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On October 26, the U.S. District Court for the District of Colorado denied, in relevant part, an individual’s motion for summary judgement, holding that no private right of action exists under the Electronic Signatures in Global and National Commerce (E-SIGN) Act. The plaintiff had asserted a violation of E-SIGN by an auto-dealership, who allegedly failed to advise the plaintiff of: (i) the right to receive paper copies (rather than electronic copies) of certain records; and (ii) the right to withdraw previously provided consent to receiving records in electronic form.
In ruling against the plaintiff’s motion, the court noted that where Congress creates specific means for enforcing a statute, a court will assume that Congress did not intend to allow any additional rights of action beyond those specified. When applied to the E-SIGN Act, the court found that no standalone remedy is necessary, as any violation of the E-SIGN Act would be “self-effectuating.” Any failure to “[d]emonstrate the proper consent for electronic service would only expose the party required to deliver the information in writing to whatever sanctions the law requiring written disclosure provides.” Therefore, the court found that “Congress appears to have provided no separate remedial scheme for violation of the E-SIGN Act's consent provisions, as no standalone remedy is necessary.”
On September 16, the U.S. Senate Committee on Commerce, Science, and Transportation voted 14-12 to approve S. 4159 (the “E-SIGN Modernization Act”), sponsored by Senator Thune, the majority whip. As previously covered by Infobytes, the E-SIGN Modernization Act would amend E-SIGN to remove the requirement that consumers reasonably demonstrate they can access documents electronically before they can receive an electronic version. Instead, consumers would be allowed to obtain documents electronically once they are provided with disclosure information and consent to receiving documents through such means. The E-SIGN Modernization Act was opposed by several consumer advocacy groups, including the National Consumer Law Center, which argued in a letter to the committee that the bill “would increase fraud and effectively prevent access to legally required information and records about the transactions to which consumers are bound.”
Committee Ranking Member Senator Cantwell had offered, but later withdrew, an amendment that would have rejected all the changes introduced under the E-SIGN Modernization Act and, among other things, required the Secretary of Commerce and the Federal Trade Commission to evaluate and report to Congress, within a year after S. 4159’s enactment, the benefits and burdens of E-SIGN’s requirement for consumers to reasonably demonstrate that they can access documents electronically before receiving electronic versions.
The legislation is currently pending approval by the full Senate.
On July 2, three Republican senators introduced a bill that would make electronic transactions easier by simplifying how consumers signal their acceptance of them. Sens. John Thune, Jerry Moran, and Todd Young introduced S.4159, the “E-SIGN Modernization Act,” which would allow companies to use electronic documents instead of paper ones if they secure the consumer’s consent to the substitution. Under the original E-SIGN Act passed 20 years ago, consumers also had to demonstrate to the company that they could access the records in the electronic form.
“Computers, smart phones, and other devices are more reliable and accessible than ever before,” Thune said in a press release accompanying the bill. “This legislation makes necessary updates to E-Sign to reflect these advancements in technology and make it easier for consumers to receive documents electronically.”
The bill also would no longer require transaction parties to obtain new consents when hardware or software changes. Instead, the company would simply disclose the updated requirements and notify the consumer of their right to withdraw consent without penalty.
On April 15 and 14, the Small Business Administration (SBA) and the Treasury Department (Treasury) provided additional guidance to the Paycheck Protection Program (PPP) frequently asked questions (FAQs) to address lender concerns about, among other things, application submissions, signature requirements, and applications from SBA employees and family. Some of the FAQs include the following guidance:
- Lenders may submit loan applications through E-Tran only after collecting the same borrower information and certifications contained in the application form, and performing a good faith review of the borrower’s payroll calculations.
- Lenders that submitted applications prior to April 14 without collecting the required borrower information and certifications must do so as soon as possible before loan closing.
- Lenders may accept scanned copies of loan applications, borrower certifications, and other required documents. E-sign compliant electronic signatures and consents may also be accepted.
On April 13, one of the SBA and Treasury FAQs—also included on FinCEN’s website along with FAQ 18—discusses beneficial ownership requirements for PPP loans. For new customers, lenders meet their beneficial ownership obligations by collecting the following information from natural persons with ownership stakes in the applicant of 20 percent or greater: “owner name, title, ownership %, TIN, address, and date of birth.” SBA and Treasury also released an FAQ that addressed lender submission requirements prior to issuing PPP loans. FAQ 21 states that lenders are required to sign the lender application form for the PPP (SBA Form 2484) in order to issue PPP loans, but lenders do not need a separate SBA Authorization. Terms and conditions in the lenders’ promissory note must be consistent with CARES Act sections 1102 and 1106 as well as the PPP Interim Final Rule. Additional FAQs from this date address nonbank lenders, the $10 million loan cap, and the affiliation rules applicability to various kinds of businesses.
Please see Buckley’s dedicated SBA page, which includes additional SBA resources.
The Montana Secretary of State’s website enumerates four ways to perform notary services in the state. They include traditional notarization, In-Person Electronic Notarization (IPEN or eNotarization), Remote Online Notarization (RON), and remote notarization. The webpage also describes the conditions unique to each type of notary service. This guidance follows the enactment of full RON, remote notarization on tangible records, as well as IPEN last fall.
On April 1, the Texas Department of Banking issued a notice to trust companies announcing a 31-day extension for (1) public trust companies to report on Condition and Income and (2) exempt family trusts to report Annual Report of Condition and Income and Certification of Exempt Status. The announcement also authorized the use of electronic signatures on both filings mentioned.
The NYDFS issued guidance encouraging regulated insurance persons to use and accept electronic signatures and records to facilitate insurance transactions in instances that cause no consumer harm. The NYDFS reminded licensees that both New York’s Electronic Signatures and Records Act and the federal Electronic Signatures in Global and National Commerce Act permit the use of electronic signatures and records if the consumer consents. The NYDFS also stated it does not require consumer consent be obtained in any particular way.
Massachusetts Securities Division relaxes notarization and signature requirements for certain filings
On March 24, the Massachusetts Securities Division issued an Emergency Notice giving temporary relief from certain filing requirements for corporate finance filings and financial professional registrations during the Covid-19 outbreaks. The Division will not require manual signatures or notarizations for securities registration applications, exemption filings, securities notice filings, and consent to service of process forms and will accept e-signatures and copies of signed documents where required. The Division will also permit electronic submission of Forms U4 without physical signatures from individual agents or investment advisor representatives, provided that certain requirements are met, and will accept alternatives to a notarized Criminal Offender Record Information acknowledgment form. Finally, the Division will allow investment advisers up to 45 additional days to perform any Form ADV filing, updating, or customer delivery requirements. This guidance will remain in effect until April 30, unless extended or rescinded.
On January 10, the U.S. Court of Appeals for the 3rd Circuit held that a student (plaintiff) attending an online school (defendant) consented to an arbitration agreement and waiver of jury trial when she electronically signed an enrollment packet. According to the opinion, when the defendant moved to dismiss the plaintiff’s lawsuit and compel arbitration, the plaintiff argued that she did not realize the enrollment packet contained an arbitration agreement. She maintained that her e-signature was applied to the agreement without her permission. The lower court, however, granted the defendant’s motion to dismiss and entered an order to compel arbitration.
On appeal, the 3rd Circuit agreed with the lower court in a non-precedential decision that her contentions that she was never presented with the agreement and that the defendant had applied an e-signature on file were insufficient to create an issue of material fact. It observed, “[t]he most reasonable inference we can draw from the evidence presented is that [the plaintiff] simply did not read or review the [e]nrollment [p]acket PDF closely before she e-signed it, which will not save her from her obligation to arbitrate.” The 3rd Circuit further noted that Pennsylvania allows electronic signatures as a valid way to register assent, and that a “physical pen and ink signature” is not required.
- Daniel R. Alonso to moderate an interactive roundtable at the Latin Lawyer and GIR Connect: Anti-Corruption & Investigations Conference
- APPROVED Checkpoint Webcast: You have license renewal questions, we have answers
- Jonice Gray Tucker to discuss “Fintech trends” at the BIHC Network Elevating Black Excellence Regional Summit
- Jeffrey P. Naimon to discuss "Truth in lending” at the American Bar Association National Institute on Consumer Financial Services Basics
- Daniel R. Alonso to discuss anti-money-laundering at FELABAN Spanish-language webinar “Perspective for banks: LAFT, FINCEN, OFAC, Cryptocurrency”
- Daniel R. Alonso to discuss "What’s new in BSA/AML compliance?" at the Institute of International Bankers Regulatory Compliance Seminar
- Jon David D. Langlois to discuss "Regulatory update: What you need to know under the new boss; It won’t be the same as the old boss" at the IMN Residential Mortgage Service Rights Forum (East)
- Benjamin B. Klubes to discuss “Creating a Fantastic Workplace Culture”
- John R. Coleman and Amanda R. Lawrence to discuss “Consumer financial services government enforcement actions – The CFPB and beyond” at the Government Investigations & Civil Litigation Institute Annual Meeting
- Jonice Gray Tucker to discuss "Consumer financial services" at the Practising Law Institute Banking Law Institute
- Jonice Gray Tucker to discuss “Regulators always ring twice: Responding to a government request” at ALM Legalweek