The new year is already off to a fast start on the Third Party Litigation Funding (TPLF) front with two new TPLF bills introduced in Florida. As many will recall, last year several TPLF bills were introduced at the state level across the country, with Montana and Indiana ultimately passing TPLF legislation, while a TPLF bill passed by the Louisiana legislature was ultimately vetoed by that state’s governor.[1] If recent trending continues (which the author expects), we will likely see similar activity regarding TPLF as part of this year’s state legislative sessions.
In the meantime, turning to the new Florida bills, the Litigation Investment Safeguards and Transparency Act was filed in the Florida House of Representatives as Fla. H.B. 1179 on January 3, 2024, by Florida State Representative Toby Overdorf (R–District 85).[2] The Florida House of Representatives website further reflects that a first reading of H.B. 1179 occurred on January 9, 2024 and has been referred to the Civil Justice and Justice Appropriations Subcommittees, and the Judiciary Committee.[3] An identical bill (with the same title) was then filed in the Florida Senate as Fla. S.B. 1276 on January 4, 2024, and introduced on January 10, 2024 , by Florida State Senator Jay Collins (R–District 14).[4] The Florida Senate’s website notes that S.B. 1276 has been referred to the Judiciary and Fiscal Policy Committees.[5]
In general, these bills propose, in main part, several TPLF disclosure provisions, including disclosure of the TPLF agreement itself to, including but not limited to, the other party, court, and insurer as more fully outlined below. The bills also contain specific disclosure provisions regarding class action lawsuits and TPLF involving foreign persons, foreign principals, and sovereign wealth funds. In addition to TPLF disclosure, the bills contain other proposals, including banning litigation funders from certain activities, and an indemnification provision. If enacted into law, these proposals would become effective July 1, 2024.
As noted above, these bills were recently referred to the referenced Senate and House committees for consideration. Going forward, we will need to monitor these bills to see if they garner support as part of Florida’s upcoming 2024 legislative session and whether they ultimately will be enacted into law, either in their current form or some modified version. The author will monitor events and provide future updates as warranted.
In the interim, the below provides an overview of S.B. 1276/H.B. 1179 as follows:
Nutshell Summary
In general, the newly filed Litigation Investment Safeguards and Transparency Act proposes the following key provisions regarding TPLF:
- Adds statutory sections to Chapter 69, Florida Statutes
- Prohibits specified acts, including barring a funder from paying referral fees (or other consideration), making litigation and settlement decisions, and engaging in other activities
- Contains detailed disclosure requirements, including automatic disclosure of the TPLF agreement without a discovery request to the other party, court, insurer, and other entities, along with specific disclosure provisions for class action lawsuits and TPLF involving funding by foreign persons, foreign principals, and sovereign wealth funds
- Makes the existence of a TPLF agreement and other information discoverable
- Requires litigation funders to indemnify specified fees, costs, and sanctions in certain instances
- Permits courts to consider a TPLF agreement in class actions for potential conflict of interests and other considerations
- Outlines specific enforcement and other remedies for violations, including enforcement under Florida’s Deceptive and Unfair Trade Practices Act
- B. 1179 has been referred to the House Civil Justice and Justice Appropriations Subcommittees, and the Judiciary Committee, while S.B. 1276 has been referred to the Senate Judiciary and Fiscal Policy Committees, for review and consideration.
- If enacted into law, these proposals would become effective July 1, 2024
For those interested in a more detailed breakdown of the above proposals contained in S.B. 1276 and H.B. 1179, the author presents the following:
Statutory Considerations
As filed, S.B. 1276 and H.B. 1179 would, in part, add statutory sections to existing Chapter 69, Florida Statutes (Miscellaneous Procedural Matters).[6] The new sections that would be codified under Chapter 69 are referenced as Sections 69.101, 69,103, 69.105, 69.107, 69.109, and 69.111,[7] which are outlined and discussed below in more detail as follows:
Definitions
Section 69.101 of the new bills define several important terms. While a complete examination into each defined term is beyond this article’s scope, two key terms for consideration are “litigation financing agreement” or “litigation financing,” and “litigation financier.”
Under the new bills, the terms “litigation financing agreement” or “litigation financing” are defined to mean “a transaction in which a litigation financier agrees to provide financing to a person who is a party to or counsel of record for a civil action, administrative proceeding, claim, or other legal proceeding in exchange for a right to receive payment, which right is contingent in any respect on the outcome of such action, claim, or proceeding or on the outcome of any matter within a portfolio that includes such action, claim, or proceeding and involves the same counsel or affiliated counsel.”[8]
However, the above definition does not apply in certain instances. For example, this definition does not apply in situations where funds are provided to a party for “use in paying his or her costs of living or other personal or familial expenses during the pendency of such action, claim, or proceeding and where such funds are not used to finance any litigation or other legal costs.”[9] Likewise, this definition does not apply in instances where an attorney agrees to provide legal services on a contingency fee basis or to advance his or her client’s legal costs in accordance with the Florida Rules of Professional Conduct.[10] See the endnote to this sentence for the additional four situations excepted from the definition of “litigation financing agreement” or “litigation financing” under Section 69.101.[11]
The new bills define the term “litigation financier” as “a person engaged in the business of providing litigation financing.”[12]
Prohibited Activities
Section 69.105 outlines various prohibited activities as follows:
- Litigation/Settlement Decisions -- The funder is prohibited from making certain litigation decisions, including settlement. Specifically, the funder is banned from “direct[ing], or mak[ing] any decisions with respect to, the course of any civil action, administrative proceeding, claim, or other legal proceeding for which the litigation financier has provided financing, or any settlement or other disposition”[13] As proposed, this prohibition “includes, but is not limited to, decisions in appointing or changing counsel, choice or use of expert witnesses, and litigation strategy.”[14] Further, the bill proposes that “all rights to make decisions with respect to the course and settlement or other disposition of the subject civil action, administrative proceeding, claim, or other legal proceeding remain solely with the parties to such action, claim, or proceeding and their counsel of record.”[15]
- Commissions, Referral Fees, Assignments - The funder is banned from “pay[ing] or offer[ing] to pay a commission, referral fee, or other consideration to any person, including an attorney, law firm, or health care practitioner, for referring a person to the litigation ”[16] In addition, as proposed the funder cannot “assign or securitize a litigation financing agreement in whole or in part.”[17] Further, the funder is barred from being “assigned rights to or in a civil action, administrative proceeding, claim, or other legal proceeding for which the litigation financier provided financing, other than the right to receive a share of the proceeds of such action, claim, or proceeding pursuant to the litigation financing agreement.”[18]
- Funder’s share of claims proceeds --- The funder is also barred from taking a larger share of the proceeds from an action than the plaintiff would receive. On this point, the funder is barred from “contract[ing] for, or receiv[ing], whether directly, or indirectly, a larger share of the proceeds of a civil action, administrative proceeding, claim, or other legal proceeding financed by a litigation financing agreement than the share of the proceeds collectively recovered by the plaintiffs to any such action, claim, or proceeding after the payment of any attorney fees and costs owed in connection to such action, claim, or ”[19]
Disclosure - attorney to client
Section 69.107(1) proposes, in general, that an attorney who enters into a TPLF agreement must provide a copy of the agreement to his or her client within 30 days after being retained as counsel by the client, or within 30 days after the attorney enters into a TPLF agreement, whichever is earlier.[20]
Disclosure to the parties, court, and others
Section 69.107(2) outlines general TPLF disclosure provisions, which includes automatic disclosure of the TPLF agreement without a discovery request. In general, under this section a party or counsel of record must “disclose the existence and deliver” a copy of the actual TPLF agreement, “without awaiting a discovery request and within 30 days after commencement of the action” to “(a) all parties to the civil action, administrative proceeding, claim, or other legal proceeding; (b) the court, agency, or tribunal in which the civil action, administrative proceeding, claim, or other legal proceeding is pending; and (c) any known person, including an insurer, with a preexisting contractual obligation to indemnify or defend a party to the civil action, administrative proceeding, claim, or other legal proceeding.”[21]
Disclosure - class action lawsuits
Sections 69.107(3),(4), and (5) propose specific TPLF provisions regarding class action lawsuits as follows:
Under Section 69.107(3), class counsel of a putative class action lawsuit is required to comply with the disclosure requirements in Section 69.107 (1) and (2) as outlined immediately above. In addition, subsection (3) also requires that class counsel disclose “the existence of any legal, financial, or other relationship between the class counsel and the litigation financier that exists separate and apart from the litigation financing agreement itself within 30 days after commencement of such action or of the execution of the litigation financing agreement, whichever is earlier: (a) All parties to the civil action, administrative proceeding, claim, or other legal proceeding. (b) The court, agency, or tribunal in which the civil action, administrative proceeding, claim, or other legal proceeding is pending. (c) Any known person, including an insurer, with a preexisting contractual obligation to indemnify or defend a party to the civil action, administrative proceeding, claim, or other legal proceeding.”[22]
Under Section 69.107(4), in general, class counsel is required, upon the request of a class member, “to disclose and deliver a copy of the litigation financing agreement to the class member.”[23] As for Section 69.107(5), this subsection concerns what is referenced as “civil actions consolidated in the courts of this state.”[24] In relation to these actions, lead counsel and co-lead counsel (if any) must comply with the disclosure requirements in Section 69.107(1) and (2) as outlined immediately above.[25] In addition, they must disclose a copy any TPLF agreement “entered into in connection with any of the consolidated actions” to “(a) All parties to the consolidated civil actions. (b) The court, agency, or tribunal in which the civil actions are pending. (c) Any known person, including an insurer, with a preexisting contractual obligation to indemnify or defend a party to the civil actions.”[26]
Disclosure – foreign entities and sovereign wealth funds
Section 69.107(6) outlines TPLF disclosure requirements regarding TPLF involving foreign persons, foreign principals, and sovereign wealth funds.[27]
Specifically, under this subsection, “a party or the party’s counsel of record, must, except as otherwise stipulated to by the parties to such action, claim, or proceeding, or as otherwise ordered by a court of competent jurisdiction, disclose the name, address, and citizenship or country of incorporation or registration of any foreign person, foreign principal, or sovereign wealth fund that, with respect to the action, claim, or proceeding”[28] that has: “1. Obtained or will obtain a right to receive any payment that is contingent in any respect on the outcome of such civil action, administrative proceeding, claim, or other legal proceeding, or on the outcome of any matter within a portfolio that includes such civil action, administrative proceeding, claim, or other legal proceeding and involves the same counsel or affiliated counsel; 2. Provided or will provide funds, whether directly or indirectly, which funds have been or will be used to satisfy any term of a litigation financing agreement into which the party or the party’s counsel of record has entered to finance such civil action, administrative proceeding, claim, or other legal proceeding; or 3. Has received or is entitled to receive proprietary information or information affecting national security interests obtained as a result of the financing of such civil action, administrative proceeding, claim, or other legal proceeding by a litigation financing agreement entered into by the party or the party’s counsel of record.” [29]
This information must be disclosed to multiple parties and other entities as follows: “1. All parties to the civil action, administrative proceeding, claim, or other legal proceeding. 2. The court, agency, or tribunal in which the civil action, administrative proceeding, claim, or other legal proceeding is pending. 3. Any known person, including an insurer, with a preexisting contractual obligation to indemnify or defend a party to the civil action, administrative proceeding, claim, or other legal proceeding. 4. The Department of Financial Services [and] 5. The Office of the Attorney General.”[30]
Disclosure requirements are on-going
Per Section 69.107(8), the above disclosure requirements are “on-going obligations.”[31] In general, under this section a party, or their attorney, has 30 days after entering into or amending a TPLF agreement to comply with the disclosure requirements outlined above.[32] Likewise, a party, or their attorney, has 30 days to comply with applicable discovery requirements when they obtain information on the involvement of a foreign person, foreign principal, or sovereign wealth fund after the commencement of such action, claim, or proceeding.[33]
Disclosure requirements – application
Section 69.111(3), section 5, provides that the disclosure requirements set-forth in Section 69.107 (as outlined above by the author) “apply to any civil action, administrative proceeding, claim, or other legal proceeding pending or commenced on or after July 1, 2024.”[34] Further, this section indicates that the disclosure requirements would also apply to claims pending as of July 1, 2024. In this regard, Section 69.111 (3) states as follows: “Any party to or counsel of record for a civil action, administrative proceeding, claim, or other legal proceeding pending on July 1, 2024, who would have been required to make a disclosure under s. 69.107, Florida Statutes, had it been in effect at the time the relevant action occurred must make the disclosure under that section within 30 days after July 1, 2024.”[35]
TPLF information is discoverable
Per Section 69.107(7), the existence of a TPLF agreement and related information is discoverable. This section states, in full, as follows: “The fact of the existence of a litigation financing agreement and the identities of all parties to the agreement are discoverable in any civil action, administrative proceeding, claim, or other legal proceeding financed by such an agreement, unless the court, for good cause shown, determines otherwise.”[36]
Indemnification by the litigation funder
Under Section 69.109, the proposed bills would require the litigation funder to indemnify the plaintiff and plaintiff’s counsel “against any adverse costs, attorney fees, damages, or sanctions that may be ordered or awarded against such persons in [the] action, claim, or proceeding.”[37] However, the funder would not be liable for indemnifying these parties for the above items if they were the result of the plaintiffs’ or plaintiffs’ counsel “intentional misconduct.”[38]
Judicial Considerations – class actions/other
Under Section 69.103, the court is permitted to consider the existence of a TPLF agreement in class actions and other situations. Specifically, the bills state, in full, as follows: “A court may take the existence of a litigation financing agreement into account: (1) In a class action lawsuit brought in the courts of this state when determining whether a class representative or class counsel would adequately and fairly represent the interests of the class. (2) In actions involving a common question of law or fact pending before the court which may be or have been consolidated when determining whether the lead counsel or any co-lead counsel would adequately and fairly represent the interests of the parties to such actions.”[39]
Violation/Enforcement
Under Section 69.111, a TPLF executed in violation of the bill’s provisions is void and unenforceable.[40] Violations of the bill’s sections regarding prohibited activities (Section 69.105) and indemnification (Section 69.109) is considered a “deceptive and unfair trade practice under part II of chapter 501.”[41] Further, as proposed “[a] court, agency, or tribunal of competent jurisdiction may impose fines or other sanction it deems appropriate upon any person who violations s. 69.107 [required disclosure and discovery].”[42]
Severability
Section 69.111, Section 4 contains a severability provision stating that “[i]f any provision of this act or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.”[43]
Application
Per Section 69.111, Section 7, if enacted into law, this “[t]his act shall take effect July 1, 2024.”[44] Section 6 states that “[e]xcept as otherwise provided herein, this act applies to a litigation financing agreement entered into on or after July 1, 2024."[45]
General considerations
In comparing S.B. 1276/H.R. 1179 with the TPLF proposals introduced in Florida last year, there are some notable differences. For example, the newly filed bills, unlike last year’s proposals, do not contain funder registration requirements. Also, the new bills do not contain provisions regulating funder interest rates which were included as part of last year’s proposals. Further, S.B. 1276/H.R. 1179, unlike last year’s proposals, do not contain any provisions regarding the issues of attorney client privilege and the work product doctrine.[46] However, perhaps most notably, last year’s proposals did not contain a TPLF disclosure requirement. In contrast, a major focus of S.B. 1276/H.R. 1179 is centered on TPLF transparency, including disclosure of the TPLF agreement itself to the other party, the court, insurers, and other parties. Further, regarding disclosure, the new bill contains specific provisions aimed at class action lawsuits and TPLF involving foreign persons, foreign principals, and sovereign wealth funds.
Questions?
Of course, please do not hesitate to contact the author if you have any questions. Also, be sure to review the author’s prior TPLF articles addressing other TPLF issues and updates.
[1] See the author’s articles: Florida (and other states) take aim at regulating Third-Party Litigation Funding, Montana enacts the “Litigation Financing Transparency and Consumer Protection Act” – new law regulates TPLF practices and includes disclosure and discovery provisions, Indiana enacts statutory provision regarding Third-Party Litigation Funding (TPLF) disclosure, and Governor Edwards vetoes Louisiana’s proposed Third-Party Litigation Funding (TPLF) disclosure bill
[2] https://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=79834&SessionId=103
[3] https://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=79834&SessionId=103
[4] https://www.flsenate.gov/Session/Bill/2024/01276
[5] https://www.flsenate.gov/Session/Bill/2024/01276
[6] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 3.
[7] Id.
[8] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.101(5).
[9] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.101(5)(a).
[10] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.101(5)(b).
[11] In addition to the two situations outlined above under S.B. 1276, Section 69.101 (a) and (b) the following are also excluded from the definition of “litigation financing agreement” or “litigation financing” as part of Section 69.101(c) – (f):
(c) An entity with a preexisting contractual obligation to indemnify or defend a party to a civil action, administrative proceeding, claim, or other legal proceeding.
(d) A health insurer that has paid, or is obligated to pay, any sums for health care for an injured person under the terms of a health insurance plan or agreement.
(e) The repayment of a financial institution, as defined in s. 655.005, for loans made directly to a party to a civil
action, administrative proceeding, claim, or other legal proceeding or such party’s attorney when repayment of the loan is not contingent upon the outcome of such action, claim, or proceeding or on the outcome of any matter within a portfolio that includes such action, claim, or proceeding and involves the
same counsel or affiliated counsel.
(f) Funding provided to a nonprofit legal organization funded by private donors that represents clients on a pro bono, no-cost basis, if the nonprofit legal organization seeks only injunctive relief on behalf of its clients. This part does not affect the award of costs or attorney fees to a nonprofit legal organization in the pro bono, no-cost pursuit of injunctive relief.
[12] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.101(4).
[13] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.105(1).
[14] Id.
[15] Id.
[16] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.105(3).
[17] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.105(4).
[18] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.105(5).
[19] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.105(2).
[20] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), 69.107(1). This section reads in full as follows: “An attorney who enters into a litigation financing agreement must disclose the existence and deliver a copy of the agreement to the client he or she represents in the civil action, administrative proceeding, claim, or other legal proceeding financed by the agreement within 30 days after being retained as counsel by such client, or within 30 days after entering into the litigation financing agreement, whichever is earlier.” Id.
[21] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), 69.107(2).
[22] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), 69.107(3).
[23] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), 69.107(4).
[24] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), 69.107(5).
[25] Id.
[26] Id.
[27] Section 69.101 defines the below terms used in this particular proposal section as follows:
(1) “Foreign person” means a person or an entity that is not: (a) A citizen of the United States; (b) An alien lawfully admitted for permanent residence in the United States; (c) An unincorporated association, a majority of members of which are citizens of the United States or aliens lawfully admitted for permanent residence in the United States; or (d) A corporation that is incorporated in the United States.
(2) “Foreign principal” means: (a) The government or a government official of any country other than the United States; (b) A political subdivision or political party of a country other than the United States; or (c) A partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a country other than the United States whose shares or other ownership interest is owned by the government or a government official of a country other than the United States or owned by a political subdivision or political party of a country other than the United States.
(6) “National security interests” means those interests relating to the national defense, foreign intelligence and counterintelligence, international, and domestic security, and foreign relations.
(7) “Proprietary information” means information developed, created, or discovered by a person, or which became known by or was conveyed to the person, which has commercial value in the person’s business. The term includes, but is not limited to, domain names, trade secrets, copyrights, ideas, techniques, inventions, regardless of whether patentable, and other information of any type relating to designs, configurations, documentation, recorded data, schematics, circuits, mask works, layouts, source code, object code, master works, master databases, algorithms, flow charts, formulae, works of authorship, mechanisms, research, manufacture, improvements, assembly, installation, intellectual property including patents
and patent applications, and information concerning the person’s actual or anticipated business, research, or development or received in confidence by or for the person from any other source.
(8) “Sovereign wealth fund” means an investment fund owned or controlled by a foreign principal or an agent thereof.
[28] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), 69.107(6)(a).
[29] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), 69.107(6)(a).
[30] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), 69.107(6)(b).
[31] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), 69.107(8).
[32] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179) , 69.107(8)(a).
[33] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), 69.107(8)(b).
[34] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), 69.111(3).
[35] Id.
[36] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), 69.107(7).
[37] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.109.
[38] Id.
[39] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.103(1) and (2).
[40] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.111(1).
[41] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.111(2).
[42] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 69.111(2).
[43] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 4.
[44] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 7.
[45] Litigation Investment Safeguards and Transparency Act (Fla. S.B. 1276, Fla. H.R. 1179), Section 6.
[46] Regarding the issues of attorney client privilege and work product, last year’s bills proposed that communication between a consumer’s attorney and a litigation financier “regarding a litigation financing contract does not limit, waive, or abrogate the scope or nature of any statutory or common-law privilege, including the work-product doctrine and attorney-client privilege.” SB 1612 (2023), sec. 8 and HB 1447 (2023), sec. 8.