Why You Can’t Trust The New York Post’s Recent Reporting Of The Litigation Funding Industry

 

Over the last several months, the New York Post has run a number of articles shining a light on the darker side of the litigation funding industry. The Post is right to expose business practices that lack legitimacy but the Post’s reporting is lacking in its own right. Where’s the balance, I ask rhetorically? It’s clear the Post is less concerned about telling the whole truth than it is about “reporting” whatever is likely to sell papers.* Stoking fear and anger will energize a base (and sell more papers) but it will also hurt a lot of folks in the process. As I write, the New York State legislature is considering competing bills that would either reasonably regulate the litigation funding industry in New York or effectively shut it down. Given the Post’s large readership and its one-sided attack of the industry, it’s possible that some, if not many, legislators will be persuaded to vote in favor of unreasonable regulation. If that were to happen, the playing field would once again tilt heavily in favor of the insurance industry. That would do a terrible disservice to the many thousands of people injured in New York every year who may need litigation funding as a resource of last resort.

The New York Post is not unique in its negative and distorted reporting of the litigation funding industry. Plenty of others have been quick to trot out their moral compasses and warn us of the industry’s evil ways. But, there’s a danger in doing this. As Steven Levitt and Stephen Dubner write in their book, Think Like a Freak:

“[…] when it comes to solving problems, one of the best ways to start is by putting away your moral compass. Why? When you are consumed with the rightness or wrongness of a given issue – whether it’s fracking or gun control or genetically engineered food – it’s easy to lose track of what the issue actually is. A moral compass can convince you that all the answers are obvious (even when they’re not); that there is a bright line between right and wrong (when often there isn’t); and, worst, that you are certain you already know everything you need to know about a subject so you stop trying to learn more”. pp. 31-32

The New York Post stopped. Maybe it refused to put down its moral compass or maybe it only cared about stoking the anger it knew would lead to increased readership and ultimately increased profits. You can draw your own conclusion. As I wrote above, I think the Post is right to shine a light on the darker side of the litigation funding industry and it’s not wrong for readers to get mad but, as Steve Forbes likes to say, with all they getting, get understanding. Regrettably, readers aren’t getting that from the New York Post.

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*Read what a former New York Post reporter has to say on this subject: https://webcache.googleusercontent.com/search?q=cache:zd962rHcgL8J:https://www.cjr.org/first_person/new-york-post-reporting-lessons.php+&cd=11&hl=en&ct=clnk&gl=us

 

Dean Lipson

Partner

Covered Bridge Capital, LLC

ARC Member

New York State Senate to Hold Hearing on Consumer Legal Funding Industry

On May 16th, 2018 the New York Senate Standing Committee on Consumer Protection will take up the issue of Consumer Legal Funding or Lawsuit Lending as it is posted in the Committee Calendar. This is an important issue for the consumers of New York in that it could aid in determining how the State of New York will regulate the Consumer Legal Funding industry in the future.

At issue here is the best possible approach.

The Senate has a bill – S3911 – that attempts to regulate Consumer Legal Funding transactions as loans, and subjects the industry to the usury statute. The problem with that approach is that this product is not a loan, it is a purchase of an asset.  Courts around the country have stated it is not a loan, including in Georgia and even New York in the RJC Funding case. In fact no state has classified this product as a loan in statute, as was illustrated in our recent brief on the topic in Georgia.

We feel that the best way to regulate this industry is the way the Assembly is with bill A8966. His legislation is similar to legislation that has passed in several states, such as Oklahoma, Nebraska, Ohio, Vermont and Maine, where the consumer knows EXACTLY what the terms and conditions are in the contract. They are given clear notice and disclosure, with nothing hidden. This type of regulation allows the industry to survive and aid consumers in their time of need.

There have been issues within the industry which the media has sensationalized of late, but there is a clear difference in the pieces of legislation now being proposed. The Senates bill will do one thing: eliminate the industry from the State of New York, and harm all of the consumers who rely on it, as illustrated by the consumer comments found here. Whereas the bill in the Assembly will bring stability to the industry, give consumers a clear path to understanding the transaction, allow them to understand the terms and conditions from day one, and allow the industry to function while eliminating the issues brought up by the media.

So the New York Legislature has two choices before it: abolish a product that provides consumers the ability to attain a fair and equitable settlement, or pass legislation that protects consumers and allows this vital product to be there for consumers like Tallulah from St Albans, who said: “I needed the money to pay for prescriptions and transportation fees – additional costs I incurred because of the car accident.”

So the New York Legislature has two choices before it: abolish a product that provides consumers the ability to attain a fair and equitable settlement, or pass legislation that protects consumers and allows this vital product to be there for consumers like Tallulah from St Albans, who said: “I needed the money to pay for prescriptions and transportation fees – additional costs I incurred because of the car accident.”

We hope the New York Legislature makes the right choice for the constituents they represent.

Eric Schuller
President
Alliance for Responsible Consumer Legal Funding

Consumer Legal Funding can help with unexpected funeral expenses

A drunk headed the wrong way on the freeway, collides head-on with a 38-year-old mother of three. The drunk driver survives, but the woman dies instantly. Her grieving husband, faced with raising three kids on his own, must now also worry about paying for his wife’s funeral costs. Since he doesn’t have the more than $10,000 needed to cover her burial expenses, he charges everything on his credit cards and decides he will worry about how to pay for it later. Yet, unable to bring himself to return to work, the bills quickly pile up.

Worst-Case Scenario. Through no fault of his own, the husband is facing his worst-case scenario—a life without his wife, an inability to work and mounting debt. But since his lawsuit against the drunk driver’s insurance company is solid, it gives him an option he didn’t know he had. He can receive Consumer Legal Funding based on the value of his lawsuit through a Consumer Legal Funding company. The money can be used to pay bills while waiting for the case to conclude.

The husband will not have to pay back the funding until the case settles. This funding enables him time to grieve and regroup without worrying about the costs of the funeral.

Consumer Legal Funding Advantages. Consumer Legal Fundings are not loans. They are non-recourse monetary fundings. Since Consumer Legal Funding is based on the strength of the plaintiff’s case, no loan approval is necessary. That means funds can be wired to the injured plaintiff within hours after the funding company receives the plaintiff’s completed online form. And again, since it’s not a loan, if the plaintiff’s case does not prevail, the funds do not have to be repaid.

Ramtin Ghaneeian

Rockpoint Legal Funding

 

Let Us Have a Free Market (Except When it Comes to Consumer Legal Funding!)

President Andrew Jackson once said “The duty of government is to leave commerce to its own capital and credit as well as all other branches of business, protecting all in their legal pursuits, granting exclusive privileges to none.” 

We agree.

What is amazing is that opponents of Consumer Legal Funding are trying to impose rate restrictions on the product for the sole purpose of limiting access for consumers and thereby constraining the Free Market.

Let me explain: The major opposition to Consumer Legal Funding is being driven by the US Chamber of Commerce and the Property and Causality Insurance industry. These are the same organizations that are advocating for Free Market solutions when it comes to pricing of their products. When it comes to their members and the larger insurance industry, they state unequivocally that the Free Market should regulate prices, and not federal or state governments. On the issue of broadband internet speed, the US Chamber was supportive of letting the market determine the final outcome, as outlined in one of their blogs. When the Chamber warned of price controls to the US Senate, it stated: The Chamber opposes “price controls” of any sort that involve government intervention in the free market, whether by direct government purchase and distribution of products or by less direct means.”

Tom Donohue, the US Chamber of Commerce President is quoted as saying, “We have got to go out in a big-time way and remind all Americans that it was a free enterprise system based on the values of individual initiative, hard work, risk innovation and profit which built our great country.”

So again, why does a Free Market solution work for the members of the Chamber of Commerce and the insurance industry, but not applicable to Consumer Legal Funding? The answer is simple: Consumer Legal Funding allows consumers who are being dragged through a legal claim for months – or even years – the ability to hang on and get the fair and just settlement that they deserve, as opposed to a settlement they are forced to acquiesce to, due to being in a financial bind.

The Free Market shouldn’t only apply to those who can afford it.

Country roads, take me home to the place I belong, West Virginia…..

 

The US Chamber of Commerce’s Institute for Legal Reform (ILR) recently released a White Paper entitled “West Virginia’s Climb; Lawsuit Climate Progress in the Mountain State and the Path Ahead.” In the paper, the Chamber addresses the issue of Consumer Legal Funding, or “Lawsuit Lending” as they like to call it.

The Chamber makes it clear that “Plaintiffs who lose their case are not obligated to repay… ” and go on to say that transactions between funders and plaintiffs constitute “non-recourse funding”.

What is interesting is that the ILR endorses legislation that the Consumer Legal Funding Industry fully supports.

Let me explain: in 2013, Oklahoma State Senator Brian Crain introduced a bill that would have capped the rate funding companies could charge, and classify their products as loans in the State of Oklahoma. Such legislation would have put the Consumer Legal Funding industry out of business in the state.

As the bill made its way through the legislative process, a debate was sparked as to what is the best method for the State of Oklahoma to regulate this industry and protect consumers. What eventually passed, by an overwhelming majority in both the House and Senate and with bi-partisan support, was SB 1016. The Governor signed the bill and the law went into effect on November 1, 2013.

In fact when the Governor of Oklahoma signed the bill on May 29, 2013, the ILR published a press release the very next day commending the passage and signing of the bill. In the release, Harold Kim, VP at ILR, stated: “Governor Fallin, State Senator Brian Crain and State Representative Leslie Osborn deserve credit for curbing lawsuit lending abuses in Oklahoma, and making their state a leader nationally on this front. Hopefully, other states will follow in Oklahoma’s footsteps.”

In addition, the Oklahoma Chamber of Commerce in their 2013 Legislative Wrap Up counted SB 1016 as one of their “Pro-Business Legislation that passed” bills.

We agree; the bill that was passed and signed into law in Oklahoma ensures clear notice and disclosures to the consumer. It ensures that there are no hidden fees or charges. It sets up a regulatory license that companies must follow, and if ignored, severe penalties are incurred.

So let it be known that we, the Alliance for Responsible Consumer Legal Funding, agree with the U.S. Chamber of Commerce’s Institute for Legal Reform. We support the Oklahoma legislation’s standing as a model for West Virginia, and for the rest of the country.

We’re looking forward to working with the ILR on enacting legislation based on Oklahoma’s bill. But given the ILR’s aggressive posturing in relation to our industry, we’re not holding our collective breath.

This Thanksgiving

When I sat down to contemplate the real meaning of Thanksgiving, I realized the holiday means so many different things to different people. Personally, and for those who are lucky enough to be healthy and employed, it means that children are home from school, homes are decorated with fall décor and holiday shopping begins. Days are filled with discussions about where to spend the holiday, who will cook, and which ‘particularly bothersome’ family may show up to our festivities. Guests are huddled around the television for parades and football and enjoying an overabundance of delicious home-cooked food.

However, when I reflect on the word Thanksgiving itself and break it up, the holiday takes on new meaning. Focusing on the two parts of the holiday – both “Thanks” and “Giving” can help us gain new perspective. For close to two decades, I am proud and thankful to be part of an incredible industry where those powerful words are part of our daily job. Legal Finance companies give injured people money to help pay their bills, put roofs over their heads when they are homeless or on the brink of eviction, and put food on their tables. Just as a doctor in a trauma unit has to keep objectivity and keep emotion out of his or her position, we also need to stay objective while listening to clients telling us stories of their daily struggles. But, I often think about the gifts that hearing their stories has given me. The gifts I receive daily are of empathy and compassion. These clients’ stories are immensely powerful and the money we offer them has meaning and makes a significant impact in their lives. The thanks we receive for relieving immediate financial pressure is heartwarming. The tears they cry are real.

On this Thanksgiving holiday I am thankful to be able to be part of a business that changes peoples’ lives, allowing them to continue to support their families while they are unable to work due to injuries…

For many of these people, their financial situations were already a struggle prior to their accidents. Once injured their finances unravel and an already difficult situation becomes an impossibility. We offer them a lifeline, and hope that the future will get better.

Here are their stories:

James was homeless with an infant and a five-year-old. He, his fiancé and their children had been living out of his car. Eventually the car received so many tickets and food was scarce, so he had to sell the car. The money for the car lasted a week. He reached out to his personal injury lawyer who told him about legal funding. We approved him for $5000 which was enough to help the family put a roof over their heads and left a small amount for the holidays.

Each time we speak to Ariva, we are inspired by her positive attitude and sense of humor. Her husband recently lost his job and her family was experiencing financial hardship. She requested funding because her car was getting repossessed and she didn’t even have money to feed her three kids. Throughout the ordeal of her accident and medical recovery, we have been able to assist her with incremental funding on a monthly basis. She let us know that she is forever grateful for the funds we provided. She was so happy once we approved her, she told me when her case settles she’s taking us to her favorite spot for dinner.

This holiday season, we are helping a single mother buy formula for her infant and providing significant funds for a client who was going to lose his business because he could not keep it running while he was out for back surgery.

So, on a day filled with turkey, stuffing, football, pie and contentment we should all be thankful and grateful that we have ways to find hope. The lessons of perseverance and positivity — even in the face of hardship are inspiring. We should remember that there is always a way to find help.

 

ARC Member

Elizabeth Pekin, Esq.

President & Co-Founder

Momentum Funding, LLC

The Holiday Season is upon us along with the stress that it brings.

With the Holiday Season upon us and all the pressure that brings with it Americans are under a lot of stress. Now imagine you have been through a terrible accident, due to no fault of your own, and you cannot meet your financial obligations because you are not able to work due to your injuries. You have been forced to hire an attorney to help you with your legal claim and they tell you that the other side is slow walking your case. This happens to more and more Americans every day. That is why there is Consumer Legal Funding.

Consumer Legal Funding allows you to get the financial assistance you need while your legal claim is making its way through the long drawn out legal process. According to NBC News 78 percent of American full time workers are living paycheck-to-paycheck. It goes on to say 71 percent of us are in debt, which is three percent more than in 2016.

What is amazing is it goes on to say that even those who are making over $100K per year are living paycheck-to-paycheck and 59 percent are in debt.

Consumer Legal Funding is not a loan. It is a purchase of an asset and that asset being your legal claim. It allows you to get the funds you need today to provide for your family, to help with those unexpected bills, to keep a roof over your head, to ensure you and your family can survive while your legal claim is making its way through the process.

You can check out our website that gives you some advice on how to deal with the added financial pressures. ARC Financially Fit

 

Most Americans live paycheck to paycheck that is why they need Consumer Legal Funding.

 

According to CNBC 78% of full-time workers said they live paycheck to paycheck, up from 75% last year. In addition 56% of those polled said they were in over their heads with debt and have saved less than $100 per month for emergency’s.

The story went on to say that even those making over $100,000, nearly 10% of then live paycheck to paycheck and 59% of those in the that salary range said they were in the red.

That is why Consumer Legal Funding is so important. When an unexpected tragedy hits, and consumers do not have the financial resources to make end meets while their claim is dragging out, that is where Consumer Legal Funding comes in. It allows those with a legitimate legal claim to hang on till their claim is making its way through the legal process.

Consumer Legal Funding allows consumers like Jack Daniels from Phoenix who stated: My budget was already tight, and the injury made things much worse.”

Consumers like Jack should not be forced to accept a settlement that does not satisfy what they need to make them whole.

Georgia Appeals Court Rules Legal Funding Not a Loan

The Georgia Appeals Court ruled on June 27, 2017 that Legal Funding is not a loan under the Georgia Industrial Loan Act (GILA)

The Court stated Unlike loans, the funding agreements do not always require repayment. Any repayment, under the funding agreements, is contingent upon the direction and time frame of the Plaintiffs’ personal injury litigation, which may be resolved through a myriad of possible outcomes, such as settlement, dismissal, summary judgment, or trial.

 

This is a win for consumers in Georgia and across the country.

The Long, Troubled History of Insurance

The concept of insurance has existed for thousands of years, dating back to early societies like the Babylonians, Greeks, and Romans. Modern insurance developed over the last few centuries, and began to reveal some of the pitfalls facing consumers. Those troubles have persisted over the last few decades, as the insurance industry has changed drastically, arguably becoming less consumer friendly.

Modern insurance began to take shape in 17th century Europe, in the form of property, business, and life insurance, mainly protecting against fire damage. But this first foray into comprehensive coverage wasn’t without its flaws. Insurance carriers would supply the insured with branded cards indicating they would be protected. However, during this period insurance carriers actually employed their own private fire departments, which would often ignore burning buildings if the owners couldn’t immediately verify they maintained a policy with the company.

In the 19th century, railways paved the way for accident insurance to address an increase in passenger fatalities. According to these policies, passengers would receive basic accident insurance along with their tickets. Still, second- and third-class passengers were required to pay higher insurance premiums because insurers considered them high liability.

Fast forward once more to the 1990s and the sea change that took place when private companies went public. These new big insurance companies became trillion-dollar entrenched defendants, making it difficult for consumers to fight for fair settlements. Data shows how insurers took a systematic approach to delaying and denying claims settlements in an effort to turn claims, once viewed as cost centers, into profit centers. According to A.M. Best data, in 1987 insurance companies paid out 71 cents of every premium dollar paid, but by 2014 payouts had dwindled to 57 cents of every dollar. Insurance companies figured out they could often get away with lowball, early-settlement offers when customers needed quick cash.

The historic timeline of insurance shows how insurers have maintained a big advantage over individual consumers. Even today, many Americans live paycheck to paycheck, and studies like this Harris Poll-Oasis Financial survey show many don’t have enough saved to cover an emergency.

That’s why consumer legal funding continues play a vital role for consumers across the country. Funding provides consumers the wherewithal to hold out for a fair offer from an insurance company. It also provides a lifeline to cover living expenses, medical bills, and other costs that lowball early-settlement offers often don’t. Consumer legal funding remains one of the best tools to fight for what’s fair and to level the playing field with insurers, who have historically held the upper hand.