Tips for Handling Complicated E-Contracting, E-Signatures and E-Mail Issues (with real world examples)
Posted by M. Scott Yeager 06/24/2017 from the National Business Institute Seminar- Advanced Business Contracts: Secrets Only the Top Attorney's Know... held in Birmingham, Alabama on June 13, 2017.
E-Contracting
An E-contract is any kind of contract formed (1) in the course of e-commerce by the interaction of two or more individuals using electronic means, such as e-mail; (2) the interaction of an individual with an electronic agent, such as a computer program; or (3) the interaction of at least two electronic agents that are programmed to recognize the existence of a contract.
An E-contract is simply an agreement created and "signed" in electronic form. These contracts or agreements can be in the form of email, where a party emails a business associate a contract and the business associate emails it back with an electronic signature indicating acceptance. Or, an E-contract can be a "click to agree" contract, like those used for downloading software.
Just about any agreement can be drafted and executed electronically these days. There are, however, certain agreements which must be on paper such as wills, codicils and testamentary trusts. We can cover more on this topic later in the discussion.
In the mid to late 1990's as e-commerce began to increase as a mainstream medium for traditional business transactions, a growing need to govern and to adopt basic business principles surrounding e-commerce arose. Between 1996-1999, the Uniform Computer Information Transactions Act ("UCITA") was developed by the National Conference of Commissioners on Uniform State Laws. This act was developed as a uniform commercial code for software licenses and other computer information transactions. However, this Act was not widely accepted for a number of reasons and was only adopted by Maryland (2000) and Virginia (2001).
Alabama has enacted a form of UETA which has been codified at Alabama Code §§8-1A-1 et seq. As mentioned earlier most any agreement can be formed as an electronic contract, however, the UETA does not apply to transactions governed by:
(1) A law governing the creation and execution of wills, codicils, or testamentary trusts.
(2) Title 7, the Uniform Commercial Code, other than Sections 7-1-107 and 7-1-206, Article 2, and Article 2A.
(3) A statute, regulation, or other rule of law governing adoption, divorce, or other matters of family law. OR
(c) This chapter does not apply to any of the following:
(1) Court orders or notices, or official court documents, including briefs, pleadings, and other
writings, required to be executed in connection with court proceedings. OR
(2) Any notice of any of the following:
a. The cancellation or termination of utility services, including water, heat, and power.
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.
c. The cancellation or termination of health insurance or benefits or life insurance benefits,
excluding annuities.
d. Recall of a product, or material failure of a product, that risks endangering health or safety.
Agreements can be express or can even be implied from the context and surrounding circumstances including the conduct of the parties. If two parties have transacted business previously using electronic contracts it will be difficult to later argue an E-contract is not valid and binding.
However, §8-1A-5(c) provides that, "A party that agrees to conduct a transaction by electronic means may refuse to conduct other transactions by electronic means." This right cannot be waived by agreement.
Whether an electronic record or electronic signature has legal consequences is determined by Alabama's UETA but other, general, law also applies. You still need to meet general contract formation (Offer, Acceptance, Consideration) laws to have an electronic contract. For example, in an exchange of multiple email intended to be a contract you still need to have intent to contract and a meeting of the minds. You cannot escape the "battle of the forms" even in the E-contract arena.
Factors to consider in determining the validity of E-contracts are:
- Intent to sign
- Association of the signature with the record
- Attribution of signature to person
- Record Retention
First, we look to Alabama Code §8-1A-7, Legal recognition of electronic records, electronic signatures and electronic contracts which states, "(a) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form." Business Party B probably loses this argument. Next, we look at subsection B which states, "(b) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation"; and subsections C and D which state, "(c) If a law requires a record to be in writing, an electronic record satisfies the law, and (d) If a law requires a signature, an electronic signature satisfies the law."
Does Business Party B have an argument? Of course, anyone can argue any point. Does Business Party B have a good argument? Maybe not.
E-Signatures
E-signatures and acceptance of E-contracts is one of the most common defenses used in arguing an E-contract was not formed. As we previously discussed, Alabama Code §8-1A-7(d) states, "If a law requires a signature, an electronic signature satisfies the law."
So, what is an electronic signature? An electronic signature is commonly defined as an electronic sound, symbol, or process attached to or associated with a record that someone executes or adopts with the intent to sign the record. An electronic signature can consist of (1) typing the signor's name into a signature area, (2) pasting in a scanned version of the signor's signature, (3) clicking an "I Accept" button, or (4) using cryptographic "scrambling" technology such as a Public Key Infrastructure (PKI). At its simplest level, an electronic signature must be unique and verifiable so that it can provide the authentication and non-repudiation benefits of a handwritten signature.
As previously noted, factors to consider in determining the validity of E-contracts are:
1) Intent to sign
2) Association of the signature with the record
3) Attribution of signature to person
4) Record Retention
Not only does a business need to understand e-signature and e-contracting for their consumers, they need to understand the effect e-signatures have with regard to communication and acceptance of policies and procedure with their employees. Let's say a company has a history of communicating policies and procedures with their employees via email. So, Company A desires to implement a new mandatory arbitration provision and emails same to its thousands of employees. In 2005, the U.S. Court of Appeals for the First Circuit, held in Campbell v. General Dynamics Government Systems Corp. 407 F.3d 546 (1st Cir. 2005), that a mass email to all of its employees was not sufficient to establish a contract with the employee. The Court stated that a straightforward email expressly describing a new, mandatory arbitration provision could form a valid arbitration agreement, especially if the company had a history of announcing policies via company-wide email or if it had required the employee to click a box or send a response. In this instance, the company did not regularly handle personnel matters via email, and did not require a response from the employee. This decision clearly demonstrated the importance and the need for procedures and controls for employers when communicating any information intended to bind employees.
As you can see the more likely an employer can prove, Intent, Association and Attribution, the more likely the employer can demonstrate the employee is bound by provisions provided via an electronic format. For those of us with corporate clients it is imperative to make sure they have these policies and procedures in place and in writing.
When dealing with consumers via an electronic medium it is equally important to have procedures and policies to assure validation of e-signatures. In this modern era of immigration, regardless of your political position, in most every instance a company is required to validate citizenship. Additionally, with modern day hacking and identity theft, it is incumbent upon a business providing e-commerce to protect the personal information of their customer. This goes for any kind of information falling under HIPPA as well.
This issue has been addressed by the Alabama Court of Civil Appeals in Jimmy L. Johnson, Jr. v. First Acceptance Insurance Company, Inc., 2150629 Ala. Civ. App. 2017). This matter came before the Appellate Court on appeal from Lowndes Circuit Court. The materials submitted to the trial court indicate the following pertinent facts. On October 18, 2013, Johnson was involved in a motor-vehicle accident caused by an underinsured driver. Johnson had a policy of automobile insurance with First Acceptance, and he sought to recover UIM benefits under that policy. First Acceptance denied Johnson's claim, asserting that Johnson had declined UIM coverage.
The appellant attempted to make an argument that UETA was in conflict with §32-7-23 and case law interpreting §32-7-23(a). However, the Appellate Court, in the ruling, noted "he does not develop any argument that a requirement of a signature cannot be satisfied by an electronic signature under §8-1A-7." Therefore, "We decline to address an issue of first impression in the absence of a properly developed argument from an interested appellant."
This is an important case with regard to process and procedures for businesses utilizing e-signatures as this case does address how a business can associate and attribute an e-signature to a specific individual.
First Acceptance noted that they had a process and procedure by which applicants for insurance coverage could e-sign. As part of this process First Acceptance argued because the applicant used a different font when typing his name, he thereby was indicating his acknowledgment and intent to sign. First Acceptance attributed the signature to Mr. Johnson solely on the fact that Mr. Johnson also went to the office of an agent to complete the application.
This case left us with many questions so we are left with the same position we were in before. It is vitally important for anyone using e-signatures to have the ability and process in place to verify the following:
1) Intent to sign
2) Association of the signature with the record
3) Attribution of signature to person
4) Record Retention
We previously touched on an issue with regard to e-mail between businesses and whether those communications create a contract. As we have learned the parties must have intent to form an E-contract, and that is a difficult burden to prove without a written acknowledgement and/or acceptance; or previous conduct of the parties.
With regard to email a business, whether dealing with another business or a consumer has a burden to prove the email was (1) received, (2) by the intended party, and (3) that party has an understanding of the basis of the email.
In Moore v. Dennis-Franklin, 201 So.3d 1131 (Ala. 2016), the Alabama Supreme Court upheld the ruling of the Mobile Circuit Court denying a motion to compel arbitration. The appellee had three bank accounts with the predecessor bank to the appellant bank before it merged with the appellant bank. Shortly before the merger, the appellate bank, in January 2012, allegedly mailed a welcome letter and an account agreement to the appellee at his home in Mobile. After the two banks merged, the appellee's accounts were converted to the appellant bank accounts on March 2, 2012.
The account agreement did not contain an arbitration provision. On January 20, 2013, the appellee's niece, who lived in Atlanta, came to Mobile to visit the appellee. It appeared to the appellee and the niece that the appellant had created an online banking profile for the appellee but had set up the profile so that account notifications were sent to her e-mail address.
The appellee, who was elderly, did not have Internet access or an e-mail address and did not know how to use online banking. After investigating the matter, the appellee and niece came to the conclusion that the appellant had been stealing funds from the appellee's accounts. On February 13, 2013, the appellee and niece met with, a branch manager for the appellant bank, about their concerns.
When conducting business, any business, via email it is imperative to prove the intended recipient actually received the email, viewed the email and understands its contents. The key is to have a process and procedure in place which, with the highest degree of certainty possible, can validate the required assurances as if the intended recipient was signing a paper document in person, in your presence.
Conclusion
E-commerce is an ever-growing necessity for survival in any industry these days. Whether we are representing business clients or consumer clients it is imperative to follow the simple steps we would follow for any contractual relationship. At its basics if we cannot validate intent and a meeting of the minds it is likely we do not have a contract. If we are conducting business via email or other electronic avenues we must be able to conclusively know the intended recipient (1) received the communication, (2) read the communication, and (3) understands or has the capacity to understand the contents of the communication.
Neighbors Stop Acting Neighborly?
4 Steps To Take When You’re Involved In A Dispute
Posted by Maria Collins on May 27, 2016 in Uncategorized | Comments Off on Neighbors Stop Acting Neighborly? 4 Steps To Take When You’re Involved In A Dispute
Neighbor disputes can destroy the sanctity of your home, especially if the dispute escalates to hurt feelings and hostility. If you’re involved in a dispute with your neighbor, you want to try and settle it before things really get out of hand. Unfortunately, it’s not always easy to settle differences. If the dispute with your neighbor has gotten out of hand, here are some steps you should take to settle the matter.
Document the Dispute
If your attempts to resolve things amicably have failed, it may be time to proceed to the next step: it might be time to consider civil litigation. In order to do that, you’re going to need to document your dispute as much as possible. Documentation should include photographs, witness statements and receipts that might pertain to the dispute. Once you have your documentation in order, you should seek legal advice.
Talk to an Attorney
Neighborhood disputes can be difficult to overcome, especially if the other neighbor refuses to budge. If haven’t been able to handle the situation on your own, you’re going to need legal assistance. That’s where a civil litigation attorney comes in. Your attorney will help you file a civil suit against your neighbor in an attempt to end the dispute. Your attorney is going to need all the evidence you can gather.
File a Report
Neighborhood disputes can escalate quickly. When that happens, you may find yourself in physical danger from your neighbor. If the dispute with your neighbor has escalated to threats of violence, you’ll need to file a police report. In addition to the civil suit, your neighbor may be looking at criminal charges if the dispute turns violent. Be sure to provide your attorney with a copy of the report.
Remain Neighborly
When you’re in a dispute with your neighbor, the worst thing you can do is escalate the situation with your own bad behavior. While you might have ill-feelings towards them, you’ll help your own case by remaining neighborly. Exhibiting bad behavior against your neighbor could provide them with the ammunition they need to damage your case if it proceeds to trial.
If you’re in a dispute with your neighbor, don’t
give up. The information provided here will help you deal with the situation in
a productive manner. If you continue to have problems with your neighbor or if
the situation escalates, be sure to speak to your attorney about the
situation.
6 Critical Steps to Prepare Your Finances for Divorce
By Shawn Leamon
Learn more about Shawn on NerdWallet’s Ask an Advisor
The process of getting a divorce often leaves both parties wounded. However, there are a few things you can do right now to ensure that you are financially protected.
1. Gather your financial records
The first thing you should do is to collect all of your financial records. Ideally, you will have five years’ worth of documents, including tax returns, payroll stubs, benefits information, bank statements, investment accounts and property information.
It would be wise to make copies of everything and keep them outside of the house — either in a private safe deposit box or at the home of a trusted friend or family member. Having evidence of all of your financials will help speed up discussions during the divorce, and it will safeguard you in case something goes missing.
2. Inventory your assets
While you are gathering your financial records, begin an inventory of all of your assets. Separate property usually includes anything you owned before the marriage, any gifts given solely to you, or inheritances. Anything acquired during the marriage is usually considered marital property.
Take digital, date-stamped photos of your valuables such as jewelry, antiques and collectibles. This may seem extreme now, but it is not uncommon for things to go missing once the process starts.
3. Monitor your credit report
In order to emerge from the divorce as fiscally unscathed as possible, you need to be fully aware of your current financial situation. To paint the clearest picture, obtain a copy of your credit report, paying close attention to any outstanding debts.
If there is anything that does not add up, you will want to ask your attorney for assistance before you ask your spouse for full disclosure of records. Additionally, it is wise to monitor your credit report throughout the divorce process to avoid any surprises later on.
4. Open individual accounts
As soon as you know a divorce is inevitable, open individual accounts for yourself. To ensure confidentiality, consider using a bank other than the one you and your spouse are currently using. Open a checking account, savings account and credit card in your name only. Use that credit card in ways that will build or strengthen your personal credit history.
5. Know (and cut) your expenses
It is no secret that divorces are costly. From
the moment you sense that your marriage is heading in that direction, you need
to redraw your budget and determine how you will accommodate not only the
expenses associated with divorce, but also for your new, single life. In order to help build your savings, it is likely that you will have to adjust your lifestyle and cut out anything unnecessary.
6. Speak with a certified divorce financial analyst
While attorneys handle the legal aspects of divorce, certified divorce financial analysts can help handle the financial ones. As a CDFA myself, I’m a bit biased, but I highly recommend making an appointment as soon as possible to speak with a financial divorce expert. A CDFA is trained to support you through this exceptionally difficult time and ensure that you are as financially healthy as possible once it is all over.
Divorce is a legal transaction that has important financial implications for your future. An attorney is an expert in a state’s laws but not necessarily a financial expert. There are many highly experienced attorneys out there, but most do not have expertise with complex financial issues that may arise during divorce.
A CDFA will assist you in all of the steps outlined above and will have a thorough understanding of the laws and regulations that pertain to your state. Even if it’s a simple case, a CDFA can help you better understand your financial picture during and/or after divorce.
Protect yourself
There’s no doubt that divorce can be a painful process, but by getting your finances in order, you can help protect yourself from even greater hardship.
Shawn Leamon, MBA, CDFA, is an author, the host of the “Divorce and Your Money” podcast, and managing partner of LaGrande Global with offices in Dallas, New York and Hanover, New Hampshire.
This article also appears on Nasdaq.
Learn more about Forrest on NerdWallet’s Ask an Advisor
You may think that planning how to divvy up your wealth is for very affluent families or for elderly people thinking about how to pass on handsome legacies to their heirs. That’s certainly true, but they aren’t the only ones who benefit from such planning.
Estate planning — determining what will happen to your assets and property when you die and planning for the tax implications of passing on your wealth — is important for everyone. Each family’s situation and goals are unique, and smart estate-planning strategies can help ensure that those goals are met in the most tax-efficient, fair and sensible way.
Consider these four reasons why estate planning matters for you, even if you don’t think you have much to pass on:
1. You don’t want to leave a mess for your family.
Effective estate planning isn’t easy and can be expensive. But bad or no estate planning is harder, more time-consuming and potentially a lot more expensive for your loved ones to handle once you are gone.
Without a plan, your heirs will have to decide who gets what. Or your estate could go to probate, where the court will make those decisions and take fees in the process. Because estate laws are complex and differ by state, you should consult with an attorney. If you don’t, your heirs may ultimately receive less of your estate.
In simple cases, a good estate plan may be inexpensive, including the cost of drafting a will, a living trust and some other basic documents that most families should have. More complex cases, involving trusts, easements and charitable donations, may cost thousands of dollars. In all cases, an estate plan is the best option for your heirs.
2. You have assets.
Assets include bank or investment accounts — such as a 401(k) or rollover IRA — or property such as a house or business. You have to decide who gets all of these things before you die, which can be difficult emotionally. Imagine sitting in a lawyer’s office and answering questions such as: “What if your children die? What do you want to do then?”
Once you decide who will get which assets, you also have to consider tax implications. An estate planner can help you arrange your assets to ease the tax burden your heirs will face.
3. Estate planning is a fluid process.
A will that you put together 20 years ago probably won’t meet your goals today. If you’ve had children, gotten married or divorced, or had other major life changes, you should think about whether your money and property will still go to the right people. Have you checked the beneficiaries on your accounts?
During my career in the Navy, I heard many stories (and personally witnessed a couple of instances) of sailors passing on everything they owned to an ex-spouse or some other unintended recipient. They accidentally left nothing to their intended beneficiaries because they failed to update their records.
Even if your life hasn’t changed, state and federal laws sometimes do. What might have been wise estate planning a couple of years ago may not be the best strategy today.
4. The need for an estate plan isn’t immediate — until it is. You have your entire life to get your estate plan right, but you don’t know when your time is going to run out. Once you die, you don’t get a vote about what happens to your assets, except for the last one that you cast with your estate plan. Make sure it counts.
Don’t make the transfer of your hard-earned wealth more difficult than it needs to be. Working with a good financial planner can help you better understand your financial situation. Your planner can also help you work with an estate-planning attorney to put together a plan that works for you. It might cost a bit of money today, but it’s far less costly than leaving your family with a mess to deal with once you’re gone.
Image via iStock.
Breaking the Legacy of Divorce
Breaking the Legacy of Divorce
I don't believe anyone wants to endure the pain and heartbreak of divorce or see their children suffer. Since studies show that adult children of divorce have double the risk of divorce compared to those from intact homes, it makes sense to discover the root of the divorce bug and figure out how to shake it. So let me start with myself. I've been happily remarried for fifteen years, yet my friends still catch me referring to my husband Craig as my "current" husband. It's obvious that I'm still having some difficulty getting out of divorce's shadow.
In any marriage, you are bound to encounter a few bumps in the road. When this happens, you may be tempted to point the finger at the other person, or even blame yourself. But what happens with me is that I'm wired to experience high levels of stress when I have even a minor disagreement with my husband. For me, even a difference of opinion over a trivial issue can cause my nervous system to go into overdrive, creating high levels of stress, doubt and an urge to flee. This flight or fight response is common when we feel threatened, but it's exaggerated in my case.
Are we wired to recreate the past? For instance, I was at a friend's 50th birthday celebration recently and was suddenly flooded with feelings of mistrust as my husband, who enjoys dancing, was swept up in a circle dance with several women -- leaving me in the dust (from my perspective). My feelings of vulnerability were so intense that I spent most of the evening in the ladies room, and I barely spoke to Craig on the way home. Needless to say, he was perplexed as to why I was so upset. Later that night, in an effort to reassure me he said, "You're my wife, I love you, there's no cause for alarm."
What I've come to believe is that our childhood experiences, including our parents' divorce, create a scaffolding for how we experience love as adults. In my case, my parents' split when I was seven years old. Because I didn't grow up with a healthy template for how couples achieve intimacy and resolve conflicts, I'm more prone to reenact unhealthy relationship patterns. Although I desperately want to build a positive relationship with my husband, I don't always know how to go about it.
By now, you've probably gathered that I have a distinctive take on marriage -- one that predisposes me to think about divorce as a viable solution to unhappiness with my wedded state. Research by E. Mavis Hetherington, the author of , confirms my experience and sheds light on the generational aspect of divorce. After studying over 1,400 people for 30 years, Hetherington found that adult children of divorce are much more likely to see divorce as an option than others raised in intact homes.
From my experience and research, I have developed seven ways to overcome the legacy of divorce. Here are the seven pathways you must follow in order to do so:
• Pathway 1: Examine your parents' divorce from an adult perspective. Realize you don't have to define yourself by your parents' failed marriage. Explore your childhood with your parents, family members or trusted friends.
• Pathway 2: Attempt to forgive others and move on from the past. You can't change the past, but you can make better choices today. Forgiving others doesn't mean you condone their behavior.
• Pathway 3: Examine your relationship with your parents. Try to repair any wounds with your mother or father that may prevent you from having a healthy connection. One way to do this is by writing a statement or a letter releasing negative feelings from the past.
• Pathway 4: Get to the root of self-esteem issues. Internalize the core belief you are good enough. For example, keep track of negative automatic thoughts that keep popping into your head and substitute them with positive counterstatements.
• Pathway 5: Extend trust to others. Operate from a viewpoint that your partner wants the best for you and will not hurt and abandon you. Let him or her prove, through word and deed, that they are trustworthy. Extend trust to a partner worthy of trust and don't assume the worst. Pause and examine whether your mistrustful thoughts are a result of your past or present.
• Pathway 6: Develop interdependence and reign in your self-reliance. Allow your partner to come through for you. Many adult children of divorce are fiercely independent and pride themselves on these traits. While autonomy is positive, it can rob us of trust and intimacy. Visualize yourself in an honest and open relationship and set a goal to accept nurturing from your partner. Put together a vision board or write down what you want your relationship to look like.
• Pathway 7: Examine your attitudes and beliefs about love and commitment. A healthy respect for commitment will enhance your ability to build love, trust, and intimacy. Identify specific ways you might be avoiding commitment. Also evaluate your choice in partners and recognize the qualities they share. Making careful choices in a partner will help restore your faith in love.
