In this presentation you will learn “The 4 General Principles of ESIGN” and the difference between UETA and Electronic Signatures in Global and National Commerce Act (ESIGN). Firms that have adopted E-Sign Law and Technology in their practice typically have faster client-engagement times, lower overhead costs, a happier staff, and, most importantly, happier clients.

1. Navigating E-Signature Laws
Presented By:
Andrei D. Tsygankov, Esq.
Christopher M. Pozzi

2. Andrei D. Tsygankov
• Partner at Founders Legal® (Bekiares Eliezer LLP)
• IP Licensing, Trademark & Corporate Law
• General Counsel for ClientSideTM
• Education
• B.S. in Management from Georgia Tech
• J.D. from Georgia State University College of Law

3. What Are E-Signatures?

4. Earliest Instances of ‘E-Signatures’
The first widely used system for sending signatures across
large distances was finalized in 1862.
The “Pantelegraph” sent signatures or small drawings over
existing telegraph lines.
It’s first transmission carried a signature over 80 miles in less
than two minutes!

5. E-Signatures vs. Digital Signatures

6. Relevant Laws
• Uniform Electronic Transactions Act (UETA)
• Model law drafted by the National Conference of Commissioners on Uniform State Laws
• Presented for adoption by individual states in 1999
• http://www.uniformlaws.org/Act.aspx?title=Electronic%20Transactions%20Act
• Electronic Signatures in Global and National Commerce Act (ESIGN)
• 15 U.S.C. §§ 7001-7031 (“ESIGN”)
• Passed into Federal Law in 2000
• http://www.gpo.gov/fdsys/pkg/PLAW-106publ229/html/PLAW-106publ229.htm

7. Relevant Laws
• Georgia’s Adoption of Uniform Electronic Transactions Act (UETA)
• O.C.G.A. §10-12-1 et. seq.
• Became effective July 1, 2009
• http://law.justia.com/codes/georgia/2010/title-10/chapter-12/

8. E-Signature Definition
Electronic Signature:
• “an electronic sound, symbol or process, attached to or logically
associated with a [contract or other] record, and executed or
adopted by a person with the intent to sign the record”
• 15 U.S.C. § 7006(5) (ESIGN)
• O.C.G.A § 10-12-2(8) (GA UETA)

9. Contract terms by ‘Click-Wrap’ agreement are valid
• Metro. Reg'l Info. Sys., Inc. v. Am. Home Realty Network, Inc., 722 F.3d 591, 600-
03 (4th Cir. 2013) (finding that, by clicking “yes” in response to electronic terms of use
agreement prior to uploading copyrighted photographs, a subscriber signed a written
assignment of exclusive copyright ownership in those photographs).
• Bergenstock v. LegalZoom.com, Inc. 2015 WL 3866703 (finding that, clicking “Agree
and Place Order” is valid acceptance of terms and conditions, including arbitration
provision).
E-Signatures in Practice

10. Electronic Terms of Service are enforceable if presented to a
user-signer together with a required ‘Sign Up’ button
• Fteja v. Facebook, Inc., 841 F.Supp.2d 829 (SDNY 2012) (finding that consumers must
be informed of terms of the transaction before signing electronically).
E-Signatures in Practice

11. ESIGN Act
• States must allow the use of electronic signatures if the parties involved agree to
this method of signing.
• Applies to TRANSACTIONS:
• In Interstate Commerce
• In Foreign Commerce
• With the Federal Government

12. ESIGN Act General Principles
• 1. A signature, contract, or other record related to any transaction cannot be
denied legal effect, validity or enforceability solely because it is in electronic
form.
• 2. Transaction is defined BROADLY:
• Sale, lease, exchange, licensing or other disposition of personal property, goods,
intangibles, services or combination thereof;
• Sale, lease, exchange or other disposition of any interest in real property. 15 U.S.C. § 7006
(13).

13. ESIGN Act General Principles
• 3. A contract relating to any transaction (in or affecting Interstate Commerce or
Foreign Commerce) may NOT be denied legal effect, validity, or enforceability
solely because:
• An electronic signature or electronic record was used in its formation.
15 U.S.C. § 7001(a)(2).

14. ESIGN Act General Principles
• 4. If the law requires that a contract or other record must be in writing to have
legal effect, validity or enforceability, electronic form may be denied if:
• Such record CANNOT be retained and accurately reproduced by all parties. 15
U.S.C. § 7001(e).

15. ESIGN Act General Principles
• 5. ESIGN does NOT require any person to use or accept electronic records or signatures.
15 U.S.C. § 7001(b)(2).
• If parties agree to electronic signatures, then ESIGN gives them legal effect.
• In Business-to-Business (B2B) transactions, prior behavior among the parties can
govern acceptance of electronic signatures and records.
• In Business-to-Consumer (B2C) transactions, Consumers must have notice, and
must consent.

16. ESIGN Does NOT Affect
• Substantive protections provided by consumer protection laws. 15 U.S.C. § 7001(b)(1).
• Content or timing of disclosures required by law. 15 U.S.C. § 7001(c)(2)(a).
• Any requirement by a federal regulatory agency, self-regulatory organization, or state regulatory
agency that records be filed in a specified standard. 15 U.S.C. § 7004(a).

17. ESIGN Does NOT Apply To
• (a) Any contract or record if it is governed by:
• (1) A statute, regulation, or other rule of law governing the creation and execution
of wills, codicils, or testamentary trusts. 15 U.S.C. § 7003(a)(1).
• (2) A State statute, regulation, or other rule of law governing adoption, divorce, or
other matters of family law. 15 U.S.C. § 7003(a)(2).
• (3) the Uniform Commercial Code (UCC), as in effect in any State, other than
sections 1–107 and 1–206 and Articles 2 and 2A. 15 U.S.C. § 7003(a)(3).

18. ESIGN Does NOT Apply To (Cont’d)
• (b)(1) court orders or notices, or official court documents (including briefs, pleadings,
and other writings) required to be executed in connection with court proceedings. 15
U.S.C. § 7003(b)(1).

19. ESIGN Does NOT Apply To (Cont’d)
• (b) (2) any notice of—
• (A) the cancellation or termination of utility services (including water, heat, and power). 15
U.S.C. § 7003(b)(2)(a).
• (B) default, acceleration, repossession, foreclosure, or eviction, or the right to cure, under a
credit agreement secured by, or a rental agreement for, a primary residence of an
individual. 15 U.S.C. § 7003(b)(2)(b).

20. ESIGN Does NOT Apply To (Cont’d)
• (b) (2) any notice of—
• (C) the cancellation or termination of health insurance or benefits or life insurance benefits
(excluding annuities). 15 U.S.C. § 7003(b)(2)(a).
• (D) recall of a product, or material failure of a product, that risks endangering health or
safety. 15 U.S.C. § 7003(b)(2)(d).

21. ESIGN Does NOT Apply To (Cont’d)
• (3) any document required to accompany any transportation or handling of hazardous
materials, pesticides, or other toxic or dangerous materials. 15 U.S.C. § 7003(b)(3).

22. UETA
• Model law presented to states to codify into state law
• Establishes that electronic signatures have the same legal authority as ‘wet’
signatures
• Adopted by 47 states, D.C., Puerto Rico, U.S. Virgin Islands. Exceptions:
• Illinois
• New York
• Washington

23. UETA & Reverse Pre-Emption
• States given option to enact UETA substantially as written, or face pre-emption by
ESIGN Act
• If state adopted UETA in substantially Model form, the state’s law would prevail over
ESIGN
• If a state’s UETA provision is inconsistent with ESIGN, the Federal law would again
pre-empt as to that provision.

24. • O.C.G.A. §10-12-1 et. seq.
• Effective for transactions involving electronic signatures & records on
or after July 1, 2009
Georgia UETA

25. • O.C.G.A § 10-12-7
• (a) A record or signature shall not be denied legal effect or enforceability solely
because it is in electronic form.
• (b) A contract shall not be denied legal effect or enforceability solely because
an electronic record was used in its formation.
• (c) If a law requires a record be in writing, an electronic record shall satisfy the
law.
• (d) If a law requires a signature, an electronic signature shall satisfy the law.
Georgia UETA

26. Georgia UETA
• O.C.G.A § 10-12-12
• (a) If a law requires that a record be retained, such requirement shall be satisfied
by retaining an electronic record of the information in the record which:
• (1) Accurately reflects the information set forth in the record after it was first
generated in its final form as an electronic record or otherwise; and
• (2) Remains accessible for the retention period required by law.

27. Georgia UETA
• O.C.G.A § 10-12-12 – Cont’d
• (c) A person may satisfy subsection (a) of this Code section by using the services
of another person if the requirements of that subsection are satisfied.

28. • O.C.G.A § 10-12-13
• Record or signature evidence not to be excluded solely on the basis of electronic
format.
Georgia UETA

29. Georgia UETA
• O.C.G.A § 10-12-20
• This chapter modifies, limits, and supersedes the federal Electronic Signatures in
Global and National Commerce Act, 15 U.S.C. Section 7001, et seq., but does not
modify, limit, or supersede…15 U.S.C. Section 7001(c) [Consumer
Disclosures], or authorize electronic delivery of any of the notices described
in… 15 U.S.C. Section 7003(b) [Notices].

30. UETA vs. ESIGN: Family Law
Georgia’s UETA
• Does NOT expressly limit applicability to
family law.
ESIGN Act
• [Not applicable to any] State statute,
regulation, or other rule of law governing
adoption, divorce, or other matters of
family law…

31. UETA vs. ESIGN: Admissibility in Court
UETA
UETA specifically states that an electronic
record and signature is not to be excluded
solely on the basis of electronic format.
ESIGN Act
ESIGN Act does not provide specific rules
and guidance on when e-signature and e-
records are considered admissible.

32. UETA vs. ESIGN: Consumer Protections
UETA
• Very lenient
• Enforceability against consumers determined by
actions of the parties, the context and overall
circumstances.
• Context, actions and circumstances taken into
account when determining if a consumer
provided consent.
ESIGN Act
• Consumers must affirmatively consent to
electronic records.
• Consumers must be provided notice of
their:
• Rights to hardcopy records
• Rights to withdraw consent and be
provided information on how to do so
• Need to review and store the e-records

33. UETA vs. ESIGN: Signature Authentication
UETA
• Authentication of a signer’s signature or
mark is critical.
• There must be proof that a signature is the
mark (or the act) of a person who is
supposed to sign.
• Extrinsic evidence may be used in proving
this (for example: an IP address; exclusive
access or use of an email account, etc.)
ESIGN Act
ESIGN Act does not address how or when
signatures need to be authenticated or
attributed to a specific signer.

34. UETA vs. ESIGN: Variation by Parties
Georgia’s UETA
Parties may privately agree to vary the effects
of UETA provisions.
ESIGN Act
No specific language in place that allows
parties to privately change provisions of
ESIGN.

35. UETA vs. ESIGN: Transmission & Receipt
UETA
• UETA is lenient on the transmission and
receipt of records. Generally,
• A record is sent once it leaves control of the
sender.
• A record is received when it enters the
system a recipient uses and becomes
accessible to the recipient.
ESIGN Act
ESIGN Act does not address how or when
a record is considered to have been sent or
when it has been received.

36. Electronic signatures satisfy state law writing requirement
• Barwick v. Gov’t Employee Ins. Co., Inc., No. 10-1076, 2011 Ark. LEXIS 111 (Ark.S. Ct.
2011). (Affirmation of lower court finding that electronic signature meets the requirement
that a rejection of no-fault coverage be “in writing” under state law).
ESIGN & UETA in Practice

37. Written agreement in downloadable, electronic form is valid.
“…agreement is a “written provision” despite being provided to
users in a downloadable electronic form. The latter point has been
settled by the Electronic Signatures in Global and National
Commerce Act (“E–Sign Act”)…”
• Specht v. Netscape Communications Corp. 306 F.3d 17 (2nd Cir. 2002)
ESIGN & UETA in Practice

38. • Common Hurdles:
• NOT validity of electronic signatures themselves, but Issues of substantive
law. For example:
• Did the parties have INTENT to form a contract?
• Did all parties have NOTICE (actual or constructive) of the transaction
terms?
• Did all parties give proper CONSENT to the terms?
ESIGN & UETA in Practice

39. Receipt of announcement email insufficient to change
terms of an agreement
• Campbell v. Gen. Dynamics Gov't Sys. Corp., 407 F.3d 546, 559 (1st Cir. 2005)
(finding that e-mail announcement regarding new dispute resolution policy was insufficient
to put employee on notice that the policy was a contract that extinguished the right to
access a judicial forum for resolution of federal employment discrimination claims ).
ESIGN & UETA in Practice

40. Signers must have NOTICE of terms
BEFORE accepting electronically
• Labajo v. Best Buy, 478 F.Supp.2d 523 (SDNY 2007) (finding that consumers must be
informed of terms of the transaction before signing electronically).
ESIGN & UETA in Practice

41. Third Party Agent’s electronic signature is valid
IF authority is given by principal
• Long v Time Insurance Company, 572 F.Supp. 2d 907 (OH 2008) (finding that
electronic signature of insurance agent is valid if done on behalf of insured, if the insured
had the opportunity to review the application and authorize the signature).
ESIGN & UETA in Practice

42. Record integrity & tamper-proof storage is crucial
• Adams v. Quicksilver, 210 Cal App. Unpub. LEXIS 1236 (2010) (finding that a party
cannot prove, by preponderance of the evidence, that post-signature alteration of a
document did not occur in a system that allowed post-signature alteration of the
document).
ESIGN & UETA in Practice

43. Admissibility in court
• “To meet FRE 901(a) requirements for authentication, the audit
trail, signatures and documents must also be secured in a manner
that renders the information unalterable without detection”
• Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D.Md 2007)
ESIGN & UETA in Practice

44. Admissibility in court
• “Organizations must demonstrate to the Court’s satisfaction that
they have maintained a secure retrieval process of the audit trail
and signed records by which a credible witness can confidently
testify.”
• Lorraine v. Markel American Ins. Co., 241 F.R.D. 534 (D.Md 2007)
ESIGN & UETA in Practice

46. Authentication may be problematic if use of account or
medium through which signatures take place is not exclusive
to signer
• Kerr v. Dillard Store Services, Inc., 2009 BL 30588 (D.Kan 2009) (finding that
mandatory arbitration provision in electronic agreement is unenforceable against employee
because supervisor had access to employee’s account and opportunity to sign employee’s
name).
ESIGN & UETA in Practice

47. Enforcing party has burden to show that the agreement was
actually signed by party against whom it is being enforced
• Ruiz v. Moss Bros. Auto Group, Inc. 232 Cal.App.4th 836 (2014) (finding, on de novo
review, that defendant did not prove by a preponderance of the evidence that plaintiff
signed an arbitration agreement that defendant was seeking to enforce).
ESIGN & UETA in Practice

48. Takeaways
• For E-Signatures to be valid and enforceable:
• All parties must consent to working together electronically
• Terms being accepted must be clearly presented before requiring signature
• All parties must express their consent to the terms being presented
• All parties must have an exclusive way to sign or accept terms
• All parties must have access to the signed contract, records or data after
signing

49. Best Practices
• Best Practices for Using E-Signatures:
• Implement a way to authenticate the signing parties
• Provide a secure method for each signer to access and sign documents
• Have a record or audit trail of the signing process
• Utilize a system that will prevent document tampering
• Use a secure storage and retrieval method that can be proven

50. Applied Knowledge

51. • A Few of Many Advantages
• Legal Integrity
• Administrative Efficiencies
• Professionalism
Legal Integrity with E-Signature Technology

52. Legal Integrity with E-Signature Technology
• Do you ensure the document you sent was not modified?
• Single Document Accessed at a Central Server
• Signed Document Locking with Tamper Evident Markers
• Secure Storage and Retrieval of Signed Document

53. Legal Integrity with E-Signature Technology
• Do you verify a signer’s identity?
• Multiple signers, sequential signing
• ID Verification and Access Logs
• Audit Trail for Every Signed Document

54. Admin Efficiency with E-Signature Technology
• Advantages:
• Automated Docketing
• Faster Turn Around
• Less Errors
• Time Savings (and Increased Billing)

55. Legal Documents
• Fee Agreements
• Engagement Letters
• Settlement Agreements
• IP Assignment Agreements
General Contracts
• Partnership Agreements
• Joint-Venture Agreements
• Services Agreements
• Contracts for Sale of Goods
Admin Efficiency with E-Signature Technology

56. HR Documents
• Employment Agreements
• Contractor Agreements
• Non-Disclosure Agreements
• Confidentiality Agreements
• IP Assignment Agreements
• Government Forms: W4/W9, I9, G4
Entity Formation Documents
• Operating Agreements
• Shareholder Agreements
• By-Laws
• Minutes
• Equity Grant Agreements
Admin Efficiency with E-Signature Technology

57. Professionalism with E-Signature Technology
• Clients are Making the Switch
• Corporate Clients
• University Clients
• Startups and Growth Companies
• Stay ahead of your clients and exceed their expectations!

58. E-Signature Technology: The Options
• DocuSign
• HelloSign
• EchoSign
• RightSignature
• ClientSide

59. Contact Us
Andrei Tsygankov, Esq.
Andrei@goclientside.com
Chris Pozzi
CPozzi@goclientside.com