2023 -- H 5926

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LC002069

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2023

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A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE -- PROCEDURE GENERALLY --

THIRD-PARTY LITIGATION FINANCING CONSUMER PROTECTION ACT

     Introduced By: Representative Brian P. Kennedy

     Date Introduced: March 01, 2023

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Title 9 of the General Laws entitled "COURTS AND CIVIL PROCEDURE

—PROCEDURE GENERALLY" is hereby amended by adding thereto the following chapter:

CHAPTER 3.1

THIRD-PARTY LITIGATION FINANCING CONSUMER PROTECTION ACT

     9-3.1-1. Short title.

     This act shall be known and may be cited as the "Third-Party Litigation Financing

Consumer Protection Act".

     9-3.1-2. Definitions.

     As used in this chapter:

     (1) "Consumer" means any natural person or persons who resides, is present or is domiciled

in this state, or who is or may become a plaintiff or complainant in a lawsuit or other legal dispute

in this state.

     (2) "Legal representative" means an attorney, group of attorneys or law firm who may be

entitled to represent a person or persons in a legal dispute in this state.

     (3) "Litigation financer" means a person, group of persons, or legal entity, engaged in the

business of litigation financing or any other mechanism created with the intent of so doing.

     (4) "Litigation financing" means the funding of litigation activities or related claims by

anyone other than the parties to the claim or litigation themselves, their counsel, or entities with a

preexisting contractual indemnitor or a liability insurer relationship with one of the parties.

Litigation financing includes the purchase of bills, accounts or liens or otherwise paying for or

purchasing services rendered related to claims or litigation.

     (5) "Litigation financing transaction" means a transaction in which litigation financing is

provided to a consumer, legal representative, or medical provider in return for assigning to the

litigation financer a contingent right to receive an amount or amounts of the potential proceeds of

consumer judgments, awards, settlements or verdicts obtained with respect to the consumer's legal

claim, or agreeing to pay the litigation financer interest, fees or any other consideration for the

financing provided. The term "litigation financing transaction" does not include legal

representation services provided to a consumer by a legal representative on a contingency fee basis,

or legal costs advanced by a legal representative, where such services or costs are provided to or

on behalf of a consumer by a legal representative in the dispute and in accordance with the Rhode

Island disciplinary rules of professional conduct.

     (6) "Medical provider" means any person or business providing medical services of any

kind to a consumer, including, but not limited to, physicians, nurse practitioners, hospitals, physical

therapists, chiropractors, or radiologists, as well as any of their employees, contractors, practice

groups, partnerships or incorporations of the same.

     9-3.1-3. Litigation financer - Registration - Bond - Public record.

     (a)(1) No litigation financer shall engage in a litigation financing transaction in Rhode

Island unless it is registered as a litigation financer in this state.

     (2) A litigation financer that is a business entity or partnership is registered in this state if:

     (i) It has a status of active and in good standing as reflected in the records of the secretary

of state; and

     (ii) Its charter, articles of organization, certificate of limited partnership, or other

organizational document, or, if a foreign entity, its Rhode Island application for a certificate of

authority, contains a statement that it shall be designated as a litigation financer pursuant to this

chapter.

     (3) A litigation financer that is not a business entity or partnership is registered in this state

if it files an application for registration as a litigation financer on a form prescribed by the secretary

of state, along with a filing fee of one hundred dollars ($100), that contains the following:

     (i) Applicant's full legal name;

     (ii) Business name of applicant, if any;

     (iii) Physical street address and mailing address of the applicant;

     (iv) A telephone number through which the applicant can be reached;

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     (v) The name, physical street address, mailing address, and telephone number for a Rhode

     Island registered agent appointed to accept service of process on behalf of the applicant;

     (vi) A statement that the applicant shall be designated as a litigation financer pursuant to

     this chapter; and

     (vii) Any other information the secretary of state deems necessary.

     (b) Each litigation financer shall file with the secretary of state a surety bond of not less

than fifty thousand dollars ($50,000). The bond shall be payable to the state for the use of the

attorney general and any person who may have a cause of action against the obligor of the bond for

any violation of this chapter. The bond shall continue in effect as long as a litigation financer is

designated as a litigation financer in the records of the secretary of state.

     (c) A litigation financer shall amend its registration with the secretary of state under

subsection (a) of this section within thirty (30) days whenever the information contained in such

record changes or becomes inaccurate or incomplete in any respect. A litigation financer that is not

a business entity or partnership may amend its registration with the secretary of state by filing an

amendment on a form prescribed by the secretary of state, along with a filing fee of twenty dollars

($20.00).

     (d) All documents filed pursuant to this section are public record.

     9-3.1-4. Litigation financing protections.

      (a) A litigation financer shall not:

     (1) Pay or offer commissions, referral fees or other forms of consideration to any legal

representative, medical provider, or any of their employees for referring a consumer to a litigation

financer;

     (2) Accept any commissions, referral fees, rebates or other forms of consideration from a

legal representative, medical provider or any of their employees;

     (3) Advertise false or misleading information regarding its products or services;

     (4) Refer a consumer or potential consumer to a specific legal representative, medical

provider or any of their employees;

     (5) Fail to promptly supply copies of any complete litigation financing contracts to the

consumer and the consumer's legal representative;

     (6) Attempt to secure a remedy or obtain a waiver of any remedy, including, but not limited

to, compensatory, statutory, or punitive damages, that the consumer might otherwise be or not be

entitled to pursue;

     (7) Attempt to effect arbitration or otherwise effect waiver of a consumer's right to trial by

jury;

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     (8) Offer or provide legal advice to the consumer regarding the litigation financing or the

underlying dispute;

     (9) Assign, which includes securitizing, a litigation financing contract in whole or part;

     (10) Report a consumer to a credit reporting agency if insufficient funds remain from the

net proceeds to repay the litigation financer; or

     (11) Receive or exercise any right to direct, nor make any decisions with respect to, the

conduct of the consumer's legal claim or any settlement or resolution thereof. The right to make

such decisions shall remain solely with the consumer and his or her legal representative.

     (b) A legal representative retained by a consumer, or a medical provider for such consumer,

or any of their employees shall not have a financial interest in litigation financing and shall not

receive a referral fee or other consideration from any litigation financer, its employees, owners or

its affiliates.

     9-3.1-5. Litigation financing contracts - Disclosures.

     (a) The terms of the litigation financing agreement shall be set forth in a written contract

that is completely filled in. There shall be no incomplete sections when the contract is offered or

presented to the consumer, legal representative, or medical provider.

     (b) Litigation financing contracts shall contain the disclosures specified in this section,

which shall constitute material terms of the litigation financing contract.

     (c) These disclosures shall be typed in at least fourteen (14) point, bold font and be placed

clearly and conspicuously immediately above the consumer's signature line in the litigation

financing contract:

     (1) Consumer's Right to Cancellation: You may cancel this contract without penalty or

further obligation within five (5) business days from the date you signed this contract or received

financing from [insert name of the litigation financer] by either returning the funds to [insert name,

office address and office hours of the litigation financer] or by U.S. mail, [insert name and mailing

address of litigation financer]. For return by U.S. mail, the postmark date on the returned funds or,

if mailed by registered or certified mail, the date of the return receipt requested shall be the date of

return.

     (2) The fees charged pursuant to this agreement shall not exceed [litigation financer to

insert annual interest percentage rate, percentage of award or settlement proceeds, or dollar

amount].

     (3) The litigation financer agrees that it has no right to and will not make any decisions

about the conduct of your lawsuit or dispute and that the right to make those decisions remains

solely with you and your legal representative;

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     (4) If there is no recovery of any money from your legal claim or if there is not enough

money to satisfy the portion assigned to [insert name of the litigation financer] in full, you will not

owe anything in excess of your recovery.

     (5) Do not sign this contract before you read it completely. If this contract contains any

incomplete sections, you are entitled to a completely filled-in copy of the contract prior to signing

it. Before you sign this contract, you should obtain the advice of an attorney. Depending on the

circumstances, you may want to consult a tax advisor, a financial professional or an accountant.

     (d) If the consumer is represented by a legal representative in the dispute that is the subject

of the litigation financing contract, the legal representative shall acknowledge in the contract that

he or she or their employer or employees have neither received nor paid a referral fee or any other

consideration from or to the litigation financer, nor will in the future do so.

     (e) If the consumer's legal representative is a party to a litigation financing agreement

related to the consumer's legal proceeding, the legal representative shall share with the consumer

the agreement between the legal representative and the litigation financer. The agreement shall be

accompanied by the disclosure required by this section, and the consumer shall sign both an

acknowledgement that the agreement has been read and the required disclosure.

     9-3.1-6. Discosure of financing agreements - Discovery.

     (a) Except as otherwise stipulated or ordered by the court, a consumer or their legal

representative shall, without awaiting a discovery request, provide to all parties to the litigation,

including their insurer if prior to litigation, any litigation financing contract or agreement under

which anyone, other than a legal representative permitted to charge a contingent fee representing a

party, has received or has a right to receive compensation or proceeds from the consumer that are

contingent on and sourced from any proceeds of the civil action, by settlement, judgment, or

otherwise.

     (b) The existence of litigation financing, litigation financing transactions and all

participants in such financing arrangements are permissible subjects of discovery in all personal

injury litigation or matters arising out of personal injuries.

     9-3.1-7. Annual report.

     (a) Each litigation financer shall file a report annually with the secretary of state in

accordance with such procedures as the secretary may require. The report shall contain at least the

following:

     (1) For each person that, directly or indirectly, owns, controls, holds with the power to vote,

or holds proxies representing, five percent (5%) or more of the voting securities of the litigation

financer:

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     (i) The legal name and address of each person;

     (ii) If the person is an individual, his or her principal occupation and offices and positions

held during the past five (5) years, and any conviction of crimes other than minor traffic violations

during the past ten (10) years; and

     (iii) If the person is not an individual, a report of the nature of its business operations during

the past five (5) years or for the lesser period as the person and any predecessors shall have been in

existence; a narrative description of the business intended to be done by the person and the person's

subsidiaries; and a list of all individuals who are or who have been selected to become directors or

executive officers of the person. The list shall include for each individual the information required

by subsection (a)(1)(ii) of this section; and

     (2) For each litigation financing transaction entered in this state or involving a claim to be

litigated in this state, the litigation financer shall identify:

     (i) The amount, date(s) of payment(s), and name and address of each person that received

any amount of financing from a litigation financer during the previous calendar year;

     (ii) The amount, date of payment, and source of payment for all proceeds obtained by the

litigation financer during the previous calendar year from any judgment, award, settlement or

verdict in a litigation financing transaction; and

     (iii) Any other information the secretary deems necessary to the administration of justice.

     (b) Secretary of state reporting obligations

     (1) The secretary of state shall provide to the house and senate judiciary committees an

annual report within six (6) months of the receipt of the information in subsection (a) of this section

     containing all of the information therein and a summary. This report as filed shall not be

made available to the public and shall be confidential by law and privileged, shall not be subject to

the

     provisions of chapter 2 of title 38, shall not be subject to subpoena, and shall not be subject

to discovery or admissible in evidence in any private civil action.

     (2) The secretary of state shall release the report and summary under subsection (b)(1) of

this section to the public subject to the removal of all personally identifiable information of any

consumer. Nothing in this subsection shall affect the obligation to disclose litigation financing

contracts or other agreements under § 9-3.1-6.

     9-3.1-8. Class action lawsuits.

     This chapter shall apply to any class action. Putative class members and the court shall be

advised that the proposed class attorney has a legal or financial relationship with a litigation

financer.

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     9-3.1-9. Commercial litigation exemption - Limitation.

     This chapter does not apply to litigation financing provided to commercial enterprises in

support of commercial litigation. This exemption does not apply to situations arising from a

personal injury claim or an aggregation of personal injury claims, whether by subrogation,

assignment, or any other basis.

     9-3.1-10. Regulatory oversight.

     The practice of litigation financing shall be regulated by the secretary of state. The office

of the secretary of state shall adopt rules and regulations consistent with this chapter and its

authority under law.

     9-3.1-11. Act violation - Unenforceable contract.

     Any violation of this chapter shall make the litigation financing contract unenforceable by

the litigation financer, the consumer, or any successor-in-interest to the litigation financing

contract.

     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE -- PROCEDURE GENERALLY --

THIRD-PARTY LITIGATION FINANCING CONSUMER PROTECTION ACT

***

     This act would comprehensively regulate the practices of third-party litigation financers in

Rhode Island to provide transparency in litigation.

     This act would take effect upon passage.

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