From left: Ashleigh C. McKenzie and Donnie M. King of Akerman.

The COVID-19 pandemic has caused an unexpected shift for business to operate in virtual environments requiring the need for electronic signatures. Most written agreements require a signature to be enforceable. Since contracts and their legal enforceability are determined by state law, most states, including Florida, have adopted the Uniform Electronic Transactions Act (UETA). Under the UETA electronic signatures have the same legal effect as traditional handwritten signatures. Fla. Stat. Section 668.50(7)(b) ("a contract may not be denied legal effect or enforceability solely because an electronic record was used in the formation of the contract"). A signature can be any mark or symbol that a party makes with the intent to authenticate a record or contract.  As such, a valid signature can be written, stamped, printed, typed, initialed or impressed onto paper in other forms. In addition, under the UETA, an electronic signature can be an electronic sound, symbol, or a process that includes both, that is "attached or logically associated with the contract, and executed or adopted with the intent to sign the record." It is important to note, however, that the UETA does not apply to every transaction. In order for the UETA to apply, each party to the contract must agree to conduct the transaction electronically. Therefore, the two key components for compliance with the UETA is a clear expression of intent and consent of the parties to proceed electronically.

Additionally, the Federal Electronic Signature in Global and National Commerce Act (E-SIGN) provides protections to ensure the validity and legal effect of electronic contract and signatures used in interstate or foreign commerce. Under E-SIGN, "a signature, contract or other record relating to such transaction may not be denied legal effect, validity or enforceability solely because it is in electronic form; and a contract relating to such transaction may not be denied legal effect, validity or enforceability solely because an electronic signature or electronic record was used in its formation." Similar to the UETA, E-SIGN provides that an electronic signature "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." Unless a state law complies with the limited exceptions provided under E-SIGN, E-SIGN preempts state statutes such as the UETA. For example, E-SIGN does not apply to contracts or transactions subject to laws governing wills, codicils, or testamentary trusts; adoption, divorce, or other family law matters; and the UCC, except for the sale of goods, waiver of a claim for breach of contract and leases.

Under E-SIGN and the UETA, the intent of the party to sign the contract using an electronic signature is key to determining whether the signature is valid and enforceable. To determine whether a signature is valid and creates an enforceable contract, courts generally consider whether the signing party executed or adopted the signature with the present intent to authenticate the contract.

Where parties have agreed to sign a contract electronically, the courts look to whether the signature is logically affixed to the document. Courts have generally found electronic signatures to be valid, enforceable, and having the same legal effect as manually written signatures in emails, faxes, text messages and other electronic processes like Adobe. For example, in 2019 in the case of Starace v. Lexington Law Firm, the U.S. District Court for the Eastern District of California found that a valid agreement was made where a party replied "agree" via text message, and the other party thereafter inserted his electronic signature into the agreement. Likewise, in 2019 in the case Decisive Innovations v. Eel River Organics, the U.S. District Court for the Middle District of Florida recognized that an electronic PDF note is an enforceable contract under the Florida UETA.

Key Takeaways:

• Electronic signatures carry the same legal force and validly as manually written signatures.
• The laws governing electronic signatures do not require any particular method of affixing an electronic signature to a contract.
• The e-signature can be any 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 and be capable of being retained and reproduced.
• Electronic signatures include signatures in emails, PDFs, and faxes and digital signatures that are obtained by processes such as DocuSign and Adobe Sign.
• The electronic signature must be affixed to or logically associated with the contract or agreement.
• The party executing the agreement must do so with an intent to sign or authenticate the agreement.
• The parties must consent to the use of electronic signatures.

Ashleigh C. McKenzie and Donnie M. King are litigation associates in Akerman's Miami office.