A fact of business today is that customers – both consumers and other businesses – and employees expect to transact digitally. To remain competitive, companies find themselves increasing their efforts to digitally transform their businesses.
Successfully implementing this transformation requires careful planning to ensure regulatory compliance, a smooth integration with existing business technology and a positive customer experience.
Each issue will feature in-depth insight on a timely and important current topic.
In this issue, our Insights piece highlights a recent report from the Department of the Treasury concerning money laundering in the art trade. This issue also includes reports on other recently enacted federal and state laws, federal and state regulatory activities, fresh judicial precedent and other important news.
For related information regarding blockchain and digital assets, please see our monthly bulletin Blockchain and Digital Assets News and Trends.
Money laundering in trading works of art – Treasury report addresses NFT marketplaces
By Margo H.K. Tank, R. David Whitaker, Andrew W. Grant and Liz Caires
The US Department of Treasury released a report titled “Study of the Facilitation of Money Laundering and Terror Finance Through the Trade in Works of Art,” which sought to identify market participants and sections of the high-value art market that may present money laundering and terrorist financing risks to the US financial system. While the Treasury report primarily focused on the traditional art market – for which the Treasury Report noted “[m]ost art market participants, including some entities that provide financial services within the high-value art market, are not subject to anti-money laundering/countering the financing of terrorism (AML/CFT) obligations” – it included a section addressing the “emerging digital art market.”
Regarding the digital art market, the Treasury Report noted that “NFT platforms…already allow owners of digital art to sell the assets on virtual exchanges. Depending on the nature and characteristics of the NFTs offered, these platforms may be considered virtual asset service providers (VASP) by [the Financial Action Task Force (FATF)] and may come under FinCEN’s regulations.” FATF defines a VASP as any natural or legal person that operates as a business and “conducts one or more of the following activities or operations for or on behalf of another natural or legal person: (1) exchange between virtual assets and fiat currencies; (2) exchange between one or more forms of virtual assets; (3) transfer of virtual assets; (4) safekeeping and/or administration of virtual assets or instruments enabling control over virtual assets; and (5) participation in and provision of financial services related to an issuer’s offer and/or sale of a virtual asset.” (See our prior discussion of FATFs recently released update to its Guidance for a Risk-Based Approach to Virtual Assets and Virtual Asset Service Providers).
While the definition of a VASP is not incorporated into US law directly, the Treasury report explained “[d]igtal assets that are unique, rather than interchangeable, and that are used in practice as collectibles rather than as payment or investment instruments, depending on their characteristics, are generally not considered to be virtual assets under the FATF definition [but that] NFTs or other digital assets…that are used for payment or investment purposes …may fall under the virtual asset definition, and service providers of these NFTs could meet the FATF definition of VASP.” Further, if NFTs are used for “payment or investment purposes,” such NFTs may be considered “virtual assets” and potentially subject to FinCEN.
Nonetheless, the Treasury report does not expressly state that NFTs themselves are subject to FinCEN’s money services business requirements. Instead, the report states that platforms or other persons that transfer virtual assets during the buying or selling of NFTs may have anti-money laundering and countering financing of terrorism (AML/CFT) obligations as a money services business.
Overall, regulators continue to grapple with how and whether to regulate various aspects of the digital asset economy. If you have any questions involving this area, please reach out to the authors or your DLA Piper contact.
California DFPI issues interpretive opinions regarding money transmission
By Margo H.K. Tank, R. David Whitaker, Andrew W. Grant and Liz Caires
The California Department of Financial Protection and Innovation (DFPI) recently issued four interpretative opinions regarding money transmission and related licensing. Here, we examine the key details of each. Read more.
Senate introduces ESIGN Act modernization bill: On March 1, 2022, four senators – John Thune (R-SD), Marsha Blackburn (R-TN), Jerry Moran (R-KS) and Todd Young (R-IN) – introduced a bill designed to “modernize” the ESIGN Act by making two substantive revisions: (1) removing the requirement that the consumer “reasonably demonstrates” his or her ability to access the information in the electronic form that will be used to provide the information subject to the consumer consent, and, (2) if the hardware and software requirements change, and the change creates a material risk that the consumer will not be able to access or retain a subsequent electronic record, the entity only needs to provide a statement with the revised requirements and the right to withdraw consent without any fees being imposed or any other condition or consequence not originally disclosed. In a press release, Senator Thune stated, “Computers, smart phones, and other devices are more reliable and accessible than ever before…This legislation makes necessary updates to E-SIGN that reflect those advancements in technology, while, at the same time, retaining important protections for consumers that are currently in place.”
Acting FDIC Chairman announces 2022 FDIC priorities, which includes evaluating crypto-asset risks: On February 7, 2022, the acting Chairman of the Federal Deposit Insurance Corporation (FDIC) released a statement summarizing the FDIC’s priorities for the coming year. Included within these priorities is for financial institutions to evaluate crypto-asset risks. Specifically, the acting Chairman stated that “federal banking agencies [should] carefully consider the risks posed by these products and determine the extent to which banking organizations can safely engage in crypto-asset-related activities. To the extent such activities can be conducted in a safe and sound manner, the agencies will need to provide robust guidance to the banking industry on the management of prudential and consumer protection risks raised by crypto-asset activities.”
CFPB releases bulletin on EFTA and government benefit accounts: On February 18, 2022, the Consumer Financial Protection Bureau (CFPB) released a bulletin to reiterate that, as provided under the Electronic Fund Transfer Act, no person may require a consumer to establish an account for receipt of electronic fund transfers with a particular financial institution as a condition of receipt of a government benefit. The bulletin reiterates that this European Free Trade Association (EFTA) prohibition applies to government benefit accounts.
DOJ releases ADA web accessibility guidance: On March 18, 2022, the Department of Justice (DOJ) released guidance on web accessibility under the Americans with Disabilities Act (ADA). The DOJ discussed why website accessibility matters: “An inaccessible website can exclude people just as much as steps at an entrance to a physical location. Ensuring web accessibility for people with disabilities is a priority for the Department of Justice.” The DOJ gave various examples of website accessibility barriers, such as poor color contrast, no captions on videos and mouse-only navigation. The DOJ then explained which entities are covered by the ADA, including state and local governments and businesses that are open to the public. The DOJ stated that it does not have a regulation setting out detailed standards, but that its longstanding interpretation of general nondiscrimination and effective communication provisions applies to web accessibility. Further, the DOJ noted existing technical standards, such as those provided by the Web Content Accessibility Guidelines and the Section 508 standards, which the government uses for its own websites.
Utah expands Sandbox Program: On March 24, 2022, the Utah governor signed into law HB 243, which expands Utah’s Sandbox Program to allow a person who offers a financial or insurance product or service to participate in the program. Further, the program’s definition of “innovation” was expanded to include the use of “blockchain technology.”
ULC meets to further develop UCC Article 12: As discussed in our prior Insights article, the Uniform Law Commission (ULC) and the American Law Institute (ALI), as the joint sponsors of the Uniform Commercial Code (UCC), established the Uniform Commercial Code and Emerging Technologies Committee (Committee) that began work in 2019 on drafting proposed amendments to the UCC that would address transferring property rights in digital property. The Committee met on March 7, 8 and 28 to discuss the latest draft of Article 12 – Controllable Electronic Records – as well as other amendments to the UCC. To date, one state – Nebraska – has enacted its version of Article 12 to the UCC, while Kentucky recently introduced a bill (SB 67) to establish Article 12 within its UCC. Also in 2019, Wyoming enacted a law governing, in part, the perfection of security interests in digital assets. As noted in our prior Insights piece, final review and approval by the ULC and ALI is anticipated by July 2022, after which the new and amended provisions will be recommended to the states for adoption.
Remote online notarization
New York adopts RON effective February 25, 2022: On February 25, 2022, New York adopted S7780 which enables all notaries in the state to perform remote online notarization (RON) effective immediately. S7780 also modified the state’s prior RON bill, S1780, to become effective on January 1, 2023. SS780 expires on December 31, 2022, and thereafter S1780 shall be the sole effective RON law in the state. For more information on S1780, see our January issue.
Electronic signature and contract formation
Courts conclude valid agreement to arbitrate exists:
- In Harris v. Credit Acceptance Corp., 2022 WL 475618 (D. NJ, Feb. 16, 2022), the court held that the plaintiff electronically signed a retail installment contract which contained an arbitration clause. The plaintiff had alleged that the defendant signed the agreement on her behalf, but the defendant produced a physically signed one-page electronic signature declaration, in which the plaintiff acknowledged that she had an opportunity to review a paper version of the agreement before signing. The court determined that the plaintiff had not come forward with reliable evidence that she did not intend to be bound by the arbitration agreement.
- In Lira v. National Distribution Centers, LLC, 2021 WL 6693934 (C.D. Cal., Dec. 22, 2021), the court found that the defendant properly authenticated the plaintiff’s signature on the arbitration agreement. The defendant’s system required a unique login ID and password, and all employees were required to use such credentials to view and sign the onboarding documents. An employee of the defendant provided a declaration that the system could not have generated an agreement with the plaintiff’s signature unless a person using the plaintiff’s credentials affirmatively agreed to the arbitration agreement. The court found the fact that the plaintiff could not remember signing the agreement did not alter its analysis.
- In Durm v. Iqor Holdings US LLC, 2022 WL 219323 (N.D. Ohio, Jan. 24, 2022), the court upheld an electronically executed arbitration agreement because, to accept and agree, the plaintiff had to (i) enter an email address and create a password and (ii) complete the job application, which included signing the arbitration agreement by clicking “I Agree” before entering the last four digits of their social security number as well as their month and day of birth. The plaintiff admitted to submitting an online application but did not recall accepting the arbitration agreement and denied signing it. The court concluded that her arguments were insufficient to disprove the evidence provided the defendant.
- In Mullen v. Chaac Pizza Midwest, 2022 WL 673187 (S.D. Ohio Mar. 7, 2022), the court held that the plaintiff entered into an arbitration agreement after the defendant presented evidence that the onboarding process required each employee to create his or her own unique username and password to access, review and sign documents in the portal, and that the plaintiff accessed the arbitration agreement and electronically signed it. The court found that the plaintiff offered no evidence that would create a genuine issue of material fact.
Court finds that issue of material fact exists regarding whether the parties agreed to arbitrate: In Stover v. Fluent Home, LLC, 2022 WL 823452, the court found that a genuine issue of material fact existed regarding whether the parties agreed to arbitrate and the issue must be resolved by a summary trial. The plaintiff put forth evidence that she requested an audit log from the electronic signature company that the defendant purportedly used, but instead received a document that appeared to indicate an electronic signature created by a different electronic signature provider. Additionally, the document did not contain the signatory’s identifying information.
Email does not satisfy Oregon’s “subscription requirement” under its Statute of Frauds: In Pioneer Trust Bank, N.A. v. Anderson, 2022 WL 766474 (D. Ore. Mar. 14, 2022), the court found that a valid signature is still necessary to satisfy Oregon’s statute of frauds’ requirement that the agreement be “in writing and subscribed by the party to be charged.” Here, the court stated that, even if the appellees intended to bind themselves to the agreement – which was not clear – the signatures were on individual emails and not at the bottom of the agreement. Therefore, the emails did not satisfy the subscription requirement.
Read this next
Embracing digital evolution: Our new business report
Interview with Margo H.K. Tank by Börsen-Zeitung on cryptocurrency regulation.
DLA Piper lawyers ranked in Chambers FinTech 2022. DLA Piper is pleased to announce that the editors of this newsletter, Margo Tank and David Whitaker, have been ranked by Chamber & Partners in the area of USA FinTech Legal: Data Protection and Cyber Security. Margo Tank was also ranked in the area of FinTech Legal: Blockchain & Cryptocurrencies. In total, the firm received 19 firm rankings and 14 individual lawyer rankings in the Chambers FinTech 2022 guide.
The Law of Electronic Signatures, 2020 – 2021 Edition (Thomson Reuters) is an essential guide to electronic signatures and records laws, including the context in which the laws were adopted and the ways in which the authors believe the drafters intended them to be interpreted. The publication is prepared by authors, including Margo Tank and David Whitaker, with more than 30 years combined experience that includes involvement with the drafting and passage of Electronic Signatures in Global and National Commerce Act (ESIGN), the preparation of the Uniform Electronic Transactions Act (UETA), the creation of the Standards and Procedures for electronic Records and Signatures (SPeRS™) and serving as counsel to the Electronic Signatures and Records Association. The insights they provide will be relevant to anyone seeking to understand the impact of, and the liability associated with, using electronic signatures and electronic records.
These insights include:
- Details on the legal requirements for using electronic signatures and records, including delivery, presentation, signing and record retention
- Comprehensive tables itemizing the state variations to the uniform UETA language
- Special considerations for using electronic signatures and records in connection with emerging and evolving technology
- Using electronic records and signatures in specialized transactions and documents, such as securities, chattel paper and mortgages
- Analysis of the interplay between ESIGN, UETA and many other key laws and regulations
- Identification and summaries of recent legal developments and court cases impacting electronic signatures and records
The MBA Compliance Essentials Remote Online Notarization State Surveys, developed by DLA Piper, provides a comprehensive look at RON requirements in each state that has enacted RON legislation. These fully editable surveys are organized by category of requirements, including registration, technology, seal and signature, certificates of RON acts, journal, authentication, session, recording and additional requirements. Companies can purchase the full package which includes surveys for all states that have enacted RON legislation along with a matrix summarizing state requirements, or companies can purchase information about individual states as needed. Read more.
For more information
Our Global Tax Reform hub looks at the latest developments regarding US tax legislation.
In case you missed it
The materials from our CLE Privacy Symposium held in partnership with the Electronic Signature & Records Association are available online. Access them here.
Read the latest issue of our bulletin Bank Regulatory News and Trends
Read the latest issue of our bulletin Consumer Finance Regulatory News and Trends
Exploring the metaverse: What laws will apply? | Insights | DLA Piper Global Law Firm
Utah’s Consumer Privacy Act heads to the governor’s desk | Insights | DLA Piper Global Law Firm
Learn more about our eSignatures and ePayments practice by contacting:
Margo H.K. Tank