HOUSE BILL NO. 5281
A bill to regulate third-party litigation funding transactions; to require disclosures in those transactions; to establish the responsibilities of litigation funding companies and of attorneys; to require registration of litigation funding companies; to impose fees; to provide for the powers and duties of state governmental officers and entities; to prescribe civil fines and to provide remedies; and to require and allow the promulgation of rules.
the people of the state of michigan enact:
Sec. 1. This act may be cited as the "third-party litigation funding transparency act".
(a) "Advertise" means publish or disseminate a written, oral, electronic, or printed communication or a communication by means of recorded telephone messages or transmitted or broadcast on radio, television, the internet, or similar communications media, including audio recordings, film strips, motion pictures, and videos, published, disseminated, circulated, or placed before the public, directly or indirectly, for the purpose of inducing a consumer to enter into a consumer litigation funding.
(b) "Charges" means the amount of money to be paid to the consumer litigation funding company by or on behalf of the consumer, above the funded amount provided by or on behalf of the consumer litigation funding company to a consumer. Charges include all administrative, origination, underwriting, or other fees, including interest, no matter how denominated. Charges may not exceed 36% annually.
(c) "Commercial litigation financier" means a person in the business of entering into commercial litigation financing agreements with claimants or with lawyers or law firms asserting legal claims on behalf of claimants. Commercial litigation financier does not include either of the following:
(i) A nonprofit organization that is exempt from federal income tax under 26 USC 501(c)(3), or the nonprofit organization's funders, if the nonprofit organization represents the claimant on a pro bono basis, which may include an award of attorney fees to the nonprofit organization or a related attorney.
(ii) A nonprofit organization that provides funding for litigation without any requirement or expectation that the nonprofit organization will receive any money or financial benefit from the litigation or from a litigant or an attorney or law firm that represents a litigant.
(d) "Commercial litigation financing agreement" means, subject to subdivision (e), and with respect to a civil action or group of civil actions, a written agreement to which either of the following applies:
(i) Both of the following apply to the agreement:
(A) Under the agreement, a third party agrees to provide funds to 1 of the named parties or a law firm affiliated with the action or group of actions.
(B) The agreement creates a direct or collateralized interest in the proceeds of a civil action or group of civil actions, by settlement, verdict, judgment, or otherwise, which interest is based in whole or in part on a funding-based obligation to the action or group of actions or the appearing counsel, any contractual co-counsel, or the law firm of the counsel or co-counsel executed with any of the following:
(I) An attorney representing a party.
(II) A co-counsel in the litigation with a contingent fee interest in the representation of that party.
(III) A third party who has a collateral-based interest in the contingency fees of the counsel or co-counsel firm related in whole or in part to the fees derived from representing that party.
(ii) The agreement, which may include an option, forward contract, futures contract, short position, swap, or similar contract, is substantially similar to a commercial litigation financing agreement.
(e) Commercial litigation financing agreement does not include any of the following:
(i) A consumer litigation funding agreement.
(ii) An agreement by an attorney or a law firm to provide legal services on a contingency fee basis to a claimant or to advance the claimant's legal costs in accordance with the Michigan rules of professional conduct.
(iii) A health insurance plan or agreement under which a health insurer, medical provider, or assignee has paid, is obligated to pay, or is owed money for an individual's health care.
(iv) A loan made by a financial institution to a claimant or the claimant's attorney or law firm if repayment is not contingent on the outcome of the legal claim or on the outcome of any matter within a portfolio that includes the legal claim and involves the same attorney or law firm or affiliated attorney or law firm.
(v) A person with a preexisting contractual obligation to indemnify or defend a party to a legal claim.
(f) "Consumer" means a natural person or estate for a decedent with a legal claim.
(g) "Consumer litigation funding" means a nonrecourse transaction in which a consumer litigation funding company purchases and a consumer assigns to the company a contingent right to receive an amount of the potential proceeds of a settlement, judgment, award, or verdict obtained in the consumer's legal claim.
(h) "Consumer litigation funding company" means a person that enters into a consumer litigation funding contract with a consumer. Consumer litigation funding company does not include any of the following:
(i) A family member of the consumer.
(ii) A bank, lender, financing entity, or other special purpose entity to which either of the following applies:
(A) The person provides financing to a consumer litigation funding company.
(B) A consumer litigation funding company grants to the person a security interest, or transfers to the person any rights or interest, in a consumer litigation funding.
(iii) An attorney or accountant who provides services to a consumer.
(i) "Family member" means a spouse; parent; stepparent; sibling; child by blood, adoption, or marriage; grandchild; grandparent; descendant of a grandparent; or legal guardian.
(j) "Foreign country or person of concern" and "foreign country of concern" mean a country or person that is either of the following:
(i) A foreign government or person listed under 15 CFR 791.4.
(ii) A country designated as a threat to critical infrastructure by the governor.
(k) "Foreign entity of concern" means an entity to which 1 or more of the following apply:
(i) The entity is organized or incorporated in a foreign country of concern.
(ii) The entity is owned or controlled by the government, a political subdivision, or a political party of a foreign country of concern.
(iii) The entity has a principal place of business in a foreign country of concern.
(iv) The entity is owned, organized, or controlled by, affiliated with, or acting on behalf of an individual or entity to which either of the following applies:
(A) The individual or entity has been placed on a sanctions list maintained by the federal Office of Foreign Assets Control, including, but not limited to, any of the following:
(I) The Specially Designated Nationals and Blocked Persons List, also known as the SDN list.
(II) The Foreign Sanctions Evaders List.
(III) The Non-SDN Iran Sanctions Act List.
(IV) The Sectoral Sanctions Identifications List.
(V) The List of Foreign Financial Institutions Subject to Correspondent Account and Payable-Through Account Sanctions.
(B) The individual or entity has been designated by the United States Secretary of State as a foreign terrorist organization.
(l) "Funded amount" means the amount of money provided to, or on behalf of, the consumer in a consumer litigation funding contract. Funded amount excludes charges.
(m) "Funding date" means the date on which the funded amount is transferred to the consumer by the consumer litigation funding company either by personal delivery or wire, ACH, or other electronic means or is mailed by insured, certified, or registered United States mail.
(n) "Legal claim" means a civil claim or cause of action.
(o) "Resolution date" means the date the funded amount, plus the agreed-on charges, are delivered to the consumer litigation funding company by the consumer or the consumer's attorney, or otherwise.
Sec. 4. (1) A consumer litigation funding contract must meet all of the following requirements:
(a) The contract must be written in a clear and coherent manner using words with common, everyday meanings to enable the average consumer who makes a reasonable effort under ordinary circumstances to read and understand the terms of the contract without having to obtain the assistance of a professional.
(b) The contract must be completely filled in when presented to the consumer for signature.
(c) The contract must contain the initials of the consumer on each page.
(d) The contract must contain a statement that there are no fees or charges to be paid by the consumer other than what is disclosed on the disclosure form.
(e) If the consumer seeks more than 1 litigation funding contract from the same company, the contract must contain a statement that provides the cumulative amount due from the consumer for all transactions, including charges under all contracts, if repayment is made any time after the contracts are executed.
(f) The contract must contain a statement of the maximum amount the consumer may be obligated to pay under the contract other than in a case of material breach, fraud, or misrepresentation by or on behalf of the consumer.
(g) The contract must clearly and conspicuously detail how charges, including any applicable fees, are incurred or accrued.
(2) A consumer litigation funding contract must contain the disclosures specified in this subsection, which constitute material terms of the contract. Unless otherwise specified, the disclosures must be typed in at least 12-point bold type font and be placed clearly and conspicuously within the contract, as follows:
(a) On the front page under appropriate headings, language specifying all of the following:
(i) The funded amount to be paid to the consumer by the consumer litigation funding company.
(ii) An itemization of 1-time charges.
(iii) The maximum total amount to be assigned by the consumer to the company, including the funded amount and all charges.
(iv) A payment schedule to include the funded amount and charges, listing all dates and the amount due at the end of each 180-day period from the funding date, until the date the maximum amount due to the company under the contract is paid.
(b) Within the body of the consumer litigation funding contract, language stating all of the following:
(i) "Consumer's right to cancellation: you may cancel this contract without penalty or further obligation within ten business days after the funding date if you return to the consumer litigation funding company the full amount of the disbursed funds."
(ii) "The consumer litigation funding company will have no role in deciding whether, when, and how much the legal claim is settled for, however, the consumer and consumer's attorney must notify the consumer litigation funding company of the outcome of the legal claim by settlement or adjudication before or on the resolution date. The company may seek updated information about the status of the legal claim but in no event must the company attempt to interfere with, control, or influence the independent professional judgment of the attorney in the handling of the legal claim or any settlement of the legal claim."
(iii) In all capital letters in at least 12-point bold type font contained within a box: "THE FUNDED AMOUNT AND AGREED-UPON CHARGES MUST BE PAID ONLY FROM THE PROCEEDS OF YOUR LEGAL CLAIM, AND MUST BE PAID ONLY TO THE EXTENT THAT THERE ARE AVAILABLE PROCEEDS FROM YOUR LEGAL CLAIM. YOU WILL NOT OWE (INSERT NAME OF THE CONSUMER LITIGATION FUNDING COMPANY) ANYTHING IF THERE ARE NO PROCEEDS FROM YOUR LEGAL CLAIM, UNLESS YOU HAVE VIOLATED ANY MATERIAL TERM OF THIS CONTRACT OR YOU HAVE COMMITTED FRAUD AGAINST (INSERT NAME OF CONSUMER LITIGATION FUNDING COMPANY).".
(c) Located immediately above the place on the contract where the consumer's signature is required, in 12-point bold type font: "Do not sign this contract before you read it completely. Do not sign this contract if it contains any blank spaces. You are entitled to a completely filled-in copy of the contract before you sign this contract. You should obtain the advice of an attorney before signing this contract. Depending on the circumstances, you may want to consult a tax, public or private benefits planning, or financial professional. You acknowledge that your attorney in the legal claim has provided no tax, public or private benefit planning, or financial advice regarding this transaction. You further acknowledge that your attorney has explained the terms and conditions of the consumer litigation funding contract.".
(3) A consumer litigation funding contract must contain a written acknowledgment by the attorney retained by the consumer to pursue the legal claim that attests to all of the following:
(a) The attorney has reviewed the disclosures required under subsections (1) and (2) with the consumer.
(b) The attorney is, or, if applicable, is not, being paid on a contingency basis under a written fee agreement.
(c) All proceeds of the legal claim will be disbursed via either the trust account of the attorney or a settlement fund established to receive the proceeds of the legal claim on behalf of the consumer.
(d) The attorney is obligated to disburse funds from the legal claim and take any other steps to ensure that the terms of the litigation funding contract are fulfilled.
(e) The attorney has not received a referral fee or other consideration from the consumer litigation funding company in connection with the consumer litigation funding, nor will the attorney receive such a fee or other consideration in the future.
(4) If the acknowledgment required under subsection (3) is not provided by the attorney or firm retained by the consumer to pursue the legal claim, the consumer litigation funding contract is void. The consumer litigation funding contract remains valid and enforceable if the consumer terminates the initial attorney or retains a new attorney with respect to the legal claim.
(5) A copy of an executed consumer litigation funding contract must be promptly delivered to the attorney retained by the consumer to pursue the legal claim.
Sec. 5. (1) A consumer litigation funding company shall not do any of the following:
(a) Pay or offer to pay a commission, referral fee, or other form of consideration to an attorney, law firm, health care provider, chiropractor, or physical therapist, or an employee of any of these, for referring a consumer to the consumer litigation funding company.
(b) Accept a commission, referral fee, rebate, or other form of consideration from an attorney, law firm, health care provider, chiropractor, or physical therapist, or an employee of any of these.
(c) Give money or a gift, pay the cost of travel, or provide anything of value to an attorney or law firm.
(d) Intentionally advertise false or misleading information regarding the company's products or services.
(e) Refer, in furtherance of an initial legal funding, a customer or potential customer to a specific attorney, law firm, health care provider, chiropractor, or physical therapist, or an employee of any of these. However, if a customer needs legal representation, the company may refer the customer to a local or state bar association referral service.
(f) Knowingly provide funding to a consumer who has previously assigned or sold a portion of the consumer's right to proceeds from a legal claim without first making payment for or purchasing a prior unsatisfied consumer litigation funding company's entire funded amount and contracted charges, unless a lesser amount is otherwise agreed to in writing by the consumer litigation funding companies, except that multiple companies may agree to contemporaneously provide funding to a consumer if the consumer and the consumer's attorney consent to the arrangement in writing.
(g) Make any decision, have any influence, or direct any decisions with respect to the course of a legal claim, including decisions in appointing or changing counsel, choice or use of expert witnesses, litigation strategy, and settlement or other resolution. The right to make all decisions regarding a legal claim must remain solely with the claimant and the claimant's attorney or law firm.
(h) Attempt to obtain a waiver of any remedy or right by the consumer, including, but not limited to, the right to bring a civil action in court and the right to have a civil action tried by a jury. A consumer litigation funding contract must not contain a provision requiring arbitration of any dispute.
(i) Knowingly pay or offer to pay for court costs, filing fees, or attorney fees either during or after the resolution of the legal claim, using funds from the consumer litigation funding transaction.
(2) If a consumer litigation funding company exercises or attempts to exercise any control or influence over a consumer's claim that is not prohibited by subsection (1) or another provision of this act, the consumer litigation funding company shall act as a fiduciary with respect to the consumer's claim. Acting as a fiduciary under this subsection requires all of the following:
(a) Acting in the best interests of the consumer, not the consumer litigation funding company, including by avoiding any conflicts of interest.
(b) If the consumer litigation funding company has custody of any money of the consumer or pays out money on behalf of the consumer, keeping or paying out the money carefully and with diligence, not commingling the consumer's money with that of the comer litigation funding company, and keeping detailed and accurate records.
(3) Notwithstanding any other provision of law, a prepayment penalty or fee must not be charged or collected in connection with a consumer litigation funding transaction. A prepayment penalty or fee in a consumer litigation funding transaction is unenforceable.
(4) An attorney or law firm retained by a consumer to pursue a legal claim shall not have a financial interest in a consumer litigation funding company that offers consumer litigation funding to the consumer.
(5) An attorney who has referred a consumer to the consumer's retained attorney shall not have a financial interest in a consumer litigation funding company that offers consumer litigation funding to the consumer.
(6) An attorney shall not disclose confidential or privileged information to a consumer litigation funding company without the written consent of the consumer and in accord with any order of the court in the litigation.
(7) A consumer litigation funding company shall not enter into a consumer litigation funding contract directly or indirectly with a foreign entity of concern or a foreign country or person of concern.
Sec. 6. The contracted amount to be paid to a consumer litigation funding company must be a predetermined amount based on intervals of time from the funding date through the resolution date, and must not be determined as a percentage of the recovery from the legal claim.
Sec. 7. (1) Not later than 30 days after a written request, a consumer shall disclose to any party to a legal claim and each insurer that has a duty to defend whether the consumer has entered into a consumer litigation funding contract.
(2) If a consumer enters into a consumer litigation funding contract after responding to a request under subsection (1), the consumer has a continuing obligation to disclose and shall disclose this fact to the requesting person not later than 30 days after the consumer enters into the contract.
(3) A consumer litigation funding contract, and all participants or parties to the consumer litigation funding contract, are presumed to be discoverable in a civil proceeding, notwithstanding any agreement or provision with respect to confidentiality. A consumer may seek to rebut this presumption.
(4) A consumer litigation funding transaction disclosed under subsection (1) or (2) or a consumer litigation funding contract discovered under subsection (3) are presumed to be inadmissible as evidence. A party may seek to rebut this presumption.
Sec. 8. (1) Both of the following apply to a consumer litigation funding company that violates any provision of this act in a specific funding case:
(a) The company waives its right to recover both the funded amount and any and all charges in the case.
(b) The company is liable for a civil fine of not more than $10,000.00 for each violation. A fine under this subdivision may be recovered in a civil action brought by the attorney general.
(2) In an action by a consumer against a consumer litigation funding company for a violation of this act, a prevailing consumer is entitled to an award of an amount equal to 3 times the total of the funded amount and any and all charges, or $10,000.00, whichever is greater. An award under this subsection is not subject to an offset for any amount that would otherwise be owed by the consumer to the consumer litigation funding company.
(3) This act does not restrict the exercise of powers of the attorney general.
Sec. 9. (1) The contingent right to receive an amount of the potential proceeds of a legal claim is assignable by a consumer to a consumer litigation funding company.
(2) Only an attorney's lien related to the legal claim that is the subject of the consumer litigation funding or Medicare or other statutory liens related to the legal claim take priority over a lien of the consumer litigation funding company.
Sec. 10. Communications between a consumer's attorney and a consumer litigation funding company to allow the consumer litigation funding company to ascertain the status of a legal claim or a legal claim's expected value is not discoverable by a person against which the legal claim is asserted or filed.
Sec. 11. (1) Subject to subsection (8), unless a consumer litigation funding company or commercial litigation financier has first registered with this state under this act, the company or financier shall not engage in the business of consumer litigation funding or commercial litigation financing agreements in this state.
(2) An application for registration under this section must be filed in the manner prescribed by the department of insurance and financial services and must contain all the information required by the department of insurance and financial services to make an evaluation of the character and fitness of the applicant company or financier, including, but not limited to, any beneficial ownership interest exceeding 20%. The initial application must be accompanied by a fee of $10,000.00. A renewal registration must include a fee of $10,000.00. A registration must be renewed every 2 years and expires on December 31.
(3) A certificate of registration may not be issued unless the department of insurance and financial services on investigation finds that the character and fitness of the applicant company or financier, and of the officers and directors of the company or financier, are such as to warrant belief that the business will be operated honestly and fairly within the purposes of this act.
(4) The department of insurance and financial services shall not issue a registration under this section to a foreign entity of concern or a foreign country or person of concern.
(5) An applicant under this section shall also, at the time of filing the application, file with the department of insurance and financial services, if the department of insurance and financial services so requires, a bond satisfactory to the department of insurance and financial services in an amount not to exceed $10,000.00. At the option of the applicant, instead of a bond, the applicant may post an irrevocable letter of credit. The terms of a bond filed under this subsection must run concurrent with the period during which the registration will be in effect. The bond must provide that the registrant will faithfully conform to and abide by this act and all rules promulgated under this act and will pay to this state or any other person any amount of money that becomes due to this state or to the person from the registrant under this act during the period for which the bond is given.
(6) On written request, an applicant under this section is entitled to a hearing on the question of the applicant's qualifications for registration if either of the following applies:
(a) The department of insurance and financial services has notified the applicant in writing that the application has been denied.
(b) The department of insurance and financial services has not issued a registration within 60 days after the application for the registration was filed.
(7) A request for a hearing under subsection (6) may not be made later than 15 days after the department has mailed a written notice to the applicant that the application has been denied and that states in substance the department of insurance and financial services' findings supporting denial of the application.
(8) A consumer litigation funding company or commercial litigation financier that registered with the department of insurance and financial services after the effective date of this act or the date on which the department of insurance and financial services makes applications for registration under this section available to the public, whichever is later, and before 180 days after that date may engage in consumer litigation funding or commercial litigation financing, as applicable, while the company's application for registration under this section is pending approval with the department of insurance and financial services. A funding agreement entered into before the effective date of this act is not subject to this act.
(9) A person shall not use any form of consumer litigation funding contract or commercial litigation financing agreement in this state unless it has been filed with the department of insurance and financial services in accordance with the filing procedures set forth by the director of insurance and financial services. The filing procedures must designate a reasonable time frame for this state to raise objections to any filed form.
(10) The director of the department of insurance and financial services shall annually adjust the amount of the fees to be paid under subsection (2) to reflect the change in the Consumer Price Index in the preceding calendar year. The first adjustment under this subsection must be made for fees to be paid in the calendar year after the year in which this act takes effect. As used in this subsection, "Consumer Price Index" means the annual average Consumer Price Index for All Urban Consumers (CPI-U), all items in U.S. city average, reported by the Bureau of Labor Statistics of the United States Department of Labor.
Sec. 12. (1) A consumer litigation funding company or commercial litigation financier that engages in business in this state shall submit a report to the department of insurance and financial services not later than December 31 of each year that specifies all of the following:
(a) The number of litigation fundings by the company or financier that year.
(b) A summation of funded amounts in dollars for that year.
(c) The annual percentage charged to each consumer or commercial funding recipient if repayment was made that year.
(2) The department of insurance and financial services shall make information received under this section available to the public, in a manner that maintains the confidentiality of the name of the companies, financiers, customers, and consumers, not later than 30 days after the reports are submitted.
Sec. 13. (1) A commercial litigation financier shall not enter into a commercial litigation financing agreement directly or indirectly with a foreign entity of concern or a foreign country or person of concern.
(2) A claimant or an attorney or law firm for a claimant or affiliated attorney or law firm shall not disclose or share any documents or information with a commercial litigation financier if the documents are or the information is subject to a protective or sealing order from a court.
(3) A commercial litigation financier shall not make any decision, have any influence, or direct any decisions with respect to the course of a legal claim, including decisions in appointing or changing counsel, choice or use of expert witnesses, litigation strategy, and settlement or other resolution. The right to make all decisions regarding a legal claim remains solely with the claimant and the claimant's attorney or law firm.
Sec. 14. (1) Except as otherwise stipulated or ordered by the court, a claimant or the claimant's attorney shall, without awaiting a discovery request, provide to all parties any commercial litigation financing agreement at the time a legal claim is asserted or commenced and any time thereafter that a commercial litigation financing agreement is executed or amended. An insurer that has or may have a duty to defend or indemnify a party to a legal claim must be provided with the commercial litigation financing agreement or any modifications or amendments to the agreement.
(2) A commercial litigation financing agreement and all participants or parties to the commercial litigation financing agreement are permissible subjects of discovery in a legal claim.
Sec. 15. The department of insurance and financial services may promulgate rules necessary to effectuate the purposes of this act under the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328.
Sec. 16. This act applies to a consumer litigation funding or commercial litigation financing agreement that is effectuated on or after the effective date of this act.