Lawsuit lenders need to be stopped
Published 3:00 am Wednesday, February 8, 2017
If you have ever served on the jury of a civil trial (or if you’ve watched Judge Judy), you know how easy it is to identify the interested parties in the courtroom: the plaintiff and the defendant.
This seems clear cut, as it should be. But in Alabama, lurking behind the scenes are lawsuit lenders, who provide up-front cash to the plaintiff in exchange for a cut of the lawsuit’s outcome.
The lawsuit lending industry (not to be confused with legitimate financial institutions that lend money) has been distorting Alabama’s civil justice system, turning it into a casino rigged in favor of these litigation investors. Victims are targeted with a “quick cash” loan in exchange for sharing any lawsuit award not only with their lawyer, but also with these third-party funders. Lawsuit lenders are bold and unscrupulous opportunists, charging fees and interest rates that often exceed 100 percent of the money they provide to plaintiffs up front.
This practice is doing real damage to Alabama’s justice system. Not only does it foster more lawsuits, it also raises the costs of litigation. Perhaps most troubling is how these loans can change plaintiffs’ behavior. Because the fees and interest charged by their lawsuit lender can, in effect, put them into debt, plaintiffs face tremendous financial pressure to turn down reasonable settlements and keep litigation going, hoping they will somehow win an award that lets them at least break even.
It’s almost like being underwater on a mortgage – just as a homeowner in that situation can’t afford to sell their house without losing money, a plaintiff who owes more than he or she can pay to a lawsuit lender can no longer afford to settle a case. This clogs the courts with cases that should have been resolved quickly, keeping others from getting their day in court.
Not only does lawsuit lending corrupt the legal system, it also harms consumers by eating into their recoveries in litigation. States next door – like Tennessee – know this, which is why they have already restricted the worst aspect of lawsuit lending by capping the interest rates charged on these loans.
The Alabama Legislature needs to act to protect its citizens from lawsuit profiteers. And there is legislation to do just that – if only a handful of lawmakers will get out of the way.
In each of the past two years, the Alabama Legislature has considered a bill to rein in lawsuit lending. Specifically, the law would require that these transactions are defined as loans and it would require consumer protection measures such as disclosure and transparency. Bipartisan majorities in the House have passed this legislation both times – by votes of 98-1 and 86-6. Unfortunately, a few senators have used procedural rules to stop lawsuit lending reform dead in its tracks.
In 2017, the Legislature will try again. This year it’s time for the obstructionists to support restraints on lawsuit lending. It’s time for them to stand for easing the burden on our state’s overloaded courtrooms, protecting vulnerable individuals from predatory lawsuit lenders, reducing the cost of litigation, and removing shadowy third parties from the courtroom.
Alabama has made tremendous progress in improving its lawsuit climate and providing a welcoming environment for employers. In this session, the legislature can take yet another positive step forward.
Lisa A. Rickard is president of the U.S. Chamber Institute for Legal Reform and president, Workforce Freedom Initiative, Executive Vice President, U.S. Chamber of Commerce. William J. Canary is president and CEO of the Business Council of Alabama.