply to such a scanned or imaged odometer statement. For purposes of Part 580, a “signature” on a physical document, including a physical document that has been scanned or imaged, must be “a person’s name, or a mark representing it, as hand written personally.”49 C.F.R. § 580.3. There is no federal requirement of NIST Level 2 conformance for such a document. See id. Part 580 requires the NIST Level 2 standard for signatures on an “electronic title or power of attorney,” not on a “physical document.” See id.

Ginnie Mae

Ginnie Mae updates digital collateral guidance. On May 20 and 31, Ginnie Mae issued guidance and updated its digital Collateral Program Guide to address, among other things, the following:

• Issuers originating eNotes as well as those aggregating eNotes are eligible to participate in the Digital Collateral Program.
• Updated requirements for Qualified eClosing Systems and Qualified eVaults to align with new/updated industry standards and requirements.
• Added requirement that eIssuers retain the eClosing audit trail for any eMortgage delivered in a digital pool or loan package.
• New requirements that eIssuers and eCustodians notify Ginnie Mae when they change eClosing System, eNote, or eVault providers.
• Updated annual audit requirement for eVaults.
• Updated to permit commingling of eMortgages with mortgage loans having a paper promissory note in the same Ginnie Mae pool or loan package.
• Clarified that eCustodians are expected to confirm eNotes contain the required eNote heading and clauses during Initial Certification and that during Initial Certification the MERS® eRegistry field for Controller Delegatee for Transfers may either be blank or name the eCustodian.
• Clarified requirements for handling of eNote defects.
• Clarified requirements for removal of Ginnie Mae from the Secured Party field on the MERS® eRegistry.
• Removed required notification to Ginnie Mae prior to assumption involving an eMortgage and clarified that the assumption must be reported to the MERS® eRegistry.
• Clarified expectations regarding handling of New York Consolidation Extension and Modification Agreements (NY CEMAs).
• Clarified restrictions on subservicing Digital Pool/Loan Packages.
• Clarified requirements and best practices for Transfers of Issuer Responsibility applicable Digital Pool/Loan Packages.

FBI

FBI warns consumers about unregistered money transmitting services. The FBI issued a warning on April 25 urging consumers to exercise caution against using unregistered cryptocurrency money transmitting services. These services, which facilitate the exchange of cryptocurrency for fiat currency, are required to register with FinCEN and comply with anti-money laundering (AML) regulations. Failure to do so may lead to financial disruptions and potential loss of access to funds for users, as law enforcement may target such services. The FBI advises consumers to verify a service’s registration with FinCEN, and to be wary of those that lack “know-your-customer” (KYC) procedures or are known for illicit activity. The FBI’s announcement is significant in that it suggests the risk in dealing with unregistered money transmitters may come from law enforcement operations themselves.

CFTC

CFTC makes recommendations on AI. On May 2, the Technology Advisory Committee (TAC) of Commodity Futures Trading Commission (CFTC) announced the release of its Report on Responsible AI in Financial Markets. The TAC made five recommendations to the CFTC as to how the Commission should approach AI evolution in order to safeguard financial markets. According to the TAC:

• The CFTC should host a public roundtable discussion, and CFTC staff should directly engage in outreach with CFTC-registered entities to seek guidance and gain additional insights into the business functions and types of AI technologies most prevalent within the sector.
• The CFTC should consider the definition and adoption of an AI Risk Management Framework for the sector, in accordance with the guidelines and governance aspects of the National Institute of Standards and Technology, to assess the efficiency of AI models and potential consumer harms as they apply to regulated entities, including but not limited to governance issues.
• The CFTC should create an inventory of existing regulations related to AI in the sector and use it to develop a gap analysis of the potential risks associated with AI systems to determine compliance relative to further opportunities for dialogue on their relevancy, as well as potential clarifying staff guidance or potential rulemaking.
• The CFTC should strive to gather and establish a process to gain alignment of their AI policies and practices with other federal agencies, including the SEC, Treasury, and other agencies interested in the financial stability of markets.
• The CFTC should work toward engaging staff as both observers and potential participants in ongoing domestic and international dialogues around AI and, where possible, establish budget supplements to build the internal capacity of agency professionals around necessary technical expertise to support the agency’s endeavors in emerging and evolving technologies.

Treasury

Treasury Department seeks public input on AI in financial services. The Department of Treasury announced on June 6 the release of a request for information (RFI) on the uses, opportunities, and risks of AI in the financial services sector. The RFI aims to gather public comment on a broad range of topics, including the definition of AI; the applications of AI in product and service provision, risk management, capital markets, and regulatory compliance; the benefits and risks of AI for various stakeholders; consumer protection and data privacy issues; third-party risks; and recommended actions to advance responsible AI use in the financial sector. Comments must be submitted within 60 days after publication to the federal register.

Treasury issues risk assessment of NFTs. On May 29, the US Department of the Treasury announced the release of its illicit finance risk assessment of NFTs. The risk assessment covers, among others, AML/sanctions, investor protection, and market integrity risks, and touches on tax issues related to NFT marketplaces. Though the Treasury acknowledges that NFT platforms are “rarely being used for proliferation financing or terrorist financing,” the report notes that NFTs have been used to launder proceeds from predicate crimes, usually in combination with other obfuscation techniques. The assessment also notes that “NFT platforms ... may qualify as financial institutions.” and therefore may have AML and Bank Secrecy Act obligations. Furthermore, the assessment confirms that NFT platforms are subject to sanctions rules and can take workable, practical steps to mitigate risk (eg, IP blocking, VPN detection, risk-based wallet blocking).

Treasury’s 2024 illicit finance priorities focus on virtual currency. On May 16, the Department of the Treasury announced its 2024 National Illicit Finance Strategy. The announcement outlined the Treasury's goals and priorities for 2024, which include combatting illicit finance. The Treasury’s strategy document outlines four overarching priorities with 15 “supporting actions.” Priorities include closing regulatory gaps in AML and countering the financing of terrorism (CFT) and realizing the benefits of “responsible technological innovation” in new payment technologies. While virtual currency is central to these goals, the Treasury’s document overwhelmingly focuses on the illicit finance uses of virtual currency. The Treasury’s report catalogues its many enforcement actions against virtual asset service providers over the past few years.

Finally, the document highlights the need for international cooperation and communication mechanisms to counter national security threats by disseminating financial intelligence and information related to illicit finance risk, which includes the misuse of virtual assets.

Executive

President Biden vetoes measure to nullify SEC’s crypto accounting guidance. On May 31, President Joe Biden announced he had vetoed a congressional resolution to nullify SEC’s guidance creating accounting standards for financial firms that hold crypto in custody. The resolution passed both houses of Congress with the Senate’s approval on May 16. Though votes in the House and Senate were significantly bipartisan, the Senate vote fell short of the number required to override a presidential veto. SEC’s guidance SAB 121 will therefore remain in effect, essentially requiring the majority of SEC-registered companies holding crypto assets on behalf of clients to record that risk on the custodian’s balance sheet as a liability. Lawmakers on both sides of the aisle have criticized the guidance, finding it effectively makes providing custodial services for customers’ crypto cost-prohibitive for financial firms. Democrats opposing the resolution have argued SAB 121 is crucial for ensuring transparency and proper accounting for companies that provide custody services.

FTC

FTC releases data on impersonation scams. On May 24, the Federal Trade Commission (FTC) released a data spotlight regarding consumer impersonation scams. The report asserts that the most popular payment methods used in such scams were of cryptocurrency, bank transfer, and payment apps and services.

FDIC

FDIC publishes 2024 risk review. On May 22, the Federal Deposit Insurance Corporation (FDIC) announced publication of its 2024 Risk Review, which summarizes conditions in the US economy, financial markets, and the banking industry. The 2024 Risk Review includes discussion of crypto asset banking risks in 2023. This section of the report discusses the FDIC’s approach to regulating crypto assets and understanding and evaluating crypto asset-related markets and activities.

STATE

Biometrics

Illinois reduces BIPA damages. On May 16 the Illinois legislature passed SB2979 to reduce damages under the state Biometric Information Privacy Act (BIPA). If signed by the Governor, the bill deems the following acts to be a single violation of BIPA:

• Repeated collection of the same biometric identifier from the same person using the same method of collection and
• Repeated dissemination of the same biometric identifier from the same person to the same recipient using the same method of collection

Under BIPA’s private right of action, prevailing parties may recover $1,000 in statutory damages for each violation, and $5,000 if the violation is intentional or reckless. SB2979, if enacted, will limit an aggrieved person “to, at most, one recovery,” rather than allowing a separate recovery for each instance the person’s biometric data is collected or disclosed (provided the collection is made using the same method and the disclosure is made to the same recipient).

Money transmission

More states adopt features of the Model Money Transmission Modernization Act. The following states listed below join others that have enacted the Model Money Transmission Modernization Act (Model Act), in whole or in part. For more information on state adoptions of the Model Act, see our October 2023, February 2024, and April 2024 issues.

• Connecticut: HB5211, effective October 1, brings many of Connecticut’s requirements applicable to money transmitters in line with the Model Act, such as requiring money transmission licensees or their authorizes delegates to provide receipts to senders, and redefining “permissible investment” in line with the Model Act.
• Kansas: On April 19, Kansas enacted HB2560 which adopts the Model Act in whole effective July 1.
• Maine: On April 22, Maine adopted SP905/LD2112 to replace the state’s existing money transmission law with a full implementation of the Model Money Transmission Modernization Act including an exemption from licensee for agents of a payee, an exemption which was previously not codified under Maine law. The new law takes effect on August 9, 2024.
• Minnesota: Starting August 1, Minnesota will formally recognize an exemption for agents of a payee, having adopted the Model Act in full on May 17 with SF4097.
• Missouri: If signed by Governor Mike Parson, SB1359 will, on August 28, repeal the Sale of Checks Law and replace it with the Model Act, including formal recognition of an exemption for agents of a payee.

Colorado extends state’s regulation of money transmitters. On June 3, the Colorado Governor signed HB1328 which extends the state’s regulation of money transmitters through September 2030 and implements certain recommendations provided by the Connecticut Department of Regulatory Agencies in its 2023 review. The bill increases the penalties for a licensee’s refusal to allow examination to $1,000 per day and increases penalties for a licensee’s failure to submit required statement or report to $750 per day.

Virginia regulates EFT fees. On April 17, Virginia enacted HB1519. The bill makes it a violation of the Virginia Consumer Protection Act (VCPA) to charge a transaction, processing fee, or other surcharge for the purchase of a good or service through the use of an electronic fund transfer, among other things.

Connecticut regulates virtual currency kiosks as money transmission. Beginning October 1, Connecticut will require those entities owning, operating, soliciting, marketing, advertising, and facilitating virtual currency kiosks to be licensed as money transmitters. The Connecticut legislature enacted HB5211, the amendment making this change to its virtual currency and money transmission laws, on June 6, and included other changes such as updates to acceptable permissible investments and a physical receipt requirement.

Pennsylvania banking regulator re-interprets state Money Transmitter Act to apply to virtual currency. On April 19, the Pennsylvania Department of Banking and Securities issued a Statement of Policy on the applicability of the state Money Transmitter Act to virtual currency and virtual currency exchanges. Specifically, this new policy “interprets the definition of 'money' to include virtual currency, such as Bitcoin.” The statement explained that this change in policy was because the Department now considers virtual currency to be “generally recognized as a medium of exchange.” Notably, neither the statement, the policy, nor the state Money Transmitter Act define “virtual currency.” The statement asserts that “the Department expects that all persons engaged in the business of transmitting virtual currency by means of a transmittal instrument for a fee or other consideration will obtain a license from the Department, if they have not yet done so.” The new policy becomes effective October 15, 2024.

Digital assets and virtual currency

Georgia prohibits state government use of CBDC as payment. On May 6, Georgia enacted HB 1053 which prohibits state governmental agencies from using central bank digital currency (CBDC) as payment effective July 1. The new law also prohibits state governmental agencies from participating in testing the use of such currency.

New York issues guidance on virtual currency customer service. On May 30, the New York State Department of Financial Services (DFS) announced the issuance of guidance requiring DFS-regulated virtual currency entities to maintain and implement effective policies and procedures to promptly address customer service requests and complaints, including channels or mechanisms, response and resolution monitoring, and reporting. The guidance requires such virtual currency entities to collect relevant data and make it available for Department assessment upon request and during examinations.

Oklahoma establishes right to self-custody digital assets. On May 13, Oklahoma passed HB3594 prohibiting the state from restricting or impairing an individual from using digital assets to purchase goods or services or self-custodying digital assets using self-hosted or hardware wallets. The new law also prohibits additional taxation of digital assets used as a method of payment based solely on such use. Lastly, the law permits home and industrial crypto mining in compliance with local noise ordinances and zoning. The law will take effect on November 1.

Oklahoma becomes 48th state to adopt the Revised Uniform Fiduciary Access to Digital Assets Act. On April 23, Oklahoma enacted HB3778, making it the 48th state (plus the District of Columbia) to enact the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA). The RUFADAA governs access to a person’s online accounts when the account owner dies or loses the ability to manage the account. It extends the traditional power of a fiduciary to manage tangible property to include management of digital assets and property such as computer files, web domains, and virtual currency, but restricts a fiduciary’s access to electronic communications such as email, text messages, and social media accounts unless the original user consented to fiduciary access in a will, trust, power of attorney, or other record. Following its enactment in Oklahoma, only California and Massachusetts will have yet to adopt the RUFADAA.

UCC Article 12

UCC Article 12 on Controllable Electronic Records. The following states are joining the 20 states and the District of Columbia which have adopted the 2022 Amendments to the UCC, including Article 12 governing property rights of intangible digital assets as Controllable Electronic Records (CERs). For more information on CERs under UCC Article 12, see our prior articles from May 2023, July 2023, and April 2024.

• Illinois: SB3696 passed the legislature on May 23 and is now before the Governor
• Louisiana: SB110 passed the legislature on May 31 and is now before the Governor
• Rhode Island: HB7210 was adopted on June 10

Telephone consumer protection

Georgia adopts state protections for telephone solicitations. On May 6, Georgia enacted SB 73 which amends state law to provide for class action lawsuits, a private right of action, and damages for violations of provisions related to telephone solicitations. The bill now provides that:

no person or entity shall make or cause to be made on behalf of any person or entity any telephone solicitation to the telephone line of any residential, mobile, or wireless subscriber in this state who has given notice to the commission … of such subscriber's objection to receiving telephone solicitations.

eWills

Oklahoma enacts Uniform Electronic Estate Planning Documents Act. On May 28, the Governor of Oklahoma signed SB468, the Uniform Electronic Estate Planning Documents Act. The act provides that: an electronic will is valid if certain requirements are met; intent for an eWill may be established by extrinsic evidence; and an eWill may be simultaneously executed, attested, and made self-proving by the acknowledgment of the testator and affidavits of the witnesses. Additionally, the act provides for a certified paper copy of an eWill.

Colorado enacts Uniform Non-Testamentary Electronic Estate Planning Documents Act. On May 1, Colorado enacted HB1248 which enables the electronic execution of certain non-testamentary estate planning documents, such as a power of appointment or an inter vivos trust, but not for wills or codicils. The act additionally enables in-person and remote notarization of such electronic documents.

CASE LAW

FEDERAL

CFPB

Supreme Court upholds CFPB funding structure as constitutional. On May 16, the US Supreme Court ruled in the case of Consumer Financial Protection Bureau v. Community Financial Services Association of America, Ltd., 601 US 416, May 16, 2024, that the funding mechanism for the agency established by the Dodd-Frank Wall Street Reform and Consumer Protection Act was a valid appropriation by Congress. Specifically, the Court held that Congress may allow the CFPB to draw money from the Federal Reserve System consistent with the Constitution’s Appropriations Clause. For more information on this ruling, see our alert.

Money laundering

Once-popular crypto exchange operator admits conspiracy to commit money laundering. On May 3, DOJ and the IRS Criminal Investigation division announced that Alexander Vinnik, the operator of the once-massive cryptocurrency exchange BTC-e, had pled guilty to conspiracy to commit money laundering. According to the announcements, between 2011 and 2017, BTC-e processed $9 billion in transactions and allegedly transformed into a haven for cybercriminals. BTC-e received criminal proceeds of numerous computer intrusions and hacking incidents, ransomware attacks, identity theft schemes, corrupt public officials, and narcotics distribution rings. Vinnik operated BTC-e with the intent to promote these unlawful activities and was responsible for a loss amount of at least $121 million. Despite operating in the US, BTC-e failed to register as a money services business with the Department of the Treasury’s FinCEN. BTC-e also had no AML and/or KYC processes, which made the exchange attractive to criminals.

Crypto futures market CEO pleads guilty to Bank Secrecy Act violations. On May 7, the US Attorney’s Office for the Southern District of Florida announced that Adam Colin Todd, the former CEO of Digitex Futures Exchange, had pled guilty to causing the Exchange to violate the Bank Secrecy Act by failing to establish an AML program. The announcement further alleged that Digitex Futures Exchange operated as an unregistered futures commission merchant and that Todd publicly refused to implement KYC requirements for his customers.

FTC settles with payment processor and its executives for processing fraudulent transactions. On May 1, the FTC filed a complaint and entered a stipulated order in the US District Court for the Northern District of Georgia against BlueSnap, a payment processing company, and two of its senior executives. The FTC alleged violations of the FTC Act and Telemarketing Sales Rule based on defendants’ failure to have appropriate safeguards in place to prevent consumers from processing fraudulent transactions. Defendants agreed to cease providing payment processing services to debt collection or debt relief companies in addition to injunctive relief and a $10 million civil penalty.

FTC sues bill payment company for deceptive marketing practices. On April 25, the FTC filed a complaint in the US District Court for the Western District of Washington against Doxo Inc., a bill payment company, and its two co-founders for allegations that the company misled consumers by not fully disclosing the fees related to their bill payment services and misrepresenting their relationship with the billing companies. The FTC seeks a permanent injunction and monetary relief.

TCPA

Text messages are not artificial or pre-recorded voice under the TCPA. An appellate court dismissed the case of Soliman v. Subway Franchisee Advertising Fund Trust, Ltd, 2024 US App LEXIS 11417, 101 F.4th 176, (2nd Cir Ct App, May 10, 2024), finding that the TCPA did not apply because a text message does not constitute an “artificial or pre-recorded voice” and defendant did not use an automatic telephone dialing system to send the text message. Specifically, the court held that an ATDS did not include a telephony system that dials or texts from a stored list of pre-existing telephone numbers.

Agreement to arbitrate found to apply to TCPA claims. In Agha v. SoFi Lending Corp., No. 23-CV-01935, 2024 WL 1158406 (N.D. Ill. Mar. 18, 2024), the court granted SoFi’s motion to compel arbitration, finding that the online loan application process was sufficient to bind plaintiff to arbitrate “any claim, dispute or controversy arising out of or related to” various aspects of the loan transaction, including alleged violations of the TCPA. The court also noted that the agreement to arbitrate was broad enough to cover plaintiff’s allegations that SoFi violated the TCPA by sending plaintiff text messages after enrollment on the SoFi website, although plaintiff had subsequently added his phone number to the National Do-Not-Call Registry.

STATE

Electronic signature and online contract formation

Electronically signed arbitration provision found unconscionable where consumer had no meaningful opportunity to review electronic agreement. In Cleveland v. Power Home Solar, LLC, 2024-Ohio-2144 (Ohio App. 5 Dist., June 4, 2024) an Ohio appellate court affirmed a ruling that an arbitration provision in the contract between the parties was procedurally and substantively unconscionable. With regard to procedural unconscionability, the trial court noted, in relevant part, that the document was a standard form contract that was only available to view on an electronic tablet that belonged to the company – the document was 32 pages and included multiple “sub-agreements.” According to the court, the homeowners were not given an opportunity to review the document at their own pace and were not provided a printout of the agreement for review - the in-person salesman swiped through each page and summarized the 32-page document in less than two minutes. Additionally, the court noted that the homeowners signed their names only once, but the signatures and initials were then auto-filled throughout, including in the arbitration section. The 32-page document included 25 electronic signatures and 17 initials, each of which were identical for the same signer, and the certificate of completion confirmed that the homeowners completed signing in less than three minutes after opening the document for view. As a result, the court found that the arbitration agreement contained in that signed document was unenforceable due, in part, to procedural unconscionability resulting from the absence of a meaningful choice on the part of the homeowners, combined with contract terms that are unreasonably favorable to the solar company.

TCPA

Law firm may be vicariously liable for violation of TCPA by lead generator. In Gonzalez v. Burger L., LLC, No. 4:23-CV-1094 RLW, 2024 WL 1014058 (E.D. Mo. Mar. 8, 2024), the court denied defendants’ motion to dismiss, noting that a party may be held vicariously liable for violations of the TCPA where there was a formal agency relationship, or where apparent authority and ratification exists. Plaintiff alleged she received unsolicited calls by a lead generator on behalf of a law firm in violation of the TCPA, despite being on the National Do-Not-Call Registry, and argued that both the company calling and the company on whose behalf the calls were made were vicariously liable for the calls made by defendant lead generator, as they were acting as an agent of defendant law firm. The court found that plaintiff alleged sufficient facts to support a reasonable inference that there was a formal agency relationship between defendant law firm and defendant lead generator or, alternatively, that there was apparent authority and ratification, such that the law firm may be held vicariously liable for the lead generator’s phone calls to plaintiff.

Plaintiff did not provide TCPA consent when a third party provided plaintiff’s number as an alternative contact. In Starling v. OnProcess Tech., Inc., No. 1:23-cv-10949-JEK, 2024 U.S. Dist. LEXIS 52292 (D. Mass. Mar. 25, 2024), a US District Court denied defendants’ motion to compel arbitration, and motion to stay the case pending the outcome of arbitration, because plaintiff was not party to her sister’s internet service agreement with defendants. Although plaintiff was not a customer of defendants, she began to receive prerecorded calls without her consent because her number was listed as an alternative contact number under her sister’s account with defendants. Defendants argued that plaintiff intentionally had her number listed to fabricate the TCPA violation. In the alternative, defendants argued that plaintiff was bound to the arbitration agreement because plaintiff had benefitted from her sister’s service agreement. The court rejected the arguments, stating first that a TCPA claim was not a benefit of a contract for internet service, but an independent cause of action created by Congress. Secondly, the court noted that plaintiff was not party to the customer’s agreement with defendants and therefore did not agree to arbitrate any disputes with defendants. The court also granted plaintiff’s motion to enjoin defendants from subjecting her to arbitration.

Virtual currency

Manhattan DA secures conviction of bitcoin ATM operator. On May 16, the Manhattan DA’s office announced a New York jury had convicted Robert Taylor for running an illegal bitcoin ATM business catering to criminals. Taylor operated unlicensed kiosks in laundromats and other locations, charging high fees in exchange for anonymity. Taylor advertised on Snapchat that customers did not need to provide identification or complete any KYC processes, and that his ATMs never had cameras. He also actively discouraged customers from telling others where the machines were. The investigation revealed that Taylor's business model attracted criminals and that he made more than $5 million in cash while failing to report his income accurately on tax returns.

DLA Piper news

The Financial Times recognizes DLA Piper as one of the Most Innovative Law Firms in North America.

The Legal 500 United States 2024 List ranks DLA Piper Tier 1 in FinTech: Crypto and Cyber Law (including Data Privacy and Data Protection), and as Tier 2 in FinTech. Margo Tank and Jeffrey Hare were also ranked as "Leading Individuals."

Chambers FinTech Legal ranks DLA Piper in all four categories including Band 2 for Blockchain and Digital Assets, with Margo Tank individually recognized in Band 3 in the Blockchain & Digital Assets and Payments & Lending areas.

Emily Honsa Hicks was recently named to the D.C. Bar Association’s 2023 Capital Pro Bono Honor Roll, among many other DLA Piper attorneys.

RECENT EVENTS

David Whitaker and Emily Honsa Hicks spoke at The Conference on Consumer Finance Law’s Spring Consumer Financial Services Conference on May 30-31, 2024 at Loyola University Chicago School of Law.

RECENT PUBLICATIONS

David Stier, Emily Honsa Hicks, and Eric Hall co-authored the chapter on Anti-Money Laundering, Know Your Customer, and the Bank Secrecy Act, and provided general editorial assistance on other chapters in the newly-published book, Banking [on] Blockchain: A Legal and Regulatory Primer, published by the American Bar Association. The book is a comprehensive guide to the legal and regulatory landscape surrounding the use of blockchain technology, decentralization, and digital assets within the financial services industry and explores the potential benefits and challenges of using these technologies as well as offers guidance on how financial institutions can navigate the complex regulatory environment.

Emily Honsa Hicks co-authored the “Electronic Signatures and Records” chapter in the Consumer Financial Services Answer Book, 2024 Edition, published by Practicing Law Institute.

Cryptocurrency and Digital Asset Regulation, published by the American Bar Association and co-edited by Deborah Meshulam and Michael Fluhr, including chapters by Meshulam and Fluhr as well as by Margo H.K. Tank.

The MBA Compliance Essentials Remote Online Notarization State Surveys, developed by Liz Caires and Margo H.K. Tank, provides a comprehensive look at RON requirements in each state that has enacted RON legislation. These fully editable surveys are organized by category of requirements, including registration, technology, seal and signature, certificates of RON acts, journal, authentication, session, recording, and additional requirements. Companies can purchase the full package, which includes surveys for all states that have enacted RON legislation along with a matrix summarizing state requirements – otherwise, companies can purchase information about individual states as needed.

Read

The CFPB and European Commission joint statement: Tentative first steps of a transatlantic relationship

Colorado enacts first-in-the-nation comprehensive AI guardrails

In case you missed it

Read the latest issue of our bulletin Blockchain and Digital Assets News and Trends

Read the latest issue of our bulletin Bank Regulatory News and Trends

Contacts

Learn more about our eSignatures and ePayments practice by contacting:

Margo H.K. Tank

David Whitaker

Liz Caires

The editors send their thanks and appreciation to Marc Aronson and Raymond Janicko for their contributions to this and prior issues.