Digital Transformation: eSignature and ePayment News and Trends - January/February 2024
Achieving Digital Transformation and Securing Digital AssetsToday’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 would love to hear from you.
INSIGHT
Ten best practices for your digital transformation journey
By Margo H.K. Tank, Vinny Sanchez, R. David Whitaker, Liz Caires, and Emily Honsa Hicks
Digital transformation is critical for businesses to stay competitive and meet the ever-evolving needs of today's digital age. However, digital transformation brings with it a wide range of legal risks.
Here we offer ten high-level best practices to help guide you on your digital transformation journey. Read more.
REGULATORY DEVELOPMENTS
FEDERAL
IRS
IRS indefinitely allows electronic signatures and records for certain tax forms. On October 30, 2023, the IRS announced an indefinite extension of its prior authorization of the use of electronic and digital signatures “until more robust technical solutions are deployed.” This authorization was originally put in place during the COVID-19 pandemic. Internal Revenue Manual (IRM) 10.10.1 was updated to allow the acceptance of alternatives to handwritten signatures for certain tax forms and the ability to accept images of signatures and digital signatures in compliance interactions. A listing of allowable signature options can be found in IRM Exhibit 10.10.1-2.
The updated IRM 10.10.1 does not require the use of any specific technology when creating electronic signatures. Notably, the updated IRM does not modify other requirements applicable to the filing of the signed forms or documents. In some cases, taxpayers may be required by other portions of the IRM to print out and timely mail the signed form to the IRS. Other IRS rules permit the use of electronic signatures for certain other forms not specified in IRM 10.10.1 – for example, Form 2848: Power of Attorney and Declaration of Representative may be electronically signed when it is submitted to the IRS online.
CFPB
CFPB proposes new federal oversight of big tech companies and other providers of digital wallets and payment apps. On November 7, 2023, the Consumer Financial Protection Bureau (CFPB) proposed a rule that would make subject to the CFPB’s supervision “larger participants” – those companies providing digital wallets and payment apps and handling more than 5 million transactions per year. The CFPB notes that the rule’s scope is intended to include many consumer financial products and services commonly described as digital wallets and payment, funds transfer, and peer-to-peer applications. Interested parties had until January 8, 2024 to submit comments.
State AGs support expansion of CFPB authority to include nonbank big tech companies. On January 8, 2024, the attorneys general (AGs) of 19 states submitted a comment letter supporting the CFPB’s proposed rule expanding the CFPB’s supervisory authority to regulate as “larger participants” those nonbank, big tech companies that offer digital wallets and payment apps. The letter focused on the CFPB’s duty of “ensuring consumer access to fair, transparent, and competitive financial markets by consistently enforcing federal consumer financial law ‘without regard’ to whether regulated entities are traditional banks,” including popular “general-use digital consumer payment applications.” Furthermore, the letter asserted the states’ strong interest in ensuring that both traditional banks and providers of consumer financial products and services – notably, to protect low-income individuals who may not have ready access to traditional, bank-provided digital consumer payment applications. The state AGs asserted that the proposed rule protects consumers from fraud and unregulated investment risks and helps protect consumers’ personally identifiable information.
FinCEN
FinCEN issues analysis of identity-related suspicious activity. On January 9, 2024, the Financial Crimes Enforcement Network (FinCEN) issued a Financial Trend Analysis (FTA) on information linked to identity-related suspicious activity in Bank Secrecy Act (BSA) reports filed in calendar year 2021. FinCEN’s analysis found that approximately 1.6 million reports (42 percent of the reports filed that year) related to identity – indicating $212 billion in suspicious activity. The report, part of the FinCEN Identity Project, explores how bad actors exploit identity-related processes involved in processing transactions as well as opening and accessing accounts. The most frequently reported typologies in BSA reports were fraud, false records, identity theft, third-party money laundering, and circumvention of verification standards. Trends found in the BSA reporting include the following:
- While most financial institutions in the identity-related BSA dataset reported impersonation as their top identity exploitation, money services businesses most often reported circumvention of verification.
- The report found that compromised credentials have a disproportionate financial impact as compared to other types of identity exploitation.
FCC
FCC adopts new rule on TCPA consent to address lead generators. On December 13, 2023, the Federal Communication Commission (FCC) announced the adoption of new rules amending regulations under the Telephone Consumer Protection Act (TCPA) to address “vulnerabilities in America’s robotext defenses” and close the “lead generator loophole.” The new rules require that comparison shopping websites and lead generators obtain consumer consent to receive robocalls and robotexts one seller at a time, rather than having a single consent apply to multiple telemarketers. Specifically, the new rules amend the definition of “prior express consent” to require “clear and conspicuous” authorization of “no more than one identified seller” to deliver calls or messages, and such calls or messages must be “logically and topically associated with the interaction that prompted the consent.”
The new rules also allow the FCC to “red flag” certain numbers, requiring mobile carriers to block texts from those numbers.
Lastly, the new rules codify that Do-Not Call protections apply to text messaging, and they also encourage providers to make email-to-text messages an opt-in service.
Social Security Administration
Senators call for SSA compliance with eSignature executive order. On December 15, 2023, Senators Mike Braun and Bob Casey sent a letter to the Social Security Administration (SSA) regarding the agency’s lack of compliance with congressional and executive direction to allow electronic signatures for the completion of transactions when possible. Such direction included President Joe Biden’s December 16, 2021 executive order directing SSA, to the extent practicable, to remove and revise regulations requiring physical signatures. The letter noted that there have been reports of SSA offices still requiring completion of many forms with a wet signature of blue or black ink and requiring submission by mail rather than electronically. The Senators expressed concern that “outdated SSA wet signature requirements for some forms are burdensome for SSA employees and are contributing to ongoing backlogs and delays in access to benefits for recipients and potential recipients with disabilities.” The Senators also lauded the SSA’s effective adoption of electronic signatures during the pandemic with reported success and urged the SSA to provide such flexibility post-pandemic, consistent with congressional and executive policy. The Senators requested that the SSA by January 31 respond to a series of questions regarding its processes and its plans to accept electronic signatures.
Federal Election Commission
Federal Election Commission modernizes regulations to support electronic payments. On January 2, 2024, the Federal Election Commission published updated regulations to enable and support electronic transactions, records, communications, and payments. These regulations become effective March 1, 2024 and allow the making of contributions and expenditures by credit card, text messages, and internet-based payment processors, and facilitate electronic accounting, recordkeeping, reporting, and redesignation by political committees. The new regulations additionally adopt definitions of “written” and “writing” requirements to include tangible or electronic forms and define “signature” to includes an electronic signature. Further, the regulations define an “electronic signature” as “an electronic word, image, symbol, or process that an individual attaches to or associates with a writing or record to identify the individual and authenticate the writing or record.” Digital signatures are not required. Notably, this definition differs from the definition of an “electronic signature” in the federal ESIGN Act and the UETA as it does not include a sound, nor does it incorporate the requirement that a signature be affixed by the signer with the intent to sign. Comments to the regulations assert that the Commission is adopting “an objective definition with which compliance can be initially determined on the face of the signed writing or record.”
STATE
Money transmission
California DFPI finds bill paying service not subject to the state Money Transmission Act. The California Department of Financial Protection and Innovation issued an interpretive opinion on October 16, 2023 holding that a US company providing bill payment services for US customers to pay billers in the Philippines qualifies for the agent of the payee exemption under the state Money Transmission Act. In this case, the US company forwards these payments to a Filipino company which then remits the payment to the biller. The billers appointed the Filipino company as their agent, and the billers and the Filipino company have appointed the US company as their agent for collecting payments in the US. Specifically, the DFPI found that the US company was not engaging in money transmission because it is only receiving money for transmission as an agent of another party (ie, the payee) and is not receiving money for transmission in its own capacity.
Two more states adopt the Model Money Transmission Modernization Act.
- California. AB1116 was signed by Governor Gavin Newsom on October 8, 2023 and became effective on January 1, 2024 for new applicants. The bill allows for a transition period for existing licensees through January 1, 2025.
- Maryland. Made effective on December 11, 2023, amendments to state regulations under COMAR 09.03.14 bring Maryland largely in line with the Model Act. Significantly, the amended regulations now recognize an exemption for persons appointed as an agent of the payee, although the conditions which must be met for the exemption to apply differ from the Model Law’s exemption. Under the amended regulations, an exemption for persons appointed as an agent of the payee will apply if (a) there is a written agreement between the payee and agent for payment processing, aligning with Maryland law; (b) there is public recognition of the agent collecting payments on behalf of the payee; (c) upon the agent’s receipt of payment, the payor’s obligation ends without risk; (d) the agent is not serving in an escrow capacity; (e) the agent is not acting as an agent to more than one party; and (f) the agent mandates prompt, unconditional payment without tying it to future events or performances.
For more information on the Model Money Transmission Modernization Act, see our October 2023 issue.
NYDFS releases guidance on assessment of directors and senior officers. On January 22, 2024, the New York Department of Financial Services (NYDFS) issued final guidance to state banking organization and non-depository financial institutions, including money transmitters, that sets expectations with respect to reviewing and assessing the character and fitness of director and senior officers at the onboarding stage and on an ongoing basis. According to NYDFS’s guidance, covered institutions are expected to (a) update their policies and procedures to require vetting of designated persons at onboarding and on a regular ongoing basis; (b) inform NYDFS promptly if their character and fitness reviews determine that a designated person is no longer fit to perform their current function; (c) vet each designated person at the time they become a designated person at the institution, even if they have previously served as a designated person at another institution; and (d) define factors that warrant additional scrutiny.
Digital assets and virtual currency
Wyoming enacts digital asset registration law. The Wyoming Digital Asset Registration Act, which became effective December 1, 2023, permits the owner of a digital asset to register the asset with the Secretary of State. Such registration lasts for five years. The new law extends the jurisdiction of the Wyoming chancery court to include disputes concerning registered digital assets.
California DFPI invited comments on Digital Financial Assets Law. On November 20, 2023, the California Department of Financial Protection and Innovation (DFPI) announced it sought comment on a proposed rule implementing the Digital Financial Assets Law (DFAL), which was signed into law on October 13, 2023. DFAL would require licensure for certain virtual asset service providers, much like BitLicenses in New York, and governs business activities such as exchanging, storing, or transferring a digital financial asset. The law defines a “digital financial asset” as “a digital representation of value that is used as a medium of exchange, unit of account, or store of value, and that is not legal tender, whether or not denominated in legal tender.” DFPI sought comments on the proposed rule’s requirements for licensure, application process, and stablecoin approval. Comments were accepted through January 12, 2024. For more information on the DFAL, see our October 2023 issue of Blockchain and Digital Assets News and Trends.
California regulates Bitcoin kiosks. On October 13, 2023, California enacted SB401, which is tied to the state DFAL and regulates “digital financial asset transaction kiosks” defined as devices “capable of accepting or dispensing cash in exchange for a digital financial asset.” Under the new law, kiosk operators:
- Are prohibited from accepting or dispensing more than $1,000 in a day from or to a customer via the kiosk
- On or after January 1, 2025, must provide the customer a written disclosure of the terms and conditions of the transaction
- Are required to provide the customer with a receipt for each transaction which includes the name of the customer and the date and time of the transaction
- Are required to provide to the DFPI a list of all locations of kiosks that the operator owns, operates, or manages in this state for the DFPI to make available to the public on the DFPI website.
Uniform Commercial Code Article 12
California adopts 2022 UCC Amendments. On September 22, 2023, California enacted SB95 which adopts the 2022 Uniform Commercial Code (UCC) Amendments, including Article 12, effective as of January 1, 2024. California is the 11th state to adopt the 2022 amendments. For more information on the status of adoption of the 2022 UCC Amendments, see our July 2023 issue.
Remote online notarization
Massachusetts RON law takes effect. Massachusetts General Laws. C.222 Sec. 28 enabling remote online notarization (RON) in the state became effective January 1, 2024.
Kansas adopts permanent RON regulations. On December 14, 2023, the Kansas Secretary of State published permanent administrative regulations for RON which amended the prior regulations effective December 29, 2023.
Changes to the FBCA affect Virgina RON law. Changes to the X.509 Certificate Policy for the Federal Bridge Certification Authority (FBCA), which impact Virginia’s RON law, went into effect on September 1, 2023. The FBCA significantly modified its in-person antecedent processes, including removal of the section on “On-Line Verification Methodology,” which expressly permitted the use of knowledge-based authentication for remote applicants. The Virginia RON law requires that a remote signer’s identity be confirmed, in part, by identity proofing by an antecedent in-person identity proofing process in accordance with the specifications of the [FBCA].” RON notaries relying on the FBCA’s in-person antecedent identity proofing process to confirm the identity of remote signers in a RON session must become familiar with these revised procedures.
eTitles
Oregon allows electronic titles. Made effective on January 1, 2024, Oregon’s HB3080 directs the Department of Transportation to adopt rules permitting vehicle dealers or financial institutions to electronically transmit documents necessary to take actions related to vehicle ownership, including registering and titling vehicles. The rules apply to vehicle dealers that sold more than 100 vehicles in the previous calendar year and allow such dealers to electronically transmit certain documents related to vehicle sales and to electronically maintain dealer records. The new law further directs the Department to provide the primary security interest holder of a vehicle with an electronic title if requested.
Mobile Driving Licenses and Americans with Disabilities Act
DOJ finds Oklahoma mobile ID app violates ADA. On November 16, 2023, the Justice Department issued a letter announcing the completion of its investigation of the Oklahoma Mobile ID Application under Title II of the Americans with Disabilities Act (ADA) and its implementing regulation. The letter finds that the OK Mobile ID App violates the ADA because “people with vision disabilities cannot use it.”
The investigation was initiated as the result of a complaint filed by a blind Oklahoma resident who could not access the OK Mobile ID App. The app provides a digitized version of a physical driver’s license or other state-issued ID, allowing for storage on a smartphone and use in many of the same contexts as a physical driver’s license or other state-issued ID. The app can also be used to start an application for a REAL ID, which will be required by May 2025 for boarding domestic flights, visiting military bases, or entering specific federal buildings, among others.
The complainant was unable to take a photo of the front and back of her ID or take a picture of herself by connecting the dots on the screen using only head and eye movements. The investigation “found recurrent issues and critical accessibility barriers for people with disabilities on the [OK Mobile ID App].” Specifically, the required enrollment tasks that included taking photos were found to be “difficult or impossible for individuals who are blind to do without receiving any verbal feedback.” The DOJ letter compels Service Oklahoma to promptly implement corrective measures, which include compliance with WCAG 2.1 Level AA.
INDUSTRY DEVELOPMENTS
MISMO adopts standards. On November 28, 2023, the Mortgage Industry Standards Maintenance Organization (MISMO) announced the publication of its eVault Standards and SMART Doc® Validation Rules documents, which were created to help provide clarity and increase eVault interoperability for all parties in the transaction.
Proposed updates to NIST Digital Identity Guidelines. The National Institute of Standards and Technology (NIST) announced on December 12, 2023 that it expects to have revision 4 of the NIST Digital Identity Guidelines released by spring 2024. According to the institute, all four volumes of NIST Special Publication 800-63-4 will have a second public comment period of at least 45 days. Modifications to the volumes include:
- NIST SP 800-63: Base Volume. Updating the digital identity model to account for “Issuer, Holder, Verifier” frameworks of digital identity, new content related to continuous evaluation metrics, and updates to the digital identity risk management processes.
- NIST SP 800-63 A: Identity Proofing and Enrollment. Updates to IAL1 to better balance user burden and security, modifications to the framing of different types of identity proofing, and providing an additional discussion of fraud detection and mitigation approaches.
- NIST SP 800-63B: Authentication and Lifecycle Management. Updates refining NIST’s approach to synched authenticators (eg, passkeys) and account recovery, and adding a new authenticator type to account for emerging credential types.
- NIST SP 800-63C: Federation and Assertions. Adding a new section to cover the presentation of Mobile Driving Licenses (mDLs) and verifiable credentials, as well as basic security requirements for “digital wallets” that store and convey documents and identity information.
NIST’s August 2023 public workshop on revision 4 of the Digital Identity Guideless is available at Digital Identity – What’s Next for NIST?
CASE LAW
FEDERAL
Money transmission
State regulators reach settlement with ACI Payments, Inc. In November 2023, the regulators of 43 states and the District of Columbia reached settlements with licensed money transmitter ACI Payments, Inc. for erroneously initiating electronic transactions totaling $2.3 billion from the accounts of 480,000 mortgage-holders serviced by Mr. Cooper (formerly known as Nationstar Mortgage, LLC). Mr. Cooper offered ACI Payments’ Speedpay product for its customers to schedule their monthly mortgage payments, enabling automatic transfers of authorized mortgage payments from their personal bank accounts to Mr. Cooper. The violations occurred when ACI Payments erroneously used live customer data in a test of its Speedpay platform, causing unexpected and sometimes multiple mortgage payments from customer accounts. In some cases, these transactions exposed consumers to overdraft or insufficient funds fees. State regulators levied $10 million in fines through a multistate enforcement, and, additionally, 50 state AGs levied $10 million in fines.
Oregon settles with Set Forth, Inc. for money transmission violations. On December 28, 2023, the Oregon Department of Consumer and Business Services Division of Financial Regulation entered a consent order against Set Forth, Inc. (formerly known as Forth, Inc. and Debt Pay Gateway, Inc.), asserting violations of the state Money Transmitters Law. Set Forth was not licensed to conduct a money transmission business, although it allegedly collected funds from consumers’ banks via ACH, deposited the funds in custodial accounts, disbursed funds from the custodial accounts to the consumer’s creditors and other third parties, and otherwise executed consumer payment instructions. The order included assessment of a civil penalty of $40,000 for violating the Oregon law in at least 131 instances and required Set Forth to refund all fees collected from Oregon residents. The company consented to entry of the order without admitting or denying the findings.
Electronic funds transfers
Virtual currency exchange obtains dismissal of damages claim under the EFTA. In the case of Nero et al. v. Uphold HQ Inc., (2023 WL 5426203, USDC, SDNY, August 23, 2023), the US District Court for the Southern District of New York granted in part Uphold’s motion for judgment on the pleadings and dismissed the class action plaintiffs’ claims for actual damages based alleged violations of the Electronic Funds Transfer Act (EFTA). The plaintiffs were accountholders of Uphold whose accounts were hacked and drained by unauthorized users. The complaint alleged violations of the EFTA including failing to provide disclosures to consumers clarifying consumers’ liability under law for unauthorized electronic funds transfers at the time of account opening. The court rejected Uphold’s initial argument that the EFTA only applies to fiat currency and does not apply to cryptocurrencies or accounts held for investment. However, the court upheld the assertion of Uphold that the complaint failed to include allegations that the alleged violations of the EFTA caused actual damage to the named plaintiffs.
STATE
eWills
Pennsylvania denies probate of a remotely notarized electronic will. In the case of In re Estate of Susan (2023 Pa. Super. Lexis 429, Sept. 25, 2023), the Superior Court of Pennsylvania upheld the decision of the orphans’ court upholding the decree of the register of wills refusing to probate the will of Susan L. Kittler. The will was executed through remote notarization by a notary qualified to perform remote notarization in the state. The remote notarization session video conference included the decedent from her nursing home and the notary from her residence. Additionally, two witnesses and the attorney who drafted the will attended the video conference from the attorney’s office. The purported will included a red box with an image of the handwritten script signature of the decedent – not a computer-generated font – and the text “signed on 2020/11/24.” The Superior Court noted that the state orphans’ courts had issued conflicting decisions regarding the validity of electronic wills, and the state legislature had not adopted any law or policy governing electronic wills. The Superior Court upheld the decision of the orphans’ court, holding that the image of the decedent’s script signature electronically applied by the remote notarization platform did not meet the statutory requirement that the will be manually signed at the end. The Superior Court stated, “We are thus constrained to await a pronouncement from our Supreme Court or General Assembly regarding electronic technology in the execution of wills.”
Remote online notarization
New York court accepts filing executed using RON. In Matter of Maltz, 2023 NY Misc LEXIS 22732 (Surrogate’s Ct. NY, Richmond Cty., Nov. 30, 2023), the Surrogate’s Court of New York in Richmond County accepted for filing a waiver and consent executed through the use of remote online notarization under New York Executive Law § 135-c. The court noted that the waiver and consent contained the electronic signatures of the principal and the notary, and the notarial certificate contained a statement that the document was notarized using communication technology. However, the court stated, “The Wavier and Consent does not contain information regarding the type of communication technology utilized to perform the electronic notarial act, nor is the digital certificate or public key infrastructure employed verifiable on the face of the document.” For these reasons, the court requested that counsel submit an affirmation regarding the sufficiency of the electronic notarial act to affirm the requirements of NY Executive Law §135-c were followed and that compliant communication technology was used. The court relied on that affirmation in accepting for filing with the court the waiver and consent.
Jurisdiction over online businesses
Case against online business dismissed for lack of personal jurisdiction. The US Court of Appeals for the Ninth Circuit on November 28, 2023 upheld the ruling of the district court that a plaintiff failed to establish specific personal jurisdiction against Shopify, a nationally available e-commerce payment platform, in the case of Briskin v. Shopify, Inc., 87 F.4th 404 (USCA 9th Cir, Nov. 28, 2023). The plaintiff in a putative class action alleged that Shopify’s collection, retention, and use of consumer data violated certain California privacy and unfair competition laws. The plaintiff acknowledged a lack of general jurisdiction over Shopify as the company did not maintain a principal place of business in California and was not incorporated in California. However, the plaintiff argued that Shopify was subject to specific jurisdiction because it directly contracted with California merchants, opened a physical location in California, and maintained a fulfillment center in California that stores merchant goods and shipped them to consumers, including consumers in California. Additionally, a Shopify subsidiary serving as a subprocessor of user data is registered to do business in California, once had an office in California with some of its employees located in California, and provides services to “thousands” of California businesses.
The district court held, and the Ninth Circuit agreed, that Shopify’s conduct of extracting and retaining consumer data and tracking customers was insufficient to expose Shopify to specific personal jurisdiction in California where a consumer made his online purchase because, by operating a nationally available e-commerce payment platform that was indifferent to the location of end-users, Shopify did not “expressly aim” its conduct at California. The Ninth Circuit court analyzed specific personal jurisdiction in the context of interactive websites, and noted that, for specific jurisdiction to exist over a non-resident defendant, “the defendant must either ‘purposefully direct his activities’ toward the forum or ‘purposefully avail[] himself of the privileges of conducting activities in the forum’;” and “the claim must be one which arises out of or relates to the defendant’s forum related activities.” The plaintiff bears the burden on these elements. If the plaintiff succeeds, the defendant must present a compelling case that the exercise of jurisdiction would not be reasonable.
After analysis, the Ninth Circuit agreed with the holding of the district court and found that there was no conduct which Shopify purposefully directed at California to create specific jurisdiction.
Electronic signature and online contract formation
Physical signatures used to detect electronic forgery. In Dealer Services S., Inc. v. Martin Automotive Group, Inc., (La. App. 3d Cir. Nov. 29, 2023), the Louisiana Court of Appeals held that the trial court did not “manifestly err” when finding that a purported electronic signature at issue was a forgery based, in part, on the determination of a forensic examiner, who compared 35 known physical samples of a handwritten signature to the electronic signature in question.
In the case, Martin Automotive Group (MAG) argued that a B2B agreement bearing electronic signatures drawn using a finger on a tablet was unenforceable because the then president of MAG lacked the authority to sign on behalf of MAG or that the president’s signature was a forgery. Although the then president admitted at trial to electronically signing the agreement, substantial evidence admitted at trial brought into question the president’s credibility and veracity. Additionally, multiple witnesses testified that the electronic signature bore no resemblance to the president’s handwritten signature. Such witness testimony corroborated the analysis of the forensic examiner, which concluded it was probable that the president did not sign the agreement. MAG also presented testimony that the board and all other executives at MAG were never given a copy of the agreement, nor were any of them made aware of its existence for years. Based on the above, and despite the then president’s admission at trial that he signed the agreement, the trial court concluded that MAG met its burden of proving forgery and, even if such burden had not been met, that the president did not have the authority to sign the contract under MAG’s bylaws and corporate practices. The appellate court upheld the trial court’s ruling on appeal finding no error in the trial court’s finding that MAG met the burden of proving that the signature was forged, stating that, “the testimony was overwhelming clear that the signature bore no resemblance to [the president’s] signature.”
Incomplete electronic signature process raises enforcement issues. In a decision that has yet to be released and is thus still subject to revision or withdrawal (Pinnacle Sec. & Investigation Inc. v. Howard, 23-133 (La. App. 5th Cir. Dec. 20, 2023)), a Louisiana Court of Appeals found that a trial court did not "manifestly err" by finding that an employer failed to make a prima facie showing that a former employee electronically signed a non-competition agreement within meaning of the Louisiana Uniform Electronic Transactions Act (ETA) and thus was not entitled to a preliminary injunction for alleged violations. The former employee clearly denied electronically signing the non-competition agreement, and factual questions were raised as to whether the employer had fully transitioned to electronically signing onboarding documents (which included the agreement in question) when the employee was hired. Further, the employer was unable to show that it complied with its own procedures for onboarding, as well as failed to demonstrate compliance with security procedures for verifying that electronic signatures belonged to the employee.
Poorly displayed electronic employment contract held unconscionable. A California Court of Appeals in the case of Hasty v. Am. Automobile Assn. of N. California, Nevada & Utah (98 Cal. App. 5th 1041 (Cal. App. 3d Dist. 2023)) found an employment contract between an insurance company and a former insurance agent employee to contain elements indicating procedural unconscionability due to surprise. Before starting work, the employee was required to review and electronically sign the agreement, which, according to the court, included dense paragraphs with small font, spanning two single-spaced pages full of legal terms and statutory references. However, the employee did not own a computer and had to view the document on her smartphone, which made the small text even more challenging to read. The court also noted that there was no clear reference to the arbitration agreement in the instructions or the signature statement – the arbitration agreement was only accessible via a link, which the court found to further obscure its presence and significance.
RECENT EVENTS
The Legal 500 ranks DLA Piper Tier 1 in FinTech: Crypto. DLA Piper was also ranked in Tier 2 for FinTech, and Margo Tank was ranked as a "Leading Individual."
Chambers FinTech Legal ranks DLA Piper in all Band 2 for FinTech Legal and Band 3 for Payments and Lending with Margo Tank individually recognized in Band 3 in Payments & Lending.
The Financial Times recognizes DLA Piper as one of the Most Innovative Law Firms in North America.
DLA Piper's Commodities, Digital Assets, and Carbon Compliance and Enforcement team draws on decades of collective experience in the commodities and securities industry to help companies navigate new and complex commodities enforcement matters, including those related to agriculture, metals, energy, digital assets, and carbon/sustainable commodities, among others.
RECENT PUBLICATIONS
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 in August 2023. If you are interested in purchasing a copy of the book, please contact Emily Honsa Hicks for more information.
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 DLA Piper, 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, or companies can purchase information about individual states as needed.
Read
The Corporate Transparency Act is coming: What you should know
Exploring the ethical implications of digital assets, blockchain technology, and smart contracts in legal practice
CFTC Tech Advisory Committee’s DeFi report: key takeaways for DeFi builders and innovators
IRS delays reporting of business transactions involving receipt of digital assets until regulations are issued
CFPB and European Commission joint statement – a cautious transatlantic first date
IRS and Treasury issue proposed regulations outlining new digital asset reporting regime
Read the latest issue of our bulletin Blockchain and Digital Assets News and Trends
Learn more about our eSignatures and ePayments practice by contacting:
The editors send their thanks and appreciation to Marc Aronson and Raymond Janicko for their contributions to this and prior issues.
