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TRANSCRIPT
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© 2012 Lowenstein Sandler PC
LEGAL ASPECTS OF
DOING BUSINESS IN
THE e-WORLD AND
ELECTRONIC
SIGNATURES Presentation For:
BCCA MEDIA CREDIT SEMINAR
McGraw-Hill Building
New York, New York
November 6, 2012
Presented By:
LOWENSTEIN SANDLER PC
BRUCE S. NATHAN, ESQ.
1251 Avenue of the Americas
New York, New York 10020
Telephone: (212) 262-6700
Facsimile: (973) 422-6851
E-mail: [email protected]
Website: www.lowenstein.com
I. Summary
Electronic communications have become an integral part of our work and
personal experience. For example, parties now routinely use emails instead of arranging
face to face meetings or maintaining “hard copy” paper trails.
In addition, in the not too distant past, contracts and signatures were manually
generated on hard copy documents. Various categories of contracts are subject to some
form of statute of frauds, forbidding enforcement in most instances, unless there is a
writing of some sort that is signed.
With the ever-increasing dominance of electronic communications, agreements
are being confirmed through emails and other electronic means. However, there are risks
where the entire agreement between the parties is based on computer (e.g., email)
messages or other electronic confirmation as opposed to a printed agreement where the
terms are clearly delineated. Moreover, while a signature on a printed document can be
used as evidence that the signer agreed to the terms of the agreement and an actual
signature on the document can be proven to be that of the signer, proof of identity of the
signer and proof of what was signed are not as clear where an electronic or digital
signature is used.
As a result of the explosive increase in use of electronic communications, the law
regarding both the conduct of electronic transactions and the enforceability of “electronic
signatures” and “electronic records”, that do not otherwise comply with the requirements
for a writing and/or a manual signature, had to be clarified.
In June 2000, the Electronic Signatures in Global and National Commerce Act
(“ESIGN”) became effective. ESIGN was designed to address the uncertainties existing
under both federal and state law concerning the legal effect of signing contracts and
maintaining records by electronic means. ESIGN adopts the principal features and
underlying policies of the Uniform Electronic Transactions Act (“UETA”), a model law
approved and recommended to the states for adoption by the National Conference of
Commissioners on Uniform State Laws (“NCCUSL”) in July 1999 and adopted by 47
states, the District of Columbia, Puerto Rico and the Virgin Islands. Illinois, New York
and Washington have not adopted UETA, but have enacted their own statutes governing
electronic transactions.
ESIGN, like UETA, is an overlay statute (that is, one that is superimposed on
other existing federal and state law). ESIGN provides that “electronic signatures” and
“electronic records” may not be denied legal effect, validity or enforceability solely
because they are in electronic form. They supplement, but are not intended to replace,
statutes, regulations, and case law that impose requirements for contract formation,
record retention, and notices and disclosures that relate to the conduct of business,
commercial and consumer transactions. As such, neither ESIGN nor UETA provides the
complete law on the enforceability of “electronic signatures” and “electronic records.”
Instead, each recognizes the inherent flexibility and adaptability of the common law, and
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also the wide variety of laws that already exists with respect to ink signatures and written
documents that should apply to “electronic signatures” and “electronic records”.
II. Electronic Signatures in Global and National Commerce Act (“ESIGN”)
A. Summary
1. General Rule of Validity. ESIGN’s general rule is that a signature,
contract or other record related to any transaction in or affecting interstate or foreign
commerce may not be denied legal effect, validity, or enforceability solely because it is in
electronic form or because an electronic signature or record was used in its formation.
Thus, ESIGN recognizes that an electronic signature and an electronic record might be
legally binding as a writing without the necessity for a writing or a manual signature.
However, ESIGN also provides that the use or acceptance of electronic records
and electronic signatures is not mandatory. Both parties must agree to deal electronically
for a valid contract to be formed by the use of electronic signatures or records; it does not
require them to accept electronic signatures or records where they had not previously
agreed to do so.
ESIGN is technology neutral. It forbids any state or federal statute from requiring
a specific technology for electronic transactions. This technology neutral approach allows
the market to decide on the technologies that best facilitate electronic transactions.
Furthermore, systems such as check processing that involve numerous third
parties to a contract are not within ESIGN’s scope. ESIGN also does not apply to a
contract or other record that is governed by:
(i) laws relating to wills, codicils and testamentary trusts,
(ii) state statutes governing adoption, divorce, or other family matters,
(iii) the Uniform Commercial Code (“UCC”), other than sections 1-107 and 1-206
and Articles 2 (on sales of goods) and 2A (on leases). The applicability of ESIGN to
UCC Articles 2 and 2A (sales and leases) has significantly expanded its scope.
Furthermore, ESIGN specifically excludes a number of documents from its scope,
including:
(i) court documents required to be executed in connection with court proceedings,
(ii) notices of: (a) cancellation of utility service, (b) default under a credit
agreement or repossession of a primary residence of an individual, (c) cancellation of
health insurance or benefits, (d) product recalls
(iii) any document required to accompany any transportation of hazardous
materials.
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2. ESIGN Definitions
a. Transaction. ESIGN defines a “transaction” as an action or set of
actions relating to the conduct of business, consumer or commercial affairs
between two or more persons including the sale, lease or exchange of personal
property, real property or services.
b. Electronic. ESIGN defines “electronic” as relating to a technology
having electrical, digital, magnetic, wireless, optical, electromagnetic or similar
capabilities.
c. ESIGN defines a “record” as information that is inscribed on a tangible
medium or that is stored in an electronic or other medium and is retrievable in
perceivable form.
d. Electronic Record. ESIGN defines an “electronic record” as a contract
or other record created, generated, sent, communicated, received, or stored by
electronic means.
e. Electronic Signature. ESIGN defines an “electronic signature” as 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. This broad definition is intended to make ESIGN “technology
neutral,” permitting providers of goods and services to select acceptable
electronic signature technologies or processes that will be most effective for the
product being offered.
ESIGN provides no guidance on how to prove that a person had intended to sign
an electronic record. ESIGN leaves the purpose of the signature, the legal consequences
of the signature, and the attribution of the signature to a particular person to other law and
the surrounding factual circumstances. The person seeking to enforce the contract based
on an electronic signature will be required to prove that the signature was executed by the
person against whom enforcement is sought where the authenticity of an electronic
signature is in dispute. That means parties accepting electronic signatures must be
satisfied that the signature is sufficiently verifiable, under the circumstances and for the
contemplated purpose, to minimize the risk of such a dispute.
3. Consumer Disclosures. Where a statute, regulation or other rule of law
requires information relating to a transaction be provided or made available to a
consumer in writing, an electronic record can be provided if the (i) the consumer
affirmatively consents to such use (though failure to give consent does not automatically
deny legal validity to such transaction), (ii) the consumer is provided with certain clear
and conspicuous disclosures and (iii) the consumer is aware of any risk that he/she may
lose access to such electronic record if system and hardware requirements change.
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4. Record Retention. If a statute, regulation or other law requires the
retention of a contract related to a transaction, that requirement can be satisfied by an
electronic record that accurately reflects the information set forth in the contract and
remains assessable to all persons entitled to access. This applies equally to the retention
of “original” records and checks. Thus, records kept in pdf form are equivalent to
physical “original” records.
5. Notarization. The requirement for a notarized or acknowledged signature
can be satisfied by the notary’s electronic signature that is accompanied by all other
information required to be included by other applicable law.
6. Electronic Agents. A contract is enforceable notwithstanding the use of an
electronic agent to enter into a contract where the action of any such electronic agent is
legally attributable to the person to be bound by the contract. Thus, online transactions on
a website, such as Amazon.com, are valid despite the fact that there is no human
representative from Amazon countersigning the transaction and evidencing an intent to
sign as required by ESIGN’s electronic signature definition.
7. Transferable Records. ESIGN upholds the enforceability of transferable
records and allows for the execution of a transferable record by an electronic signature.
ESIGN defines a transferable record as (a) an electronic record that would be a note
under UCC Article 3 if it were in writing; (b) the issuer of which has agreed that it is a
transferable record; and (c) an electronic record that relates to a loan secured by real
property.
This provision is in furtherance of UCC Article 3 as it permits the use of electronic
signatures and would permit important concepts like holder in due course and good faith
purchaser status to carry over to a fully electronic scheme. This is contingent on “control”
of the transferable record. A person controlling a transferable record is the holder, as
defined in the UCC, of the transferable record and has the same rights and defenses as the
holder of an equivalent record or writing under the UCC, including the rights and
defenses of a holder in due course or a purchaser if the requirements of the UCC are
satisfied. Delivery, possession and endorsement are not prerequisites for obtaining tor
enforcing any of these rights.
ESIGN’s provision regarding transferable records is contingent on the development
of a security system that is technology neutral and meets ESIGN’s strict requirements to
track the transfer of interests in these transferable records to prevent unauthorized
duplicates and transfers. The person seeking to enforce a transferable record must prove
control of the record. Proof of control includes access to the authoritative copy of the
transferable record and related business records sufficient to review the terms of the
transferable record and to establish the identity of the person having control of it.
A person has control of a transferable record if a system employed for evidencing the
transfer of interests in the transferable record reliably shows that person as the person to
whom the transferable record was issued or transferred. The system must provide for
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(a) the existence of a single authoritative copy of the transferable record, which is unique,
identifiable, and, except as otherwise provided below, is unalterable; (b) the authoritative
copy of the transferable record identifies the person asserting control as the person to
whom the transferable record was issued, or the person to whom the transferable record
was most recently transferred; (c) the authoritative copy of the transferable record is
communicated to and maintained by the person asserting control or its designated
custodian; (d) the making of copies or revisions that add or change an identified assignee
of the authoritative copy only with the consent of the person asserting control of the
transferable record; (e) each copy of the authoritative and any copy of a copy is readily
identifiable as a copy that is not the authoritative copy; and (f) any revision of the
authoritative copy is readily identifiable as authorized or unauthorized.
Systems have been developed to deal with electronic notes. However, it is unclear
whether they comply with ESIGN or UETA and how widely they are used.
B. Preemption Provision
As a constitutional matter, ESIGN can only preempt state law where electronic
signatures or records relate to a transaction in or affecting interstate or foreign commerce.
However, ESIGN’s goal of creating a uniform approach to electronic records and
signatures has ceded control of this area of law to states that have adopted a substantially
similar legal framework. Thus, even in areas where ESIGN has the constitutional
authority to preempt the transaction, state law may still govern. State law will preempt
ESIGN in two cases: (i) where states have adopted the official text of UETA or (ii) where
states have adopted another statute or regulation that is consistent with ESIGN, is
technology neutral and makes specific reference to the ESIGN act.
ESIGN explicitly overrules the provision in UETA that allows states to
specifically exclude certain transactions from the scope of UETA that are governed by
particular state laws. Where there is such an exclusion and where the transaction falls
within interstate or foreign commerce, ESIGN would still preempt the state’s law. For
example, ESIGN would trump the provision of Kentucky’s version of UETA that
excludes any transaction governed by laws relating to the conveyance of any interest in
real property (See KRS 3.69.103(2)(c)).
III. Uniform Electronic Transactions Act
A. UETA’s Relation to ESIGN
ESIGN’s policy goal of promoting a uniform approach to the use and adoption of
electronic signatures and records had the practical effect of deferring to the statutory
scheme already in place in many states. To this end, ESIGN specifically allows certain
modifications of its provisions but generally only by a state’s enactment of UETA or a
statute that is substantially similar to ESIGN.
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Only Illinois, New York and Washington have not adopted UETA but each has
adopted a law recognizing electronic signatures and records. New York has adopted the
Electronic Signatures and Records Act, Illinois has adopted the Electronic Commerce
Security Act, and Washington has adopted the Electronic Authentication Act.
In sum, there are few differences between the federal ESIGN provisions and those
of UETA. UETA essentially duplicates and expands somewhat on ESIGN’s provisions.
However, unlike ESIGN, UETA:
1. Is broader in scope. UETA excludes only transactions that are governed by
(i) laws governing wills, codicils or testamentary trusts and (ii) certain UCC sections
including payment systems, such as check collection and electronic funds transfer. Thus
UETA applies to all electronic records and electronic signatures that relate to a
transaction that UETA broadly defines.
2. Explicitly requires consent to deal electronically. UETA only applies
when each of the parties to the transaction has agreed to conduct their transactions by
electronic means. Therefore, electronic signatures are enforceable under UETA only
where both parties consent to dealing electronically.
UETA also makes clear that the determination of whether one has consented to
conduct a transaction electronically is determined from the context and surrounding
circumstances of the parties. This is in contrast to ESIGN’s consent requirement that
arises only by implication. ESIGN does not require that the parties to a transaction use or
accept electronic records or signatures.
3. Provides more explicit rules of attribution. An electronic record or
signature is attributable to a person only if it was the act of the person. The act can be
shown in any manner including a showing of the efficacy of any security procedure
applied to determine the person to whom the electronic record or electronic signature was
attributable.
4. Does not limit electronic equivalents of UCC Article 3 notes to loans
secured by real property. Furthermore, UETA’s scope of transferable records includes
documents under UCC Article 7.
B. Statutory Summary
1. Purpose. Like ESIGN, UETA’s overarching goal is to ensure that a record
or signature may not be denied legal effect or enforceability solely because it is in
electronic form. UETA expands on this principle by upholding the enforceability of a
contract created electronically through the use of an electronic record that satisfies laws
requiring a written record and an electronic signature that satisfies laws requiring a
signature. UETA, like ESIGN, is also technology neutral by allowing the parties to
decide on the specific technology for electronic transactions.
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2. Key Definitions. UETA contains definitions many of which are similar to
the definitions in ESIGN and other uniform statutes like the UCC.
a. Agreement. UETA defines an “agreement” as the bargain of parties in
fact, as found in their language or inferred from other circumstances.
This definition is comparable to the definition of agreement contained
in the Uniform Commercial Code.
b. Automated Transaction. UETA defines an “automated transaction” as
a transaction conducted or performed, in whole or in part, by
electronic means or electronic records, in which the acts or records of
one or both parties are not reviewed by an individual in the ordinary
course.
c. Contract. UETA defines a “contract” as the total legal obligation
resulting from the parties’ agreement as affected by UETA and other
applicable law.
d. Record. UETA defines a “record” as information that is inscribed on a
tangible medium or that is stored in an electronic or other medium and
is retrievable in perceivable form.
e. Transaction. UETA’s definition of a “transaction” is broader than the
definition contained in ESIGN. UETA defines a transaction as an
action or set of actions that occur between two or more persons and
that relate to the conduct of business, commercial or governmental
affairs.
f. Electronic Agent. UETA defines an “electronic agent” as a computer
program or an electronic or other automated means independently used
to initiate an action or respond to electronic records or performance, in
whole or in part, without review or action by an individual.
g. Electronic Records. UETA defines an “electronic record” as a record
created, generated, sent, communicated, received or stored by
electronic means.
h. Electronic Signature. UETA’s definition of an “electronic signature”
tracks ESIGN closely. Specifically UETA defines an electronic
signature as an electronic sound, symbol, or process attached to or
logically associated with a record and executed or adopted by a person
with the intent to sign the record. Unlike ESIGN, UETA specifically
addresses when a person evidences the requisite intent to sign the
record.
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3. Scope. UETA applies to all electronic records and electronic signatures
that relate to a transaction except such transactions that are governed by:
a. A law governing the creation and execution of wills, codicils, or
testamentary trusts
b. the UCC, other than sections 1-107 and 1-206 and Articles 2 (sales of
goods) and 2A (leases).
c. the Uniform Computer Information Transaction Act; and
d. any other laws identified by a state; However, as noted above, ESIGN
will govern transactions in interstate commerce that are excluded from
UETA by a specific exception adopted by a state where such exception
is inconsistent with the goals of ESIGN. Most states have adopted
numerous exceptions to UETA that mirror or complement specific
exceptions found in ESIGN, but not in UETA.
4. Application. UETA does not require an electronic record or signature to be
created, generated, sent, communicated or received, or otherwise processed or used.
UETA explicitly requires that the parties to a transaction agree to conduct their business
through electronic means. Such intent can be determined from the context and
surrounding circumstances, including the parties’ conduct. Furthermore, UETA, like
ESIGN defers to other applicable law on the enforceability of a specific record or
signature. UETA also allows the parties to a contract to vary UETA, thereby allowing the
parties not to contract electronically or to do so in a limited fashion.
5. Legal Recognition of Electronic Records, Signatures and Contracts. Like
ESIGN, UETA provides that a record, signature or contract may not be denied legal
effect or enforceability solely because it is in electronic form. UETA also modifies all
existing law to which it applies (e.g. the statute of frauds) by stating that any such law’s
requirement that a record or signature be in writing is satisfied by an electronic record or
signature.
However, UETA makes clear that, aside from the legal requirements for a
writing, UETA does not modify or otherwise alter applicable substantive law. Thus, if a
law requires a record to be posted or displayed in a certain manner, to be sent,
communicated, or transmitted by a specified method or to contain information that is
formatted in a certain manner, UETA does not modify that law’s requirement. For
instance, where a law requires delivery of notice by first class US mail, that means of
delivery would not be satisfied by an electronic notice. The information to be delivered
may be provided in an electronic form (e.g. on a disc), but the particular means of
delivery must still be via the US postal service.
6. Consumer Disclosures. UETA has a virtually identical section to ESIGN
that allows for parties to satisfy legal disclosure requirements through the use of
electronic records capable of being retained by the end user.
7. Attribution. Unlike ESIGN, UETA explicitly provides for rules of
attribution of an electronic signature and record. A signature or record must be the act of
the person to whom it is to be attributed. Such act may be shown in any manner,
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including showing the efficacy of any security procedure applied to determine the person
to whom the electronic signature was attributable. This keeps in place existing law that
would otherwise validate a contract, writing or signature, including the law of agency and
principal, but broadens such law to recognize a person’s desire to be bound, despite the
lack of a traditional signature (e.g. an online transaction where the consumer clicks a
button marked “OK” without specifically signing his/her name or through the use of a
password, personal identification number (PIN) or other key code or security measure).
8. Effect of Change or Error. UETA anticipates the likelihood that errors or
changes may occur because of electronic transmissions of signatures and records. To this
end, UETA adopts certain rules to deal with such errors or changes. First, if two parties
agree on a security procedure to detect changes or errors that occur and one party fails to
follow such procedure, the effect of the change or error may be avoided by the party in
compliance of the procedure. Second, when an individual dealing with an electronic
agent (as opposed to another individual) makes an error, the individual may avoid the
transaction if the error was the individual’s fault and the electronic agent of the other
party did not provide the individual with the opportunity to prevent the error (e.g. a
confirmation screen prior to completing an online purchase) or correct it once the error is
discovered. Finally, any error or change not governed by either of the two rules above is
resolved by the application of other rules of law, including the law of mistake, or by
resort to the terms contracted for between the parties.
9. Notarization. UETA mirrors ESIGN regarding notarizations and
acknowledgements. Thus, a notary’s electronic signature, together with any other
information required by other applicable law to accompany such signature, is as valid as
a physical notarization.
10. Record Retention. Like ESIGN, UETA allows for records that are legally
required to be retained as originals, to be kept electronically so long as they remain
accessible and accurately reflect the information set forth on the physical record. This
would include pdfs of original documents that comply with this UETA provision.
11. Admissibility into Evidence. UETA provides that evidence of a signature
or record may not be excluded solely because it is in electronic form. However, the party
seeking admissibility must establish the necessary foundation for admission of an
electronic record or signature into evidence. Some jurisdictions enacting UETA have also
passed non-uniform changes to this provision, that may allow the trier of fact to take into
account, in assessing the weight to be given to electronic evidence, whether or not
security procedures existed and their efficacy if they did exist, as well as other factors
bearing on the credibility of the electronic record or signature.
12. Automated Transaction. Like ESIGN, UETA allows for an electronic
transaction to be legally binding despite the fact that one party is operating through an
electronic agent (e.g. an online purchase by an individual on a website such as
Amazon.com). As in other sections of the Act, UETA makes clear that the actual terms of
such contract are determined by the law applicable to it.
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13. Time and Place of Sending and Receipt. UETA directly addresses an
important aspect of contract law not specifically discussed in ESIGN. UETA states that,
unless the parties agree otherwise, an electronic record is sent when (1) it is properly
addressed to an information processing system designated by the recipient, (2) it is in a
form capable of being processed by such system, and (3) it enters an information
processing system outside the control of the sender. Likewise an electronic record is
received when: (1) it enters the information processing system that the recipient has
designated and (2) it is in a form capable of being processed by that system. Finally, as a
practical matter, the record is deemed to have been sent from the sender’s place of
business and received at the recipient’s place of business.
14. Transferable Records. Like ESIGN, the provisions of UETA allow for the
digitalization of transferable records (i.e. notes under UCC Article 3 and documents
under UCC Article 7). However, unlike ESIGN UETA includes unsecured notes and
transferable notes that are not secured by real property. Like ESIGN, this requires an
appropriate security system, which is technology neutral, and is intended to prevent
unauthorized copying and transmittal of such notes and documents and other transferable
records.
IV. Emails as Enforceable Contracts
1. Emails as Writings. Many classes of contracts are required to be in writing
in order to satisfy the statute of frauds, or other applicable law, to be legally enforceable.1
Communications transmitted by letters, fax, telex and telegraph have been recognized as
writings. Emails may also qualify as writing of a kind sufficient to satisfy the statute of
frauds, but only in certain circumstances.2 Specifically, emails must sufficiently show
that the parties had reached an agreement with regard to the essential terms of the
contract. Emails offered as evidence of a contract do not satisfy the statute of frauds if
they fail to prove that a contract has been made, such as omitting the key terms of the
contract. For example, an email message did not satisfy the statute of frauds as a writing,
nor did it give rise to an enforceable contract, in the following circumstances:
a. Where the emails did not state the terms of the alleged agreement.
b. Where the emails did not contain language expressing or
contemplating a final agreement or settling on terms.
c. Where the emails clearly indicated that the parties were still
negotiating the terms of an agreement.
1 Contracts for the sale of goods involving a minimum price must be in writing and signed by the
party to be bound. There is a “merchant’s exception” to this rule that upholds an oral agreement
between merchants that is subsequently confirmed in a writing to which no objection is asserted. 2 Buckles Management, LLC v. InvestorDigs, LLC, U.S. District Court, Colorado (applying Colo.
statute); In re East Airport Development, LLC, 9th Circuit Bankruptcy Appellate Panel (applying
Cal. statute).
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d. Where the emails did not contain an offer to sell or purchase and an
acceptance of the offer tied to a certain price.
2. Signatures on Emails. Emails may be unenforceable as “unsigned”
because they do not satisfy the statute of frauds or other law.3 In some cases, the courts
have held that e-mail messages bearing the typed name of the sender, rather than a
handwritten signature was sufficient. Similarly, emails may constitute electronic
signatures under UETA, and for purposes of the statute of frauds, where the sender’s
name is included in the message and the person sent it.4
Furthermore, consistent with UETA’s requirement that both parties must
agree to deal electronically, an email was not an enforceable agreement where there was
an understanding between the parties that a physical signature is necessary.5 Vendors’
actions—electronically drafting and e-mailing a cover sheet to which an “offer to
purchase” had been attached and sent to the prospective purchaser’s agent—did not
create an “electronic signature” as defined by the UETA for purposes of determining
whether the vendors had signed an agreement for the sale of land that was enforceable
under the statute of frauds. Accepting this argument would require finding that there was
a signature simply because a proposal was e-mailed.
An email sent by a person acting for another person, such as an agent
acting for a principal, satisfies the signature requirement of the statute of frauds if it can
be proven that the person sending the email had the authority to act for the other person.
On the other hand, an email sent by a person not acting as an agent of the person to be
bound, or who lacked the authority to bind such person (such as an email sent by an
employee who lacked the authority to bind the employer), does not satisfy the signature
requirement of the statute of frauds and would not be a binding agreement.
V. How To Prove An Intent To Sign An E-Contract
A. Shrinkwrap
1. “Money now, terms later”.
3Toghiyany v. AmeriGas Propane, Inc., U.S. 8
th Circuit Court of Appeals, 2002; Sel-Leb
Marketing, Inc. v. Dial Corp., U.S. District Court, Southern District of New York, 2002) (holding
that a series of e-mail messages purportedly memorializing an oral agreement was not sufficient
to satisfy the statute of frauds, in part, because none of the messages were signed by the party
sought to be charged with breach of the alleged agreement); Leist v. Tugendhaft, N.Y.S.
Appellate Division 2nd
Dept. (e-mail was not an enforceable contract because unsigned and
sender did not have any authority to send). 4 International Castings Group, Inc. v. Premium Standard Farms, Inc., U.S. District Court,
Western District, Missouri, 2005. 5 Powell v. City of Newton, 364 N.C. 562, 703 S.E.2d 723 (2010).
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2. Customer purchases product, which, together with the written terms and
conditions (“ts and cs”) are delivered to the customer. Upon opening package containing
the purchased goods, and the ts and cs, the customer can either agree to the ts and cs by
keeping the product or reject the ts and cs by returning the product.
B. Clickwrap
1. Customer is presented with a web-page display of the ts and cs of a
contract together with a button or other link that allows customer to confirm its
agreement to the ts and cs in order to purchase product or service or proceed with other
transactions.
a. Terms should be presented before and in the same area as button or
link confirming agreement.
C. Browsewrap
1. Ts and cs presented as a button or link that customer may or may not opt
to click/access to review.
2. Customer is presumed to have agreed to terms and conditions by
continuing on the website.
3. Questions about enforceability.
Bruce S. Nathan
Member of the Firm
Tel 212.204.8686 Fax 973.422.6851
E-mail:[email protected]
Practice
Bruce S. Nathan, Member in the firm's Bankruptcy, Financial Reorganization & Creditors' Rights Group, has approximately 30 years experience in the bankruptcy and insolvency field, and is a recognized national expert on trade creditor rights and the representation of trade creditors in bankruptcy and other legal matters. Mr. Nathan has represented trade and other unsecured creditors, unsecured creditors' committees, secured creditors, and other interested parties in many of the larger Chapter 11 cases that have been filed, and is currently representing the creditors' committee in the Borders Group Inc. Chapter 11 case. Mr. Nathan also negotiates and prepares letters of credit, guarantees, security, consignment, bailment, tolling, and other agreements for the credit departments of institutional clients.
Mr. Nathan also regularly speaks at conferences held by the National Association of Credit Management, its international affiliate, An Association of Executives in Finance, Credit and International Business ("FCIB"), Credit Research Foundation ("CRF"), and many credit groups on bankruptcy, insolvency, and creditor's rights issues; is a member of NACM's Government Affairs Committee and Editorial Advisory Board, a regular contributor to NACM's Business Credit, a contributing editor of NACM's Manual of Credit and Commercial Laws, and co-author of The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005: An Overhaul of U.S. Bankruptcy Law, published by NACM; and has contributed to CRF's Journal, The Credit and Financial Management Review.
Mr. Nathan is recognized in the Bankruptcy & Creditor/Debtor Rights section of Super Lawyers (2012) and in March 2011, he received the Top Hat Award, a prestigious annual award honoring extraordinary professionals in the credit industry.
Mr. Nathan is also a co-author of "Trade Creditor Remedies Manual: Trade Creditors’ Rights under the UCC and the U.S Bankruptcy Code" published by the American Bankruptcy Institute ("ABI") at the end of 2011, has contributed to the ABI Journal, and is a member of ABI's Board of Directors and former Co-Chair of ABI's Unsecured Trade Creditors Committee.
Education
• University of Pennsylvania Law School (J.D., 1980)
• Wharton School of Finance and Business (M.B.A., 1980) • University of Rochester (B.A., 1976), Phi Beta Kappa
Affiliations
• New York State Bar Association
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• American Bar Association
o Commercial Financial Services Committee
o Business Bankruptcy Committee
• American Bankruptcy Institute
o Member, Board of Directors
o Regular Contributor to American Bankruptcy Institute Journal's "Last in
Line" Column
o Speaker at 2007 Annual Spring Meeting: "Fifty Ways to Leave Your
Debtor: Lesser Known Remedies For Jilted Creditors"
o Panelist at "Chapter 11 At The Crossroads: Does Reorganization Need
Reform?" A Symposium on the Past, Present and Future of U.S. Corporate
Restructuring," on November 16-17, 2009, sponsored by ABI and co-
sponsored by Georgetown University Law Center
o Participated in the Great Debates at ABI's Annual Spring Meeting held on
April 30, 2010 on whether Congress should eliminate the special
BAPCPA protections for providers of goods and lessors (arguing against
repeal)
o Task Force on Preferences
o Chair, Task Force on Reclamations
o Uniform Commercial Code Committee and Task Force - Revised Article 9
Primer
• American Bankruptcy Institute's Commission to Study the Reform of Chapter 11
o Co-chair, Avoiding Powers Advisory Committee
• Commercial Law League of America
• Association of Commercial Finance Attorneys
• National Association of Credit Management
o Contributor to Business Credit - National Association of Credit
Management Magazine
o Member, Editorial Advisory Board
o National Bankruptcy and Insolvency Group
o Lecturer, National Association of Credit Management and Affiliates and
Credit Groups on Bankruptcy, UCC Article 9, Consignments, Letter of
Credit law and other credit-related issues
• Member of FCIB, an Association of Executives in Finance, Credit and
International Business. Presented at The 4th China International Credit and
Risk Management Conference, Shenzhen, China, September 21, 2007, and
FCIB Teleconference, December 13, 2007, on key provisions of People’s
Republic of China’s 2006 Law on Enterprise Bankruptcy, similarities to and
differences with the U.S. Bankruptcy Code, and upcoming implementation
challenges
• Media Financial Management Association
o Member
o Frequent Lecturer
o Contributor to "The Financial Manager" on Creditors' Rights Issues
• Lecturer, Executive Enterprises Inc. the Bank Lending Institute and the Banking
Law Institute on Commercial Loan Workouts & UCC Issues
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• Contributor
o Credit Today
o National Credit News
Articles/Interviews Featuring Bruce S. Nathan
• "Lowenstein Retained as Creditors’ Counsel in Zacky Farms Chapter 11
Case," October 19, 2012
• "In an article on the National Association of Credit Management web site,
Bruce Nathan comments on the Alabama Supreme Court's ruling to uphold
Jefferson County's right to declare municipal bankruptcy in the largest
Chapter 9 filing in U.S. history.," NACM ENews, April 26, 2012
• "On NACM.org, Bruce Nathan and Scott Cargill discuss the Lehman
Brothers bankruptcy case.," NACM ENews, December 8, 2011
• "Bruce Buechler, Bruce Nathan and Paul Kizel are highlighted for
representing the Official Unsecured Creditors Committee of Borders Group
Inc.," The Daily Deal, August 11, 2011
• "Bruce Nathan comments on how the debtor's right to choose the venue for
Chapter 11 proceedings is part of the Bankruptcy Code's system of checks
and balances between debtors' rights and creditors' rights.," Standard &
Poor's LCD Distressed Weekly, March 25, 2011
• "Bruce Nathan, Bruce Buechler and Paul Kizel are highlighted for
representing the Official Committee of Unsecured Creditors of Borders
Group Inc.," Westlaw News & Insight, March 14, 2011
• "Bruce S. Nathan discusses litigation surrounding creditors committee
selection in light of recent changes to the U.S. Bankruptcy Code.," Dow
Jones, August 9, 2006
Publications
• "Electricity Requirements Contract Enjoys Safe Harbor Preference Defense," Bruce S. Nathan, Richard J. Corbi, Eric Chafetz, Business Credit,
November/December 2012
• "KB Toys: Risk Allocation in Bankruptcy Claims Trading," Bruce S.
Nathan, Scott Cargill, American Bankruptcy Institute Journal, October 2012
• "The Unenforceability of a Foreign Court Order Releasing Non-Debtor
Guarantee Claims: The Limits of the Comity Doctrine," Bruce S. Nathan,
Richard J. Corbi, Business Credit, September/October 2012
• "A Preference Ordinary Course of Business Defense Trifecta," Bruce S.
Nathan, Business Credit, July/August 2012
• "Altering Unsecured Creditors' Committee Membership: No Easy Chore!,"
Bruce S. Nathan, Business Credit, June 2012
• "Preference Relief for Real Estate Material and Service Providers," Bruce
S. Nathan, Business Credit, May 2012
• "Using the "Safe Harbor" Defense to Defeat Preference Claims," Bruce S.
Nathan, Scott Cargill, Business Credit, May 2012
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• "Using Public Information to Identify and React to the Early Warning Signs
of a Financially Distressed Customer," Bruce S. Nathan, Scott Cargill,
Business Credit, April 2012
• "Got Setoff Rights? Think Again," Bruce S. Nathan, Scott Cargill, Business
Credit, March 2012
• "Another Preference Victory for the Trade: New Value Paid Post-Petition
Does Count!," Bruce S. Nathan, Business Credit, February 2012
• "Paid New Value Reduces Preference Liability Yet Again!," Bruce S.
Nathan, Business Credit, January 2012
• "Who Pays the Freight? Interplay Between Priority Claims and a Debtor's
Secured Lender," Bruce D. Buechler, Bruce S. Nathan, American Bankruptcy
Institute Journal, November 2011
• "Is There a Small Preference Venue Limit? Yes and No!," Bruce S. Nathan,
Business Credit, November/December 2011
• "Trade Creditor Remedies Manual: Trade Creditors’ Rights Under The
UCC and the U.S. Bankruptcy Code," Bruce S. Nathan, Scott Cargill,
American Bankruptcy Institute, 2011
• "Standby Letters of Credit and the Independent Principle," Bruce S.
Nathan, Business Credit, September/October 2011
• "Another Ordinary Course of Business Preference Defense Double Feature,"
Bruce S. Nathan, Business Credit, July/August 2011
• "Everything You Need to Know About New Value as a Preference Defense,
and More," Bruce S. Nathan, Scott Cargill, David M. Banker, The Credit and
Financial Management Review, Second Quarter 2011
• "Joint Check Agreements: Who's on First?," Bruce S. Nathan, Business
Credit, June 2011
• "Paid for New Value as a Preference Defense, More Good News for the
Trade," Bruce S. Nathan, Business Credit, May 2011
• "Reclamation Catch-22: Darned If You Do, Darned If You Don't," Bruce S.
Nathan, David M. Banker, Business Credit, May 2011
• "Yet Another Favorable Court Decision Upholding the Ordinary Course of
Business Preference Defense," Bruce S. Nathan, Business Credit, April 2011
• "Counting Section 503(b)(9) Priority Claims as Part of a Creditor's New
Value Defense to a Preference Claim: Can You Have Your Cake and Eat It
Too?," Bruce S. Nathan, Business Credit, March 2011
• "Electricity as Goods Entitled to Section 503(B)(9) Priority Status: A Boom
for Utilities," Bruce S. Nathan, Business Credit, February 2011
• "Critical Vendor Update," Bruce S. Nathan, Business Credit, January 2011
• "The Contract Assumption Defense to Preference Claims: Alive and
Thriving," Bruce S. Nathan, Business Credit, November/December 2010
• "Proving the Subjective Component of the Ordinary-Course-of-Business
Defense," Bruce S. Nathan, Scott Cargill, American Bankruptcy Institute
Journal, November 2010
• "A Preference Ordinary Course of Business Defense Double Feature,"
Bruce S. Nathan, Business Credit, September/October 2010
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• "Do Fully Funded Section 503(b)(9) Priority Claims Count as Additional
New Value to Reduce Preference Liability? A Contrary View!," Bruce S.
Nathan, Business Credit, July/August 2010
• "Section 503(b)(9) Priority Claim Developments: The Beat Goes On!,"
Bruce S. Nathan, Business Credit, June 1, 2010
• "Vendors Beware: The Risk of a Debtor's Unauthorized Post-petition
Payments For Post-petition Goods or Services," Bruce S. Nathan, Business
Credit, May 2010
• "Creditors' Committee Disclosure Obligations Updated: The Use of Internet
Websites," Bruce S. Nathan, Business Credit, April 2010
• "The Interplay Between Section 503(b)(9) Priority Claims and Preference
Claims," Bruce S. Nathan, Business Credit, March 2010
• "Section 503(b)(9) Goods Supplier Priority - Beware of the Debtor's Setoff
Rights," Bruce S. Nathan, Business Credit, February 2010
• "Hooray for Delaware - A Tale of Two Decisions," Bruce S. Nathan,
Business Credit, January 2010
• "Recent Case Law Developments Concerning Section 503(b)(9) 20-Day
Goods Priority Claims," Bruce S. Nathan, Business Credit,
November/December 2009
• "The 20-Day Goods Priority Claim Under Bankruptcy Code Section 503(b)
(9)," Bruce S. Nathan, Scott Cargill, Eric H. Horn, Credit Research
Foundation, October 2009
• "Compelling Postpetition Trade Credit: Navigating Uncharted Waters,"
Bruce S. Nathan, Scott Cargill, American Bankruptcy Institute Journal, October
2009
• "Compelling Bankruptcy Trade Credit: The Great Unknown," Bruce S.
Nathan, Business Credit, September/October 2009
• "The Limits of Consignment Rights When Consigned Goods Are
Manufactured Into Finished Product," Bruce S. Nathan, Business Credit,
July/August 2009
• "Enforceability of Triangular Setoff Rights In Safe Harbor Contracts - Still
An Open Question? Part 2," Bruce S. Nathan, S. Jason Teele, Matthew A.
Magidson, Derivatives Week, June 29, 2009
• "Enforceability of Triangular Setoff Rights In Safe Harbor Contracts - Still
An Open Question? Part 1," Bruce S. Nathan, S. Jason Teele, Matthew A.
Magidson, Derivatives Week, June 22, 2009
• "Credit Card Payments as Preferences: The Sixth Circuit Joins the
Bandwagon," Bruce S. Nathan, Business Credit, June 2009
• "Demystifying Chapter 15 of the Bankruptcy Code," Bruce S. Nathan, Eric
H. Horn, Business Credit, June 2009
• "Preference Dynamic Duo II: Whatever Happened to the Small Preference
Venue Limitation?," Bruce S. Nathan, Business Credit, May 2009
• "Triangular Setoff: A Viable Remedy or a Thing of the Past?," Bruce S.
Nathan, Business Credit, April 2009
• "Is Debtor's Credit Card Payment a Preference," Bruce S. Nathan, Business
Credit, March 2009
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• "Effective Seller Remedies When Confronting a Financially Distressed Buyer
Prior to Bankruptcy," Bruce S. Nathan, Business Credit, February 2009
• "Recent Court Decisions on Consignments and Other Security
Arrangements: The Benefits of Aggressive Creditor Action and the Pitfalls of
Failing to Document Properly," Bruce S. Nathan, Business Credit, January
2009
• "Builders Trust Fund Payments: A Defense to Preference Exposure," Bruce
S. Nathan, Business Credit, November/December 2008
• "Impact of the 2005 Bankruptcy Abuse Prevention and Consumer Protection
Act on Retail Bankruptcies," Bruce S. Nathan, Journal of Trading Partner
Practices, November 11, 2008
• "Courts Remain Split over Whether a Debtor's Credit Card Payment is an
Avoidable Preference," Bruce S. Nathan, Scott Cargill, ABI Journal, October
2008
• "Release of State Mechanic's and Other Lien Law Rights As a Defense to
Preference Claims? Yes and No!," Bruce S. Nathan, Business Credit, October
2008
• "Overseas Bear Stearns Hedge Funds Denied Chapter 15 Relief," Bruce S.
Nathan, Richard J. Corbi, Business Credit, July/August 2008
• "Mechanic's Liens and the Bankruptcy Code," Bruce S. Nathan, Business
Credit, June 2008
• "Is a Debtor's Credit Card Payment a Preference?," Bruce S. Nathan,
Business Credit, May 2008
• "PACA Trust Destroyed by Written Agreement Extending Payment Terms,"
Bruce S. Nathan, Business Credit, April 2008
• "State Law Artisans' Lien Rights Defeat Preference Exposure - The Saga
Continues," Bruce S. Nathan, Business Credit, March 2008
• "The Critical Vendor Roller Coaster," Bruce S. Nathan, Business Credit,
February 2008
• "Section 503(b)(9) Goods Supplier Priority — More Recent Developments,"
Bruce S. Nathan, Business Credit, January 2008
• "Beware of Claims Bar Dates for Section 503(b)(9) Administrative Priority
Claims in Favor of Goods Suppliers," Bruce S. Nathan, Business Credit,
November/December 2007
• "Are State Preference Laws Preempted by the United States Bankruptcy
Code? Not Necessarily!," Bruce S. Nathan, Scott Cargill, The Credit and
Financial Management Review, Volume 13, Number 4, Fourth Quarter 2007
• "The Risks of a Single Creditor Involuntary Bankruptcy Petition; Tread
Extra Carefully!," Bruce S. Nathan, Business Credit, October 2007
• "A Preference Dynamic Duo: State Law Lien Rights Defeat Preference
Claim While Payment by Credit Card Does Not!," Bruce S. Nathan,
Business Credit, September 2007
• "Credit Transactions May Be Eligible for the Section 547 (c)(1)
Contemporaneous Exchange for New Value Defense to Preference Exposure:
The Third Circuit Court of Appeals Speaks," Bruce S. Nathan, Business
Credit, July/August 2007
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• "Recent Favorable Preference Rulings for Construction Material and
Service Suppliers," Bruce S. Nathan, Business Credit, June 2007
• "Preference Checklist," Bruce S. Nathan, Business Credit, June 2007
• "Recent Case Law Development Under the 2005 Amendments to the
Bankruptcy Code—Part II," Bruce S. Nathan, Scott Cargill, Business Credit
Journal of NACM Oregon, May 2007
• "Paid for New Value Really Does Count: An Update on the New Value
Defense and Other Preference Issues," Bruce S. Nathan, Business Credit,
May 2007
• "Reclamation Rights Under BAPCPA: The Same Old Story," Bruce S.
Nathan, Business Credit, April 2007
• "Recent Case Law Development Under the 2005 Amendments to the
Bankruptcy Code—Part 1," Bruce S. Nathan, Scott Cargill, Business Credit
Journal of NACM Oregon, April 2007
• "The New 20-Day Administrative Claim in Favor of Goods Suppliers: Yes to
Priority; No to Immediate Payment," Bruce S. Nathan, Business Credit,
March 2007
• "The ABCs of Legal Issues Encountered by Credit Professionals," Bruce S.
Nathan, Business Credit, February 2007
• "Joint Check Arrangement Does Not Protect Against Preference Exposure,"
Bruce S. Nathan, Business Credit, January 2007
• "Bailment Or Consignment: It Makes A Difference!," Bruce S. Nathan,
Business Credit, November/December 2006
• "The BAPCPA Ordinary Course Of Business Defense To Preference Claims:
At Last, A Court Speaks," Bruce S. Nathan, Business Credit, October 2006
• "A Trade Creditor's Post-Petition Obligations Under An Unexpired
Executory Contract Prior To Assumption Or Rejection: The Muddled State
Of The Law," Bruce S. Nathan, Business Credit, September 2006
• "Being Fully Secured Defeats Preference Exposure," Bruce S. Nathan,
Business Credit, July/August 2006
• "Reclamation Manual/Sellers' Rights of Reclamation, Stoppage of Delivery
and New Administrative Claim," Bruce S. Nathan, American Bankruptcy
Institute, 2006
• "Manual of Credit And Commercial Laws," Bruce S. Nathan, National
Association of Credit Management (97th Edition), 2006
• "Involuntary Bankruptcy Petition Upheld: Media Providers’ Claims Against
Advertising Agency NOT Subject To Bona Fide Dispute," Bruce S. Nathan,
Business Credit, June 2006
• "Sales of Trade Claims: The Rewards and The Risks," Bruce S. Nathan,
Business Credit, May 2006
• "The New Creditors’ Committee Disclosure And Solicitation Obligations:
The Refco Blueprint!," Bruce S. Nathan, Business Credit, April 2006
• "Getting The Biggest Bang For Your New Value Preference Defense Buck,"
Bruce S. Nathan, Business Credit, March 2006
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• "Purchase Money Security Interest Suppliers Beware: Tracing Collateral
Proceeds Is No Sure Thing," Bruce S. Nathan, Business Credit, February
2006
• "The Impact of the Bankruptcy Abuse Prevention and Consumer Protection
Act of 2005 on Real Property Lessors and Owners and Other Bankruptcy
Law Developments," Bruce D. Buechler, Bruce S. Nathan, New York State
Bar Association Leasing Committee Program, January 18, 2006
• "A Trade Creditor’s Setoff Rights In Bankruptcy: No Slam Dunk," Bruce S.
Nathan, Business Credit, January 2006
• "Critical Vendor' Status Is No Escape From PREFERENCE Risk," Bruce
S. Nathan, Business Credit, November/December 2005
• "Section 506(c) Waiver Enforceable; Good News for DIPs and Other
Secured Lenders," Bruce S. Nathan, American Bankruptcy Institute Journal,
October 2005
• "Real Estate Material and Services Suppliers, Rejoice!," Bruce S. Nathan,
Business Credit, October 2005
• "A Preference Defense Quartet: Four Recent Court Decisions To Mull
Over," Bruce S. Nathan, Business Credit, September 2005
• "A Standby Letter of Credit Payment Within the Preference Period is Not a
Preference," Bruce S. Nathan, Business Credit, June 2005
• "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005: A
Summary of the Provisions Affecting Derivative Agreements," Bruce S.
Nathan, Scott Cargill, Lowenstein Sandler Bankruptcy Alert, May 6, 2005
• "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005:
Significant Business Bankruptcy Changes in Store for Trade Creditors,"
Bruce S. Nathan, Wanda Borges, Esq., Business Credit, May 2005
• "Sherwood Partners Threatens Viability of State Law Preference," Bruce S.
Nathan, American Bankruptcy Institute Journal, May 2005
• "Critical Vendor Orders After Kmart: A New Lease on Life," Bruce S.
Nathan, Business Credit, May 2005
• "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005:
Landmark Business and Other Bankruptcy Changes," Bruce S. Nathan,
Scott Cargill, Lowenstein Sandler Bankruptcy Alert, May 5, 2005
• "Reclamation Rights vs. Floating Inventory Lien: A Victory At Last!,"
Bruce S. Nathan, Business Credit, April 2005
• "Be Careful When Taking Regular Checks For Lien Release Or Cash
Transactions: A Commentary On The JWJ Contracting Co., Case," Bruce
S. Nathan, Business Credit, March 2005
• "State Law Preference Actions: A Thing Of The Past?," Bruce S. Nathan,
Scott Cargill, Business Credit, March 2005
• "The Dirty Little Secret Of Critical Vendor Orders: The Hidden Preference
Risk That Lurks!," Bruce S. Nathan, Business Credit, February 2005
• "Reclamation Rights Trumped by UCC's Floating Inventory Security
Interest," Bruce S. Nathan, American Bankruptcy Institute Journal, November
2004
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• "Battered And Coated French Fries As A Fresh Vegetable Eligible For
PACA Protection: Are You Kidding?," Bruce S. Nathan, Business Credit,
November/December 2004
• "A New Defense Against Preference Claims?," Bruce S. Nathan, Scott
Cargill, Credit Today, October 2004
• "Standby Letters of Credit and the Strict Compliance Standard: The Case of
the Overstated Sight Draft," Bruce S. Nathan, Business Credit, October 2004
• "Are Reclamation Claims Heading for Oblivion Where the Debtor Has a
Secured Inventory Lender?," Bruce S. Nathan, Business Credit, September
2004
• "Critical Vendor Payments Denied by Kmart Ruling - Part 2," Bruce S.
Nathan, Scott Cargill, National Credit News, July-August 2004
• "Critical Vendor Payments Denied by Kmart Ruling - Part 1," Bruce S.
Nathan, Scott Cargill, National Credit News, June 2004
• "PACA Rights Destroyed by Oral Agreement Extending Payment Terms,"
Bruce S. Nathan, Business Credit, June 2004
• "Can Sanctions Be Imposed For Improperly Prosecuted Preference
Actions?," Bruce S. Nathan, Business Credit, May 2004
• "Section 502(d) Preclusion of Preference Claims: A New Defense or a Dry
Hole?," Bruce S. Nathan, American Bankruptcy Institute Journal, May 2004
• "Critical Vendor Payments Denied by Kmart Ruling," Bruce S. Nathan,
Scott Cargill, Lowenstein Sandler, April 2004
• "Consignment the Right Way: File a UCC Financing Statement," Bruce S.
Nathan, Business Credit, April 2004
• "Extra, From the Appellate Corner - Hot Off the Presses: Delaware
Appellate Court Affirms Priority of Trade Creditor's Stoppage of Delivery
Rights Over Buyer's Inventory Secured Lender," Bruce S. Nathan, Business
Credit, March 2004
• "Are Reclamation Rights Preserved Where Debtor's Secured Dip Lender
Pays Off Pre-Petition Secured Inventory Lender? Yes and No!," Bruce S.
Nathan, Business Credit, March 2004
• "Preferences, Reclamation and PACA in One Case: A Three-Ring Circus,"
Bruce S. Nathan, Business Credit, February 2004
• "PACA Trust Survives E-Mail Exchange Extending Payment Terms,"
Bruce S. Nathan, Business Credit, January 2004
• "A New Limit on Reclamation Claims: The Latest on the Goods on Hand
Requirement," Bruce S. Nathan, Business Credit, November/December 2003
• "The Ordinary-course-of-business Defense to Preference Claims: First-time
Transactions Count Too!," Bruce S. Nathan, American Bankruptcy Institute
Journal, November 2003
• "A New Limit on the New Value Preference Defense," Bruce S. Nathan,
Business Credit, October 2003
• "Trade Creditors Beware: Providing Post-Petition Goods and Services to a
Chapter 11 Debtor Under a Pre-Petition Contract Without Protection Can
Be Toxic to Collectibility," Bruce S. Nathan, Business Credit, September 2003
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• "Letter of Credit Beneficiary Beats Issuing Bank Based on Conforming
Documents and Untimely and Improper Dishonor," Bruce S. Nathan,
Business Credit, July/August 2003
Bar Admissions
• 1981, New York