I am concerned. We are going to offer an e-statement option to our online banking customers only. We have the “Agreement” and I am comfortable with that. The stmt they will see through online banking will look just like their paper statement, so I am confident the disclosure issues are covered. What I am concerned about is the confirmation process that the customer can see their statement. Here is what management wants to do:

1. Send Online Banking Customers Letter that they can get an e-stmt.
2. Customer will sign onto Online Banking, request statement, and the first time the Agreement will display which they must “Accept” in order to get an e-stmt.
3. Going forward, each month we will send the customer a email telling them their statement has been published and they can get it by signing on to Online Banking.

We have addressed the issues of what if we receive a return email notification and I am comfortable with how we are handling that.

So far, I am OK with the process, I have approved the Agreement, etc.

What I am not OK with, is no where in this process have we proved that the customer can actually see the statement and that the customer has notified us electronically that they can see the statement. Do you agree I have a legitimate concern and if so, will you send me a link to where it says in the E-Sign Act that we must do this?

Section 7001(e) of Esign Act 15 USC 7001
(e) Accuracy and ability to retain contracts and other records
Notwithstanding subsection (a) of this section, 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.

Reg E requires that periodic statements be in writing. Your risk lies in that the person who does not demonstrate that they can retain the statement, could be deemed to never have been given a written periodic statement - a requirement of Reg E. (electronic statement would not constitute a legal substitution for paper statement)

May I ask what your plans are for returned e-mail notifications? Our volume is increasing and our current procedures (contacting customer by phone for new e-mail) is becoming too onerous. Due to the cost savings of e-statements and customer relations (i.e. they don't want paper), I am reluctant to take them off e-statements. Theoretically, we could check to see if they are still accessing home banking as that is the entry to e-statements; however, that is not a practical solution either. People are even worse about keeping us updated with e-mail address than they are with their physical address. Is there a customer-friendly solution?

Sorry, there seems to be no easy solution.