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Illinois enacts the “Consumer Legal Funding Act” -- new law regulates various aspects of third-party litigation funding practices

In a significant development on the third-party litigation funding (TPLF) front, on May 27, 2022, Illinois Governor J.B. Pritzker (D) signed into law the Consumer Legal Funding Act cited as 2022 Ill. Legis. Serv. P.A. 102-987 (S.B. 1099) and codified in main part at 815 ILCS § 121, et. seq. (hereinafter referenced as “S.B. 1099”).    This new law became effective on May 27, 2022.[1]

Delaware’s State Senate Passes Concurrent Resolution Encouraging The Delaware Judiciary To Study Possible Third Party Litigation Funding (tplf) Disclosure Rules

In general, S.B. 1099 implements several new statutory provisions regulating numerous aspects of third-party litigation funding (referenced to as “consumer legal funding” in S.B. 1099) including, in part, licensing and contractual requirements; limits on consumer legal funding fees; preclusions against funder control of litigation and settlement decisions; prohibitions against certain activities such as lawyer and medical referral; and provisions addressing attorney-client privilege and the work product doctrine.  This new law, however, does not contain any provisions addressing issues pertaining to the disclosure of the consumer legal funding agreement or information about the existence of a funding arrangement to defendants as part of claim litigation.

To help assess S.B. 1099, the author provides a general and non-exhaustive overview of this new law as follows:

Definitions

S.B. 1099 defines several key terms as used in the context of the Consumer Legal Funding Act.  While a complete examination of each defined term is beyond the scope of this article, the author highlights the following terms of likely interest:

The term “Consumer” is defined as “a natural person who has a pending legal claim and who resides or is domiciled in Illinois.”[2]  The term “Consumer legal funding” or “funding” is defined as a “nonrecourse transaction in which a company purchases and a consumer transfers to the company an unvested, contingent future interest in the potential net proceeds of a settlement or judgment obtained from the consumer’s legal claim; if no proceeds are obtained from the consumer’s legal claim, the consumer is not required to repay the company the consumer legal funding amount or charges.”[3]  The term “Consumer legal funding company” or “company” is defined as “a person or entity that enters into, purchases, or services a consumer legal funding transaction with an Illinois consumer.”[4]  Of note, S.B. 1099 states that this term does not include: “(1) an immediate family member of the consumer; (2) a bank, lender, financing entity, or other special purpose entity: (A) that provides financing to a consumer legal funding company; or (B) to which a consumer legal funding company grants a security interest or transfers any  or interest in a consumer legal funding; or (3) an attorney or accountant who provides services to a consumer.”[5]

Licensing

S.B. 1099 contains several provisions establishing certain licensing requirements to be followed by a consumer legal funding company and requires a funder to first obtain a license as more fully outlined in the new law.[6]  In addition, the new law requires the Secretary of Financial and Professional Regulation (Secretary) to undertake certain actions regarding the licensing process.[7]  While a detailed examination into this process is beyond the scope of this article, very generally, the new law requires a consumer legal funding provider to file an application for a license with the Secretary or Nationwide Multistate Licensing System and Registry,[8] “prove in a form satisfactory to the Secretary that the applicant has and will maintain a positive net worth of a minimum of $30,000,”[9] and “maintain a bond to be approved by the Secretary in which the applicant shall be the obligor in the sum of $50,000 or such additional amount as required by the Secretary based on the amount of consumer legal fundings made, purchased, or serviced by the licensee in the previous year, and in which an insurance company that is duly authorized by this State to transact the business of fidelity and surety insurance shall be a surety.”[10]  In addition, S.B. 1099 requires that issued licenses be “renewed every year using the common renewal date of the Nationwide Multistate Licensing System and Registry as required by the Secretary.”[11]  S.B. 1099 provides further that “[a]ny person who engages in business as a licensee without the license as required by this Act commits a Class 4 felony.”[12]

Contract requirements

S.B. 1099 requires, in general, that the consumer legal funding contract executed between the consumer and consumer legal funding company contain certain disclosures and information, including an attorney acknowledgement. In this regard, the new law provides that “[a]ny transaction that does not exactly meet the definition of a consumer legal funding under Section 5 is subject to the Interest Act and any other applicable law.”[13]

While a complete analysis of each requirement is beyond this article’s scope,  in general, S.B. 1099 requires the contract to be completely filled in with no blanks and be prepared using specific type.[14]  In addition, the contract must contain “a right of rescission, allowing the consumer to cancel the contract without penalty of further obligation, within 14 business days after the funding date” and includes detailed instructions for the consumer to follow to effectuate rescission.[15] 

S.B.1099 also requires that the contract contain certain disclosures including, in part, “language specifying: (A) the funded amount to be paid to the consumer or on the consumer’s behalf by the consumer legal funding company; (B) an itemization of charges; (C) the maximum total amount to be paid by the consumer to the company, including the funded amount and all fees; and (D) a payment schedule to include the resolution amount, listing dates, and the amount due at the end of each 6–month period from the funding date, until the date the maximum amount is due to the company by the consumer to satisfy the amount due pursuant to the contract.”[16]  The contract must also contain information regarding the consumer’s right of cancellation (as noted above)[17] and include specific language advising the consumer, in part, that “before you sign this contact, you should obtain the advice of an attorney.”[18]   In addition, the consumer litigation funding company “shall provide the consumer with information on accessing a financial coaching program no later than the funding date.”[19]

Further, the contract must also contain a written acknowledgment by the consumer’s attorney attesting that “(1) to the best of the attorney’s knowledge, all the costs and charges relating to the consumer legal funding have been disclosed to the consumer; (2) the attorney is being paid on a contingency basis pursuant to a written fee agreement;  (3) 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; (4) the attorney is following the written instructions of the consumer with regard to the consumer legal funding; and  (5) the attorney has not received a referral fee or other consideration from the consumer legal funding company in connection with the consumer legal funding, nor will the attorney receive such fee or other consideration in the future.”[20]  If the required acknowledgement as outlined above is not completed, then “the contact shall be null and void.”[21]

Also, S.B. 1099 places a limit on the “aggregate principal amount” stating: “[n]o licensee shall permit an obligor to owe the licensee, an agent of the licensee, or an affiliate of the licensee, including a corporation owned or managed by the licensee, an aggregate principal amount in excess of $100,000, unless permitted by rule, at any time for consumer legal fundings transacted pursuant to this Act.”[22]

Consumer legal funding -- prohibitions

S.B. 1099 prohibits a consumer legal funding company from engaging in various activities.  An overview of each prohibited activity is beyond the scope of this article.  However, in general under S.B. 1099 a consumer legal funding company cannot  “pay or offer to pay commissions, referral fees, or other forms of consideration to any attorney, law firm, medical provider, chiropractic physician, or physical therapist or any of their employees or agents for referring a consumer to the company”[23] or “accept any commissions, referral fees, rebates, or other forms of consideration from an attorney, law firm, medical provider, chiropractor, or physical therapist or any of their employees or agents.”[24]

In addition, S.B. 1099 precludes a consumer legal funding company from “refer[ring] in furtherance of an initial consumer legal funding, a customer or potential customer to a specific attorney, law firm, medical provider, chiropractor, or physical therapist or any of their employees; however, if a customer needs legal representation, the company may refer the customer to a local or State bar association referral service or to a legal aid organization.”[25] 

S.B. 1099 also prohibits a consumer legal funding company from “advertis[ing]materially false or misleading information regarding its products or services”,[26] “fail[ing] to supply a true copy of the executed contract to the attorney for the consumer upon execution and if the consumer or their attorney requests a copy”,[27] and “knowingly pay or offer to pay for court costs, filing fees, or attorney’s fees either during or after the resolution of the legal claim using funds from the consumer legal funding transaction.”[28] 

Further, the new law prohibits a consumer legal funding company from “knowingly provid[ing] funding to a consumer who has previously assigned or sold a portion of the consumer’s right to proceeds from his or her legal claim without first making payment to or purchasing a prior unsatisfied consumer legal funding company’s entire funded amount and contracted charges, unless a lesser amount is otherwise agreed to in writing by the consumer legal 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.”[29]  Also, as discussed more fully in the next section below, S.B. 1099 also precludes a consumer legal funding company from, in part, making “decisions with respect to … the conduct of the underlying legal claim or any settlement or resolution of the legal claim … .”[30]

Funder control – litigation/settlement decisions

As noted in the preceding section, S.B. 1099 prohibits funder control of litigation and settlement decisions. Under the new law, consumer legal funders are prohibited from “receiv[ing] any right to, nor make any decisions with respect to, the conduct of the underlying legal claim or any settlement or resolution of the legal claim; the right to make such decisions shall remain solely with the consumer and the consumer’s attorney in the legal claim.”[31]  Along these lines, the following statement must be included within the body of the contract between the consumer and the consumer legal funder: “The consumer legal funding company shall 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 company of the outcome of the legal claim by settlement or adjudication before the resolution date. The company may seek updated information about the status of the legal claim but in no event shall the company interfere with the independent professional judgment of the attorney in the handling of the legal claim or any settlement thereof.”[32]

Funder fees

S.B. 1099 places limits on the fees consumer legal funding companies can charge. Specifically, S.B. 1099 provides that a consumer legal funding company’s fee “shall be calculated as not more than 18% of the funded amount, assessed on the outset of every 6 months.”[33]  Further, the new law states that “[n]o charges may accrue on a consumer legal funding for more than 42 months after the funding date of the consumer legal funding. No consumer legal funding may be refinanced except as authorized by rule. Notwithstanding the foregoing, a consumer legal funding company may assess charges on any additional amounts provided after the funding date for 42 months after the additional funding date.”[34]  From the author’s research, some groups have voiced concerns regarding clarity around this provision’s 18% calculation rate.  For example, it is noted that the American Casualty and Property Association has raised questions regarding whether the 18% calculation rate is simple, compound, or cumulative interest,[35] while the Illinois Chamber of Commerce commented that “[t]he rate is so high as to be both punitive to the consumer and prohibitive towards settlements.”[36]   The Act also prohibits a consumer legal funding company from collecting “any additional fees unless otherwise specified in this Act.”[37]  A consumer legal funding company “may charge a document preparation fee not to exceed $75, which may be deducted from the funded amount [and that] [t]his fee is to be used to defray the ordinary cost of opening, administering, and terminating a consumer legal funding.”[38]

Funding Agreement - disclosure

Of note, S.B. 1099 contains no provisions addressing the disclosure of the consumer legal funding agreement itself or information regarding the existence of consumer legal funding to defendants as part of claim litigation. 

From the author’s research, the Illinois Chamber of Commerce is one group that has been critical of S.B. 1099 not addressing this aspect.  On this point, the Chamber, in a letter to Governor Pritzker opposing S.B. 1099, stated, in part: “[t]he most egregious failing of the law is the lack of disclosure and discovery. Allowing the plaintiff this knowledge but not the defense creates asymmetrical knowledge of very material facts between the parties to the case. Disclosure creates fundamental fairness, equity, and transparency for all the litigants. Companies are learning, usually only after the fact, that use of TPLF [third-party litigation funding] dramatically changes the litigation paradigm – cases take longer to settle and are costlier. TPLF is not an uncle helping with some medical bills after an auto accident while the injured party waits for a settlement check. If involvement of a TPLF is known up-front, defendants can better manage cases, be it related to settlement terms, defense experts, or reserving funds. Disclosure is required in our neighboring state of Wisconsin.”[39]

Attorney client privilege and work product

Per S.B. 1099, communications between the consumer’s attorney and the consumer legal funder are protected under the attorney-client privilege and work product doctrine.  On this point, the new law states as follows: “No communication between the consumer’s attorney in the legal claim and the consumer legal funding company as it pertains to the consumer legal funding shall limit, waive, or abrogate the scope or nature of any statutory or common law privilege, including the work product doctrine and the attorney-client privilege.”[40]

Attorney prohibitions

S.B. 1099 prohibits an attorney or law firm “retained by the consumer in the legal claim” from “hav[ing] a financial interest in the consumer legal funding company offering consumer legal funding to that consumer.”[41]  In addition, the new law states that “any attorney who has referred the consumer to the consumer’s retained attorney shall not have a financial interest in the consumer legal funding company offering consumer legal funding to that consumer.”[42]  Under S.B. 1099, “[a] consumer legal funding that violates [these provisions] is null and void and no person or entity shall have any right to collect, attempt to collect, receive, or retain any funded amount or charges related to the consumer legal funding.”[43]

Assignability/Liens

S.B. 1099 states that “[t]he contingent right to receive an amount of the potential proceeds of a legal claim is assignable by a consumer.”[44]  The new law also provides that  “[a] consumer legal funding transaction does not constitute an assignment of a personal injury claim or chose in action” or “assignment of any present right; the transaction constitutes the transfer of an unvested, contingent future interest in an amount of the potential proceeds of a legal claim or cause of action.”[45]  Regarding liens, S.B. 1099 states that “[o]nly liens related to the legal claim, including attorney’s liens, Medicare, or other statutory liens, shall take priority over any lien of the consumer legal funding company. All other liens shall take priority by normal operation of law.”[46]

Enforcement

S.B. 1099 provides the Secretary of Financial and Professional Regulation (Secretary) with several recourses to enforce the Consumer Legal Funding Act.  While a complete review of the Secretary’s authority and potential penalties is beyond the scope of this article, in general the Secretary “may suspend or revoke any license issued pursuant to this Act … .”[47]  In this regard, S.B. 1099 outlines several grounds[48] allowing the Secretary to take a number of disciplinary actions against “any person” including, in part, to place the “licensee or applicant on probation for a period of time and subject to all reasonable conditions as the Secretary may specify;”  issue a reprimand; and impose “a fine not to exceed $25,000 for each count of separate offense; except that a fine may be imposed that shall not exceed $75,000 for each separate count of offense in violation of paragraph (2) of subsection (i).”[49]  The Secretary is also granted subpoena power to, in part, “compel the attendance of witnesses and the production of all books, accounts, records, and other documents and materials relevant to an examination or investigation.”[50]

In addition, S.B. 1099 states that “any violation [of the Consumer Legal Funding Act] constitutes a violation of the Consumer Fraud and Deceptive Business Practices Act”[51] and that “[n]othing in this Act shall be construed to restrict the exercise of powers or the performance of the duties of the Illinois Attorney General that he or she is authorized to exercise or perform by law”[52] and the Illinois Attorney General “may enforce a violation of this Act as an unlawful practice under the Consumer Fraud and Deceptive Business Practices Act.”[53]  Further, it is noted that under S.B. 1099 “[a] claim of violation of this Act may be asserted in a civil action [and] a prevailing consumer may be awarded reasonable attorney’s fees and court costs.”[54]

Other provisions

S.B. 1099 also makes certain amendments to Section 4 of Illinois’s Interest Act.[55]  In addition, Illinois’s Consumer Fraud and Deceptive Business Practices Act has been amended to add a new section stating that “[a]ny person who violates the Consumer Legal Funding Act commits an unlawful practice within the meaning of this Act.”[56]

Big Picture Considerations

As third-party litigation funding practices continue to grow, Illinois’s Consumer Legal Funding Act will likely garner much interest, especially from those who have advocated for stronger consumer protection measures and regulation in this area.  As outlined above, S.B. 1099 regulates many aspects of this practice, including a licensing process, contract disclosure requirements, and limits on legal funding fees.  Further, the Secretary of Financial and Professional Regulation is empowered with several recourses to enforce certain provisions of S.B. 1099, and violations of this new law are subject to potential actions under Illinois’s Consumer Fraud and Deceptive Practices Act.

In the bigger picture, Illinois joins several other states which have enacted statutes aimed at regulating certain aspects of third-party litigation funding.  While a complete 50 state survey on third-party litigation funding statutes is beyond the scope of this article, it is noted that Indiana, Maine, Nebraska, Nevada, Oklahoma, Tennessee, Vermont, and West Virginia have also implemented provisions requiring some form of third-party funding registration or licensure,[57] while Ohio mandates that funders disclose certain contractual terms and information to the consumer.[58]  In addition,  Arkansas, Indiana, Nevada, Tennessee, and West Virginia have enacted laws regulating TPLF interest rates or fees.[59]  Meanwhile, in Colorado that state’s Supreme Court held, in part, that a TPLF company agreeing to advance money to tort plaintiffs in exchange for future litigation proceeds is making a loan, thereby subject to regulation under Colorado’s Uniform Consumer Credit Code.[60]  Similarly, the South Carolina Department of Consumer affairs has issued a ruling that entities funding litigation in exchange for a portion of the recovery proceeds are providing loans subject to compliance under South Carolina’s laws governing lending.[61]

From another angle, S.B. 1099’s prohibitions against funder control of litigation and settlement decisions is another area likely to draw some interest.  The question of whether, and to what extent, a funder has control over litigation and settlement decisions is one of many issues at the forefront of the current debate concerning whether defendants should be entitled to obtain a copy of a third-party litigation funding agreement (or at least certain information regarding the existence of a funding arrangement) as part of litigation.  While S.B. 1099 does not address this disclosure issue, it will be interesting to see how S.B. 1099’s preclusions against funder control on these points is received as part of this on-going debate and in general.  To learn more about the current debate over third-party litigation funding disclosure, including which jurisdictions and courts have implemented disclosure rules, and current federal and state efforts in this area, please see the author’s recent articles listed in the next section below.

With S.B. 1099 now in place, it will be interesting to see how this new law plays out in terms of its potential impact on consumer legal funding practices in Illinois and general claims litigation.  In the interim, the author will continue to monitor developments regarding S.B. 1099, as well as other third-party litigation funding issues, and will provide future updates as warranted.

Additional TPLF resources

For further information on Third-Party Litigation Funding, please see the author’s recent educational articles as follows:

Please do not hesitate to contact the author if you have any questions regarding the above or TPLF issues in general.


[1] 815 ILCS § 121/999.

[2] 815 ILCS § 121/15(5).

[3] 815 ILCS § 121/15(5).

[4] 815 ILCS § 121/15(5).

[5] 815 ILCS § 121/15(5). As part of this section, term Immediate family member “means a parent; sibling; child by blood, adoption, or marriage; spouse; grandparent; or grandchild.” Id.

[6] 815 ILCS § 121/55 stating, in part, that “[it shall be unlawful for any person or entity to operate as a consumer legal funding provider in this State except as authorized by this Act and without first having obtained a license in accordance with this Act.” Id. 

[7] See e.g., 815 ILCS § 121/65 entitled “License application process; investigation” and 815 ILCS § 121/100 entitled “Secretary of Financial and Professional Regulation; functions and powers.”

[8] 815 ILCS § 121/65(a)(1).

[9] 815 ILCS § 121/70(b)(2).

[10] 815 ILCS § 121/70(b)(3).

[11] 815 ILCS § 121/95.

[12] 815 ILCS § 121/195 (e).

[13] 815 ILCS § 121/10 (e).

[14] 815 ILCS § 121/10 (a) (1).

[15] 815 ILCS § 121/10 (a) (2).  This section provides in full as follows:  the contract shall contain, in bold and boxed type, a right of rescission, allowing the consumer to cancel the contract without penalty or further obligation if, within 14 business days after the funding date, the consumer either: (A) returns to the consumer legal funding company the full amount of the disbursed funds by delivering the company’s uncashed check to the company’s office in person; or (B) mails, by insured, certified, or registered United States mail, to the address specified in the contract, a notice of cancellation and includes in the mailing a return of the full amount of disbursed funds in the form of the company’s uncashed check or a registered or certified check or money order.  Id.

[16] 815 ILCS § 121/30(1)(A)-(D).

[17] 815 ILCS § 121/30(2).

[18] 815 ILCS § 121/30(5).

[19] 815 ILCS § 121/30(6).

[20] 815 ILCS § 121/10 (b).

[21] 815 ILCS § 121/10 (c).

[22] 815 ILCS § 121/10 (d).

[23] 815 ILCS § 121/15(1).

[24] 815 ILCS § 121/15(2).

[25] 815 ILCS § 121/15(4).

[26] 815 ILCS § 121/15(3).

[27] 815 ILCS § 121/15(5).

[28] 815 ILCS § 121/15(8).

[29] 815 ILCS § 121/15(6).

[30] 815 ILCS § 121/15(7).

[31] 815 ILCS § 121/15 (7).

[32] 815 ILCS § 121/30 (3).

[33] 815 ILCS § 121/25 (a).

[34] 815 ILCS § 121/25 (d). 

[35]  On this point, the American Casualty and Property Association issued a press release which, in part, commented that “[S.B.] 1099 authorizes an interest rate that shall be calculated as not more than 18 percent of the funded amount, assessed every six months for up to 42 months. The legislation does not outline if the 18 percent interest rate calculation is simple, compound interest, or cumulative interest over the 42-month period. This lack of clarity is problematic, as a cumulatively calculated interest rate could run as high as 126 percent! It is essential for the protection of consumers that this interest rate calculation be clarified.”  https://www.apci.org/media/news-releases/release/71136/

This concern was also raised in an article by the Insurance Information Institute in which the author of this article noted, in part, the “[t]he legislation does not clarify whether the 18 percent rate calculation is simple, compound, or cumulative interest over the 42-month period.”  See,  https://www.iii.org/insuranceindustryblog/litigation-funding-law-found-lacking-in-transparency-department/

[36] See, Letter from Todd Maisch- President and CEO, Illinois Chamber of Commerce to Governor Pritzker dated April 13, 2022.  https://ilchamber.org/Resources/d361ec3f-3c66-48c9-8bb6-c5caed014108/Veto%20Request%20SB%201099.pdf   In opposing S.B. 1099, Mr. Maisch stated, in part, “The rate is so high as to be both punitive to the consumer and prohibitive towards settlements. The language allows an interest rate of 18% to be charged in 6 month increments up to 7 times. That means a person that borrows $10,000 could end up owning over $12,600 in interest under this statutory framework. That’s an interest rate of 126%. When a person owes this much to an unknown, but interested party to the litigation, they are unable to accept good faith settlement offers. This further bogs down our judicial system. The Chamber asks that you veto or amendatory veto this legislation to remedy these two concerns.” Id.

[37] 815 ILCS § 121/25 (c).

[38] 815 ILCS § 121/25 (b).

[39] See, Letter from Todd Maisch- President and CEO, Illinois Chamber of Commerce to Governor Pritzker dated April 13, 2022. https://ilchamber.org/Resources/d361ec3f-3c66-48c9-8bb6-c5caed014108/Veto%20Request%20SB%201099.pdf

Regarding the reference to Wisconsin, it noted that this state has enacted a statute requiring the disclosure of third-party litigation funding agreements without a specific discovery request. Specifically, Wis. Stat. Ann. § 804.01(2)(bg) states:  “Third party agreements. Except as otherwise stipulated or ordered by the court, a party shall, without awaiting a discovery request, provide to the other parties any agreement under which any person, other than an attorney permitted to charge a contingent fee representing a party, has a right to receive compensation that is contingent on and sourced from any proceeds of the civil action, by settlement, judgment, or otherwise.” 

Of note, West Virginia has enacted a similar statute. West Virginia’s statute, codified at W. Va. Code Ann. § 46A-6N-6 states: “Except as otherwise stipulated or ordered by the court, a party shall, without awaiting a discovery request, provide to the other parties any agreement under which any litigation financier, other than an attorney permitted to charge a contingent fee representing a party, has a right to receive compensation that is contingent on and sourced from any proceeds of the civil action, by settlement, judgment, or otherwise.”

[40] 815 ILCS § 121/50.

[41] 815 ILCS § 121/45.

[42] 815 ILCS § 121/45.

[43] 815 ILCS § 121/45. 

[44] 815 ILCS § 121/40 (a).

[45] 815 ILCS § 121/40 (c) and (d).

[46] 815 ILCS § 121/40 (b).

[47]  See generally, 815 ILCS § 121/135.

[48] On this point, 815 ILCS § 121/135 (p) states as follows:

The following acts shall constitute grounds for which the disciplinary actions specified in subsection (h) may be taken:

(1) being convicted or found guilty, regardless of pendency of an appeal, of a crime in any jurisdiction that involves fraud, dishonest dealing, or any other act of moral turpitude;

(2) fraud, misrepresentation, deceit, or negligence in any relation to any consumer legal funding;

(3) a material or intentional misstatement of fact on an initial or renewal application;

(4) insolvency or filing under any provision of the United States Bankruptcy Code as a debtor;

(5) failure to account or deliver to any person any property, such as any money, fund, deposit, check, draft, or other document or thing of value, that has come into his or her hands and that is not his or her property or that he or she is not in law or equity entitled to retain, under the circumstances and at the time which has been agreed upon or is required by law, or, in the absence of a fixed time, upon demand of the person entitled to such accounting and delivery;

(6) failure to disburse funds in accordance with agreements;

(7) having a license, or the equivalent, to practice any profession or occupation revoked, suspended, or otherwise acted against, including the denial of licensure by a licensing authority of this State or another state, territory, or country, for fraud, dishonest dealing, or any other act of moral turpitude;

(8) failure to comply with an order of the Secretary or rule adopted under the provisions of this Act;

(9) engaging in activities regulated by this Act without a current, active license unless specifically exempted by this Act;

(10) failure to pay in a timely manner any fee, charge, or fine under this Act;

(11) failure to maintain, preserve, and keep available for examination all books, accounts, or other documents required by the provisions of this Act and the rules of the Department;

(12) refusing, obstructing, evading, or unreasonably delaying an investigation, information request, or examination authorized under this Act, or refusing, obstructing, evading, or unreasonably delaying compliance with the Secretary’s subpoena or subpoena duces tecum;

(13) failure to comply with or a violation of any provision of this Act; and

(14) any unfair, deceptive, or abusive business practice.

[49]  815 ILCS § 121/135(h).

[50]  815 ILCS § 121/125(a).

[51] 815 ILCS § 121/35 (b).

[52] 815 ILCS § 121/35 (a).

[53] 815 ILCS § 121/35 (c).

[54] 815 ILCS § 121/200.

[55] See, 815 ILCS § 205/4.

[56] See, 815 ILCS § 505/2AAAA.

[57] See, The Florida Senate, Bill Analysis and Fiscal Impact Statement, Senate Bill 1750, prepared by the Committee on Banking and Insurance (March 23, 2021), at 5, citing, Indiana (IC § 24-12), Maine (ME Rev. Stat. Ann. 9-A, § 12), Nebraska (Neb. Rev. St. § 25-3301, et. seq.), Nevada (NRS § 604C.320), Oklahoma (Okla. Stat.  § 14A-3-801(6)), Tennessee (Tenn. Code Ann. § 47-16-101, et. seq.), Vermont (8 V.S.A. § 2252), and West Virginia (W. Va. Code § 46A-6N-2).

[58] See, The Florida Senate, Bill Analysis and Fiscal Impact Statement, Senate Bill 1750, prepared by the Committee on Banking and Insurance (March 23, 2021), at 5, citing Ohio Rev. Code §. 1349.55(A)(1).

[59] See, The Florida Senate, Bill Analysis and Fiscal Impact Statement, Senate Bill 1750, prepared by the Committee on Banking and Insurance (March 23, 2021), at 5, citing Arkansas (A.C.A. § 4-57-109), Indiana (Ind. Code § 24-4.5-3-110), Nevada (NRS § 604C.310), Tennessee (Tenn. Code Ann. § 47-16-101), and West Virginia W. Va. Code § 46A-6N-9.  More specifically, this source reports that Nevada licenses and regulates consumer litigation financing and requires that the funded amount plus charges and   fees of each transaction cannot exceed a rate of 40% of the funded amount annually.  By contrast, in Tennessee a financier may impose a fee of up to 10% of the original amount provided to the consumer and may impose a maximum annual fee of $360 per year for each $1,000 of the unpaid principal of the funds advanced to the consumer for up to a maximum of 3 years.  In addition, it is noted that West Virginia caps interest on such transactions at 18% while Indiana authorizes a litigation financier to impose an annual fee of 36% of the funded amount and an annual servicing charge of up to 7% of the funded amount, as well as a onetime document charge.  See, The Florida Senate, Bill Analysis and Fiscal Impact Statement, Senate Bill 1750, prepared by the Committee on Banking and Insurance (March 23, 2021), at 5 (citations omitted).

[60] See, The Florida Senate, Bill Analysis and Fiscal Impact Statement, Senate Bill 1750, prepared by the Committee on Banking and Insurance (March 23, 2021), at 5, citing Oasis Legal Finance Group v. Coffman, [361 P. 3d 400 2015 (Nov. 16, 2015)].  In this case, two national TPLF companies brought an action against Colorado’s Attorney General and Uniform Consumer Credit Code (UCCC) Administrator for declaratory judgment that funding agreements for personal injury litigation were not loans.  The Attorney General and UCCC Administrator counterclaimed, in part, to enjoin these companies from making or collecting loans without being properly licensed.   The Colorado Supreme Court held, in pertinent part, that the TPLF companies in this case who had agreed to advance money to tort plaintiffs in exchange for future litigation proceeds were making “loans” making them subject to Colorado’s UCCC provisions, even if the plaintiffs did not have to repay any deficiency if the litigation proceeds were ultimately less than the amount due.  Oasis Legal Finance Group, LLC v. Coffman, 361 P.3d 400, 401 (2015).

[61] See, The Florida Senate, Bill Analysis and Fiscal Impact Statement, Senate Bill 1750, prepared by the Committee on Banking and Insurance (March 23, 2021), at 5-6, citing South Carolina, Department of Consumer Affairs, Administrative Interpretation: Legal/Litigation Funding Transactions, (Nov. 14, 2014), Administrative Interpretation 3.104, 106-1403, https://consumer.sc.gov/sites/default/files/Documents/Business%20Resources%20Laws/Administrative%20Interpretations/Chapter%203/3.104%2C106-1403%20Litigation%20FundingTransactions.pdf.


Mark Popolizio, J.D.

Mark Popolizio, J.D., is vice president of MSP compliance, Casualty Solutions at Verisk. You can contact Mark at mpopolizio@verisk.com.


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