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Be Careful What You Look For: It Could Be an Authenticated Record
A recent bankruptcy court decision out of the District of Delaware found that a document contained on a Web site was an authenticated notice under UCC 9-404 notwithstanding the lack of affirmative action taken by the assignor or assignee. In re Communications Dynamics, Inc. WL 22345713 (Bankr. D. Del. 2003) is the first decision in which the authentication requirement to an account debtor in Section 9-404(a)(2) of the Uniform Commercial Code (UCC) is interpreted. This holding adds a new element to the UCC's definition of authentication and seems to ignore the plain language of the Code. This decision could have an impact on the leasing industry as the definition of an account debtor under Section 9-102(a)(3) of the UCC includes not only a lessee but will also include a lessor in conjunction with its own accounts payable.
'Authenticate' and the UCC
UCC Section 9-102(7) defines “authenticate” as: “(A) to sign; or (B) to execute or otherwise adopt a symbol, or encrypt or similarly process a record with the present intent of the authenticating person to identify the person and adopt or accept a record.” The definition of “authenticate” refers to a “record” which the UCC defines as: “information that is inscribed on a tangible medium or which is stored in an electronic or other medium and is retrievable in perceivable form.” UCC '9-102(69). According to the Official Comments, the term “authenticate” replaces “sign” and “record” replaces “writing” and “written” in many of the provisions in revised Article 9. UCC '9-102 cmt. 9(a)-(b). The adoption of these terms is meant to modernize the UCC and to deal with rapidly developing technology. UCC '9-102 cmt. 9(a). The UCC is very broad in its approach to the adoption of new technology; even a message left on a “digital voice messaging system” can qualify as a record. Id. The only limitation expressed by the drafters was that “human memory does not qualify as a record.” Id.
Yachts, Jets, Horses & Hooch: Specialized Commercial Leasing Models
Defining commercial real estate asset class is essentially a property explaining how it identifies — not necessarily what its original intention was or what others think it ought to be. This article discusses, from a general issue-spot and contextual analysis perspective, how lawyers ought to think about specialized leasing formats and the regulatory backdrops that may inform what the documentation needs to contain for compliance purposes.
Hyperlinked Documents: The Latest e-Discovery Challenge
As courts and discovery experts debate whether hyperlinked content should be treated the same as traditional attachments, legal practitioners are grappling with the technical and legal complexities of collecting, analyzing and reviewing these documents in real-world cases.
Identifying Your Practice's Differentiator
How to Convey Your Merits In a Way That Earns Trust, Clients and Distinctions Just as no two individuals have the exact same face, no two lawyers practice in their respective fields or serve clients in the exact same way. Think of this as a "Unique Value Proposition." Internal consideration about what you uniquely bring to your clients, colleagues, firm and industry can provide untold benefits for your law practice.
Risks and Ad Fraud Protection In Digital Advertising
The ever-evolving digital marketing landscape, coupled with the industry-wide adoption of programmatic advertising, poses a significant threat to the effectiveness and integrity of digital advertising campaigns. This article explores various risks to digital advertising from pixel stuffing and ad stacking to domain spoofing and bots. It will also explore what should be done to ensure ad fraud protection and improve effectiveness.
Turning Business Development Plans Into Reality
This article offers practical insights and best practices to navigate the path from roadmap to rainmaking, ensuring your business development efforts are not just sporadic bursts of activity, but an integrated part of your daily success.