To facilitate the use of electronic records and signatures in interstate or foreign commerce.
Electronic Signatures in Global and National Commerce Act. Contracts.
This Act may be cited as the ‘‘Electronic Signatures in Global and National Commerce Act’’.
denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.
(2)require any person to agree to use or accept electronic records or electronic signatures, other than a governmental agency with respect to a record other than a contract to which it is a party.
(ii)again complies with subparagraph (C).
available to any consumer under any statute, regulation, or other rule of law.
was enacted prior to this Act expressly requires a record to be provided or made available by a specified method that requires verification or acknowledgment of receipt, the record may be provided or made available electronically only if the method used provides verification or acknowledg- ment of receipt (whichever is required).
OR CONFIRMATION OF CONSENT.—The legal effectiveness, validity, or enforceability of any contract executed by a con- sumer shall not be denied solely because of the failure to obtain electronic consent or confirmation of consent by that consumer in accordance with paragraph (1)(C)(ii).
(4) PROSPECTIVE EFFECT.—Withdrawal of consent by a con- sumer shall not affect the legal effectiveness, validity, or enforceability of electronic records provided or made available to that consumer in accordance with paragraph (1) prior to implementation of the consumer’s withdrawal of consent. A consumer’s withdrawal of consent shall be effective within a reasonable period of time after receipt of the withdrawal by the provider of the record. Failure to comply with paragraph (1)(D) may, at the election of the consumer, be treated as a withdrawal of consent for purposes of this paragraph.
(5)PRIOR CONSENT.—This subsection does not apply to any records that are provided or made available to a consumer who has consented prior to the effective date of this title to receive such records in electronic form as permitted by any statute, regulation, or other rule of law.
(6)ORAL COMMUNICATIONS.—An oral communication or a recording of an oral communication shall not qualify as an electronic record for purposes of this subsection except as other- wise provided under applicable law.
(B)remains accessible to all persons who are entitled to access by statute, regulation, or rule of law, for the period required by such statute, regulation, or rule of law, in a form that is capable of being accurately reproduced for later reference, whether by transmission, printing, or otherwise.
(2)EXCEPTION.—A requirement to retain a contract or other record in accordance with paragraph (1) does not apply to any information whose sole purpose is to enable the contract or other record to be sent, communicated, or received.
available, or retained in its original form, or provides con- sequences if the contract or other record is not provided, avail- able, or retained in its original form, that statute, regulation, or rule of law is satisfied by an electronic record that complies with paragraph (1).
RECORDS.—Notwithstanding subsection (a), if a statute, regulation, or other rule of law requires that a contract or other record relating to a transaction in or affecting interstate or foreign commerce be in writing, the legal effect, validity, or enforceability of an electronic record of such contract or other record may be denied if such electronic record is not in a form that is capable of being retained and accurately reproduced for later reference by all parties or persons who are entitled to retain the contract or other record.
(f) PROXIMITY.—Nothing in this title affects the proximity required by any statute, regulation, or other rule of law with respect to any warning, notice, disclosure, or other record required to be posted, displayed, or publicly affixed.
tion, or other rule of law requires a signature or record relating to a transaction in or affecting interstate or foreign commerce to be notarized, acknowledged, verified, or made under oath, that requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable statute, regulation, or rule of law, is attached to or logically associated with the signa- ture or record.
(h)ELECTRONIC AGENTS.—A contract or other record relating to a transaction in or affecting interstate or foreign commerce may not be denied legal effect, validity, or enforceability solely because its formation, creation, or delivery involved the action of one or more electronic agents so long as the action of any such electronic agent is legally attributable to the person to be bound.
(i)INSURANCE.—It is the specific intent of the Congress that Applicability. this title and title II apply to the business of insurance.
SEC. 102. EXEMPTION TO PREEMPTION. 15 USC 7002.
(B)if enacted or adopted after the date of the enactment of this Act, makes specific reference to this Act.
PANTS.—Subsection (a)(2)(A)(ii) shall not apply to the statutes, regu- lations, or other rules of law governing procurement by any State, or any agency or instrumentality thereof.
(c)PREVENTION OF CIRCUMVENTION.—Subsection (a) does not permit a State to circumvent this title or title II through the imposition of nonelectronic delivery methods under section 8(b)(2) of the Uniform Electronic Transactions Act.
15USC 7003. SEC. 103. SPECIFIC EXCEPTIONS.
(3)the Uniform Commercial Code, as in effect in any State, other than sections 1–107 and 1–206 and Articles 2 and 2A.
(3)any document required to accompany any transportation or handling of hazardous materials, pesticides, or other toxic or dangerous materials.
tion of consumers. Within 3 years after the date of enactment of this Act, the Assistant Secretary shall submit a report to the Congress on the results of such evaluation.
(2) DETERMINATIONS.—If a Federal regulatory agency, with respect to matter within its jurisdiction, determines after notice and an opportunity for public comment, and publishes a finding, that one or more such exceptions are no longer necessary for the protection of consumers and eliminating such exceptions will not increase the material risk of harm to consumers, such agency may extend the application of section 101 to the excep- tions identified in such finding.
SEC. 104. APPLICABILITY TO FEDERAL AND STATE GOVERNMENTS.
(a) FILING AND ACCESS REQUIREMENTS.—Subject to subsection (c)(2), nothing in this title limits or supersedes any requirement by a Federal regulatory agency, self-regulatory organization, or State regulatory agency that records be filed with such agency or organization in accordance with specified standards or formats.
(B)to the extent such agency is authorized by statute to issue orders or guidance, the issuance of orders or guid- ance of general applicability that are publicly available and published (in the Federal Register in the case of an order or guidance issued by a Federal regulatory agency).
(iii)the methods selected to carry out that purpose do not require, or accord greater legal status or effect to, the implementation or application of a specific tech- nology or technical specification for performing the functions of creating, storing, generating, receiving, communicating, or authenticating electronic records or electronic signatures.
Notwithstanding paragraph (2)(C)(iii), a Federal regulatory agency or State regulatory agency may interpret section 101(d) to specify performance standards to assure accuracy, record integrity, and accessibility of records that are required to be retained. Such performance standards may be specified in a manner that imposes a requirement in violation of paragraph (2)(C)(iii) if the requirement (i) serves an important governmental objective; and (ii) is substantially related to the achievement of that objective. Nothing in this paragraph shall be construed to grant any Federal regulatory agency or State regulatory agency authority to require use of a particular type of software or hardware in order to comply with section 101(d).
(ii)imposing such requirement is essential to attaining such interest.
PARTICIPANT.—Paragraph (2)(C)(iii) shall not apply to the stat- utes, regulations, or other rules of law governing procurement by the Federal or any State government, or any agency or instrumentality thereof.
(b)(other than paragraph (3)(B) thereof) shall be construed to grant any Federal regulatory agency or State regulatory agency authority to impose or reimpose any requirement that a record be in a tangible printed or paper form.
WORK ELIMINATION ACT.—Nothing in subsection (a) or (b) relieves any Federal regulatory agency of its obligations under the Government Paperwork Elimination Act (title XVII of Public Law 105–277).
from the requirements relating to consent in section 101(c) if such exemption is necessary to eliminate a substantial burden on electronic commerce and will not increase the material risk of harm to consumers.
(2) PROSPECTUSES.—Within 30 days after the date of enact- ment of this Act, the Securities and Exchange Commission shall issue a regulation or order pursuant to paragraph (1) exempting from section 101(c) any records that are required to be provided in order to allow advertising, sales literature, or other information concerning a security issued by an invest- ment company that is registered under the Investment Com- pany Act of 1940, or concerning the issuer thereof, to be excluded from the definition of a prospectus under section 2(a)(10)(A) of the Securities Act of 1933.
(e) ELECTRONIC LETTERS OF AGENCY.—The Federal Commu- nications Commission shall not hold any contract for telecommuni- cations service or letter of agency for a preferred carrier change, that otherwise complies with the Commission’s rules, to be legally ineffective, invalid, or unenforceable solely because an electronic record or electronic signature was used in its formation or authoriza- tion.
(a)DELIVERY.—Within 12 months after the date of the enact- ment of this Act, the Secretary of Commerce shall conduct an inquiry regarding the effectiveness of the delivery of electronic records to consumers using electronic mail as compared with delivery of written records via the United States Postal Service and private express mail services. The Secretary shall submit a report to the Congress regarding the results of such inquiry by the conclusion of such 12-month period.
required by section 101(c)(1)(C)(ii) would increase the incidence of fraud directed against consumers; and suggesting any revisions to the provision deemed appropriate by the Secretary and the Commission. In conducting this evaluation, the Secretary and the Commission shall solicit comment from the general public, consumer representatives, and electronic commerce businesses.
15 USC 7006. SEC. 106. DEFINITIONS.
(1)CONSUMER.—The term ‘‘consumer’’ means an individual who obtains, through a transaction, products or services which are used primarily for personal, family, or household purposes, and also means the legal representative of such an individual.
(2)ELECTRONIC.—The term ‘‘electronic’’ means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(3)ELECTRONIC AGENT.—The term ‘‘electronic agent’’ means a computer program or an electronic or other automated means used independently to initiate an action or respond to electronic records or performances in whole or in part without review or action by an individual at the time of the action or response.
(4)ELECTRONIC RECORD.—The term ‘‘electronic record’’ means a contract or other record created, generated, sent, communicated, received, or stored by electronic means.
(5)ELECTRONIC SIGNATURE.—The term ‘‘electronic signa- ture’’ means 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.
regulatory agency’’ means an agency, as that term is defined in section 552(f) of title 5, United States Code.
(7)INFORMATION.—The term ‘‘information’’ means data, text, images, sounds, codes, computer programs, software, data- bases, or the like.
(8)PERSON.—The term ‘‘person’’ means an individual, cor- poration, business trust, estate, trust, partnership, limited liability company, association, joint venture, governmental agency, public corporation, or any other legal or commercial entity.
(9)RECORD.—The term ‘‘record’’ means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(10)REQUIREMENT.—The term ‘‘requirement’’ includes a prohibition.
regulatory organization’’ means an organization or entity that is not a Federal regulatory agency or a State, but that is under the supervision of a Federal regulatory agency and is authorized under Federal law to adopt and administer rules applicable to its members that are enforced by such organiza- tion or entity, by a Federal regulatory agency, or by another self-regulatory organization.
(12)STATE.—The term ‘‘State’’ includes the District of Columbia and the territories and possessions of the United States.
(a)IN GENERAL.—Except as provided in subsection (b), this title shall be effective on October 1, 2000.
(ii)a State statute, regulation, or other rule of law administered or promulgated by a State regulatory agency.
on March 1, 2001, a Federal regulatory agency or State regulatory agency has announced, proposed, or initiated, but not completed, a rulemaking proceeding to prescribe a regulation under section 104(b)(3) with respect to a requirement described in subparagraph (A), this title shall be effective on June 1, 2001, with respect to such require- ment.
502of the Federal Credit Reform Act of 1990), or involving a program listed in the Federal Credit Supplement, Budget of the United States, FY 2001, this title applies only to such transactions entered into, and to any loan or mortgage made, insured, or guaranteed by the United States Government there- under, on and after one year after the date of enactment of this Act.
(B)one year after the date of enactment of this Act.
SEC. 201. TRANSFERABLE RECORDS. 15 USC 7021.
(C)relates to a loan secured by real property.
(2)OTHER DEFINITIONS.—The terms ‘‘electronic record’’, ‘‘electronic signature’’, and ‘‘person’’ have the same meanings provided in section 106 of this Act.
(b)CONTROL.—A person has control of a transferable record if a system employed for evidencing the transfer of interests in the transferable record reliably establishes that person as the per- son to which the transferable record was issued or transferred.
(6)any revision of the authoritative copy is readily identifi- able as authorized or unauthorized.
(d)STATUS AS HOLDER.—Except as otherwise agreed, a person having control of a transferable record is the holder, as defined in section 1–201(20) of the Uniform Commercial Code, of the transferable record and has the same rights and defenses as a holder of an equivalent record or writing under the Uniform Commercial Code, including, if the applicable statutory require- ments under section 3–302(a), 9–308, or revised section 9–330 of the Uniform Commercial Code are satisfied, the rights and defenses of a holder in due course or a purchaser, respectively. Delivery, possession, and endorsement are not required to obtain or exercise any of the rights under this subsection.
(e)OBLIGOR RIGHTS.—Except as otherwise agreed, an obligor under a transferable record has the same rights and defenses as an equivalent obligor under equivalent records or writings under the Uniform Commercial Code.
(f)PROOF OF CONTROL.—If requested by a person against which enforcement is sought, the person seeking to enforce the transfer- able record shall provide reasonable proof that the person is in control of the transferable record. Proof may include access to the authoritative copy of the transferable record and related busi- ness records sufficient to review the terms of the transferable record and to establish the identity of the person having control of the transferable record.
(g) UCC REFERENCES.—For purposes of this subsection, all references to the Uniform Commercial Code are to the Uniform Commercial Code as in effect in the jurisdiction the law of which governs the transferable record.
This title shall be effective 90 days after the date of enactment of this Act.
SEC. 301. PRINCIPLES GOVERNING THE USE OF ELECTRONIC SIGNA- 15 USC 7031.
(1) REQUIRED ACTIONS.—The Secretary of Commerce shall promote the acceptance and use, on an international basis, of electronic signatures in accordance with the principles speci- fied in paragraph (2) and in a manner consistent with section 101 of this Act. The Secretary of Commerce shall take all actions necessary in a manner consistent with such principles to eliminate or reduce, to the maximum extent possible, the impediments to commerce in electronic signatures, for the pur- pose of facilitating the development of interstate and foreign commerce.
(A)Remove paper-based obstacles to electronic trans- actions by adopting relevant principles from the Model Law on Electronic Commerce adopted in 1996 by the United Nations Commission on International Trade Law.
(B)Permit parties to a transaction to determine the appropriate authentication technologies and implementa- tion models for their transactions, with assurance that those technologies and implementation models will be rec- ognized and enforced.
(C)Permit parties to a transaction to have the oppor- tunity to prove in court or other proceedings that their authentication approaches and their transactions are valid.
(D)Take a nondiscriminatory approach to electronic signatures and authentication methods from other jurisdic- tions.
(b)CONSULTATION.—In conducting the activities required by this section, the Secretary shall consult with users and providers of electronic signature products and services and other interested persons.
(c)DEFINITIONS.—As used in this section, the terms ‘‘electronic record’’ and ‘‘electronic signature’’ have the same meanings provided in section 106 of this Act.
‘‘(h) GIFTS, BEQUESTS, AND DEVISES.—The Commission may accept, use, and dispose of gifts, bequests, or devises of services or property, both real (including the use of office space) and per- sonal, for the purpose of aiding or facilitating the work of the Commission. Gifts or grants not used at the termination of the Commission shall be returned to the donor or grantee.’’.
HOUSE REPORTS: No. 106–341, accompanying H.R. 1714, Pt. 1 (Comm. on Com- merce) and Pt. 2 (Comm. on the Judiciary).
SENATE REPORTS: Nos. 106–131 (Comm. on Commerce, Science, and Transpor- tation) and 106–661 (Comm. of Conference).
Vol. 145 (1999): Nov. 19, considered and passed Senate.
Vol. 146 (2000): Feb. 16, considered and passed House, amended, in lieu of H.R. 1714.
June 14, House agreed to conference report.
June 15, 16, Senate considered and agreed to conference report.
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 36 (2000): June 30, Presidential remarks and statement.
On June 30, 2000, Congress enacted the Electronic Signatures in Global and National Commerce Act(1) ("ESIGN" or "the Act"), to facilitate the use of electronic records and signatures in interstate and foreign commerce by ensuring the validity and legal effect of contracts entered into electronically. Careful to preserve the underlying consumer protection laws governing consumers' rights to receive certain information in writing, Congress imposed special requirements on businesses that want to use electronic records or signatures in consumer transactions. Section 101(c)(1)(C)(ii) of the Act requires businesses to obtain from consumers electronic consent or confirmation to receive information electronically that a law requires to be in writing. The Act went into effect in October 2000.
In Section 105(b) of the Act, Congress directed the Department of Commerce (Commerce) and the Federal Trade Commission (FTC) to issue a report on the impact of the consumer consent provision of Section 101(c)(1)(C)(ii). Specifically, Congress asked Commerce and the FTC to report on the benefits of that consumer consent provision to consumers; the burdens that the provision imposes on electronic commerce ("e-commerce"); whether the benefits outweigh the burdens; the effect of the consent provision in preventing fraud; and whether any statutory changes are necessary.
To evaluate these issues, Commerce and the FTC conducted extensive outreach to the on-line business community, technology developers, consumer groups, law enforcement and academia. To solicit public comments from these groups and the general public, the agencies issued a Notice in the Federal Register. The agencies also conducted a Public Workshop to explore issues raised in the comments and outreach efforts. The record consists of written comments and public workshop discussion, as well as anecdotal evidence, expert opinion, and independent research. There was consensus among the participants and commenters that not enough time has passed since the law took effect to: a) allow consumers or businesses to experience the full effect of the provision; b) develop sufficient empirical data to evaluate quantitatively whether the benefits of implementation outweigh the burdens; and c) determine whether the lack of the type of procedure required by the consumer consent provision would lead to an increase in deception and fraud against consumers.
Although participants expressed a range of views, it is reasonable to conclude that, thus far, the benefits of the consumer consent provision of ESIGN outweigh the burdens of its implementation on electronic commerce. The provision facilitates e-commerce and the use of electronic records and signatures while enhancing consumer confidence. It preserves the right of consumers to receive written information required by state and federal law. The provision also discourages deception and fraud by those who might fail to provide consumers with information the law requires that they receive.
The consumer consent provision in ESIGN appears to be working satisfactorily at this stage of the Act's implementation. Almost all participants in the study recommended that, for the foreseeable future, implementation issues should be worked out in the marketplace and through state and federal regulations. Therefore, Commerce and the FTC recommend that Congress take no action at this time to amend the statute.
The benefits of e-commerce extend beyond the dollar values that are placed on business activity: it gives consumers access to an unlimited marketplace of goods and services ranging from music and stocks to on-line books and shopping services at their fingertips. To continue enjoying the fruits of this technology, businesses and consumers - domestic and international - must have confidence in the integrity and credibility of this emerging electronic marketplace. Congress intended ESIGN to have a positive impact on the continued growth of e-commerce and consumer confidence.
Moreover, Section 101(c)(1)(C)(ii) states that a consumer's consent to receive electronic records is valid only if the consumer "consents electronically or confirms his or her consent electronically, in a manner that reasonably demonstrates that the consumer can access information in the electronic form that will be used to provide the information that is the subject of the consent."(6) Section 101(c)(1)(C)(ii) overlays existing state and federal laws requiring that certain information be provided to consumers in writing. It also provides a framework for how businesses can comply with the underlying statutory or regulatory requirement to provide written information to consumers electronically - whether the information is a disclosure, a notice, or a statement of rights and obligations - within the context of a business-to-consumer transaction.
Within 12 months after the date of the enactment of this Act, the Secretary of Commerce and the Federal Trade Commission shall submit a report to Congress evaluating any benefits provided to consumers by the procedure required by section 101(c)(1)(C)(ii); any burdens imposed on electronic commerce by that provision; whether the benefits outweigh the burdens; whether the absence of the procedure required by section 101(c)(1)(C)(ii) would increase the incidence of fraud directed against consumers; and suggesting any revisions to the provision deemed appropriate by the Secretary and the Commission. In conducting this evaluation, the Secretary and the Commission shall solicit comment from the general public, consumer representatives, and electronic commerce businesses.
The National Telecommunications and Information Administration (NTIA), on behalf of the Department of Commerce, and the FTC conducted the study required by Section 105(b). Based on the narrow mandate in Section 105(b), the agencies have focused their study and this Report on Section 101(c)(1)(C)(ii), and did not evaluate any other consumer protection provisions of the Act.
To evaluate the technology available to employ the consumer consent provision, and to learn how companies are implementing Section 101(c)(1)(C)(ii), the agencies conducted extensive outreach to the on-line business community, technology developers, consumer groups, law enforcement, and academia. The industry contacts included high-tech companies involved in infrastructure development for electronic contracting and electronic payment systems, as well as business entities that use, or plan to use, electronic records in consumer transactions. All interested parties were encouraged to submit papers and comments on the benefits and burdens of the requirement, and staff did research to identify the types of businesses that are using the Section 101(c)(1)(C)(ii) consumer consent procedures for providing information "in writing" to consumers in electronic formats.
In response to the Notice, NTIA and the FTC received 32 comments from consumer organizations, software and computer companies, banks, members of the financial services industry and academics.(9) Many of the commenters responded electronically to a special e-mail box. In addition, four commenters submitted supplemental statements after the workshop. NTIA and the FTC posted all written comments on their websites to facilitate public access.
The following sections of this Report provide an analysis of the comments and information received in response to the Federal Register Notice and outreach activities, during the workshop discussion and after the workshop. Specifically, Section III provides an overview of the issues raised by the comments and the workshop discussion. Section IV analyzes the benefits and burdens of the consumer consent provision in Section 101(c)(1)(C)(ii), and evaluates the effect of the consumer consent provision in preventing fraud. Section V states the agencies' conclusions.
In general, consumer advocates and state law enforcement agencies expressed strong support for the consumer consent provision in Section 101(c)(1)(C)(ii) as an effective tool to prevent fraud and increase consumer confidence in the electronic marketplace. In their responses to the Federal Register Notice and their comments at the workshop, consumer groups and state law enforcement agencies said the benefits of Section 101(c)(1)(C)(ii) to consumers and e-commerce businesses outweigh the burdens associated with adapting business systems to comply with the provision.
The consumer advocates who submitted comments and those who participated in the workshop identified a number of benefits that the consumer consent provision in Section 101(c)(1)(C)(ii) provides.
Section 105(b) asks whether Section 101(c)(1)(C)(ii) imposes burdens on e-commerce. While the participants in our study identified some burdens on e-commerce, they also identified several benefits. The commenters identified the following benefits and burdens for e-commerce businesses.
Some commenters noted that the consumer consent provision in Section 101(c)(1)(C)(ii) provides legal certainty in on-line business transactions, and may act as a "safe-harbor" for e-commerce businesses that follow the parameters in the Act.(30) Businesses that implement procedures for complying with Section 101(c)(1)(C)(ii) have some assurance that they have obtained consent and provided electronic documents in a manner sufficient to make the electronic transactions legally valid.(31) In addition, they obtain information to show that the record they provided could be accessed by the consumer.(32) As a result, the consumer consent provision may protect e-commerce businesses from baseless legal claims by providing an electronic or paper document trail of the transaction when disclosures or other records are provided electronically to consumers.
Although a number of e-commerce businesses, principally in the financial services industry, have implemented the procedures in Section 101(c)(1)(C)(ii), there was consensus among the participants and commenters that not enough time has passed since the law took effect to: a) allow consumers or businesses to experience the full effect of the provision; b) develop sufficient empirical data to evaluate quantitatively whether the benefits of implementation outweigh the burdens; and c) determine whether the lack of the type of procedure required by the consumer consent provision would lead to an increase in deception and fraud against consumers. Nonetheless, based on industry experience; anecdotal evidence, expert opinion and other information collected through outreach activities with consumer advocates and members of the e-commerce community; independent research; written comments submitted in response to the Federal Register Notice; and discussion during the workshop, it is reasonable to conclude that, thus far, the benefits provided to consumers by the procedures in the provision outweigh the burdens imposed on electronic commerce.
Consumer advocates suggest that Section 101(c)(1)(C)(ii) may prevent deception and fraud before it occurs by giving consumers more information about the legitimacy of the business they are dealing with and alerting them to the importance of receiving electronic documents. Businesses that have implemented Section 101(c)(1)(C)(ii) also report benefits, including protection from liability, increased revenues resulting from increased consumer confidence, and the opportunity to engage in additional dialogue with consumers about the transactions.
Although the record indicates that Section 101(c)(1)(C)(ii) causes some burdens, a number of commenters stated that the added step to obtain the consumer's consent is not significantly burdensome. To the degree they identified burdens, there is insufficient data to quantitatively assess their likelihood or severity, or their impact on consumers and e-commerce businesses. In addition, the record suggests that some burdens, such as the added step created by the consumer consent provision in Section 101(c)(1)(C)(ii), may be resolved or minimized over time as businesses and consumers adjust to the consent procedure and gain experience sending and receiving documents in an electronic form. In addition, given the pace of technological development, there is reason to believe that some issues, such as technical incompatibility in file formats, will be resolved by existing or future technology.
Similarly, instances of consumer frustration or confusion and the potential for loss of business may be solved by the creative structuring of the consent provision. For example, solutions may include incorporating the consent procedure of Section 101(c)(1)(C)(ii) in documents that must be legally executed at the beginning of the relationship (such as an on-line brokerage agreement) or initiating the relationship with a consumer using electronic mail that requires a response. The technology-neutral language of the provision encourages creativity in the structure of business systems that interface with consumers, and provides an opportunity for the business and the consumer to choose the form of communication for the transaction. Moreover, as allowed under Section 104 of the Act, federal regulatory agencies and states can issue regulations to provide guidance about the implementation of ESIGN in specific industries.(47) These regulations may resolve many of the issues that have surfaced since ESIGN was enacted.
Section 105(b) also requires Commerce and the FTC to address the issue of whether the absence of Section 101(c)(1)(C)(ii) would cause an increase in consumer fraud. While it is difficult to measure whether the lack of a provision would produce a certain result, we believe that the presence of the provision will help prevent deception and fraud. ESIGN's consumer consent provision ensures that consumer protections that exist in traditional commercial transactions extend to business-to-consumer electronic transactions. ESIGN overlays, rather than preempts, state and federal laws that provide for consumers to receive certain information "in writing" in connection with a transaction, thereby preserving consumers' rights under those laws in the world of e-commerce transactions.
The consumer safeguards adopted by Congress in ESIGN are consistent with well-established principles of consumer protection law. A keystone of consumer protection law is to ensure that the consumer can receive accurate information necessary to decide whether to enter into a particular transaction. The information must be delivered in a way that is timely and clear and conspicuous. That is, it must be presented at a time and in a way that the consumer is likely to notice and understand.
As enacted, ESIGN gives appropriate consideration to the threat that fraud and deception on the Internet pose to the growth and public acceptance of electronic commerce. It establishes safeguards that can avert many of the abusive practices that marked earlier technological innovations in the marketplace. Most laws protecting consumers against fraud and deception are implemented after fraud has been committed and documented. ESIGN attempts to address fraud before it occurs. Nothing is more likely to undermine consumer confidence in the electronic marketplace than exploitation by unscrupulous marketers, who would take advantage of electronic records and signatures as yet another way to deceive consumers. ESIGN incorporates basic consumer protection principles that will help maintain the integrity and credibility of the electronic marketplace, bolster confidence among consumers that electronic records and signatures are safe and secure, and ensure that consumers continue to receive comprehensible written disclosures required by state or federal law. Section 101(c)(1)(C)(ii) protects consumers who wish to receive electronic records by ensuring that they have access to the same information and protections as consumers who choose to use traditional paper-based transactions.
Section 101(c)(1)(C)(ii)'s consumer consent provision plays an integral role in achieving the goal of ESIGN: to facilitate e-commerce and the use of electronic records and signatures, and to ensure that consumers can access information businesses send electronically, which an underlying law requires to be in writing.
The consumer consent provision in Section 101(c)(1)(C)(ii) appears to be working satisfactorily at this stage of the Act's implementation. Almost all participants in the study recommended that, for the foreseeable future, implementation issues should be worked out in the marketplace and through state and federal regulations. Therefore, Commerce and the FTC recommend that Congress take no action at this time to amend the statute.
DST Digital Signature Trust Co.
Household Household Bank (Nevada), N.A., et al.
Yen** Elizabeth C. Yen, Esq.
** Denotes that commenter also submitted a supplemental comment after the Public Workshop. References in the Report to supplemental comments will be cited as [Acronym] Supp. at [page].
FTC Headquarters, Room 432, 600 Pennsylvania Ave., Washington D.C.
This workshop is part of the Federal Trade Commission ("FTC") and the National Telecommunications and Information Administration's ("NTIA") effort to gather information to report to Congress on the benefits and burdens of § 101(c)(1)(C)(ii) of the Electronic Signatures in Global and National Commerce Act ("ESIGN") which authorizes the use of an electronic record to send legally required information to consumers if the consumer consents or confirms consent "in a manner that reasonably demonstrates that they can access the information." Congress mandated this report under § 105(b) of ESIGN and required the submission of this study by June 30, 2001.
Through this workshop we hope to advance our understanding of the benefits and burdens to businesses and consumers resulting from the consumer consent provision of § 101(c)(1)(C)(ii). The workshop will consist of moderated round table discussions with representatives from industry, government, consumer advocate groups and other interested parties. We hope to foster discussion about best practices in obtaining electronic consent and to allow workshop participants to demonstrate their best practices, and the technologies that are available for companies to obtain consumer consent.
Technology Exhibits: Starting at 12:00p.m. and continuing until the end of the day, attendees may visit technology exhibits in Room 532.
The forum is open to the public, and there is no formal registration process for those wishing to attend.
9:05 - 9:30 Setting the Stage: What are the Issues?
This session will identify the relevant issues regarding § 101(c)(1)(C)(ii) of ESIGN, explore the areas of consensus, controversy and disagreement, and set the stage for the rest of the day's discussion.
A moderated roundtable discussion to explore the legal issues that face all parties when implementing the consumer consent provision found in § 101(c)(1)(C)(ii) of ESIGN.
This moderated roundtable discussion will explore the technology issues and the available software and computer technologies that enable companies to employ the consumer consent provision.
This moderated roundtable discussion will focus on the benefits and burdens to consumers and businesses of ESIGN's consumer consent requirement, set forth in § 101(c)(1)(C)(ii). The workshop will also explore whether the benefits outweigh the burdens.
This will be a moderated roundtable discussion from the standpoint of both businesses and consumers. We will also explore whether similar best practices apply to all industries or whether some are industry-specific.
Public attendees will have an opportunity to ask questions and offer insight on the day's dialogue.
4:55 - 5:00 Closing: What's next?
21. Elizabeth C. Yen, Esq.
1. Pub. L. No. 106-229, 114 Stat. 464 (2000) (codified at 15 U.S.C. § 7001 et seq.).
2. Estimated U.S. retail e-commerce sales for the first quarter of 2001 are from the U.S. Census Bureau, Economics and Statistics Administration, U.S. Department of Commerce release CB01-83, May 16, 2001. They are based on the Standard Industrial Classification (SIC). Estimated U.S. retail e-commerce sales for 2000 are from the U.S. Census Bureau, Economics and Statistics Administration, U.S. Department of Commerce release CB01-28, February 16, 2001. Note that these estimates are not seasonally adjusted. For more information see the Census web site at http://www.census.gov/mrts/www/mrts.html.
3. Estimated e-commerce revenues for selected services sectors for 1999 are from E-Stats, Mar. 7, 2001, Table 3, U.S. Census Bureau, Economics and Statistics Administration, and are based on the North American Industry Classification System (NAICS).
5. Section 101(c)(1)(B). The disclosures include: (1) whether the consumer may request to receive the information in non-electronic or paper form; (2) the consumer's right to withdraw consent to electronic records and the consequences - including possible termination of the relationship - that will result from such withdrawal; (3) the transaction(s) or categories of records to which the consent applies; (4) the procedures for withdrawing consent and updating the information needed to contact the consumer electronically; and (5) how the consumer may request a paper copy of the electronic record as well as what fees, if any, will be charged for the copy. Section 101(c)(1)(B)(i)-(iv). In addition, businesses must provide the consumer with a statement of the hardware and software needed to access and retain the electronic record. Section 101(c)(1)(C)(i).
6. In this Report, we refer to the provision as the "consumer consent provision in Section 101(c)(1)(C)(ii)," to distinguish it from the broader consumer consent provision (Section 101(c)), and the affirmative consumer consent requirement in Section 101(c)(1)(A).
7. 66 Fed. Reg. 10011 (February 13, 2001). A copy of the Notice is attached to this Report as Appendix A.
8. A list of the individuals and organizations we contacted is attached to this Report as Appendix B.
9. All comments are available on the FTC website at: http://www.ftc.gov/bcp/workshops/esign/comments/index.htm and on the NTIA website at: http://www.ntia.doc.gov/ntiahome/ntiageneral/ESIGN/esignpage.html. A list of commenters and the acronym used to refer to each commenter in this Report is attached as Appendix C. The first reference to each comment will include the full name of the organization, its acronym, and the page number. Subsequent references will be cited as "[Acronym] at [page]."
10. The agenda for the Public Workshop is attached to this Report as Appendix D. The transcript of the workshop was placed on the public record and was also posted on the FTC website at http://www.ftc.gov/bcp/workshops/esign/comments/index.htm and on the NTIA website at http://www.ntia.doc.gov/ntiahome/ntiageneral/ESIGN/esignpage.html. References to the transcript will include the name of the workshop participant, the acronym of the organization represented and the page number (e.g., "[Participant]/[Acronym of organization], tr. at [page]").
11. Several participants also provided demonstrations of the technology that has been or could be used by companies to obtain consumer consent for the provision of electronic documents.
12. The Workshop Participant List is attached to this Report as Appendix E.
13. Gallagher/Fidelity, tr. at 125-126; AIA at 1; EFSC at 3-4; Wachovia at 3.
14. The e-commerce businesses noted that the national scope of ESIGN provides guidance to e-commerce businesses regarding interstate electronic transactions by eliminating the problems created by attempts to comply with different state laws. E.g., Gallagher/Fidelity, tr. at 124. The fact that many businesses already are providing (or moving towards providing) information electronically, pursuant to ESIGN's consumer consent provision, suggests that any costs or uncertainties created by Section 101(c)(1)(C)(ii) are unlikely to inhibit this process.
15. One commenter noted that Congress should refrain from revising the consumer consent provision of Section 101(c)(1)(C)(ii) when the United Nations Commission on International Trade (UNCITRAL) Working Group on E-Commerce is expected to complete its work on the development of an electronic signatures law by year end. Baker & McKenzie at 3.
16. Consumers Union (CU) at 3-4; National Consumer Law Center (NCLC) at 2, 3-4; Richard Blumenthal, Connecticut Attorney General (CT AG) at 2, 3-4.
17. Weinberg/NACAA, tr. at 156-57; National Consumer Law Center Supplementary Comments (NCLC Supp.) at 1; MacCarthy/Visa, tr. at 156; Grant/NCL, tr. at 259-60 (public session remark); CT AG at 1-2; CU at 1.
18. Weinberg/NACAA, tr. at 156-57; Saunders/NCLC, tr. at 157.
19. Silanis Technology (Silanis) at 1-2.
20. Weinberg/NACAA, tr. at 147; see also Dayanim, tr. at 135-36.
22. Saunders/NCLC, tr. at 11-12; Yen/Hudson Cook, tr. at 23-24. For example, the FTC's Door-to-Door Sales Rule requires that sellers give consumers three business days to change their mind regarding any purchase that is covered by the rule. See 16 C.F.R. § 429.
23. Hillebrand/CU, tr. at 120; CT AG at 2-3.
28. MacCarthy/Visa, tr. at 156.
30. Dayanim, tr. at 136, 145-46; Buckley/EFSC, tr. at 196; see also Benham Dayanim (Dayanim) at 5.
31. Dayanim, tr. at 136, 145-46; Buckley/EFSC, tr. at 196.
32. Wittie/ICI, tr. at 56.
33. MacCarthy/Visa, tr. at 103, 132; Gallagher/Fidelity, tr. at 124; Winn, tr. at 159.
34. Software & Information Industry Association (SIIA) at 7 & n.4; Selwood Research (Selwood) at 1.
35. Dayanim at 10; MacCarthy/Visa, tr. at 131-32; Gallagher/Fidelity, tr. at 208.
See Wells/b4bpartner, tr. at 127-28.
37. For example, one participant at the workshop suggested that technological difficulties in transferring between a secure website and a file in an Adobe PDF format might encourage firms to shy away from using PDF files for the provision of notices, even though such files might be otherwise preferable because they make it more difficult for anyone to tamper with the contents of the file. Yen/Hudson Cook, tr. at 60-61. See also Wood/Household Bank, tr. at 61.
38. See, e.g., Yen Supp. at 2-3. See also, Wachovia Corporation (Wachovia) at 4; SIIA at 5 (para. 3); Investment Company Institute (ICI) at 4 (the consumer consent procedure might cause merchants to migrate to the most common formats and those (such as HTML) that are the easiest for demonstrating a consumer's ability to access documents, thus chilling alternative models and inhibiting technological innovation).
39. Gallagher/Fidelity, tr. at 125-27, 140-43; see also Wachovia at 3-4; ICI at 3; E*Trade Bank (E*Trade) at 2-3; Yen at 2.
41. Gallagher/Fidelity, tr. at 125-26; see also ICI at 3; E*Trade at 2-3; Wachovia at 3-4.
42. ICI at 3; E*Trade at 2-3.
43. Gallagher/Fidelity, tr. at 142-43.
44. Stafford/Wachovia, tr. at 220.
45. Anderson/FTC, tr. at 139.
46. Buchman/E*Trade, tr. at 170.
47. See e.g., Truth in Lending, Interim Rule and Request for Comments, Federal Reserve System, 66 Fed.Reg. 17329 (March 30, 2001).
48. The electronic marketplace has not been immune from the types of deceptive and fraudulent practices that have plagued the traditional marketplace. The rapid rise in the number of consumer complaints related to on-line fraud and deception bears this out: in 1997, the FTC received fewer than 1,000 Internet fraud complaints through its complaint database, Consumer Sentinel. A year later, the number had increased eight-fold. In 2000, over 25,000 complaints - about 26 percent of all fraud complaints logged into Consumer Sentinel that year - related to on-line fraud and deception. See Prepared Statement of Eileen Harrington, Associate Director of the Division of Marketing Practices of the Bureau of Consumer Protection, FTC, on "Internet Fraud," before the Subcommittee on Commerce, Trade, and Consumer Protection of the Committee on Energy and Commerce, U.S. House of Representatives, May 23, 2001, available at the FTC's website at: http://www.ftc.gov/os/2001/05/internetfraudttmy.htm.


Oct 13, 2017 ... v. BON SECOURS HEALTH SYSTEM, INC., et al.,. Defendants. ...... Mr. Toll is co- lead counsel in the consumer class action suit against Lumber ...... served as a Law Clerk for the Honorable Harry T. Edwards, United States Court of .... and earned her law degree from the University of Wisconsin Law School.
Court of Appeals of Georgia. JAKOBSEN v. COLONIAL PIPELINE COMPANY et al. No. A98A2271. Decided: March 17, 1999. Thomas R. Todd, Jr., for appellant.
L.L.B. 1965, University of California, Los Angeles; LL.M. 1966, New ... Inc. v. Edwards, 336 So. 2d ... dox Corp., 106 N.E.2d 556, 559 (Ohio 1952); Morris v. Sanchez, 746 ..... W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 70, at 502. (5th ed. .... Sumitomo Forestry Co., Ltd., 709 P.2d 1200, 1205 (Wash. 1985).
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Tinnon, of Mountain Home, Ark., on motion of Mr. Edward D. Dupree, Jr. ..... McGraw Electric Company et al., appellants, v. United .... shaw Glass Company and William Goldman Theatres, Inc. Petition ...... Daniel Lumber Company et al., petitioners, v. ...... The country lawyer who had no college or law degree ended with.


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Troy P. Hendrick, Decatur, for Appellant. Shawn E. LaGrua, Solicitor-General, Michael P. Jacobs, Assistant Solicitor-General, for Appellee.
A jury found Dana Moore guilty of driving under the influence to the degree it was less safe for her to drive. On appeal, Moore argues that the trial court erred in denying her motion to suppress. She also contends that the trial court erred in admitting certain hearsay evidence and that, absent such hearsay, the evidence was insufficient to establish her guilt. Although we find no error in the trial court's denial of Moore's motion to suppress, we agree that the trial court erred in admitting a police officer's hearsay testimony. However, as such error was harmless, we affirm.
Viewed in a light favorable to the jury's verdict,1 the evidence shows that on October 19, 2004, Police Officer Mark Hodge was dispatched to a Waffle House parking lot where he discovered Moore's car stuck on a curb. As Hodge approached, he saw several people attempting to push the car off of the curb and Moore walking away. Another woman told Hodge, “she's in my car.” Hodge subsequently found Moore lying across the back seat of another person's car. According to Hodge, Moore smelled strongly of alcohol. When Hodge asked Moore about her car, she admitted that she was drunk and told Hodge that she had been attempting to put her car in reverse, but the car had gone forward, causing her to run over the curb. Hodge asked Moore to perform field sobriety tests, and Moore responded, “[h]ell no, I'm drunk.” Based upon this and other evidence, Moore was found guilty of driving under the influence of alcohol to the degree it was less safe for her to drive.
1. Moore moved to suppress the inculpatory statements she made to Hodge, asserting that Hodge coerced her into giving the statements when he unlawfully detained her without either reasonable suspicion or probable cause. The trial court denied the motion, and Moore appeals this ruling.
“On appeal from a denial of a motion to suppress, we construe the evidence in favor of the trial court's ruling, and the trial court's application of law to undisputed facts is subject to de novo review.” 2 At the hearing on Moore's motion to suppress, Hodge testified that he was dispatched to the Waffle House parking lot in response to a 911 call. A woman at the scene said that “someone [was] in her car,” and Hodge walked over to the car to see if that person was “okay.” At that point, Hodge detected the smell of alcohol, and he asked Moore if she had any form of identification. Moore responded that she did not and then said that she was drunk. Moore also told Hodge that her car had become stuck on the curb after she attempted to put it in reverse. Hodge asked Moore to follow him to his patrol car, and she eventually complied, although she was somewhat combative. According to Hodge, Moore was unsteady and needed support or she would have fallen. Ultimately, Hodge arrested Moore.
Although Moore's argument on appeal is not entirely clear, she apparently contends that her detention was illegal and thus any statement she may have made while detained should be suppressed. However, “[m]omentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment.” 3 Here, Officer Hodge encountered Moore after responding to a 911 call. As we have noted, “[a] dispatcher who reports a crime at a specified location gives police an articulable suspicion to investigate and detain individuals at the scene, particularly where police observations on arriving at the scene corroborate the dispatcher's report.” 4 Under the circumstances of this case, we find no error in the trial court's denial of Moore's motion to suppress.
Given that Moore essentially admitted both that she was drunk and that she had driven her car onto the curb, Hodge clearly had probable cause to arrest Moore for driving under the influence.7 Thus, this allegation of error lacks merit.
2. Moore also contends that the trial court erred in permitting Hodge to testify regarding the statements of the 911 caller. Over objection, Hodge testified that the 911 operator “informed [him] that ․ a ․ female ․ appeared to be drunk and she was trying to move her vehicle over the curb.” We agree that the trial court erred in admitting this evidence.
3. Finally, Moore contends that the trial court erred in denying her motion for directed verdict as-absent the hearsay evidence-there was no testimony that she was in control of the car, which is required to sustain a DUI conviction. “A directed verdict of acquittal in a criminal case is authorized only where there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or not guilty.” 15 Here, Moore essentially admitted to Hodge that she was drunk and that she had attempted to move her car. As a result of Moore's attempt, the car was lodged on the curb. And when Hodge looked inside the car, he discovered an open beer container. Although this constitutes circumstantial evidence that Moore was driving the car while intoxicated, such evidence is sufficient.16 Under these circumstances, the trial court did not err in denying Moore's motion for directed verdict.
1. See Foster v. State, 258 Ga.App. 601(1), 574 S.E.2d 843 (2002).
2. Autry v. State, 277 Ga.App. 305, 626 S.E.2d 528 (2006).
3. Lamb v. State, 269 Ga.App. 335, 336, 604 S.E.2d 207 (2004).
4. State v. Gomez, 266 Ga.App. 423, 425-426(3), 597 S.E.2d 509 (2004).
5. See id. at 426, 597 S.E.2d 509 (investigative stop justified where officer has reasonable, articulable suspicion).
6. (Footnote omitted.) Trotter v. State, 256 Ga.App. 330, 331-332(1), 568 S.E.2d 571 (2002).
7. See id.; Frederick v. State, 270 Ga.App. 397, 398, 606 S.E.2d 615 (2004); Waggoner v. State, 228 Ga.App. 148, 150(2), 491 S.E.2d 88 (1997).
8. See Weems v. State, 269 Ga. 577, 578(2), 501 S.E.2d 806 (1998).
9. See id.; Brown v. State, 274 Ga. 31, 36-37(2), 549 S.E.2d 107 (2001).
10. (Punctuation omitted.) Weems, supra at 579, 501 S.E.2d 806.
11. See id.; Britton v. State, 257 Ga.App. 441, 442-443(1), 571 S.E.2d 451 (2002).
13. See Zachery v. State, 276 Ga.App. 688, 691(2), 624 S.E.2d 265 (2005).
15. (Punctuation omitted.) Savage v. State, 252 Ga.App. 251, 253(1), 556 S.E.2d 176 (2001).
16. See Deering v. State, 244 Ga.App. 30, 31-32(1), 535 S.E.2d 4 (2000).
SMITH, P. J., and PHIPPS, J., concur.

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Mar Diez, Vera A. Schulte, Filippo Stefanoni, Carlo F. Natale, Francesco Mollica, Claudia M. Cesa, Jingyu Chen, Martin Möller, Paolo A. Netti, Maurizio Ventre and Marga C. Lensen*“Molding Micropatterns of Elasticity on PEG-based Hydrogels to Control Cell Adhesion and Migration” Advanced Engineering Materials (Advanced Biomaterials) 2011, 13 (4): n/a. doi: 10.1002/adem.201080122, in press.
V. A. Schulte, M. Diez, M. Möller and M. C. Lensen* “The combined influence of substrate stiffness and surface topography on the anti-adhesive properties of Acr-sP(EO-stat-PO) hydrogels” Biomacromolecules, 2010, 11 (12): 3375–3383.
V. A. Schulte, Y. Hu, M. Diez, D. Bünger, M. Möller and M. C. Lensen* “A hydrophobic perfluorinated polyether elastomer as a patternable biomaterial for cell culture and tissue engineering” Biomaterials 2010, 31 (33): 8583 – 8595.
M. Bartneck*, V. A. Schulte, N. Paul, M. Diez, M. C. Lensen and G. Zwadlo-Klarwasser “Induction of specific macrophage subtypes by defined micropatterned structures” Acta Biomaterialia 2010, 6 (10): 3864-3872.
S. Gilles, M. Diez, A. Offenhäusser, M. C. Lensen and D. Mayer* “Deformation of nanostructures on polymer stamps during soft UV nanoimprint lithography” Nanotechnology 2010, 21: 245307-13.
J. Chen, P. Mela, M. Möller and M. C. Lensen* “Micro-contact deprinting: a technique to pattern gold nanoparticles” ACS Nano 2009 3 (6): 1451-1456.
M. Diez, P. Mela, V. Seshan, M. Möller and M. C. Lensen* “Nanomolding of PEG-based hydrogels with sub-10 nm resolution” Small 2009, 5 (23): 2756-2760.
R. Tsekov* and M. C. Lensen “Brownian motion and temperament of living cells” arXiv 2009, 0910.0927v2.
V. A. Schulte, M. Díez, M. Möller and M. C. Lensen* “Surface Topography induces Fibroblast Adhesion on intrinsically non-adhesive Poly(ethylene Glycol) Substrates” Biomacromolecules 2009, 10 (10): 2795-2801.
M. Bartneck, V. Schulte, N. Paul, M. Lensen and G. Zwadlo-Klarwasser. “Topographical control of human primary macrophages by different perfluoropolyether (PFPE) microstructures.” Biomaterialien 2009, 10, Heft 3/ 4: 136.
Marga C. Lensen,* Vera A. Schulte, Jochen Salber, Mar Diez, Fabian R. Menges, Martin Möller: „Cellular responses to novel, micro-patterned biomaterials” Pure Appl. Chem., 2008, 80 (11): 2479–2487.
Marga C. Lensen,* Vera A. Schulte, Mar Díez, Petra Mela and Martin Möller: “Micro- and f-patterned Surfaces for Specific Biointeraction” PMSE Preprint 2008, 99: 86.
Marga C. Lensen,* Mar Díez, Vera A. Schulte, Petra Mela, and Martin Möller: “Nano- and micro-patterned biomaterials” J. Fudan Univ. – Natural Science 2007, 46: 706.
Marga C. Lensen,* Petra Mela, Ahmed Mourran, Juergen Groll, Jean Heuts, Haitao Rong, Martin Möller: “Micro- and Nanopatterned Star Poly(Ethylene Glycol) (PEG) Materials Prepared by UV-Based Imprint Lithography”, Langmuir 2007, 23(14):7841-7846.
Marga C. Lensen, Johannes (Hans) A. A. W. Elemans, Sandra J. T. Van Dingenen, Jan W. Gerritsen, Sylvia Speller, Alan E. Rowan and Roeland J. M. Nolte: “Giant Porphyrin Disks: Control of Their Self-Assembly at Liquid-Solid Interfaces through Metal-Ligand Interactions”Chem.-Eur.J. 2007, 13: 7948 - 7956.
Marga C. Lensen, Martin Möller. “Method for preparation of surface-structured bulk hydrogels for bioapplications” European Patent EP 06 011 868.4 2006.
Marga C. Lensen, Martin C. Feiters, Roeland J. M. Nolte, and Alan E. Rowan: “Supramolecular aggregates of porphyrin oligomers connected by DABCO.” Exp. rep. 2004, Forschungszentrum Jülich GmbH, 2005: 280-281.
Marga C. Lensen, Johannes (Hans) A. A. W. Elemans, Alan E. Rowan, and Roeland J. M. Nolte: “Self-assembled catalytic porphyrin architectures.” J. Porphyrins Phthalocyanines 2004, 8: 745.
Marga C. Lensen, Ken Takazawa, Johannes (Hans) A. A. W. Elemans, Cecile R. L. P. N. Jeukens, Peter C. M. Christianen, Jan-Cees Maan, Alan E. Rowan, and Roeland J. M. Nolte. “Aided self-assembly of porphyrin nanoaggregates into ring-shaped architectures.” Chem.-Eur. J. 2004, 10: 831-839.
Cecile R. L. P. N. Jeukens, Marga C. Lensen, Frans J. P. Wijnen, Johannes (Hans) A. A. W. Elemans, Peter C. M. Christianen, Alan E. Rowan, Jan W. Gerritsen, Roeland J. M. Nolte, and Jan-Cees Maan: “Polarized absorption and emission of ordered self-assembled porphyrin rings.” Nano Lett. 2004, 4: 1401-1406.
Marga C. Lensen, Sandra. J. T. Van Dingenen, Johannes (Hans) A. A. W. Elemans, Harm P. Dijkstra, Gerard P. M. van Klink, Gerard van Koten, Jan W. Gerritsen, Sylvia Speller, Roeland J. M. Nolte, and Alan E. Rowan: “Synthesis and self-assembly of giant porphyrin discs.” Chem. Commun. 2004: 762-763.
Johannes (Hans) A. A. W. Elemans, Marga C. Lensen, Jan W. Gerritsen, Herman van Kempen, Sylvia Speller, Roeland J. M. Nolte, and Alan E. Rowan: “Scanning probe studies of porphyrin assemblies and their supramolecular manipulation at a solid-liquid interface.” Adv. Mater. 2003, 15: 2070-2073.
Johannes (Hans) A. A. W. Elemans, Marga C. Lensen, Sandra J. T. Van Dingenen, Jan W. Gerritsen, Herman Van Kempen, Roeland J. M. Nolte, Alan E. Rowan, and Sylvia Speller: “STM studies on nanosized porphyrin wheels at the solid-liquid interface.” AIP Conference Proceedings, 2003, Vol. 696: 508-512.
Marga C. Lensen, Mariangela Castriciano, Ruud G. E. Coumans, Jantien Foekema, Alan E. Rowan, Luigi M. Scolaro, and Roeland J. M. Nolte: “Hexakis (pyridyl-functionalised porphyrinato)benzene as a building block for the construction of multi-chromophoric arrays.” Tetrahedron Lett. 2002, 43: 9351-9355.
V.A. Schulte, M. Diez, M. öller and M.C. Lensen "Surface Topography induces Fibroblast Adhesion and Spreading on two intrinsically non-fouling Biomaterials"
M. C. Lensen, V. A. Schulte, M. Diez, P. Mela, M. Möller "Cellular responses to novel nano- and micro-patterned biomaterials"
M. C. Lensen, V. A. Schulte, M. Diez, P. Mela, M. Moeller "Micro- and nano-patterned surfaces for specific biointeraction"
V.A. Schulte, M. Diez, M. Bartneck, G. Zwadlo-Klarwasser, M. Möller and M.C. Lensen "Cellular Reactions to patterned biointerfaces: Influence of surface wettability and um-patterns"
M. Bartneck, V. Schulte, M. Lensen and G. Zwadlo-Klarwasser "Effects of different microstructured PFPE surface structures on macrophage phenotype and cytokine production"

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IGNATIUS BRUCATO & another vs. CITY OF LAWRENCE & others.
Present: WILKINS, C.J., RONAN, SPALDING, WILLIAMS, & CUTTER, JJ.
BILL IN EQUITY, filed in the Superior Court on December 23, 1957.
The suit was reported by Macaulay, J.
John J. Griffin, for the plaintiffs.
James P. Kane, City Solicitor, for the defendants, submitted a brief.
the city council voted unanimously to rescind the action taken on September 16, 1957, and the director of civil service and the State Secretary were notified also of this vote.
The mayor refused to provide any 1957 supplemental appropriation to pay for increases in pay of employees of the welfare department in that year. The city auditor disallowed payment of any increase in salary to the employees of the welfare department on the ground that he believed "payment would be a violation of" G. L. c. 44, Section 33A (as amended through St. 1955, c. 358). [Note 3] The city budget for 1957 had been adopted on March 4, 1957, and "did not include a provision for any increases for the" plaintiffs.
The plaintiffs ask for (a) a binding declaration that the provisions of Section 47E (see footnote 1, supra) were accepted on September 16, 1957, by a still valid vote of the city council; (b) a determination of the date on which the plaintiff Brucato and other employees of the welfare department became entitled to the step rate increase provided by Section 47E; and (c) appropriate enforcement of Section 47E in Lawrence. The case was reported to this court without decision (see G. L. c. 214, Section 31) upon the pleadings and a statement of agreed facts.
of Cambridge, 222 Mass. 574, 576-577. Wright v. Walcott, 238 Mass. 432, 438. Opinion of the Justices, 303 Mass. 631, 639. School Comm. of Gloucester v. Gloucester, 324 Mass. 209, 210. See McQuillin, Municipal Corporations (3d ed.) Sections 4.10, 4.49, 9.14. Cf. Mount Washington v. Cook, 288 Mass. 67, 74; Mayor of Gloucester v. City Clerk of Gloucester, 327 Mass. 460, 464; Robinson v. Selectmen of Watertown, 336 Mass. 537, 546. A vote of the designated body accepting the legislation for any particular city or town is thus made a condition precedent to any effectiveness of the statute in that city or town. In local matters of the type here involved the Legislature, of course, has power to take action by statute without any provision for acceptance by the several cities and towns, and if the Legislature considers it "best to require acceptance, it . . . [has] power to select whom it . . . [deems] wise to act in accepting." See Sampson v. Treasurer & Receiver Gen. 282 Mass. 119, 123. Cf. the constitutional limitations on changing forms of town government contained in Mass. Const. arts. 2, 70, of the Amendments; Moore v. Election Commrs. of Cambridge, 309 Mass. 303, 314-316; Opinion of the Justices, 328 Mass. 674, 676-677. Cf. also Horrigan v. Pittsfield, 293 Mass. 17, 18-19.
the effect of a valid acceptance by a city or town is to make the statute operative in that community until the statute is repealed or amended. Once the condition precedent stipulated by the Legislature to the taking effect of the statute in the community is satisfied, it becomes applicable statute law, subject to change, as in the case of other statutes, only by subsequent action of the Legislature. See Northern Trust Co. v. Snyder, 113 Wis. 516, 532-533; Holt Lumber Co. v. Oconto, 145 Wis. 500, 505-507; McQuillin, Municipal Corporations (3d ed.) Section 9.15.
In Section 47E, there is no express provision for revocation of a city's acceptance of the section, once validly given. Nothing in the form of acceptance prescribed or in the subject matter of the section indicates that the city council's power with respect to acceptance of Section 47E would not be exhausted after a valid election to accept. If the acceptance of Section 47E on September 16, 1957, was effective, the city could not thereafter rescind its acceptance, and the vote of January 13, 1958, was a nullity. On the other hand, if the acceptance of September 16, 1957, was not within the powers given to the city council by the Legislature, or was given at a time when the city council could not properly act on the subject matter, the vote of January 13, 1958, may well have been an appropriate recognition of any such invalidity in the prior acceptance.
proviso not here pertinent). The second is that no "increase in rate [shall be] made by ordinance, [or] vote . . . during the financial year subsequent to the submission of the annual budget unless provision therefor has been made by means of a supplemental appropriation."
A valid acceptance of Section 47E on September 16, 1957, would have been effective ten days thereafter since by Section 47E any valid acceptance is to be "subject to the provisions of the charter." [Note 4] Under Section 47E, the employees within the language of the section are to be "given an annual step-rate increase . . . on the first day of July following the anniversary of the date of their receiving the minimum salary for the position which they hold." If accepted as of September 26, 1957, Section 47E could not result in any step rate increase for any employee until July 1, 1958, unless the section must be construed to operate retroactively after its acceptance by a city. Indeed, on July 1, 1958, unless Section 47E were to be applied in some degree retroactively, no employee would receive an initial step rate increase if such employee had not had, between the effective date of the acceptance of the act and July 1, 1958, an "anniversary of the date of . . . receiving the minimum salary for the position" which such employee holds. Statutes like Section 47E, affecting substantive rights, in the absence of a clear contrary legislative intention, will be construed to operate prospectively only and not retroactively. Campbell v. Boston, 290 Mass. 427, 429. See Lindberg v. State Tax Commn. 335 Mass. 141, 143. Cf. Foley v. Springfield, 328 Mass. 59, 62. There is no indication in Section 47E that any retrospective operation of the section was intended. Accordingly, its acceptance would have authorized no expenditure in 1957. There could have been no violation of the second prohibition of Section 33A (if applicable at all) for no supplemental appropriation would have been needed in 1957.
amended by St. 1947, c. 298, Section 1) that an ordinance increasing salaries be in effect for three months during the then current financial year was obviously designed to prevent city councils (see Boston College Law School 1955, Ann. Surv. of Mass. Law, p. 199) [Note 5] from imposing in one year upon the taxpayers of later years the burden of salary increases not to take effect until these later years. The form of the 1947 revision of this sentence suggests also that it was designed to make each council take immediate responsibility in the year of council action for some of the fiscal and tax burden of any salary increases voted by it. For the legislative history, see 1947 House Docs. Nos. 410 (at pp. 6-7, 19), 1858, 1988; 1947 House Journal, p. 932. See also Clements v. Treasurer of Cambridge, 324 Mass. 73, 74. Cf. Rock v. Pittsfield, 316 Mass. 348, 350-351, decided prior to the 1947 amendment.
The city council's acceptance of Section 47E in September, 1957, would make the section applicable as statute law to Lawrence for three months in 1957, but, as already stated, it would have no practical effect by way of requiring expenditure until July 1, 1958. We assume that this type of salary increase would have had precisely the substantive effect which Section 33A, as amended, seems designed to prevent, viz. the enactment by a city council in one financial year of a salary increase to have no effect by way of expenditure in that year, but requiring expenditures in later years. Section 47E and Section 33A, however, when read together, indicate to us that the Legislature, if it considered the matter at all, did not effectively provide that the prohibitions of Section 33A were to be applicable to an acceptance of Section 47E by a city council.
We need not decide whether the second sentence of Section 33A, because of its use of the word "ordinance," is too narrow to apply to a city council vote accepting a statute like Section 47E.
There may be occasions where a Legislature uses the word "ordinance" as referring to any legislative action of a city council (see McQuillin, Municipal Corporations [3d ed.] Sections 15.01-15.08) as opposed to action purely executive. Cf. McMinn v. Mayor of Cambridge, 225 Mass. 104, 106; Dooling v. City Council of Fitchburg, 242 Mass. 599, 601-602. Cf. also Gorman v. Peabody, 312 Mass. 560, 562-569, where G. L. c. 43, Section 37 (defining "measure" for the purposes of Section 37 et seq.), was involved, which gives "ordinance" perhaps a narrower meaning. Here, however, even if the term "ordinance," as used in Section 33A, did include a vote like that of September 16, 1957, the fact that under Section 47E such a vote could be adopted by a simple majority of the council is persuasive that the restrictions of Section 33A were not to apply. Section 33A requires a two-thirds vote of the city council for salary increases. If any of the provisions of Section 33A were to be made applicable to an acceptance of Section 47E, it would have been natural for the Legislature either to make all of them applicable or to specify those which were to be applicable, if only some of them were to be applicable. The express provision in Section 47E for a majority vote leads us to conclude that no provisions of Section 33A were made applicable.
facts in the Superior Court. The plaintiffs are to have costs of this appeal. Costs in the Superior Court are to be in the discretion of that court.
[Note 1] Section 47E reads: "Persons holding positions referred to in section forty-seven C shall be given an annual step-rate increase, to be set forth in the compensation plan established under section forty-seven D, on the first day of July following the anniversary of the date of their receiving the minimum salary for the position which they hold . . .. Such increase shall be fixed by the board referred to in section forty-seven D and shall be paid annually until the maximum salary set forth in the compensation plan established under section forty-seven D for the positions so held has been reached. . . . This section shall become effective . . . in the case of . . . cities by vote of the city council, subject to the provisions of the charter . . ." (emphasis supplied).
[Note 2] General Laws c. 4, Section 5 (as amended through St. 1935, c. 69), reads: "If a statute is to take effect upon action by a body politic or corporate or by any board . . . of such a body, or to become or cease to be operative, in whole or in so far as it affects such a body, upon action as aforesaid, a return of the result of any action so taken shall be made by the clerk of such body . . . to the state secretary within thirty days thereafter. If a statute prescribes a time within which such action may be taken, and within the time limited no action is taken thereon, said clerk or other officer shall, within thirty days after the expiration of the time so limited, make to the state secretary a return to that effect." It will be noted that this section provides for reports when a statute takes effect or when it ceases to be operative. The section, however, provides no general authorization of revocations of acceptances once given.
[Note 3] Section 33A reads: "The annual budget shall include sums sufficient to pay the salaries of officers and employees fixed by law or by ordinance. Notwithstanding any contrary provision of any city charter, no ordinance providing for an increase in the salaries or wages of municipal officers or employees shall be enacted except by a two thirds vote of the city council, nor unless it is to be operative for more than three months during the financial year in which it is passed; provided, however, that in any year other than a regular municipal election year, ordinances may be enacted by a two thirds vote during the month of December providing for an increase in the salaries and wages of officers and employees, to become effective as of January first of the next ensuing year. No new position shall be created or increase in rate made by ordinance, vote or appointment during the financial year subsequent to the submission of the annual budget unless provision therefor has been made by means of a supplemental appropriation. . . ." (emphasis supplied).
[Note 4] Under St. 1911, c. 621, Part II, Section 30, a measure passed by the Lawrence city council takes effect at the expiration of ten days after its passage, and under Section 33 the mayor's approval is not required for any measure.
[Note 5] The 1955 amendment, permitting the enactment, in December of a non-election year, of an ordinance increasing salaries effective as of the next January 1, is obviously not applicable here, for the vote of September 16, 1957, was not in December and the first pay increases under it were not to be paid until July 1, 1958.

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The innovation of conceptual provisions of the administrative law doctrine that are based on the priority of rights, freedoms, legitimate interests of an individual, service orientation of the public administration authorities’ performance affects the essence of the controlling authorities’ management (administrative) activity in the area of taxation and requires its fundamental upgrade. Drafting of theoretical provisions as to the essence and the types of the controlling authorities’ management (administrative) activity in the area of taxation should be based on a profound theoretical and legal analysis of the existing concepts and doctrines and their comparison with the current developments in the public administration authorities’ performance that carry out similar activities. In addition, it’s reasonable to highlight the issues of legal regulation of the relations with respect to the controlling authorities’ management (administrative) activity carried out in the area of taxation. The research objective is to substantiate the theoretical background of the controlling authorities’ management (administrative) activity in the area of taxation set out in the form of a list of the substantive characteristics of such activity, the provisions that reflect its peculiarities, as well as the systematization of the lines and types of such activity. The object of the research is the social relations of a public-law nature, related to the activities of the controlling authorities in the area of taxation. The contemporary concepts and doctrines developed by the scientists through critical thinking constitute the theoretical basis of the scientific analysis. This article explores the scientific papers related to the issues of public administration, administrative law, and administrative activity. System-based approach constitutes the methodology of the scientific analysis which made it possible to single out the elements of the administrative activity system, to reveal their content and to take into account their specific features when determining the nature of the controlling authorities’ management (administrative) activity in the area of taxation. The result of this research is the theory that reveals the current essence of the specified activity and its lines. This article places emphasis on the existence of public and service component of the specified activity.
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APPEARANCES: The claimant was not represented at oral argument. Notice sent to George H. Romania, Esq., 2862 Whitney Avenue, Hamden, CT 06518.
The respondents were represented by Jason Dodge, Esq., Pomeranz, Drayton Stabnick, 95 Glastonbury Boulevard, Glastonbury, CT 06033.
The Second Injury Fund was represented by J. Sarah Posner, Esq., Assistant Attorney General, 55 Elm Street, P.O. Box 120, Hartford, CT 06141-0120.
This Petition for Review from the September 30, 1998 Finding and Dismissal of the Commissioner acting for the Third District was heard January 22, 1999 before a Compensation Review Board panel consisting of the Commission Chairman Jesse M. Frankl and Commissioners Angelo L. dos Santos and Stephen B. Delaney.
The respondents have petitioned for review from the September 30, 1998 Finding and Dismissal of the Commissioner acting for the Third District. They argue on appeal that the trier erred by dismissing their request to transfer liability for the claimant’s compensable injury to the Second Injury Fund. We affirm the trial commissioner’s decision.
The claimant suffered a neck, back and left shoulder sprain during the course of his employment on May 2, 1992, as documented by a February 2, 1994 voluntary agreement. According to the agreement, the claimant’s incapacity began on May 3, 1992, and the claimant testified that he could not work or engage in his normal routine during either of the two days following the date of his injury. Findings, ¶ 4. Due to persistent pain, the claimant sought treatment with Dr. Halickman, a family practitioner, on May 5, 1992. Dr. Halickman noted that the claimant was in terrible distress with severe pain in the lower back, neck and left arm, and he immediately disabled his patient from work. He continued to treat the claimant extensively, and in January 1994 diagnosed an acute disc syndrome with associated radiculopathy involving his upper and lower extremities. The claimant was also examined in November 1995 by a doctor at the Yale Center for Pain Management; in the opinion of both physicians, he has been totally disabled since the date of his injury. There is no dispute that, medically, this case would qualify for transfer to the Fund under § 31-349.
The aforementioned voluntary agreement was initially prepared by an insurance adjuster for the respondent insurer on September 16, 1993, but due to a question concerning the average weekly wage, the agreement was not executed at that time. Findings, ¶ 10. Not until February 1, 1994 did the adjuster realize that the document had not yet been approved, whereupon he instructed an employee to hand-carry it to the Third District office for certification. A copy was then sent to the Second Injury Fund, together with a letter notifying the Fund of the claim for transfer under § 31-349. This notice was stamped “received” by the State Treasurer’s office on February 2, 1994. Under the version of § 31-349 in effect on the date of the claimant’s injury and at the time the respondents mailed their letter to the Fund, notice of a claim for transfer was due on the 90th day prior to the payment of 104 weeks of compensation. The trier found that the respondents began paying compensation on May 3, 1992, and continued to do so without interruption through the 1998 formal hearings. Thus, the 90th day before the payment of 104 weeks of compensation was January 31, 1994. Findings, ¶ I.
The trial commissioner did not dismiss the respondents’ request for transfer on account of untimely notice, however. He concluded that P.A. 95-277, which went into effect on July 1, 1995, applied retroactively to this matter pursuant to this board’s decision in Audi v. Blakeslee Arpaia Chapman,3418 CRB-3-96-9 (August 4, 1997). In his view, the language of the revised allowing notice to be filed “no later than ninety day after completion of payments for the first one hundred and four weeks of disability” (emphasis added) lengthened by 180 days the time frame within which the respondents had to file their initial notice of claim. However, the trier then dismissed their transfer request because they did not pay the Fund the $2000 notification fee required by § 31-349 (b)(E). The respondents have appealed that decision to this board.
In Audi, supra, this board was faced with a claim in which the injury occurred on April 8, 1993. We held that, in that case, the respondents could have satisfied the initial notice requirement of § 31-349 in two ways. Pursuant to the version of § 31-349 in effect on the date of the injury, the respondents’ notice was due on January 8, 1995, even though the claimant was only paid 97 total weeks of compensation. However, by virtue of the enactment of P.A. 95-277 on July 1, 1995, the respondents could theoretically also avail themselves of a second means of providing initial notice to the Fund: by filing their claim “no later than three years after the date of injury or no later than ninety days after completion of payments for the first one hundred and four weeks of disability, whichever is earlier.” Because the claimant had not received 104 weeks of disability payments, and three years had not yet elapsed from the April 8, 1993 date of injury when the amendment became effective on July 1, 1995, the statute by its own terms potentially applied to the claimant’s April 8, 1993 injury. However, this “retroactive” application does not entitle parties seeking transfer to rewrite the history of § 31-349 as if all previous versions of the statute had been rescinded, and declared null and void. Had the claimant’s injury occurred on April 8, 1992, for example, the revised notice provision would not have benefited the respondents in any way, as more than three years would have already elapsed by the time the statute took effect.
Given our conclusion on that matter, the respondents’ only other relevant argument is that concerning the starting date of the claimant’s disability. The respondents observe that, based onInnocent v. St. Joseph’s Medical Center, 243 Conn. 513 (1998), the term “disability” under § 31-349 refers to medical impairment rather than employment status. Because the emergency room records provide no documentation of medical impairment, and the claimant was not examined by a doctor until May 5, 1992, the respondents argue that the claimant’s disability actually began on that date, thus making their notice to the Fund timely by one day. There is no competent medical evidence to establish otherwise, they contend.
This argument is specious. First, it is undisputed that the claimant’s injury occurred on May 2, 1992, and that it was the cause of his subsequent disability. Second, not only did the claimant testify that he was medically impaired as soon as his accident occurred, but Drs. Halickman and Thimineur (from the Yale Center for Pain Management) concurred. Findings, ¶¶ 7, 8. It was certainly reasonable for these doctors to determine that the claimant was disabled beginning on the day after he was injured, rather than on the day he saw Dr. Halickman; indeed, common sense favors that prospect. We are confident that the trier did not abuse his discretion in finding in accord with their opinions. As the trier’s findings are supported by the evidence, and his legal conclusions are supported by his findings, we will not disturb his decision regarding the date of the claimant’s disability. Webb v. Pfizer, Inc.,14 Conn. Workers’ Comp. Rev. Op. 69, 1859 CRB-5-93-9 (May 12, 1995).
We thus affirm the trier’s finding that the claimant’s disability began on May 2, 1992, and that notice was due to the Fund on January 31, 1994. As such, we dismiss the respondents’ appeal, and sustain the order of the trial commissioner.