IO MOONWALKERS, INC., and AMERICAN COINS & GOLD, INC., Plaintiffs,
BANC OF AMERICA MERCHANT SERVICES, LLC, BANK OF AMERICA CORPORATION, BANK OF AMERICA, N.A., and FIRST DATA MERCHANT SERVICES, LLC, Defendants.
in the Court of Appeals 28 November 2017.
by plaintiffs from order entered 27 March 2017 by Judge Lisa
C. Bell in Mecklenburg County No. 16-CVS-3696 Superior Court.
Coates Kyre & Bowers, PLLC, by Jon Ward and Richard L.
Pinto, for plaintiffs-appellants.
Law Firm, PLLC, by Harrison A. Lord, for
case is one of a growing number of contract cases requiring
the courts to fit decades-old (sometimes centuries-old)
contract principles to the realities of the digital age.
America Merchant Services, LLC (BAMS) provided credit card
processing services to IO Moonwalkers, Inc., a company that
sells hoverboard scooters. BAMS uses a standard contract with
its customers and sent that contract to Moonwalkers using an
electronic document application called DocuSign. DocuSign
transmits the contract in an email and the software records
when the contract accompanying that email is viewed and when
it is electronically signed.
dispute concerning chargebacks for fraudulent purchases,
Moonwalkers asserted that it never electronically signed the
contract with BAMS and should not be bound by its terms. The
company asserted that a salesperson for BAMS likely signed
the contract on behalf of Moonwalkers without permission.
summary judgment, BAMS produced records showing the exact
date and time that someone using the Moonwalkers company
email viewed the proposed contract, electronically signed it,
and later viewed the final, fully executed version.
Moonwalkers does not dispute the accuracy of these DocuSign
records, and does not claim that it never viewed the proposed
contract, but insists that the contract was not signed by
anyone at the company authorized to do so.
also produced emails and letters sent in the following months
in which BAMS referenced the contract and asked Moonwalkers
to take action required by the contract, such as providing
documentation. Moonwalkers complied with those requests
without ever suggesting the parties had no written contract.
explained below, in light of this evidence, the trial court
properly held that, even if Moonwalkers did not sign the
contract, the company ratified the contract through its
actions. We therefore affirm the trial court's grant of
partial summary judgment based on the doctrine of
and Procedural History
IO Moonwalkers, Inc. and American Coins & Gold, Inc. are
distinct corporations with shared ownership but unrelated
businesses. Moonwalkers sells hoverboards and American Coins
& Gold sells metals, gemstones, and jewelry. Third-Party
Defendant Rilwan Hassan owns both companies.
Banc of America Merchant Services, LLC processes credit card
transactions for retail businesses. The company uses an
electronic signature service called DocuSign to enter into
written contracts with its customers that BAMS calls
"merchant services agreements." DocuSign gives each
merchant services agreement an identifying number, which then
appears on each page of the document. DocuSign sends an email
with an electronic link to a copy of the agreement. Through
DocuSign, the party viewing the contract can sign it using a
digital signature. DocuSign tracks the date and time when the
contract is sent, viewed, and signed by each party.
contract between BAMS and a customer is executed, DocuSign
sends a "certificate of completion" to BAMS that
includes the identifying number for that contract, the email
address of the contract recipient, the IP address of the
computer that viewed the email and contract, and details of
relevant "events" that occurred such as the time
and date when the contract was viewed and signed. BAMS
maintains these certificates of completion as business
records in the ordinary course of its business.
Hassan, the owner of Moonwalkers, is familiar with the
DocuSign process because he used the service in 2014 to
contract with BAMS for credit card processing services for
American Coins & Gold, another business he owns. Hassan
concedes that he used DocuSign to review and sign the BAMS
contract with American Coins & Gold.
2015, Hassan met with BAMS employee Robert Kanterman to
contract for similar card-processing services for
Moonwalkers. Moonwalkers concedes that BAMS sent proposed
merchant services agreements to Moonwalkers at the company
email address Hassan provided. Those contracts contain
various terms concerning BAMS services ...