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Tech Bankruptcy
November 28, 2014
  Yes Virginia, You Can Prove an Electronic Signature!
Surprisingly, the question of how to prove something was signed electronically arises relatively rarely. In Perry v. Ad Astra Recovery Services, Inc., the U.S. District Court for the Eastern District of Missouri tackled the issue, finding that the plaintiff signed a loan agreement based on the defendant's affidavit about the execution process.

Back in the late 1990's I had the privilege of hanging around in the ABA's Business Law Section when the Uniform Electronic Transactions Act (UETA) and the Federal variation, E-SIGN, were being developed. At the time, many of the key players in the emerging electronic and digital signatures movement were active in the Business Law Section and they often use the organization's meetings to explore and discuss ideas - away from the sometimes politically charged atmosphere of NCCUSL meetings. It was a great time to be a fly on the wall.

As a bankruptcy professional, the one thing that struck me about electronic signatures was the proof problem. In other words, it was all well and good to have someone "sign" something "electronically," but when court proceedings came into the picture proving that someone had signed something was clearly going to be be more complicated than just handing the judge a piece of paper and saying "see, the signature is right there."  The issue was illustrated by a 2005 decision, In re Vinhee, which laid out in great detail the complex steps needed to prove an electronic business record. Way beyond just handing the Judge a piece of paper.

In Perry, the defendant sought to enforce arbitration provisions in a loan agreement that the plaintiff had signed online using a click-through mechanism. Although the plaintiff denied having signed the agreement, the defendant provided, through affidavits, evidence that to obtain a loan a customer had to go through a series of steps as part of the online application process, including checking boxes to indicate assent to the various contracts and policies involved. Citing to the UETA, the court held that these processes were sufficient to create an electronic signature and the evidence showing that the processes must have been followed in order for the plaintiff to obtain her loan, sufficient to prove her "signature."

So there was nothing particularly special about the signing technique, no asymmetric cryptography required etc. Just showing that a person could not have got to point X in a sequence without passing point Y, which involved clicking on 'I agree', is good enough.

This is very good news, in my view. It accords with the decision of the Ontario Superior Court in'i" Rudder v Microsoft'i" (1999).http://www.canlii.org/en/on/onsc/doc/1999/1999canlii14923/1999canlii14923.html
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A blog discussing the impact of technology on bankruptcy law and practice.

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Warren E. Agin is a partner in Swiggart & Agin, LLC, a boutique law firm in Boston, Massachusetts focusing on the needs of technology companies. Mr. Agin heads its bankruptcy department. The author of the book Bankruptcy and Secured Lending in Cyberspace (3rd Ed. West 2005), Mr. Agin also chaired the ABA's E-commerce and Insolvency Subcommittee from 1999 to 2005, co-chaired the Boston Bar Association's Internet and Computer Law Committee (2003-2005), and served on the American Bar Association's Standing Committee on Technology and Information Services (2008-2011). Mr. Agin currently co-chairs the Editorial Board of Business Law Today. A contributing editor to Norton Bankruptcy Law and Practice, 3d, and co-author of its chapter on intellectual property for the past fifteen years, he is author of numerous legal articles and addresses on topics of technology, internet and bankruptcy law.

Yes Virginia, You Can Prove an Electronic Signature!
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