Fw: Comments OASIS Expansion of Legal Service MDE position Paper

Comments to Oasis: [ECF-ESOP-v1.0]

Expansion of Legal Service MDE Position Paper Version 1.0. Edited by Jim Price and George Knecht. 08 September 2015. OASIS Committee Note Draft 01 / Public Review Draft 01. http://docs.oasis-open.org/legalxml-courtfiling/ecf-esop/v1.0/cnprd01/ecf-esop-v1.0-cnprd01.html. Latest version: http://docs.oasis-open.org/legalxml-courtfiling/ecf-esop/v1.0/ecf-esop-v1.0.html.

Submitted by: Garth Jacobson, Senior Government Relations Attorney, CT Corporation System.

For the purpose on introduction I am Garth Jacobson Senior Government Relations Attorney for CT Corporation Systems I am the co-chair of the E-filing Committee of the Science and Technology Section of the American Bar Association and also Budget Office of that Section. I serve on other committees in the ABA Business Law Section and have published an article on ESOP in the SciTech Lawyer. The comments made in this response are not made on behalf or in any official capacity of the ABA .

In reviewing the proposed “expansion of Legal Service MDE Position Paper” I would recommend the insertion of a forth category on page 5 of the introduction section. The insertion should be:

4. Enable commercial registered agents for entities as identified in the records of the Secretary of State or (state official entity filing office) to opt-in and accept primary service of documents electronically on behalf of their clients.

The same logic that applies to attorneys acting as registered agent for their business entity clients should apply to commercial registered agents. That is the relationship between the registered agent attorney and the entity they represent (the same as CRAs) is listed in the official files of the jurisdiction’s Secretary of State and therefore is clearly identifiable and of public record. Likewise CRAs and attorney RAs serve in the same capacity and have a contractual duty to receive and deliver SOP to their clients.

While CRAs operate in all jurisdictions, at least three states highly regulate the practice of commercial registered agents (Delaware, Wyoming and Nevada) and fourteen jurisdictions register commercial registered agents though the passage of the Uniform Law Commission (ULC), Model Registered Agent Act (MoRAA.) Commercial registered agents represent a significant number of business entities and as such the efficiencies gained through authorizing an electronic portal for attorney registered agents should be applied to commercial registered agents. Electronic Service of Process (ESOP) already is in operation in Florida for the delivery of ESOP of summons and complaints upon commercial registered agents by the Florida Department of Insurance. They replaced the delivery of hardcopy SOP and required their receipt via ESOP. Likewise in conversations I had with the Texas e-filing court administrator’s office they indicated no hesitation to permit the delivery of ESOP documents upon commercial registered agents. Likewise the child support administrators in all of the states are mandated to offer ESOP of electronic income withholding orders (eIWO). Upon consent, these orders are served electronically upon business entities for the purpose of garnishment of withholding child support payments. Large employers such as Lowes establish XML type protocol with the state child support agencies. Alternatively midsize and small employers may receive eIWO documents via pdf file or spreadsheet.

The class of commercial registered agents authorized to receive ESOP would likely be limited to the parameters either established by MoRAA or states such as Delaware. Therefore there would be defined universe participants. In turn the CRAs are by law required to deliver the primary service upon their clients. These are the same requirements attorney RAs must meet.

All of this demonstrates that permitting a commercial registered agent to receive ESOP service in the first instance documents is not only feasible but reasonable and consistent with the proposal set forth in your paper. In fact some commercial registered agents may be in a better position to properly handle the receipt of the documents than some or perhaps many attorneys. That is because CRAs would likely be more technology savvy and be able to devote the time and resources to properly manage the responsibilities. Also it is presumed that the ESOP means established through the OASIS design would be secure and verifiable and as such standards would be consistent with case law authorizing ESOP (See Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir. 2002).] This would enable the immediate verifiable delivery of first instance ESOP. Ultimately that would reduce litigation costs, delays in SOP and extend efficiencies to all stakeholders of the legal system.

It should also be noted that the “next steps” section of the paper appears intentionally vague. I would recommend that the next steps include the inclusion of CRAs as recommended above.

In conclusion I respectfully request that commercial registered agents be include in the paper as set forth above for inclusion into the new OASIS designs.

Garth Jacobson
Senior Attorney, Government Relations
CT

CT Corporation, a Wolters Kluwer Business

520 Pike Street

Suite 985

Seattle, WA 98101

206 403-4989 (office)

206 390-8274 (cell)

garth.jacobson@WoltersKluwer.com

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