Legal Aspects of Doing Business in the e-World SeminarLegal Aspects of Doing … · LEGAL ASPECTS OF DOING BUSINESS IN THE e-WORLD AND ELECTRONIC SIGNATURES Presentation For: BCCA

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11/05/2012 21956592.1

© 2012 Lowenstein Sandler PC

LEGAL ASPECTS OF

DOING BUSINESS IN

THE e-WORLD AND

ELECTRONIC

SIGNATURES Presentation For:

BCCA MEDIA CREDIT SEMINAR

McGraw-Hill Building

New York, New York

November 6, 2012

Presented By:

LOWENSTEIN SANDLER PC

BRUCE S. NATHAN, ESQ.

1251 Avenue of the Americas

New York, New York 10020

Telephone: (212) 262-6700

Facsimile: (973) 422-6851

E-mail: [email protected]

Website: www.lowenstein.com

I. Summary

Electronic communications have become an integral part of our work and

personal experience. For example, parties now routinely use emails instead of arranging

face to face meetings or maintaining “hard copy” paper trails.

In addition, in the not too distant past, contracts and signatures were manually

generated on hard copy documents. Various categories of contracts are subject to some

form of statute of frauds, forbidding enforcement in most instances, unless there is a

writing of some sort that is signed.

With the ever-increasing dominance of electronic communications, agreements

are being confirmed through emails and other electronic means. However, there are risks

where the entire agreement between the parties is based on computer (e.g., email)

messages or other electronic confirmation as opposed to a printed agreement where the

terms are clearly delineated. Moreover, while a signature on a printed document can be

used as evidence that the signer agreed to the terms of the agreement and an actual

signature on the document can be proven to be that of the signer, proof of identity of the

signer and proof of what was signed are not as clear where an electronic or digital

signature is used.

As a result of the explosive increase in use of electronic communications, the law

regarding both the conduct of electronic transactions and the enforceability of “electronic

signatures” and “electronic records”, that do not otherwise comply with the requirements

for a writing and/or a manual signature, had to be clarified.

In June 2000, the Electronic Signatures in Global and National Commerce Act

(“ESIGN”) became effective. ESIGN was designed to address the uncertainties existing

under both federal and state law concerning the legal effect of signing contracts and

maintaining records by electronic means. ESIGN adopts the principal features and

underlying policies of the Uniform Electronic Transactions Act (“UETA”), a model law

approved and recommended to the states for adoption by the National Conference of

Commissioners on Uniform State Laws (“NCCUSL”) in July 1999 and adopted by 47

states, the District of Columbia, Puerto Rico and the Virgin Islands. Illinois, New York

and Washington have not adopted UETA, but have enacted their own statutes governing

electronic transactions.

ESIGN, like UETA, is an overlay statute (that is, one that is superimposed on

other existing federal and state law). ESIGN provides that “electronic signatures” and

“electronic records” may not be denied legal effect, validity or enforceability solely

because they are in electronic form. They supplement, but are not intended to replace,

statutes, regulations, and case law that impose requirements for contract formation,

record retention, and notices and disclosures that relate to the conduct of business,

commercial and consumer transactions. As such, neither ESIGN nor UETA provides the

complete law on the enforceability of “electronic signatures” and “electronic records.”

Instead, each recognizes the inherent flexibility and adaptability of the common law, and

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also the wide variety of laws that already exists with respect to ink signatures and written

documents that should apply to “electronic signatures” and “electronic records”.

II. Electronic Signatures in Global and National Commerce Act (“ESIGN”)

A. Summary

1. General Rule of Validity. ESIGN’s general rule is that a signature,

contract or other record related to any transaction in or affecting interstate or foreign

commerce may not be denied legal effect, validity, or enforceability solely because it is in

electronic form or because an electronic signature or record was used in its formation.

Thus, ESIGN recognizes that an electronic signature and an electronic record might be

legally binding as a writing without the necessity for a writing or a manual signature.

However, ESIGN also provides that the use or acceptance of electronic records

and electronic signatures is not mandatory. Both parties must agree to deal electronically

for a valid contract to be formed by the use of electronic signatures or records; it does not

require them to accept electronic signatures or records where they had not previously

agreed to do so.

ESIGN is technology neutral. It forbids any state or federal statute from requiring

a specific technology for electronic transactions. This technology neutral approach allows

the market to decide on the technologies that best facilitate electronic transactions.

Furthermore, systems such as check processing that involve numerous third

parties to a contract are not within ESIGN’s scope. ESIGN also does not apply to a

contract or other record that is governed by:

(i) laws relating to wills, codicils and testamentary trusts,

(ii) state statutes governing adoption, divorce, or other family matters,

(iii) the Uniform Commercial Code (“UCC”), other than sections 1-107 and 1-206

and Articles 2 (on sales of goods) and 2A (on leases). The applicability of ESIGN to

UCC Articles 2 and 2A (sales and leases) has significantly expanded its scope.

Furthermore, ESIGN specifically excludes a number of documents from its scope,

including:

(i) court documents required to be executed in connection with court proceedings,

(ii) notices of: (a) cancellation of utility service, (b) default under a credit

agreement or repossession of a primary residence of an individual, (c) cancellation of

health insurance or benefits, (d) product recalls

(iii) any document required to accompany any transportation of hazardous

materials.

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2. ESIGN Definitions

a. Transaction. ESIGN defines a “transaction” as an action or set of

actions relating to the conduct of business, consumer or commercial affairs

between two or more persons including the sale, lease or exchange of personal

property, real property or services.

b. Electronic. ESIGN defines “electronic” as relating to a technology

having electrical, digital, magnetic, wireless, optical, electromagnetic or similar

capabilities.

c. ESIGN defines a “record” as information that is inscribed on a tangible

medium or that is stored in an electronic or other medium and is retrievable in

perceivable form.

d. Electronic Record. ESIGN defines an “electronic record” as a contract

or other record created, generated, sent, communicated, received, or stored by

electronic means.

e. Electronic Signature. ESIGN defines an “electronic signature” as an

electronic sound, symbol, or process, attached to or logically associated with a

contract or other record and executed or adopted by a person with the intent to

sign the record. This broad definition is intended to make ESIGN “technology

neutral,” permitting providers of goods and services to select acceptable

electronic signature technologies or processes that will be most effective for the

product being offered.

ESIGN provides no guidance on how to prove that a person had intended to sign

an electronic record. ESIGN leaves the purpose of the signature, the legal consequences

of the signature, and the attribution of the signature to a particular person to other law and

the surrounding factual circumstances. The person seeking to enforce the contract based

on an electronic signature will be required to prove that the signature was executed by the

person against whom enforcement is sought where the authenticity of an electronic

signature is in dispute. That means parties accepting electronic signatures must be

satisfied that the signature is sufficiently verifiable, under the circumstances and for the

contemplated purpose, to minimize the risk of such a dispute.

3. Consumer Disclosures. Where a statute, regulation or other rule of law

requires information relating to a transaction be provided or made available to a

consumer in writing, an electronic record can be provided if the (i) the consumer

affirmatively consents to such use (though failure to give consent does not automatically

deny legal validity to such transaction), (ii) the consumer is provided with certain clear

and conspicuous disclosures and (iii) the consumer is aware of any risk that he/she may

lose access to such electronic record if system and hardware requirements change.

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4. Record Retention. If a statute, regulation or other law requires the

retention of a contract related to a transaction, that requirement can be satisfied by an

electronic record that accurately reflects the information set forth in the contract and

remains assessable to all persons entitled to access. This applies equally to the retention

of “original” records and checks. Thus, records kept in pdf form are equivalent to

physical “original” records.

5. Notarization. The requirement for a notarized or acknowledged signature

can be satisfied by the notary’s electronic signature that is accompanied by all other

information required to be included by other applicable law.

6. Electronic Agents. A contract is enforceable notwithstanding the use of an

electronic agent to enter into a contract where the action of any such electronic agent is

legally attributable to the person to be bound by the contract. Thus, online transactions on

a website, such as Amazon.com, are valid despite the fact that there is no human

representative from Amazon countersigning the transaction and evidencing an intent to

sign as required by ESIGN’s electronic signature definition.

7. Transferable Records. ESIGN upholds the enforceability of transferable

records and allows for the execution of a transferable record by an electronic signature.

ESIGN defines a transferable record as (a) an electronic record that would be a note

under UCC Article 3 if it were in writing; (b) the issuer of which has agreed that it is a

transferable record; and (c) an electronic record that relates to a loan secured by real

property.

This provision is in furtherance of UCC Article 3 as it permits the use of electronic

signatures and would permit important concepts like holder in due course and good faith

purchaser status to carry over to a fully electronic scheme. This is contingent on “control”

of the transferable record. A person controlling a transferable record is the holder, as

defined in the UCC, of the transferable record and has the same rights and defenses as the

holder of an equivalent record or writing under the UCC, including the rights and

defenses of a holder in due course or a purchaser if the requirements of the UCC are

satisfied. Delivery, possession and endorsement are not prerequisites for obtaining tor

enforcing any of these rights.

ESIGN’s provision regarding transferable records is contingent on the development

of a security system that is technology neutral and meets ESIGN’s strict requirements to

track the transfer of interests in these transferable records to prevent unauthorized

duplicates and transfers. The person seeking to enforce a transferable record must prove

control of the record. Proof of control includes access to the authoritative copy of the

transferable record and related business records sufficient to review the terms of the

transferable record and to establish the identity of the person having control of it.

A person has control of a transferable record if a system employed for evidencing the

transfer of interests in the transferable record reliably shows that person as the person to

whom the transferable record was issued or transferred. The system must provide for

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(a) the existence of a single authoritative copy of the transferable record, which is unique,

identifiable, and, except as otherwise provided below, is unalterable; (b) the authoritative

copy of the transferable record identifies the person asserting control as the person to

whom the transferable record was issued, or the person to whom the transferable record

was most recently transferred; (c) the authoritative copy of the transferable record is

communicated to and maintained by the person asserting control or its designated

custodian; (d) the making of copies or revisions that add or change an identified assignee

of the authoritative copy only with the consent of the person asserting control of the

transferable record; (e) each copy of the authoritative and any copy of a copy is readily

identifiable as a copy that is not the authoritative copy; and (f) any revision of the

authoritative copy is readily identifiable as authorized or unauthorized.

Systems have been developed to deal with electronic notes. However, it is unclear

whether they comply with ESIGN or UETA and how widely they are used.

B. Preemption Provision

As a constitutional matter, ESIGN can only preempt state law where electronic

signatures or records relate to a transaction in or affecting interstate or foreign commerce.

However, ESIGN’s goal of creating a uniform approach to electronic records and

signatures has ceded control of this area of law to states that have adopted a substantially

similar legal framework. Thus, even in areas where ESIGN has the constitutional

authority to preempt the transaction, state law may still govern. State law will preempt

ESIGN in two cases: (i) where states have adopted the official text of UETA or (ii) where

states have adopted another statute or regulation that is consistent with ESIGN, is

technology neutral and makes specific reference to the ESIGN act.

ESIGN explicitly overrules the provision in UETA that allows states to

specifically exclude certain transactions from the scope of UETA that are governed by

particular state laws. Where there is such an exclusion and where the transaction falls

within interstate or foreign commerce, ESIGN would still preempt the state’s law. For

example, ESIGN would trump the provision of Kentucky’s version of UETA that

excludes any transaction governed by laws relating to the conveyance of any interest in

real property (See KRS 3.69.103(2)(c)).

III. Uniform Electronic Transactions Act

A. UETA’s Relation to ESIGN

ESIGN’s policy goal of promoting a uniform approach to the use and adoption of

electronic signatures and records had the practical effect of deferring to the statutory

scheme already in place in many states. To this end, ESIGN specifically allows certain

modifications of its provisions but generally only by a state’s enactment of UETA or a

statute that is substantially similar to ESIGN.

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Only Illinois, New York and Washington have not adopted UETA but each has

adopted a law recognizing electronic signatures and records. New York has adopted the

Electronic Signatures and Records Act, Illinois has adopted the Electronic Commerce

Security Act, and Washington has adopted the Electronic Authentication Act.

In sum, there are few differences between the federal ESIGN provisions and those

of UETA. UETA essentially duplicates and expands somewhat on ESIGN’s provisions.

However, unlike ESIGN, UETA:

1. Is broader in scope. UETA excludes only transactions that are governed by

(i) laws governing wills, codicils or testamentary trusts and (ii) certain UCC sections

including payment systems, such as check collection and electronic funds transfer. Thus

UETA applies to all electronic records and electronic signatures that relate to a

transaction that UETA broadly defines.

2. Explicitly requires consent to deal electronically. UETA only applies

when each of the parties to the transaction has agreed to conduct their transactions by

electronic means. Therefore, electronic signatures are enforceable under UETA only

where both parties consent to dealing electronically.

UETA also makes clear that the determination of whether one has consented to

conduct a transaction electronically is determined from the context and surrounding

circumstances of the parties. This is in contrast to ESIGN’s consent requirement that

arises only by implication. ESIGN does not require that the parties to a transaction use or

accept electronic records or signatures.

3. Provides more explicit rules of attribution. An electronic record or

signature is attributable to a person only if it was the act of the person. The act can be

shown in any manner including a showing of the efficacy of any security procedure

applied to determine the person to whom the electronic record or electronic signature was

attributable.

4. Does not limit electronic equivalents of UCC Article 3 notes to loans

secured by real property. Furthermore, UETA’s scope of transferable records includes

documents under UCC Article 7.

B. Statutory Summary

1. Purpose. Like ESIGN, UETA’s overarching goal is to ensure that a record

or signature may not be denied legal effect or enforceability solely because it is in

electronic form. UETA expands on this principle by upholding the enforceability of a

contract created electronically through the use of an electronic record that satisfies laws

requiring a written record and an electronic signature that satisfies laws requiring a

signature. UETA, like ESIGN, is also technology neutral by allowing the parties to

decide on the specific technology for electronic transactions.

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2. Key Definitions. UETA contains definitions many of which are similar to

the definitions in ESIGN and other uniform statutes like the UCC.

a. Agreement. UETA defines an “agreement” as the bargain of parties in

fact, as found in their language or inferred from other circumstances.

This definition is comparable to the definition of agreement contained

in the Uniform Commercial Code.

b. Automated Transaction. UETA defines an “automated transaction” as

a transaction conducted or performed, in whole or in part, by

electronic means or electronic records, in which the acts or records of

one or both parties are not reviewed by an individual in the ordinary

course.

c. Contract. UETA defines a “contract” as the total legal obligation

resulting from the parties’ agreement as affected by UETA and other

applicable law.

d. Record. UETA defines a “record” as information that is inscribed on a

tangible medium or that is stored in an electronic or other medium and

is retrievable in perceivable form.

e. Transaction. UETA’s definition of a “transaction” is broader than the

definition contained in ESIGN. UETA defines a transaction as an

action or set of actions that occur between two or more persons and

that relate to the conduct of business, commercial or governmental

affairs.

f. Electronic Agent. UETA defines an “electronic agent” as a computer

program or an electronic or other automated means independently used

to initiate an action or respond to electronic records or performance, in

whole or in part, without review or action by an individual.

g. Electronic Records. UETA defines an “electronic record” as a record

created, generated, sent, communicated, received or stored by

electronic means.

h. Electronic Signature. UETA’s definition of an “electronic signature”

tracks ESIGN closely. Specifically UETA defines an electronic

signature as an electronic sound, symbol, or process attached to or

logically associated with a record and executed or adopted by a person

with the intent to sign the record. Unlike ESIGN, UETA specifically

addresses when a person evidences the requisite intent to sign the

record.

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3. Scope. UETA applies to all electronic records and electronic signatures

that relate to a transaction except such transactions that are governed by:

a. A law governing the creation and execution of wills, codicils, or

testamentary trusts

b. the UCC, other than sections 1-107 and 1-206 and Articles 2 (sales of

goods) and 2A (leases).

c. the Uniform Computer Information Transaction Act; and

d. any other laws identified by a state; However, as noted above, ESIGN

will govern transactions in interstate commerce that are excluded from

UETA by a specific exception adopted by a state where such exception

is inconsistent with the goals of ESIGN. Most states have adopted

numerous exceptions to UETA that mirror or complement specific

exceptions found in ESIGN, but not in UETA.

4. Application. UETA does not require an electronic record or signature to be

created, generated, sent, communicated or received, or otherwise processed or used.

UETA explicitly requires that the parties to a transaction agree to conduct their business

through electronic means. Such intent can be determined from the context and

surrounding circumstances, including the parties’ conduct. Furthermore, UETA, like

ESIGN defers to other applicable law on the enforceability of a specific record or

signature. UETA also allows the parties to a contract to vary UETA, thereby allowing the

parties not to contract electronically or to do so in a limited fashion.

5. Legal Recognition of Electronic Records, Signatures and Contracts. Like

ESIGN, UETA provides that a record, signature or contract may not be denied legal

effect or enforceability solely because it is in electronic form. UETA also modifies all

existing law to which it applies (e.g. the statute of frauds) by stating that any such law’s

requirement that a record or signature be in writing is satisfied by an electronic record or

signature.

However, UETA makes clear that, aside from the legal requirements for a

writing, UETA does not modify or otherwise alter applicable substantive law. Thus, if a

law requires a record to be posted or displayed in a certain manner, to be sent,

communicated, or transmitted by a specified method or to contain information that is

formatted in a certain manner, UETA does not modify that law’s requirement. For

instance, where a law requires delivery of notice by first class US mail, that means of

delivery would not be satisfied by an electronic notice. The information to be delivered

may be provided in an electronic form (e.g. on a disc), but the particular means of

delivery must still be via the US postal service.

6. Consumer Disclosures. UETA has a virtually identical section to ESIGN

that allows for parties to satisfy legal disclosure requirements through the use of

electronic records capable of being retained by the end user.

7. Attribution. Unlike ESIGN, UETA explicitly provides for rules of

attribution of an electronic signature and record. A signature or record must be the act of

the person to whom it is to be attributed. Such act may be shown in any manner,

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including showing the efficacy of any security procedure applied to determine the person

to whom the electronic signature was attributable. This keeps in place existing law that

would otherwise validate a contract, writing or signature, including the law of agency and

principal, but broadens such law to recognize a person’s desire to be bound, despite the

lack of a traditional signature (e.g. an online transaction where the consumer clicks a

button marked “OK” without specifically signing his/her name or through the use of a

password, personal identification number (PIN) or other key code or security measure).

8. Effect of Change or Error. UETA anticipates the likelihood that errors or

changes may occur because of electronic transmissions of signatures and records. To this

end, UETA adopts certain rules to deal with such errors or changes. First, if two parties

agree on a security procedure to detect changes or errors that occur and one party fails to

follow such procedure, the effect of the change or error may be avoided by the party in

compliance of the procedure. Second, when an individual dealing with an electronic

agent (as opposed to another individual) makes an error, the individual may avoid the

transaction if the error was the individual’s fault and the electronic agent of the other

party did not provide the individual with the opportunity to prevent the error (e.g. a

confirmation screen prior to completing an online purchase) or correct it once the error is

discovered. Finally, any error or change not governed by either of the two rules above is

resolved by the application of other rules of law, including the law of mistake, or by

resort to the terms contracted for between the parties.

9. Notarization. UETA mirrors ESIGN regarding notarizations and

acknowledgements. Thus, a notary’s electronic signature, together with any other

information required by other applicable law to accompany such signature, is as valid as

a physical notarization.

10. Record Retention. Like ESIGN, UETA allows for records that are legally

required to be retained as originals, to be kept electronically so long as they remain

accessible and accurately reflect the information set forth on the physical record. This

would include pdfs of original documents that comply with this UETA provision.

11. Admissibility into Evidence. UETA provides that evidence of a signature

or record may not be excluded solely because it is in electronic form. However, the party

seeking admissibility must establish the necessary foundation for admission of an

electronic record or signature into evidence. Some jurisdictions enacting UETA have also

passed non-uniform changes to this provision, that may allow the trier of fact to take into

account, in assessing the weight to be given to electronic evidence, whether or not

security procedures existed and their efficacy if they did exist, as well as other factors

bearing on the credibility of the electronic record or signature.

12. Automated Transaction. Like ESIGN, UETA allows for an electronic

transaction to be legally binding despite the fact that one party is operating through an

electronic agent (e.g. an online purchase by an individual on a website such as

Amazon.com). As in other sections of the Act, UETA makes clear that the actual terms of

such contract are determined by the law applicable to it.

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13. Time and Place of Sending and Receipt. UETA directly addresses an

important aspect of contract law not specifically discussed in ESIGN. UETA states that,

unless the parties agree otherwise, an electronic record is sent when (1) it is properly

addressed to an information processing system designated by the recipient, (2) it is in a

form capable of being processed by such system, and (3) it enters an information

processing system outside the control of the sender. Likewise an electronic record is

received when: (1) it enters the information processing system that the recipient has

designated and (2) it is in a form capable of being processed by that system. Finally, as a

practical matter, the record is deemed to have been sent from the sender’s place of

business and received at the recipient’s place of business.

14. Transferable Records. Like ESIGN, the provisions of UETA allow for the

digitalization of transferable records (i.e. notes under UCC Article 3 and documents

under UCC Article 7). However, unlike ESIGN UETA includes unsecured notes and

transferable notes that are not secured by real property. Like ESIGN, this requires an

appropriate security system, which is technology neutral, and is intended to prevent

unauthorized copying and transmittal of such notes and documents and other transferable

records.

IV. Emails as Enforceable Contracts

1. Emails as Writings. Many classes of contracts are required to be in writing

in order to satisfy the statute of frauds, or other applicable law, to be legally enforceable.1

Communications transmitted by letters, fax, telex and telegraph have been recognized as

writings. Emails may also qualify as writing of a kind sufficient to satisfy the statute of

frauds, but only in certain circumstances.2 Specifically, emails must sufficiently show

that the parties had reached an agreement with regard to the essential terms of the

contract. Emails offered as evidence of a contract do not satisfy the statute of frauds if

they fail to prove that a contract has been made, such as omitting the key terms of the

contract. For example, an email message did not satisfy the statute of frauds as a writing,

nor did it give rise to an enforceable contract, in the following circumstances:

a. Where the emails did not state the terms of the alleged agreement.

b. Where the emails did not contain language expressing or

contemplating a final agreement or settling on terms.

c. Where the emails clearly indicated that the parties were still

negotiating the terms of an agreement.

1 Contracts for the sale of goods involving a minimum price must be in writing and signed by the

party to be bound. There is a “merchant’s exception” to this rule that upholds an oral agreement

between merchants that is subsequently confirmed in a writing to which no objection is asserted. 2 Buckles Management, LLC v. InvestorDigs, LLC, U.S. District Court, Colorado (applying Colo.

statute); In re East Airport Development, LLC, 9th Circuit Bankruptcy Appellate Panel (applying

Cal. statute).

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d. Where the emails did not contain an offer to sell or purchase and an

acceptance of the offer tied to a certain price.

2. Signatures on Emails. Emails may be unenforceable as “unsigned”

because they do not satisfy the statute of frauds or other law.3 In some cases, the courts

have held that e-mail messages bearing the typed name of the sender, rather than a

handwritten signature was sufficient. Similarly, emails may constitute electronic

signatures under UETA, and for purposes of the statute of frauds, where the sender’s

name is included in the message and the person sent it.4

Furthermore, consistent with UETA’s requirement that both parties must

agree to deal electronically, an email was not an enforceable agreement where there was

an understanding between the parties that a physical signature is necessary.5 Vendors’

actions—electronically drafting and e-mailing a cover sheet to which an “offer to

purchase” had been attached and sent to the prospective purchaser’s agent—did not

create an “electronic signature” as defined by the UETA for purposes of determining

whether the vendors had signed an agreement for the sale of land that was enforceable

under the statute of frauds. Accepting this argument would require finding that there was

a signature simply because a proposal was e-mailed.

An email sent by a person acting for another person, such as an agent

acting for a principal, satisfies the signature requirement of the statute of frauds if it can

be proven that the person sending the email had the authority to act for the other person.

On the other hand, an email sent by a person not acting as an agent of the person to be

bound, or who lacked the authority to bind such person (such as an email sent by an

employee who lacked the authority to bind the employer), does not satisfy the signature

requirement of the statute of frauds and would not be a binding agreement.

V. How To Prove An Intent To Sign An E-Contract

A. Shrinkwrap

1. “Money now, terms later”.

3Toghiyany v. AmeriGas Propane, Inc., U.S. 8

th Circuit Court of Appeals, 2002; Sel-Leb

Marketing, Inc. v. Dial Corp., U.S. District Court, Southern District of New York, 2002) (holding

that a series of e-mail messages purportedly memorializing an oral agreement was not sufficient

to satisfy the statute of frauds, in part, because none of the messages were signed by the party

sought to be charged with breach of the alleged agreement); Leist v. Tugendhaft, N.Y.S.

Appellate Division 2nd

Dept. (e-mail was not an enforceable contract because unsigned and

sender did not have any authority to send). 4 International Castings Group, Inc. v. Premium Standard Farms, Inc., U.S. District Court,

Western District, Missouri, 2005. 5 Powell v. City of Newton, 364 N.C. 562, 703 S.E.2d 723 (2010).

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2. Customer purchases product, which, together with the written terms and

conditions (“ts and cs”) are delivered to the customer. Upon opening package containing

the purchased goods, and the ts and cs, the customer can either agree to the ts and cs by

keeping the product or reject the ts and cs by returning the product.

B. Clickwrap

1. Customer is presented with a web-page display of the ts and cs of a

contract together with a button or other link that allows customer to confirm its

agreement to the ts and cs in order to purchase product or service or proceed with other

transactions.

a. Terms should be presented before and in the same area as button or

link confirming agreement.

C. Browsewrap

1. Ts and cs presented as a button or link that customer may or may not opt

to click/access to review.

2. Customer is presumed to have agreed to terms and conditions by

continuing on the website.

3. Questions about enforceability.

Bruce S. Nathan

Member of the Firm

Tel 212.204.8686 Fax 973.422.6851

E-mail:[email protected]

Practice

Bruce S. Nathan, Member in the firm's Bankruptcy, Financial Reorganization & Creditors' Rights Group, has approximately 30 years experience in the bankruptcy and insolvency field, and is a recognized national expert on trade creditor rights and the representation of trade creditors in bankruptcy and other legal matters. Mr. Nathan has represented trade and other unsecured creditors, unsecured creditors' committees, secured creditors, and other interested parties in many of the larger Chapter 11 cases that have been filed, and is currently representing the creditors' committee in the Borders Group Inc. Chapter 11 case. Mr. Nathan also negotiates and prepares letters of credit, guarantees, security, consignment, bailment, tolling, and other agreements for the credit departments of institutional clients.

Mr. Nathan also regularly speaks at conferences held by the National Association of Credit Management, its international affiliate, An Association of Executives in Finance, Credit and International Business ("FCIB"), Credit Research Foundation ("CRF"), and many credit groups on bankruptcy, insolvency, and creditor's rights issues; is a member of NACM's Government Affairs Committee and Editorial Advisory Board, a regular contributor to NACM's Business Credit, a contributing editor of NACM's Manual of Credit and Commercial Laws, and co-author of The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005: An Overhaul of U.S. Bankruptcy Law, published by NACM; and has contributed to CRF's Journal, The Credit and Financial Management Review.

Mr. Nathan is recognized in the Bankruptcy & Creditor/Debtor Rights section of Super Lawyers (2012) and in March 2011, he received the Top Hat Award, a prestigious annual award honoring extraordinary professionals in the credit industry.

Mr. Nathan is also a co-author of "Trade Creditor Remedies Manual: Trade Creditors’ Rights under the UCC and the U.S Bankruptcy Code" published by the American Bankruptcy Institute ("ABI") at the end of 2011, has contributed to the ABI Journal, and is a member of ABI's Board of Directors and former Co-Chair of ABI's Unsecured Trade Creditors Committee.

Education

• University of Pennsylvania Law School (J.D., 1980)

• Wharton School of Finance and Business (M.B.A., 1980) • University of Rochester (B.A., 1976), Phi Beta Kappa

Affiliations

• New York State Bar Association

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• American Bar Association

o Commercial Financial Services Committee

o Business Bankruptcy Committee

• American Bankruptcy Institute

o Member, Board of Directors

o Regular Contributor to American Bankruptcy Institute Journal's "Last in

Line" Column

o Speaker at 2007 Annual Spring Meeting: "Fifty Ways to Leave Your

Debtor: Lesser Known Remedies For Jilted Creditors"

o Panelist at "Chapter 11 At The Crossroads: Does Reorganization Need

Reform?" A Symposium on the Past, Present and Future of U.S. Corporate

Restructuring," on November 16-17, 2009, sponsored by ABI and co-

sponsored by Georgetown University Law Center

o Participated in the Great Debates at ABI's Annual Spring Meeting held on

April 30, 2010 on whether Congress should eliminate the special

BAPCPA protections for providers of goods and lessors (arguing against

repeal)

o Task Force on Preferences

o Chair, Task Force on Reclamations

o Uniform Commercial Code Committee and Task Force - Revised Article 9

Primer

• American Bankruptcy Institute's Commission to Study the Reform of Chapter 11

o Co-chair, Avoiding Powers Advisory Committee

• Commercial Law League of America

• Association of Commercial Finance Attorneys

• National Association of Credit Management

o Contributor to Business Credit - National Association of Credit

Management Magazine

o Member, Editorial Advisory Board

o National Bankruptcy and Insolvency Group

o Lecturer, National Association of Credit Management and Affiliates and

Credit Groups on Bankruptcy, UCC Article 9, Consignments, Letter of

Credit law and other credit-related issues

• Member of FCIB, an Association of Executives in Finance, Credit and

International Business. Presented at The 4th China International Credit and

Risk Management Conference, Shenzhen, China, September 21, 2007, and

FCIB Teleconference, December 13, 2007, on key provisions of People’s

Republic of China’s 2006 Law on Enterprise Bankruptcy, similarities to and

differences with the U.S. Bankruptcy Code, and upcoming implementation

challenges

• Media Financial Management Association

o Member

o Frequent Lecturer

o Contributor to "The Financial Manager" on Creditors' Rights Issues

• Lecturer, Executive Enterprises Inc. the Bank Lending Institute and the Banking

Law Institute on Commercial Loan Workouts & UCC Issues

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• Contributor

o Credit Today

o National Credit News

Articles/Interviews Featuring Bruce S. Nathan

• "Lowenstein Retained as Creditors’ Counsel in Zacky Farms Chapter 11

Case," October 19, 2012

• "In an article on the National Association of Credit Management web site,

Bruce Nathan comments on the Alabama Supreme Court's ruling to uphold

Jefferson County's right to declare municipal bankruptcy in the largest

Chapter 9 filing in U.S. history.," NACM ENews, April 26, 2012

• "On NACM.org, Bruce Nathan and Scott Cargill discuss the Lehman

Brothers bankruptcy case.," NACM ENews, December 8, 2011

• "Bruce Buechler, Bruce Nathan and Paul Kizel are highlighted for

representing the Official Unsecured Creditors Committee of Borders Group

Inc.," The Daily Deal, August 11, 2011

• "Bruce Nathan comments on how the debtor's right to choose the venue for

Chapter 11 proceedings is part of the Bankruptcy Code's system of checks

and balances between debtors' rights and creditors' rights.," Standard &

Poor's LCD Distressed Weekly, March 25, 2011

• "Bruce Nathan, Bruce Buechler and Paul Kizel are highlighted for

representing the Official Committee of Unsecured Creditors of Borders

Group Inc.," Westlaw News & Insight, March 14, 2011

• "Bruce S. Nathan discusses litigation surrounding creditors committee

selection in light of recent changes to the U.S. Bankruptcy Code.," Dow

Jones, August 9, 2006

Publications

• "Electricity Requirements Contract Enjoys Safe Harbor Preference Defense," Bruce S. Nathan, Richard J. Corbi, Eric Chafetz, Business Credit,

November/December 2012

• "KB Toys: Risk Allocation in Bankruptcy Claims Trading," Bruce S.

Nathan, Scott Cargill, American Bankruptcy Institute Journal, October 2012

• "The Unenforceability of a Foreign Court Order Releasing Non-Debtor

Guarantee Claims: The Limits of the Comity Doctrine," Bruce S. Nathan,

Richard J. Corbi, Business Credit, September/October 2012

• "A Preference Ordinary Course of Business Defense Trifecta," Bruce S.

Nathan, Business Credit, July/August 2012

• "Altering Unsecured Creditors' Committee Membership: No Easy Chore!,"

Bruce S. Nathan, Business Credit, June 2012

• "Preference Relief for Real Estate Material and Service Providers," Bruce

S. Nathan, Business Credit, May 2012

• "Using the "Safe Harbor" Defense to Defeat Preference Claims," Bruce S.

Nathan, Scott Cargill, Business Credit, May 2012

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• "Using Public Information to Identify and React to the Early Warning Signs

of a Financially Distressed Customer," Bruce S. Nathan, Scott Cargill,

Business Credit, April 2012

• "Got Setoff Rights? Think Again," Bruce S. Nathan, Scott Cargill, Business

Credit, March 2012

• "Another Preference Victory for the Trade: New Value Paid Post-Petition

Does Count!," Bruce S. Nathan, Business Credit, February 2012

• "Paid New Value Reduces Preference Liability Yet Again!," Bruce S.

Nathan, Business Credit, January 2012

• "Who Pays the Freight? Interplay Between Priority Claims and a Debtor's

Secured Lender," Bruce D. Buechler, Bruce S. Nathan, American Bankruptcy

Institute Journal, November 2011

• "Is There a Small Preference Venue Limit? Yes and No!," Bruce S. Nathan,

Business Credit, November/December 2011

• "Trade Creditor Remedies Manual: Trade Creditors’ Rights Under The

UCC and the U.S. Bankruptcy Code," Bruce S. Nathan, Scott Cargill,

American Bankruptcy Institute, 2011

• "Standby Letters of Credit and the Independent Principle," Bruce S.

Nathan, Business Credit, September/October 2011

• "Another Ordinary Course of Business Preference Defense Double Feature,"

Bruce S. Nathan, Business Credit, July/August 2011

• "Everything You Need to Know About New Value as a Preference Defense,

and More," Bruce S. Nathan, Scott Cargill, David M. Banker, The Credit and

Financial Management Review, Second Quarter 2011

• "Joint Check Agreements: Who's on First?," Bruce S. Nathan, Business

Credit, June 2011

• "Paid for New Value as a Preference Defense, More Good News for the

Trade," Bruce S. Nathan, Business Credit, May 2011

• "Reclamation Catch-22: Darned If You Do, Darned If You Don't," Bruce S.

Nathan, David M. Banker, Business Credit, May 2011

• "Yet Another Favorable Court Decision Upholding the Ordinary Course of

Business Preference Defense," Bruce S. Nathan, Business Credit, April 2011

• "Counting Section 503(b)(9) Priority Claims as Part of a Creditor's New

Value Defense to a Preference Claim: Can You Have Your Cake and Eat It

Too?," Bruce S. Nathan, Business Credit, March 2011

• "Electricity as Goods Entitled to Section 503(B)(9) Priority Status: A Boom

for Utilities," Bruce S. Nathan, Business Credit, February 2011

• "Critical Vendor Update," Bruce S. Nathan, Business Credit, January 2011

• "The Contract Assumption Defense to Preference Claims: Alive and

Thriving," Bruce S. Nathan, Business Credit, November/December 2010

• "Proving the Subjective Component of the Ordinary-Course-of-Business

Defense," Bruce S. Nathan, Scott Cargill, American Bankruptcy Institute

Journal, November 2010

• "A Preference Ordinary Course of Business Defense Double Feature,"

Bruce S. Nathan, Business Credit, September/October 2010

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• "Do Fully Funded Section 503(b)(9) Priority Claims Count as Additional

New Value to Reduce Preference Liability? A Contrary View!," Bruce S.

Nathan, Business Credit, July/August 2010

• "Section 503(b)(9) Priority Claim Developments: The Beat Goes On!,"

Bruce S. Nathan, Business Credit, June 1, 2010

• "Vendors Beware: The Risk of a Debtor's Unauthorized Post-petition

Payments For Post-petition Goods or Services," Bruce S. Nathan, Business

Credit, May 2010

• "Creditors' Committee Disclosure Obligations Updated: The Use of Internet

Websites," Bruce S. Nathan, Business Credit, April 2010

• "The Interplay Between Section 503(b)(9) Priority Claims and Preference

Claims," Bruce S. Nathan, Business Credit, March 2010

• "Section 503(b)(9) Goods Supplier Priority - Beware of the Debtor's Setoff

Rights," Bruce S. Nathan, Business Credit, February 2010

• "Hooray for Delaware - A Tale of Two Decisions," Bruce S. Nathan,

Business Credit, January 2010

• "Recent Case Law Developments Concerning Section 503(b)(9) 20-Day

Goods Priority Claims," Bruce S. Nathan, Business Credit,

November/December 2009

• "The 20-Day Goods Priority Claim Under Bankruptcy Code Section 503(b)

(9)," Bruce S. Nathan, Scott Cargill, Eric H. Horn, Credit Research

Foundation, October 2009

• "Compelling Postpetition Trade Credit: Navigating Uncharted Waters,"

Bruce S. Nathan, Scott Cargill, American Bankruptcy Institute Journal, October

2009

• "Compelling Bankruptcy Trade Credit: The Great Unknown," Bruce S.

Nathan, Business Credit, September/October 2009

• "The Limits of Consignment Rights When Consigned Goods Are

Manufactured Into Finished Product," Bruce S. Nathan, Business Credit,

July/August 2009

• "Enforceability of Triangular Setoff Rights In Safe Harbor Contracts - Still

An Open Question? Part 2," Bruce S. Nathan, S. Jason Teele, Matthew A.

Magidson, Derivatives Week, June 29, 2009

• "Enforceability of Triangular Setoff Rights In Safe Harbor Contracts - Still

An Open Question? Part 1," Bruce S. Nathan, S. Jason Teele, Matthew A.

Magidson, Derivatives Week, June 22, 2009

• "Credit Card Payments as Preferences: The Sixth Circuit Joins the

Bandwagon," Bruce S. Nathan, Business Credit, June 2009

• "Demystifying Chapter 15 of the Bankruptcy Code," Bruce S. Nathan, Eric

H. Horn, Business Credit, June 2009

• "Preference Dynamic Duo II: Whatever Happened to the Small Preference

Venue Limitation?," Bruce S. Nathan, Business Credit, May 2009

• "Triangular Setoff: A Viable Remedy or a Thing of the Past?," Bruce S.

Nathan, Business Credit, April 2009

• "Is Debtor's Credit Card Payment a Preference," Bruce S. Nathan, Business

Credit, March 2009

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• "Effective Seller Remedies When Confronting a Financially Distressed Buyer

Prior to Bankruptcy," Bruce S. Nathan, Business Credit, February 2009

• "Recent Court Decisions on Consignments and Other Security

Arrangements: The Benefits of Aggressive Creditor Action and the Pitfalls of

Failing to Document Properly," Bruce S. Nathan, Business Credit, January

2009

• "Builders Trust Fund Payments: A Defense to Preference Exposure," Bruce

S. Nathan, Business Credit, November/December 2008

• "Impact of the 2005 Bankruptcy Abuse Prevention and Consumer Protection

Act on Retail Bankruptcies," Bruce S. Nathan, Journal of Trading Partner

Practices, November 11, 2008

• "Courts Remain Split over Whether a Debtor's Credit Card Payment is an

Avoidable Preference," Bruce S. Nathan, Scott Cargill, ABI Journal, October

2008

• "Release of State Mechanic's and Other Lien Law Rights As a Defense to

Preference Claims? Yes and No!," Bruce S. Nathan, Business Credit, October

2008

• "Overseas Bear Stearns Hedge Funds Denied Chapter 15 Relief," Bruce S.

Nathan, Richard J. Corbi, Business Credit, July/August 2008

• "Mechanic's Liens and the Bankruptcy Code," Bruce S. Nathan, Business

Credit, June 2008

• "Is a Debtor's Credit Card Payment a Preference?," Bruce S. Nathan,

Business Credit, May 2008

• "PACA Trust Destroyed by Written Agreement Extending Payment Terms,"

Bruce S. Nathan, Business Credit, April 2008

• "State Law Artisans' Lien Rights Defeat Preference Exposure - The Saga

Continues," Bruce S. Nathan, Business Credit, March 2008

• "The Critical Vendor Roller Coaster," Bruce S. Nathan, Business Credit,

February 2008

• "Section 503(b)(9) Goods Supplier Priority — More Recent Developments,"

Bruce S. Nathan, Business Credit, January 2008

• "Beware of Claims Bar Dates for Section 503(b)(9) Administrative Priority

Claims in Favor of Goods Suppliers," Bruce S. Nathan, Business Credit,

November/December 2007

• "Are State Preference Laws Preempted by the United States Bankruptcy

Code? Not Necessarily!," Bruce S. Nathan, Scott Cargill, The Credit and

Financial Management Review, Volume 13, Number 4, Fourth Quarter 2007

• "The Risks of a Single Creditor Involuntary Bankruptcy Petition; Tread

Extra Carefully!," Bruce S. Nathan, Business Credit, October 2007

• "A Preference Dynamic Duo: State Law Lien Rights Defeat Preference

Claim While Payment by Credit Card Does Not!," Bruce S. Nathan,

Business Credit, September 2007

• "Credit Transactions May Be Eligible for the Section 547 (c)(1)

Contemporaneous Exchange for New Value Defense to Preference Exposure:

The Third Circuit Court of Appeals Speaks," Bruce S. Nathan, Business

Credit, July/August 2007

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• "Recent Favorable Preference Rulings for Construction Material and

Service Suppliers," Bruce S. Nathan, Business Credit, June 2007

• "Preference Checklist," Bruce S. Nathan, Business Credit, June 2007

• "Recent Case Law Development Under the 2005 Amendments to the

Bankruptcy Code—Part II," Bruce S. Nathan, Scott Cargill, Business Credit

Journal of NACM Oregon, May 2007

• "Paid for New Value Really Does Count: An Update on the New Value

Defense and Other Preference Issues," Bruce S. Nathan, Business Credit,

May 2007

• "Reclamation Rights Under BAPCPA: The Same Old Story," Bruce S.

Nathan, Business Credit, April 2007

• "Recent Case Law Development Under the 2005 Amendments to the

Bankruptcy Code—Part 1," Bruce S. Nathan, Scott Cargill, Business Credit

Journal of NACM Oregon, April 2007

• "The New 20-Day Administrative Claim in Favor of Goods Suppliers: Yes to

Priority; No to Immediate Payment," Bruce S. Nathan, Business Credit,

March 2007

• "The ABCs of Legal Issues Encountered by Credit Professionals," Bruce S.

Nathan, Business Credit, February 2007

• "Joint Check Arrangement Does Not Protect Against Preference Exposure,"

Bruce S. Nathan, Business Credit, January 2007

• "Bailment Or Consignment: It Makes A Difference!," Bruce S. Nathan,

Business Credit, November/December 2006

• "The BAPCPA Ordinary Course Of Business Defense To Preference Claims:

At Last, A Court Speaks," Bruce S. Nathan, Business Credit, October 2006

• "A Trade Creditor's Post-Petition Obligations Under An Unexpired

Executory Contract Prior To Assumption Or Rejection: The Muddled State

Of The Law," Bruce S. Nathan, Business Credit, September 2006

• "Being Fully Secured Defeats Preference Exposure," Bruce S. Nathan,

Business Credit, July/August 2006

• "Reclamation Manual/Sellers' Rights of Reclamation, Stoppage of Delivery

and New Administrative Claim," Bruce S. Nathan, American Bankruptcy

Institute, 2006

• "Manual of Credit And Commercial Laws," Bruce S. Nathan, National

Association of Credit Management (97th Edition), 2006

• "Involuntary Bankruptcy Petition Upheld: Media Providers’ Claims Against

Advertising Agency NOT Subject To Bona Fide Dispute," Bruce S. Nathan,

Business Credit, June 2006

• "Sales of Trade Claims: The Rewards and The Risks," Bruce S. Nathan,

Business Credit, May 2006

• "The New Creditors’ Committee Disclosure And Solicitation Obligations:

The Refco Blueprint!," Bruce S. Nathan, Business Credit, April 2006

• "Getting The Biggest Bang For Your New Value Preference Defense Buck,"

Bruce S. Nathan, Business Credit, March 2006

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• "Purchase Money Security Interest Suppliers Beware: Tracing Collateral

Proceeds Is No Sure Thing," Bruce S. Nathan, Business Credit, February

2006

• "The Impact of the Bankruptcy Abuse Prevention and Consumer Protection

Act of 2005 on Real Property Lessors and Owners and Other Bankruptcy

Law Developments," Bruce D. Buechler, Bruce S. Nathan, New York State

Bar Association Leasing Committee Program, January 18, 2006

• "A Trade Creditor’s Setoff Rights In Bankruptcy: No Slam Dunk," Bruce S.

Nathan, Business Credit, January 2006

• "Critical Vendor' Status Is No Escape From PREFERENCE Risk," Bruce

S. Nathan, Business Credit, November/December 2005

• "Section 506(c) Waiver Enforceable; Good News for DIPs and Other

Secured Lenders," Bruce S. Nathan, American Bankruptcy Institute Journal,

October 2005

• "Real Estate Material and Services Suppliers, Rejoice!," Bruce S. Nathan,

Business Credit, October 2005

• "A Preference Defense Quartet: Four Recent Court Decisions To Mull

Over," Bruce S. Nathan, Business Credit, September 2005

• "A Standby Letter of Credit Payment Within the Preference Period is Not a

Preference," Bruce S. Nathan, Business Credit, June 2005

• "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005: A

Summary of the Provisions Affecting Derivative Agreements," Bruce S.

Nathan, Scott Cargill, Lowenstein Sandler Bankruptcy Alert, May 6, 2005

• "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005:

Significant Business Bankruptcy Changes in Store for Trade Creditors,"

Bruce S. Nathan, Wanda Borges, Esq., Business Credit, May 2005

• "Sherwood Partners Threatens Viability of State Law Preference," Bruce S.

Nathan, American Bankruptcy Institute Journal, May 2005

• "Critical Vendor Orders After Kmart: A New Lease on Life," Bruce S.

Nathan, Business Credit, May 2005

• "Bankruptcy Abuse Prevention and Consumer Protection Act of 2005:

Landmark Business and Other Bankruptcy Changes," Bruce S. Nathan,

Scott Cargill, Lowenstein Sandler Bankruptcy Alert, May 5, 2005

• "Reclamation Rights vs. Floating Inventory Lien: A Victory At Last!,"

Bruce S. Nathan, Business Credit, April 2005

• "Be Careful When Taking Regular Checks For Lien Release Or Cash

Transactions: A Commentary On The JWJ Contracting Co., Case," Bruce

S. Nathan, Business Credit, March 2005

• "State Law Preference Actions: A Thing Of The Past?," Bruce S. Nathan,

Scott Cargill, Business Credit, March 2005

• "The Dirty Little Secret Of Critical Vendor Orders: The Hidden Preference

Risk That Lurks!," Bruce S. Nathan, Business Credit, February 2005

• "Reclamation Rights Trumped by UCC's Floating Inventory Security

Interest," Bruce S. Nathan, American Bankruptcy Institute Journal, November

2004

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• "Battered And Coated French Fries As A Fresh Vegetable Eligible For

PACA Protection: Are You Kidding?," Bruce S. Nathan, Business Credit,

November/December 2004

• "A New Defense Against Preference Claims?," Bruce S. Nathan, Scott

Cargill, Credit Today, October 2004

• "Standby Letters of Credit and the Strict Compliance Standard: The Case of

the Overstated Sight Draft," Bruce S. Nathan, Business Credit, October 2004

• "Are Reclamation Claims Heading for Oblivion Where the Debtor Has a

Secured Inventory Lender?," Bruce S. Nathan, Business Credit, September

2004

• "Critical Vendor Payments Denied by Kmart Ruling - Part 2," Bruce S.

Nathan, Scott Cargill, National Credit News, July-August 2004

• "Critical Vendor Payments Denied by Kmart Ruling - Part 1," Bruce S.

Nathan, Scott Cargill, National Credit News, June 2004

• "PACA Rights Destroyed by Oral Agreement Extending Payment Terms,"

Bruce S. Nathan, Business Credit, June 2004

• "Can Sanctions Be Imposed For Improperly Prosecuted Preference

Actions?," Bruce S. Nathan, Business Credit, May 2004

• "Section 502(d) Preclusion of Preference Claims: A New Defense or a Dry

Hole?," Bruce S. Nathan, American Bankruptcy Institute Journal, May 2004

• "Critical Vendor Payments Denied by Kmart Ruling," Bruce S. Nathan,

Scott Cargill, Lowenstein Sandler, April 2004

• "Consignment the Right Way: File a UCC Financing Statement," Bruce S.

Nathan, Business Credit, April 2004

• "Extra, From the Appellate Corner - Hot Off the Presses: Delaware

Appellate Court Affirms Priority of Trade Creditor's Stoppage of Delivery

Rights Over Buyer's Inventory Secured Lender," Bruce S. Nathan, Business

Credit, March 2004

• "Are Reclamation Rights Preserved Where Debtor's Secured Dip Lender

Pays Off Pre-Petition Secured Inventory Lender? Yes and No!," Bruce S.

Nathan, Business Credit, March 2004

• "Preferences, Reclamation and PACA in One Case: A Three-Ring Circus,"

Bruce S. Nathan, Business Credit, February 2004

• "PACA Trust Survives E-Mail Exchange Extending Payment Terms,"

Bruce S. Nathan, Business Credit, January 2004

• "A New Limit on Reclamation Claims: The Latest on the Goods on Hand

Requirement," Bruce S. Nathan, Business Credit, November/December 2003

• "The Ordinary-course-of-business Defense to Preference Claims: First-time

Transactions Count Too!," Bruce S. Nathan, American Bankruptcy Institute

Journal, November 2003

• "A New Limit on the New Value Preference Defense," Bruce S. Nathan,

Business Credit, October 2003

• "Trade Creditors Beware: Providing Post-Petition Goods and Services to a

Chapter 11 Debtor Under a Pre-Petition Contract Without Protection Can

Be Toxic to Collectibility," Bruce S. Nathan, Business Credit, September 2003

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• "Letter of Credit Beneficiary Beats Issuing Bank Based on Conforming

Documents and Untimely and Improper Dishonor," Bruce S. Nathan,

Business Credit, July/August 2003

Bar Admissions

• 1981, New York