David Whitaker

Of Counsel

About

David Whitaker advises traditional and emerging financial services companies, and commercial enterprises, in transactional, legal and regulatory matters, particularly those related to electronic commerce and digital financial services.

He has extensive experience with the practical application of laws governing electronic banking, letters of credit, payment systems, records management and commercial and consumer financing. He provides valuable insights to his clients based on decades of in-house experience and deep practical knowledge of the structures, implementation platforms and processes used to contract for and deliver financial and other services online and via mobile devices. David also has extensive experience with various laws and regulations related to residential mortgage lending, including the Real Estate Settlement Procedures Act (RESPA), the Fair Credit Reporting Act and the Equal Credit Opportunity Act, as well as the laws related to privacy and data security.

David is a member of the American Law Institute, the American Bar Association's Business Law Section, and the Business Law Section's Committee on the Law of Commerce in Cyberspace. He has co-chaired the Cyberspace Committee's Task Force on Federated Identity Management. David was the Co-Reporter for the Standards and Procedures for electronic Records and Signatures (SPeRS). He served as Reporter for the Mortgage Bankers Association white paper "Security Interests in Transferable Records." He was an active participant in the drafting of Revised Articles 5 and 9 of the UCC. He also participated in the drafting of the Uniform Electronic Transactions Act, where he chaired the Task Force on Scope and served as reporter for the Task Force. David also advised industry participants on the creation and drafting of the federal Electronic Signatures in Global and National Commerce Act.

David has written extensively on both law and practice related to digital financial services, electronic commerce and digital transformation. In particular, he is co-author of Thomson Reuter's The Law of Electronic Signatures (now in its eighth edition). He has also appeared as a featured speaker at more than 250 conferences, seminars and webinars on financial services law.

Areas of FocusIntellectual Property Financial Services Healthcare Technology Technology and Commercial Transactions Blockchain and Digital Assets Financial Services Regulatory

Bar admissionsDistrict of ColumbiaIllinoisIowaOklahoma

Education

J.D., University of Illinois College of Law
cum laude

B.A., James Madison College at Michigan State University
with High Honor

Awards

Bylines

"Terms of Service Are Instrumental in Determining Rights to Digital Assets – The Holding in Celsius Network LLC," The Computer & Internet Lawyer, May 2023
"Remote Online Notarization is Here to Stay," American Bar Association, July 23, 2019
"The Effectiveness of Clickwrap for Legally Enforceable Agreements," DocuSign, March 21, 2019
"eSignature and ePayment News and Trends," May 2, 2018
The Law of Electronic Signatures, 2018 Edition, Thomson Reuters
"Electronic Retail Installment Sales Contracts in California," The Review of Banking & Financial Services, Vol. 33, No.12, December 2017
"Enabled by Lenders, Embraced by Borrowers, Enforced by the Courts: What You Need to Know About eNotes," MERSCORP Holdings, Inc., September 8, 2017
"Special Considerations For Perfection Opinions Covering Electronic Chattel Paper As Collateral," Journal of Equipment Lease Financing, Spring 2015
"Consumer Financial Services Answer Book 2016," Practicing Law Institute, October 1, 2014
"A Brief Guide to Using Electronic Signatures in Securities Transactions," July 1, 2013
"Planning for Accessibility when Developing Financial Services Websites and Mobile Apps," American Bar Association Consumer Financial Services, June 20, 2013
"Federal Regulators Issue Guidance on Social Media and Mobile Privacy," Law Journal Newsletters, April 2013
"Is Regulatory Uncertainty an Impediment to Mobile Payments?," Payments Journal, January 23, 2013
"Security Interests in Transferable Records Evidencing Residential Mortgage Lending Transactions and the Rights of Warehouse Lenders: An Analysis and Proposal," October 24, 2007
"Admission into Evidence of Paper Records Converted to Electronic Form," Consumer Finance Law Quarterly Report, Vol. 60, No. 2, 2006
"An Overview of Some Rules and Principles for Delivering Consumer Disclosures Electronically," North Carolina Banking Institute Journal, Vol. 7, April 2003
"SPeRS - Standards and Procedures for electronic Records and Signatures," Electronic Financial Services Council, 2003
"Emulating Documentary Tokens in an Electronic Environment: Practical Models for Control and Priority of Interests in Transferable Records and Electronic Chattel Paper," The Business Lawyer, Vol. 59, No. 1, 2003 (Contributing author)
"Rules Under the Uniform Electronic Transactions Act for an Electronic Equivalent to a Negotiable Promissory Note," The Business Lawyer, Vol. 55, No. 1, November 1999
"Proposed Rules Under the UETA for an Electronic Promissory Note," Banking Policy Report, Vol. 18, No. 8, April 19, 1999
"Model Positive Pay Services Agreement and Commentary," American Bar Association, 1999 (Contributing author)
"Electronic Commerce: Avoiding State Law Pitfalls," Electronic Banking Law and Commerce Report, Vol. 3, No. 9, 1999
"A Lawyer's Take on the Electronic Purse: An Analysis of Commercial Law Issues Associated with Stored-Value Cards and Electronic Money," The Business Lawyer, Vol. 57, No. 2, 1997 (Contributing author)
"Electronic Cash -- How It Works and Questions About the Rules of the Game," Consumer Finance Law Quarterly Report, Vol. 50, No. 3, 1996
"Key Issues and Considerations in Drafting Deposit Agreements and Funds Transfer Services Agreements for Financial Institutions," Consumer Finance Law Quarterly Report, Vol. 50, No. 1, 1996
"Letters of Credit and Electronic Commerce," Idaho Law Review, Vol. 31, No. 3, 1995
"Model Funds Transfer Services Agreement and Commentary," American Bar Association, 1994 (Contributing author)
"Special Considerations Related to Joint Deposit Accounts," Consumer Finance Law Quarterly Report, Vol. 47, No. 2, 1993
"Signed, Sealed and Delivered: EDI and Letters of Credit," EDI FORUM: The Journal of Electronic Data Interchange, Special Edition on EDI Legal and Audit Issues, 1992
"Electronic Documentary Credits," The Business Lawyer, Vol. 46, 1991
Oklahoma Comments to Uniform Commercial Code Revised Article 3, Revised Article 4, Article 4A, Revised Article 5 and Revised Article 6 Oklahoma Statutes Annotated, West Publishing, various years

Seminars

Media Mentions

Margo Tank and David Whitaker's recent article on the law governing digital mortgage notes is cited in the Treasury Department's new report, A Financial System That Creates Economic Opportunities • Nonbank Financials, Fintech, and Innovation (July 2018).

Memberships And Affiliations