Presenting a live 90-minute webinar with interactive Q&A E-Signatures and Electronic Loan Documentation: Complying with ESIGN/UETA, Interplay With the UCC Navigating Issues of Enforceability, Authentication of E-Signatures and Admissibility THURSDAY, SEPTEMBER 14, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: J. Sharon Kim, Esq., Burr & Forman , Atlanta Ed Snow, Partner, Burr & Forman , Atlanta The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .
Tips for Optimal Quality FOR LIVE EVENT ONLY Sound Quality If you are listening via your computer speakers, please note that the quality of your sound will vary depending on the speed and quality of your internet connection. If the sound quality is not satisfactory, you may listen via the phone: dial 1-866-873-1442 and enter your PIN when prompted. Otherwise, please send us a chat or e-mail sound@straffordpub.com immediately so we can address the problem. If you dialed in and have any difficulties during the call, press *0 for assistance. Viewing Quality To maximize your screen, press the F11 key on your keyboard. To exit full screen, press the F11 key again.
Continuing Education Credits FOR LIVE EVENT ONLY In order for us to process your continuing education credit, you must confirm your participation in this webinar by completing and submitting the Attendance Affirmation/Evaluation after the webinar. A link to the Attendance Affirmation/Evaluation will be in the thank you email that you will receive immediately following the program. For additional information about continuing education, call us at 1-800-926-7926 ext. 35.
Program Materials FOR LIVE EVENT ONLY If you have not printed the conference materials for this program, please complete the following steps: Click on the ^ symbol next to “Conference Materials” in the middle of the left - • hand column on your screen. • Click on the tab labeled “Handouts” that appears, and there you will see a PDF of the slides for today's program. • Double click on the PDF and a separate page will open. Print the slides by clicking on the printer icon. •
The Legal Challenges in e-Signatures: Key Pointers to Ensure Validity September 14, 2017 Sharon Kim Ed Snow Associate Partner Burr & Forman Burr & Forman shkim@burr.com esnow@burr.com 5
What We Will Cover Today I. Introduction to ESIGN and UETA II. Electronic Signatures--What Are They? III. “Pre - Electronic” Signature Law — Ensuring Validity IV. Electronic Signature Law--Provisions and Practices to Ensure Validity V. Electronic Signature Law--Third Party Documents and Evidentiary Considerations to Ensure Validity VI. Relevant e-Signature Case Law Update 6 6
I. Introduction to ESIGN and UETA: A Brief History of Electronic Transactions Law • With the rise of e-commerce, states were going to make their own electronic signature laws. • Circa 1999, National Conference of Commissioners on Uniform State Laws drafted the Uniform Electronic Transactions Act (“UETA”) to avoid non-uniformity and urged the states to adopt it. States started adopting UETA, but often with changes, making the law less uniform . 7 7
A Brief History of Electronic Transactions Law • Some states (NY, IL, and WA) insisted on their own laws rather than follow NCCUSL. • Concerned that state e-commerce law was not going to be uniform enough, the federal government enacted in 2000 the Electronic Signatures in Global and National Commerce Act (“ESIGN”) • ESIGN pre-empted state e-commerce laws that varied in certain ways from UETA. 8 8
UETA and ESIGN Main Points: 1. A record or signature may not be denied legal effect or enforceability solely because it is in electronic form. 2. A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation. 3. If a law requires a record to be in writing, an electronic record satisfies the law. 4. If a law requires a signature, an electronic signature satisfies the law. 5. In a proceeding, evidence of a record or signature may not be excluded solely because it is in electronic form. 9 9
Exclusions under UETA and ESIGN • Laws regarding wills, codicils, and testamentary trusts • The UCC, except Section 1-107 (Waiver of Renunciation of Claim or Right After Breach), Section 1-206 (Statute of Frauds for Kinds of Personal Property Not Otherwise Covered), Article 2 (Sales), and Article 2A (Leases) • Other laws (e.g., notice of the cancellation or termination of utility services; certain notices of default, etc., in consumer transactions; notice of the cancellation or termination of health or life insurance benefits; and notice of the recall of a product, or material failure of a product, that risks endangering health or safety, among others) 10 10
UETA, ESIGN and Commercial Loan Closings? • While the law has permitted electronic commercial loan closings since the late 1990s in most cases, commercial banks have yet to fully embrace electronic closings, with today’s “dual track closings” with emailed PDFs to fund followed by wet signatures embracing the new law so long as it is backstopped by older law. • Why haven’t banks fully embraced electronic commercial loan closings? 11 11
UETA, ESIGN, and Loan Documents Some reasons for not closing commercial loans solely by electronic means: • Some banks won’t fund without an inked promissory note (even if Article 3 of the UCC is irrelevant). • Some lenders must physically pledge an inked note to a funding source as collateral. • Borrower’s counsel may not be ready to give closing opinions over electronic documents. • Fear that courts will not find electronic signatures attributable to the party to be charged. 12 12
II. Electronic Signatures: What Are They? The heart and soul of UETA and ESIGN are these two points: 1. A signature, contract, or other record relating to a transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form. 2. A contract relating to a transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation. 13 13
• What is “electronic”? • Relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. • What is an “electronic signature”? • An electronic sound, symbol, or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record. It includes a digital signature. 14 14
• What is a “transaction”? • An action or set of actions occurring between two or more persons relating to the conduct of business, commercial, or governmental affairs • What is a “record”? • Information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form 15 15
What is a “Transferable Record”? The term "electronic record" includes as a subset thereof a "transferable record" which is defined in UETA Section 16(a) as "an electronic record that: 1. would be a note under [Article 3 of the Uniform Commercial Code] or a document under [Article 7 of the Uniform Commercial Code] if the electronic record were in writing; and 2. the issuer of the electronic record expressly has agreed is a transferable record." 16 16
What is a Transferable Record? Following the lead of the drafters of UCC Section 9-105, the drafters of UETA provided in UETA Sections 16(b) and (c) that a party has "control" over a transferable record, granting such party with many of the rights of a holder in due course under UCC Article 3, if the conditions of UETA Sections 16(b) and (c) are met: (b) [ General rule: control of transferable record .] A person has control of a transferable record if a system employed for evidencing the transfer of interests in the transferable record reliably establishes that person as the person to which the transferable record was issued or transferred. 17 17
Recommend
More recommend
