Use of Email to Satisfy Mail Delivery Requirements of SEC Disclosure Rules
We were recently asked to review the disclosure by mail delivery requirements of US Securities and Exchange Commission (SEC) Rule 14d-4. In summary, RPost’s patented technology is uniquely positioned to serve as an alternative to delivery by postal mail while meeting requirements for these disclosure notices. Please review the legal analyses for further details.
Our review of this SEC rule provides that the mail requirements would be governed by the Uniform Electronic Transactions Act (UETA) and Federal ESIGN law, with ESIGN’s provision for “functional equivalence” prevailing in that while the SEC Rule 14d-4 instructs to send by first class mail, there is nothing in the Rule that would explicitly pre-empt the Federal ESIGN provision of “functional equivalence”.
As summarized in the legal analyses, RPost’s Registered E-mail® service, under UETA and ESIGN, can serve as the functional equivalent of paper mail, to be used in lieu of certified mail, registered mail, return receipt mail, private express mail services, fax logs and similar types of paper mail services. RPost’s Registered E-mail® service provides a record of sending and receiving in accordance with the UETA by recording the recipient’s server’s receipt thereof.
RPost Registered Email service delivers the notice directly to the recipient’s inbox. RPost is not a ‘store and forward’ system in that RPost services do not send a notice requiring the recipient to come to a website to collect/download the document. We believe the latter “store-and-forward website systems” would not satisfy the disclosure by mail requirements unless one had a record that the document was in fact downloaded and the content downloaded was the full content and in a form available for reading by the consumer.
Further, if the notice is sent attached to an RPost Registered Email message, we recommend that if sending it as a PDF attachment, one attach a second copy of the content as a text (.TXT) file to eliminate all software pre-requisites (i.e. proprietary PDF reader program) to read the disclosure notice. Alternatively, one could place the notice in the body of the email itself or only as an attached text file.
RPost returns a Registered Receipt record and/or Certified Email™ reports for proof of delivery, satisfying the disclosure requirement; and in case of a further audit by SEC, court-admissible proof of delivery records that can be authenticated. For a description of how the Registered Receipt satisfies the evidentiary requirements of successful notice or court admissibility, see the legal analyses or visit the RPost website area that references Registered Receipt email.
We note the Rule discusses using first class mail and setting forth the time of mailing (sending) as the time recorded, providing set time periods to account for mail delivery. Since the reference is to “first class mail” and with the time allotments for delivery of mail noted, one might consider that the Rule was following the guideline that, at least with USPS First Class mail, the mail would be deemed to have been delivered if the sender retained proof of mailing. However, for email, UETA explicitly defines time of delivery which is not the time of sending the email (see discussion in the legal analysis). Therefore, we again recommend relying on the RPost Registered Receipt for the legal time of sending and delivery for email.
Finally, it is good practice to ensure that the email address provided was provided for the purposes of receipt of this type of notice. RPost also has a service (Register Reply service) to send an email to record by reply email the consumer/receiver’s consent to receive such notices at the particular email address. RPost provides proof of consent in the form of a Registered Receipt email record.
Note, RPost patents that cover the above email tracking, recording consent, and proof of delivery services are United States patent numbers 6182219, 6571334, 7660989, 7698558, 7707624, 7865557, 7966372, 8161104, 8209389, 8224913, 8275845, and 7886008.
RPost does not provide legal opinions, legal guidance, or legal advice; you should not rely on the content of this email as a legal opinion, legal guidance, or as legal advice. We recommend you consult your own counsel to evaluate your specific situation with regards to complex issues related to email and the law.
RPost achieves top score in breadth and depth of e-signature services, compliance with industry/country regulations and technical standards, and enterprise scalability categories.
Forrester Research, Inc. has recognized RPost as a strong performer in electronic signature services, according to the report, The Forrester Wave™: E-Signatures, Q2 2013. RPost was among select companies Forrester Research invited to participate in its Forrester Wave™: E-Signatures report. In this evaluation, RPost was recognized with top score (5 out of 5 possible) for
1. Breadth and depth of e-signature services,
2. Compliance with industry/country regulations and technical standards, and
3. Enterprise scalability.
In the Report, Forrester Research also gave RPost high scores (4 out of 5 possible) for
1. E-Signature Capture technology,
2. Global Support, and
3. Overall Strategy.
The Forrester Wave™: E-Signatures, Q2 2013 report cites, "strong performers have well-balanced offerings — in some cases they are focused on specific use cases or geographic areas, or they offer lower cost options."
The Report continues, “RPost stems from a secure e-delivery space. Although it provides web-centric e-sign services, RPost, unlike most reviewed vendors, has focused on email-centric e-sign services. Using email in the signoff process, users do not have any interaction with a website to sign the document, and senders can automate sending from legacy and custom business applications by simply configuring the recipient signer email address to route via RPost. RPost has offered services since 2000 and has enterprise customers that have used RPost services continuously since 2003. It provides e-signature as part of a Registered Email service offering, which includes services to track, prove, sign, and encrypt high-value messages and documents. RPost has been extending its vision beyond email, as more business will be conducted through file-share and collaboration services or interactive sites."
RPost customers have relied on its services for critical business processes for more than 10 years. RPost e-signature customers are among the largest companies in the world, with thousands of small business customers enjoying the simplicity of use of RPost services. In RPost's 2012 year end survey, RPost's users reported using RPost's e-signature services in the following industries: Insurance, Financial Services, Law, Health Care, Telecom and IT, Automotive, Construction, Marketing, Manufacturing, Real Estate, Engineering, Defense/Military, and Mining; with the majority of use in the United States, but also use in Latin America, Europe (including UK and Continental), Asia (including China and Russia), Africa, and Australia.
For more information on The Forrester Wave™: E-Signatures, Q2 2013 report, contact RPost at www.rpost.com/contact-us
Is proof of delivery of Service by Email needed if you have a Certificate of Service for email sent?
Is proof of delivery of Service by Email needed if you have a Certificate of Service for email sent?
Considerations With Florida Mandatory Serve By Email Rule.
The following is a response to a lawyer question prompted by a recent Florida Bar member benefit email referencing the new Florida mandatory Service by Email Rules of Judicial Administration.
Question: the email “…makes the following representations: "Florida Rules of Judicial Administration now require service . . . by email and rely upon you, the sender, to track and prove delivery of said emails, and any attachments, to the intended recipient." [sic]. While the first part of the statement is true, I firmly believe the underlined portion is not. Rule 5.216(f) of the Florida Rules of Judicial Administration clearly state that, if an attorney certifies service using a certificate of service format, that certification constitutes "prima facie proof of such service in compliance with this rule". The model certificate of service was even modified to include emails as a method of service. Further, I did not see anything in Rule 5.525 that would either supersede or modify the rule in Rule 5.216(f). If, of course, someone has some inside information that they wish to share with me, I am always willing to listen, and I am the first to admit that I do not know every page of the Florida Rules of Court inside and out. However, attorneys have been relying upon the "certificate of service rule" since time immemorial to eliminate the low-end (and usually false) complaints that a litigant or opposing counsel did not receive an item, or did not receive it in a timely fashion. Rule 5.216(f) clearly places the burden of proof on the complainer that the document, in fact, was not served when the certificate says it was served. If that rule has been substantially changed, I believe both I and the rest of the bar would like to know about it, as it would constitute a substantial and marked departure from what we have been doing for the past several decades. As always, if you have any questions or concerns, please feel free to contact me.”
In response to the request for more information, let us focus on your concern about use of the language in the RPost Florida Bar member benefit introductory email, “and rely upon you, the sender, to track and prove delivery of said emails, and any attachments, to the intended recipient."
Understanding that there may be different perspectives, please respectfully consider the following. We point these out as things a practicing attorney may wish to consider; and certainly those attorneys that practice the “belt & suspenders” rule of thumb for their clients, may want to consider.
1. For paper mail, there is a default non-interested third party deliverer. There is no default non-interested third-party deliverer for electronic mail. With standard mail and courier services, you have a non-interested third party that delivers the mail from the sender to the recipient. With standard Internet email, you do not necessarily have one. If your firm operates their own mail server, the email leaves from your mail server and is (most of the time) delivered to the recipient mail server (or their mail gateway, their authorized agent to receive their mail). Your server, the recipient’s server or the recipient’s agent are all interested parties. With traditional service by mail, one often signs an affidavit of sending or otherwise certifies that they provided the letter to non-interested third party for delivery -- the US Postal Service or other third party courier; and they rely on that third party to deliver or report to them that it was not delivered. With standard email (considering Internet messaging and the technical workings of email), one does not have a natural and ubiquitous third party notification system of successful transmission (sent) or delivery failure (awareness by sender that the email did not reach the intended recipient). A useful Locke Lord Bissell and Liddell LLP legal analysis on Internet law as related to legal delivery and court-admissible email proof can be found here.
2. Not all email is delivered and furthermore, not all undelivered email returns a bounce or delivery failure notice to the sender. Consider the excerpt from the Jeffer Mangels Butler Mitchell LLP Corporate Counsel Guide entitled, “Moving Legal Notices from Paper to Electronic Delivery”. In the section entitled, “Common Misconceptions and Challenges with Standard Use of Electronic Technologies” (page 7) they cite the following :
This posting should serve as a reference guide for process servers or lawyers who need to prove service by email.
(1) Serve by email
(1a) Florida Rules of Judicial Administration now require service of court documents to opposing counsel by email and rely upon the sender to track and prove delivery of said emails, and any attachments, to the intended recipient. The Florida Bar now offers RPost Registered Email service as a member benefit, for use when complying with the mandatory service by email Rule. For more detail, visit http://www.rpost.com/floridabar
(1b) In other states, request permission to serve by email
Request permission from the judge to serve court documents sent by RPost Registered Email service. Report to the judge that you will use the RPost Registered Email service as this method will produce a Registered Receipt email record that could be filed in paper form as supporting evidence of proof of successful service, with an electronic copy maintained that will provide the court with, on demand, an authenticated electronic record of (a) proof of receipt with proof of time received for email defined by the Uniform Electronic Transactions Act Section 15, (b) proof of the precise content received, to include message body text and attached court documents, and (c) the underlying transaction metadata and internet forensics that support the record of successful electronic transmission.
(2) Supporting exhibits
(A) Proof of delivery, regardless of opening and reading.
Stan Gibson, Partner at Jeffer Mangels Butler & Mitchell LLP provides some guidance as to what this means, in his paper entitled, "CONVERTING LEGAL & CONTRACT NOTICES FROM PAPER TO ELECTRONIC DELIVERY, a Corporate Counsel Guide." In this paper, he writes, "Importantly, what constitutes a 'legally received electronic message' is defined within the Uniform Electronic Transaction Act (UETA). Assuming UETA applies to the transaction (note, although we are referencing United States law, this principle generally holds internationally as this is based upon a United Nations model law that has been used as the foundation for most electronic transaction laws worldwide), an email is deemed "received" under UETA pursuant to Sections 15(b) and (e), which state the following: 15 (b) Unless otherwise agreed between a sender and the recipient, an electronic record is received when: (1) it enters an information processing system that the recipient has designated or uses for the purpose of receiving electronic records or information of the type sent and from which the recipient is able to retrieve the electronic record; and (2) it is in a form capable of being processed by that system. 15 (e) An electronic record is received under subsection (b) even if no individual is aware of its receipt."
(B) Proof of court documents (attached) received.
Configured for SAP by default, configurable for other output management systems on demand.
The RPost Output Management app generally provides the following functions to connect document output management systems to the RPost Cloud for secure, verifiable, encrypted, large file, and e-signature processing.
The RPost Output Management app performs the following functions in general, and can be configured for specific situations:
- Output management system generates a PDF-output file that contains all of the documents that need to be transmitted in a batch.
- RPost App opens the output-file and checks for destination email addresses by scanning the file
- RPost App separates the header page if there is an email address on it, along with all of the following pages until the next header page, and prepares as a PDF document for sending attached to an email.
- RPost App determines sending actions (email attributes/features/encryption/e-signatures/sending address/recipient address/email body text, etc.) as defined in an XML file
- RPost App routes the email via the RPost Cloud for processing and transmission to the recipient
- RPost Cloud provides reports, delivery receipts, records, and signed contracts back to the output management system with data in XML or otherwise configurable formats for import into the output management system reporting dashboards.
Latest Blog Posts
- Use of Email to Satisfy Mail Delivery Requirements of SEC Disclosure Rules
- RPost E-Signature Services Cited as a Strong Performer by Independent Research Firm
- Is proof of delivery of Service by Email needed if you have a Certificate of Service for email sent?
- Litigation Counsel Guide: How to Prove Service of Court Documents by Email - Update
- RPost App for Document Output Management Systems
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