Remote Notarization in US Court Cases
In addition to the important role that legal translators and interpreters play in the Apostille translation and Apostille services process, professional translators and interpreters also play a big part in the remote notarization process involving foreign parties, foreign documents, and non-English-speaking signers. Depending on the state it is conducted in, the remote notarization, also known as RON, or “remote online notarization”; or “online notarization”; or “virtual notarization”; or “webcam notarization” is now utilized in the process of obtaining Apostilles for the U.S. documents to be used abroad. It is also used to provide remote notarization services to foreign parties and/ or non-English-speaking individuals purchasing real estate in the U.S. from overseas at the time of reviewing and signing their U.S. mortgage loan documents with the help of a U.S.-based foreign language interpreter via the process known as Remote Online Closings (ROCs), also known as eClosing.
In this blog post we look at some U.S. court cases involving remote notarization.
Case 1: International Trademark and Copyright Infringement of Playboy Trademarks
In our first case, we examine an international intellectual property and unfair competition case where Playboy Enterprises International, Inc. (Playboy), a global media and lifestyle company, sued multiple defendants over trademark infringements and copyright infringements, fraud, and unfair competition. The defendants were alleged to have used Playboy’s name and trademarks to register fraudulent entities, create counterfeit websites and domains, and even forge documents to claim Playboy’s authorization. Despite an initial preliminary injunction order to halt these activities and freeze assets, the defendants persisted.
Defendants Procured, and Their Chinese Business Partners Accepted, False Notarized and Apostilled Licensing Documents Which Allowed Them to Continue Infringing
These defendants were later discovered to be using falsely notarized documents to license Playboy’s trademarks to unauthorized parties in China. Specifically, a California notary by the name of Olivia Liu performed a remote videotaped “apostille” of various documents, including a “Certificate of Incumbency” purporting to give defendant “King Wong” the right to carry out the brand (trademark) licensing and industrial investment and financing business in the People’s Republic of China, and to sign relevant cooperation agreements [on behalf of Playboy Enterprises International, Inc.] Not only was the document a forgery, the notary failed to comply with California law, by 1) not requiring the individual to personally appear before the notary, 2) not recording his signature or fingerprint in her notary journal, and 3) not recording defendant Wong’s identifying information, such as passport number, driver license number, etc.
Playboy filed a motion to modify the preliminary injunction order, asking the court to clarify that the order applied to all parties associated with the defendants and that these falsely notarized documents were invalid.
The Injunction Was Granted and Extended Beyond the Original Defendants
The court ruled in favor of Playboy, acknowledging the potential for irreparable harm without injunction. They found that the balance of hardships favored Playboy, and that the injunction served the public interest. The court also confirmed its jurisdiction over Playboy’s claims under federal law, and over the defendants due to their fraudulent activities in New York. The injunction was clarified to extend to anyone associated with the defendants, and it was established that the defendants had no authorization from Playboy, no rights to sign documents in its name, and were barred from using or counterfeiting Playboy’s intellectual property. The court condemned the defendants for procuring invalid notarizations that did not comply with California law, and allowed for alternative service by email given the unique circumstances of the case.
Case #2: Lawsuit Seeking Rigid Interpretation of New York Election Requirements
Our second case is a New York State proceeding called Lechot v. Mileham, in which a group of citizens were challenging the designation of candidates for office in Erie County. A group of citizens claimed that the Working Family Party candidate designations were invalid because the certificate of authorization (commonly known as a Wilson-Pakula authorization) filed with the Board of Elections didn’t comply with formal statutory requirements, given that it was signed electronically (and not by hand) and acknowledged remotely by video conference.
The Zoom World of 2021 and Elaborate Remote Meeting Workarounds
Because in Spring 2021, COVID was still raging in New York, the Executive Board of the Working Families Party of New York State met remotely via Zoom video conference to authorize candidates in the 2021 local elections across the state. Later that day, Jonathan Westin and Daniel Langenbucher (The Presiding Officer and Assistant Secretary, respectively) met again remotely with William Sacks (a notary public) by Zoom video conference to complete the cross-endorsement process and issue the appropriate paperwork designating 59 candidates for public office in Erie County.
At the beginning of this meeting, Westin and Langenbucher (who were physically in their Kings County homes) held up and showed Sacks (who was physically in his New York County office) their driver’s licenses. Sacks watched remotely, through Zoom, as the party officers separately signed their names by hand on blank pieces of paper. Westin and Langenbucher then photographed their signatures using their cell phones and uploaded the digital images to their individual computers. Next, Westin and Langenbucher personally affixed the digital images of their hand-written signatures to the digital version of the authorizations by electronically “cutting-and-pasting” the downloaded image into the appropriate signature blocks on the certificates. Westin and Langenbucher viewed, and signed, the authorizations county by county in alphabetical order. All of this was observed via Zoom by the notary in real time.
After Westin and Langenbucher completed uploading their signatures to the appropriate paperwork, Sacks — having verified Westin and Langenbucher’s identity and having watched them personally place their digital signatures on the digital certificates — printed the party authorizations on paper, notarized them by hand, scanned the completed documents, and then electronically transmitted them to Langenbucher. Finally, Langenbucher printed the completed digital version of the certificates of authorization, and sent the appropriate one to the Erie County Board of Elections by regular and overnight mail.
Petitioner’s Challenge Fell Short; The Election Designations Stood
The court primarily leaned on two reasons to determine that the challenge to the election did not undermine the certification process. First, New York Technology Law § 304(2) provides that: “Unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.” Because the Westin and Langenbucher signatures were not required to be “wet” signatures, their authorization of candidates for office was valid, even though electronic.
The Court also took seriously the challenge to the remote notarization process. Historically, under New York law, most notarizations were required to be conducted in person. However, due to the COVID pandemic the Legislature amended state law to allow the Governor to, by executive order, suspend any law or issue any directive he determined to be necessary to respond to the emergency, provided such suspension of directive was in the interest of the health or welfare of the public and reasonably necessary to aid in the disaster effort. Based on this authority, the NY Governor issued Executive Order 202.7 which permitted the remote notarization of documents during the pandemic under certain conditions:
• The person seeking the Notary’s services, if not personally known to the Notary, must present valid photo ID to the Notary during the video conference, not merely transmit it prior to or after;
• The video conference must allow for direct interaction between the person and the Notary (e.g. no pre-recorded videos of the person signing);
• The person must affirmatively represent that he or she is physically situated in the State of New York;
• The person must transmit by fax or electronic means a legible copy of the signed document directly to the Notary on the same date it was signed.
Because all of the remote notary requirements were fulfilled, the petitioner’s candidate authorization challenge failed and was dismissed with prejudice.
Properly Notarized and Apostilled Documents in Legal Proceedings and International Transactions
In conclusion, these cases illustrate two sides of the same coin: Lechot v. Mileham highlights the advantages of adapting traditional notarial processes to the realities of the “Zoom world” and the importance of flexibility during times of crisis, while Playboy v. Playboy illustrates the serious consequences and potential pitfalls of using falsely notarized and apostilled documents.
Legal systems heavily rely on the integrity and authenticity of notarized documents, making them a cornerstone in various legal proceedings and international transactions. However, the potential misuse of such documents, as demonstrated in Playboy case, can lead to significant legal repercussions. For parties involved in international trade or other long-distance business or government activities, it’s critical to ensure that all documents are properly notarized and apostilled according to both domestic and international law. This pair of cases serves as a stark reminder that compliance can be tedious, but it is worth it; attempts to bypass or manipulate legal processes are not only ethically reprehensible, but they also pose a substantial risk to the parties involved.
Get in touch with All Language Alliance, Inc. to discuss your need for certified translation of Apostille documents in any foreign language, and to retain a legal interpreter to assist a remote notary during ROC (Remote Online Closing) with obtaining e-signatures from a non-English-speaking home buyer fluent in Mandarin; Singhalese; Thai; Cantonese; French; Danish; Portuguese; Tamil; Punjabi; Malayalam, and other foreign languages who is located in a foreign country at the time of remote online notarization.
PLAYBOY ENTERPRISES INTERNATIONAL, INC. v. PLAYBOY ENTERPRISES, INC., No. 21-cv-06419-VM (S.D.N.Y. May 6, 2022).
LECHOT v. Mileham, 2021 NY Slip Op 50399 – NY: Supreme Court, Onondaga 2021