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SUPREME COURT, STATE OF COLORADO
Ralph L. Carr Judicial Center
1300 Broadway, Suite 510
Denver, Colorado 80203
Certiorari to the Court of Appeals, 2012CA1130
District Court, City and County of Denver, 2010CV8380
OASIS LEGAL FINANCE GROUP, LLC; OASIS LEGAL FINANCE, LLC; OASIS LEGAL FINANCE OPERATING COMPANY, LLC; and PLAINTIFF FUNDING HOLDING, INC., d/b/a LAWCASH,
JOHN W. SUTHERS, in his capacity as Attorney General of the State of Colorado; and
JULIE ANN MEADE, in her capacity as the Administrator, Uniform Consumer Credit Code.
Supreme Court Case No.: 2013SC0497
AMICUS CURIAE BRIEF OF LAW PROFESSORS IN SUPPORT OF PETITIONERS
Amicus Curie Law Professors Michael B. Abramowicz, Stephen Gillers, Myriam Gilles, Keith N. Hylton, Anthony J. Sebok, Victoria A. Shannon, Charles M. Silver, Spencer Weber Waller, and W. Bradley Wendel, acting pro se hereby submit the following brief in support of Petitioners Opening Brief.
INTRODUCTION AND SUMMARY OF THE ARGUMENT
The court of appeals is the first appellate court in the country to find that the nonrecourse purchase of litigation proceeds is a "loan" under the Uniform Consumer Credit Code. The court of appeal's interpretation of the Colorado's Uniform Consumer Credit Code (the "UCCC"), section 5-1-301(25) misinterprets the intention of the Colorado legislature and is against public policy.
Petitioners are national companies that engage in consumer litigation investment. Petitioners buy a partial interest in any future settlement or damage award that the seller might obtain as a result of his or her pending litigation. Petitioners purchase a share of an asset. The transaction between the Petitioners and the sellers allow personal injury plaintiffs to sell on the open market a property interest in their lawsuits. Treating the transaction as a consumer loan would limit the price at which Colorado personal injury plaintiffs could sell their property. Given the statutory price controls in the UCCC, Colorado consumers would be denied the opportunity to sell their property to the Petitioners.
Litigation investment provides plaintiffs with funds so that they can resist settlement pressure from defendants and their insurers. Regulating litigation investment under the UCCC will not further the ends of consumer credit protection. Litigation investment does not burden the Colorado civil justice system and treating litigation investment as debt would not facilitate objectively reasonable settlements nor would it reduce frivolous litigation. Finally, consumer protection for Colorado plaintiffs who seek litigation investment is a matter for the Colorado legislature to address, if it wishes, by legislation based on public debate over the costs and benefits of this activity.
INTEREST OF AMICI CURIAE
Amici curiae are law professors whose scholarly writings and interests include litigation investment. Amici believe that litigation investment is a sale of a property interest between a commercial enterprise and a consumer and is not debt. Further, amici believe that litigation investment is beneficial to consumers and to the litigation system and thus have a strong interest in ensuring that Colorado's consumer protection law is not inappropriately interpreted to restrict such arrangements.
STATEMENT OF ISSUES PRESENTED FOR REVIEW
Whether the court of appeals erred when it held that the litigation financing transactions in this case are subject to the requirements of the Uniform Consumer Credit Code.
STATEMENT OF THE CASE
Amici hereby incorporate by reference the Statement of the Case as set forth in the Petitioners' Opening Brief.
Petitioners are investors who invest in litigation. Litigation investment (also known as "alternative litigation finance" or "third party litigation finance") has been recognized in Colorado since 1903. See O'Driscoll v. Doyle, 31 Colo. 193 (1903). The elements of litigation investment are (1) the existence of a legal claim that has not been reduced to judgment, (2) the sale of a portion of the contingent proceeds of that legal claim, (3) to someone other than the lawyer representing the owner of the claim. See Anthony J. Sebok, Should the Law Preserve Party Control? Litigation Investment, Insurance Law and Double Standards, 56 Wm. & Mary L. Rev. ___ (forthcoming 2014) at 6 - 7 (available at http://ssrn.com/abstract=2271762).
Legal rights, when they are alienable, are a form of property. See, e.g.Kelly, Grossman & Flanagan, LLP v. Quick Cash, Inc., 950 N.Y.S.2d 723, 723 (N.Y. Sup. Ct. 2012) (litigation investment "is an ownership interest in proceeds for a claim" and not a loan under New York law). From the plaintiff's economic perspective, there is no difference between selling a legal right to a judgment to the defendant through settlement, selling it to a first-party insurer under a subrogation agreement, selling it to a third party by assignment, or selling a portion of the recovery through a litigation investment contract. See Keith N. Hylton, Toward a Regulatory Framework for Third-Party Funding of Litigation, 63 DePaul L. Rev. __ (forthcoming 2014) at 11 (available at: http://ssrn.com/abstract= 2281453). The only difference between these various property transactions is the relative price advantage (if any) to the plaintiff of one type of sale versus another, which is a function in part of legal regulation.
The fact that payment for a litigation property right is contingent upon the plaintiff's future gains does not change the transaction into debt.See Parker v. Northern Mixing Co.,756 P.2d 881, 887 (Alaska 1988) (sale of partnership interest not a loan just because payment is contingent on future profits). It is still a form of property. Current academic debate over litigation investment is over how to regulate it, given that it is an unusual form of property. Compare, e.g. Michael Abramowicz, On the Alienability of Legal Claims, 114 Yale L.J. 697 (2005) and Jonathan T. Molot, A Market in Litigation Risk, 76 U. Chi. L. Rev. 367 (2009).
Scholars who study consumer litigation investment recognize that consumers are not always able to get the best price for their property interest, or might be vulnerable to unscrupulous investors, and therefore debate how to best protect the consumer. SeeTerrence Cain, Third Party Funding of Personal Injury Tort Claims: Keep the Baby and Change the Bathwater, 89 Chi.-Kent L. Rev. 11, 26 - 38 (2014) (reviewing consumer protections); Victoria A. Shannon, Harmonizing Third-Party Litigation Funding Regulation, 36 Cardozo L. Rev. ___ (forthcoming 2015) at 33 (available athttp://ssrn.com/abstract=2419686) (Consumer Financial Protection Bureau should regulate consumer litigation investment); and Susan Lorde Martin, The Litigation Financing Industry: The Wild West of Finance Should be Tamed not Outlawed, 10 Fordham J. Corp. & Fin. L. 55, 77 (2004); (consumer litigation investment "should be regulated to eliminate unscrupulous entrepreneurs"). Scholars who study consumer litigation investment may differ about its social costs and benefits but they overwhelmingly agree that consumer litigation investment is not debt.
No court has held that consumer litigation investment is debt under the UCCC. Other than citing Cash Now and Black's Law Dictionary, the Court of Appeals did not cite any authority for its holding that "a loan does not require an unconditional obligation to repay." Oasis Legal Fin. Group, LLC v. Suthers, 2013 Colo. App. LEXIS 780 at *10 (Colo. Ct. App. 2013). Simply calling the transactions at issue in this case "contingent debt" (Oasis Legal Fin. Group, LLC, 2013 Colo. App. LEXIS 780 at *6) does not support the conclusion drawn by the court of appeals. An advance may be a "debt 'contingently repayable'" and yet not be a debt as that term is commonly used in the law. Britz v. Kinsvater, 351 P.2d 986, 991 (Ariz. 1960). For example, where A gives B $100 and says that B must return it if a contingency occurs, there is no debt subject to the law of usury. Id. (citing Restatement, Contracts, § 527, Comment a; and Owens v. Conelly, 272 P.2d 345 (Ariz. 1954)).
The court acknowledged that its holding conflicts with an overwhelming majority of jurisdictions which hold that an essential element of debt is an absolute obligation for repayment. Oasis Legal Fin. Group, LLC, 2013 Colo. App. LEXIS 780 at *8-*9. The court of appeals explained this conflict by holding that the UCCC contains a definition of debt that is "broader" than the conventional definition. Oasis Legal Fin. Group, LLC, 2013 Colo. App. LEXIS 780 at *6. It justified its broadening of the definition of debt in this case by noting that that the Colorado legislature instructed the courts to "liberally construe and apply the UCCC." Ibid at *5.
Liberal construction is not limitless, and, according to the statute, it must be guided by its "underlying purposes and policies." There is no question that courts interpret consumer credit law with an eye to achieve its goals and should not tolerate efforts to use formalistic labels to conceal usurious debt contracts. But the adoption of a definition of debt that is so broad as to include the sale of property rights in litigation is a radical move.
The consequence of the court of appeals' interpretation will be the elimination of consumer litigation investment in Colorado. See Susan L. Martin, Financing Litigation On-Line: Usury and Other Obstacles , 1 DePaul Bus. & Com. L.J. 85, 102 (2002). Given the refusal of banks to offer recourse loans secured by personal injury litigation, it is "unrealistic" to hope that litigation investment firms can operate profitably under state usury laws. Ibid. It is very likely that the court of appeals' interpretation of the UCCC will not result in lower rates from the litigation investment firms in Colorado but "only in eliminating the sole access . . . plaintiffs have" to these sorts of funds. Id.
The elimination of litigation investment in Colorado will deprive its citizens of the benefits of litigation investment. Plaintiffs have already stated that their customers use the funds received from the sale of their litigation rights to pay for life's necessities such as mortgages, food and car payments. See Plaintiffs' Response in Opposition to Defendants' Motion for Partial Summary Judgment and for Preliminary Injunction and Cross Motion for Partial Summary Judgment at 28. The significance of this point should not be underestimated. For many Colorodoans whose legal rights have been violated and who have suffered personal injuries as a result, the largest asset they have is the procceds in their lawsuits, which under Colorado law they can sell through assignment.See Medical Lien Mgmt. v. Allstate Ins. Co., 2013 Colo. App. LEXIS 865, 10-11 (Colo. Ct. App. 2013). Respondents' legal argument paternalistically prevents portions of these proceeds from being sold.
Another benefit of litigation investment, shared by both consumers with lawsuits and society overall, are better outcomes in settlement and litigation. Settlement and litigation should not be distorted by factors unrelated to the facts of case, such as personal wealth. Litigation investment allows each party to pursue their litigation with greater equality than had there been no funding. Litigation investment helps the tort system in particular by providing consumer personal injury plaintiffs with a tool to resist delaying tactics employed by the insurers and lawyers who organize the defense of personal injury defendants.
Given all this, the burden is on Respondents to point to some policy interests that will be served by its radical interpretation of the UCCC. Contrary to the holding of the court of appeals, Respondents have not met this burden of proof.
The UCCC was designed to replace state usury law and therefore its purpose and policy objectives are similar if not identical to those of state usury law. See Chris Peterson,Comment, Failed Markets, Failing Government, or Both? Learning from the Unintended Consequences of Utah Consumer Credit Law on Vulnerable Debtors, 2001 Utah L. Rev. 543, 551. Treating litigation investment as debt does not promote those objectives.
Consumer credit law "protect[s] the community, as well as its individual members from the destabilizing effects of indebtedness such as debt servitude and debt oppression." Robin A. Morris, Consumer Debt and Usury: A New Rationale for Usury, 15 Pepp. L. Rev. 151, 169 (1988). One goal of modern consumer credit law is to reduce the risk of default. Id. The "costs of default to society as a whole include not only these costs of wasted human lives, but also the costs of collection efforts before default occurs." Id. The largest risk of default comes from consumers who do not understand the risks of default, or have no choice but to borrow.
Litigation investment does not create a risk of default. The "ordinary meaning of 'default' is 'failure to pay.'" Construction and Effect of UCC Art 9, Dealing With Secured Transactions, Sales of Accounts, Contract Rights, and Chattel Paper, 30 A.L.R.3d 9,  (2013). As an initial matter, the consumer never has an obligation to "pay" Petitioners since the transaction is an asset sale. See Opening Brief of Appellants at 7. Even more to the point, the consumer's obligation to transfer the asset to a litigation investment company is contingent on the existence of the asset. The litigation investor has no right to funds from any other source, such as other assets owned by the consumer. Therefore, as between the investor and the consumer, there is no risk of default by the consumer. The consumer litigation investment contract states that the consumer is under an obligation to transfer the asset only if, after she wins her case or settles her lawsuit and pays lawyer, there remains an asset to transfer. It is logically impossible for the consumer to simultaneously have a legal obligation to transfer an asset to the investor and have no asset to deliver. If there is a positive outcome in the litigation and funds remain after all legal expenses are paid, the only reason the consumer "could" not transfer the asset under the contract is that she would prefer to breach the contract rather than perform. Default due to an unlawful preference not to perform is not the sort of default that consumer protection law was designed to reduce.
Examples drawn from an amici curiae brief submitted to the court of appeals in support of the Respondents illustrate this point. Amici cited two media reports in support of the proposition that "regulating plaintiffs under the UCCC is consistent with the UCCC's consumer protection policy objectives." Amici Curiae Brief of the Denver Metro Chamber of Commerce and Chamber of Commerce of the United States of America in Support of Defendant-Appellees at 10. In the first, a consumer allegedly sold 87% of his right to a recovery in a personal injury lawsuit for $9,150. Binyamin Appelbaum, Lawsuit Loans Add New Risk for the Injured, N.Y Times, Jan. 16, 2011, at 1. In the second, a consumer allegedly "owed her lenders" $51,875 in excess of the $169,125 she was awarded in a personal injury suit. Binyamin Applebaum, Investors Put Money on Lawsuits to Get Payouts, N.Y. Times, Nov. 14, 2010, at 2. Neither example supports the court of appeals holding.
In the first example, the public policy implicated by the transaction is not the consumer's risk of default to the litigation investor, since the consumer was able (and presumably did) satisfy his contract obligations. The public policy concern is different - the consumer may have sold his property interest for too little. Consumer credit law is not designed to protect consumers by setting price controls on the property they sell.
In the second example, the consumer appears to have risked default because she was required to pay more money under the contract than she earned from her litigation, but this was a result of her lawyer's decision to borrow money on her behalf to fund legal expenses that the lawyer should have borne. See Binyamin Applebaum, Investors Put Money on Lawsuits to Get Payouts, N.Y. Times, Nov. 14, 2010, at 2 ("a woman injured in a 1995 car accident outside Philadelphia borrowed money for a suit, as did her lawyer . . . [after she won $163,125] the lenders were owed $221,000" (emphasis added). The public policy concern raised by this example is that the public needs to be protected from lawyers who assume debt in order to pursue their client's litigation. See Nora Freeman Engstrom, Lawyer Lending: Costs and Consequences, 63 DePaul Law Review __ (forthcoming 2014) at 6 - 7 (available at http://ssrn.com/abstract= 2286307). But the public policy concern raised by amici's second example concerns the regulation of lawyers, not consumer credit.
Consumer credit law such as the UCCC "prescribes the rate of interest lenders may charge borrowers." Robin A. Morris, Consumer Debt and Usury: A New Rationale for Usury, 15 Pepp. L. Rev. 151, 158 (1988). A "compelling interest" that justifies the government substituting its judgment for the consumer is that some consumers are "incapacitated" and cannot act either freely or rationally. Id. One type of incapacitated consumer is the consumer who borrows "more than they may want or need because they have no choices." Id. at 171. Respondents have argued that consumers who sell their interest in litigation to Petitioners are incapacitated. See Defendants' Reply in Support of Motion for Partial Summary Judgment and for Preliminary Injunction at 20 ("no clear thinking" consumer would sell their interest in litigation and consumers who sell interests in litigation must be "in distress" and are "necessitous").
As indicated above, litigation investment increases consumers' economic options. Consumer litigation investment involves consumers who have suffered personal injuries. A personal injury litigant typically suffers a loss of wealth due to lost wages, lost property, and medical expenses. Her lawsuit is supposed replace the wealth lost due to the tortfeasor's conduct. It is, therefore, her property. But the property interest has value that varies with the consumer's ability to sell it. If her ability to sell it is constrained, it is less valuable. Professor Stephen Gillers made this point with the following example, involving a hypothetical tort plaintiff named Janie who is injured in a store owned by a hypothetical defendant, Carl's Shoes, in a world where litigation investment is not permitted:
[To whom can] Janie sell an interest in [her lawsuit] to keep her afloat while she sues Carl's? . . . There is one buyer authorized to pay her cash for her claim - cash she can immediately use to pay the rent and doctors and buy food until she can start working again. It is Carl's Shoes, or more likely its insurance company. Carl's (or its insurer) is in a rather luxurious position. It is under no time pressure. It is, furthermore, the only authorized purchaser of Janie's claim, the only one allowed to bid on it. Now it requires no MBA to recognize that if one person is under duress and needs to sell something and another person is the only one legally allowed to buy it, the buyer has an enormous advantage.
Stephen Gillers, Waiting for Good Dough: Litigation Funding Comes to Law, 43 Akron L. Rev. 677, 682-83 (2010).
Ironically, if plaintiffs like Janie cannot access litigation investment, they are even more likely to use credit cards and the other credit products which concerned the UCCC's drafters. See Robin A. Morris, Consumer Debt and Usury: A New Rationale for Usury, 15 Pepp. L. Rev. 151, 176 (1988). Litigation investment increases the choices available to injured consumers by creating a market for an asset that otherwise they could sell only to the tortfeasors who injured them.
The inability of the Respondents to explain how litigation investment is debt, and their inability to explain how the policy goals of the UCCC would be served by eliminating litigation investment by treating it as debt does not mean that litigation investment cannot be regulated or that consumers cannot benefit from new legislative protections. It only means that the Respondents are wrong to use the UCCC as a short-cut or a back door to "protect" the consumer by making litigation investment impossible in Colorado.
Five states have already taken steps to protect consumers who seek to sell their litigation rights. Numerous scholars have proposed a variety of approaches to regulate litigation investment. See, e.g. Terrence Cain, Third Party Funding of Personal Injury Tort Claims: Keep the Baby and Change the Bathwater, 89 Chi.-Kent L. Rev. 11, 35 (2014) (suggesting the Consumer Financial Protection Bureau for the regulation of consumer third-party funding); Victoria A. Shannon, Harmonizing Third-Party Litigation Funding Regulation, 31 Cardozo L. Rev. ___ (forthcoming 2015) at 33 (available athttp://ssrn.com/abstract=2419686) (same); Susan Lorde Martin, The Litigation Financing Industry: The Wild West of Finance Should Be Tamed Not Outlawed, 10 Fordham J. Corp. & Fin. L. 55, 69 (2004) (suggesting an amendment to the Truth In Lending Act (15 USCS § 1601(2014) to cover litigation investment even if it is not debt); and Yifat Shaltiel & John Cofresi, Litigation Lending for Personal Needs Act: A Regulatory Framework to Legitimatize Third Party Litigation Finance, 58 Consumer Fin. L. Q. Rep. 347, 350 (2004) (proposing legislation to expand the definition of debt to allow regulation of litigation investment transactions).
It is not surprising that the recommendations for the regulation of litigation investment vary according to the authors' views about the relative costs and benefits of litigation investment to both consumers and society. But all of these authors agree that the appropriate place to discuss and decide the protection of consumers is the political process, and courts should wait until regulators and legislators have acted before imposing any kind of solution on the public.
The brief submitted to the court of appeals by amici curiae for the Respondents argued that consumer litigation investment "unnecessarily prolongs dubious litigation," thus imposing additional burdens on Colorado courts. Amici Curiae Brief of the Denver Metro Chamber of Commerce and Chamber of Commerce of the United States of America in Support of Defendant-Appellees at 16. This concern has been expressed by opponents of consumer litigation investment in other public statements. It is based on two fears. First, that a typical consumer who sells property rights in her litigation will be unwilling to settle her case for a reasonable amount, thus prolonging the litigation. Second, that litigation investors will seek out and invest in marginal cases, thus prolonging cases that would otherwise have been abandoned or settled for nuisance value. Both fears are groundless.
The fear that consumer litigation finance deters reasonable settlements is based on the argument that a plaintiff who has sold a portion of her recovery may be tempted to reject an objectively reasonable settlement offer from the defendant, thus choosing to take a weak case to trial. According to this concern, the plaintiff will reject an objectively reasonable settlement if the settlement she is offered is so low that she will have a no net recovery after her legal expenses have been paid and the investor received its share of the recovery. Amici Curiae Brief of the Denver Metro Chamber of Commerce and Chamber of Commerce of the United States of America in Support of Defendant-Appellees at 13 - 14) (citing Rancman v. Interim Settlement Funding Corp., 789 N.E.2d 217 (Ohio 2003)).
The possibility that a litigant might wish to pursue further litigation in the face of an objectively reasonable settlement offer is a risk inherent in litigation whether or not there is litigation investment. The risk may arise where new facts in a case emerge lowering its settlement value after the plaintiff's attorney has (with the plaintiff's authorization) advanced so much for expenses that an objectively reasonable settlement would leave the plaintiff with almost no net recovery. The same risk can may arise where the plaintiff faces sizable medical liens as a result of the injury suffered at the hands of the tortfeasor. In any of these cases a plaintiff may think it rational to reject a settlement offer her lawyer deems objectively reasonable given that the settlement will result in no net cash recovery for her.
While it is true that a plaintiff might come to believe that it is reasonable to reject an objectively reasonable settlement offer where, because of third party claims on the recovery, the plaintiff will receive little or no net recovery from the settlement, it is the duty of the plaintiff's attorney to explain to the plaintiff the likely consequences of rejecting a settlement. See Colo. RPC 1.4(2012) cmt. 5 ("[t]he client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued, to the extent the client is willing and able to do so"). The civil litigation system relies on competent attorneys adequately counseling clients about reasonable expectations in litigation, including the likelihood of success at trial. Clients typically accept their attorney's recommendation to settle a case. See Nora Freeman Engstrom, Sunlight and Settlement Mills, 86 N.Y.U. L. Rev. 805, 820 (2011) (plaintiffs in small personal injury cases delegate virtually complete settlement authority to their attorneys). It is not clear how often clients - regardless of whether they are obliged to give most of their settlements to third parties - reject or resist their attorney's advice. Id.
Even if plaintiffs who accept litigation investment are more likely to reject their attorney's reasonable recommendation to settle than plaintitffs who do not sell portions of their litigation, economic logic suggests that the settlement offers received by these plaintiffs will not be so low that the consumer's net recovery will be zero. The likelihood of this result depends on many factors, including, most obviously, the amount of the settlement offered by the defendant. As argued above, the economics of litigation suggests that a plaintiff with litigation investment will receive a larger and fairer settlement offer than one without litigation investment. This is because early settlement in personal injury cases is the result of a plaintiff giving up because they have been worn down by the defendant's tactics or because they have run out of funds. See Maya Steinitz, Whose Claim is this Anyway?: Third Party Litigation Funding, 95 Minn. L. Rev. 1268, 1301 (2011) andJonathan Molot, Litigation Finance: A Market Solution to a Procedural Problem, 99 Geo. L.J. 65, 101 (2010).
Further, even the examples offered by the amici do not support their theory. Rancman, which is frequently cited to illustrate how litigation investment disincentivizes a plaintiff from accepting an objectively reasonable settlement, shows no such thing. See Rancman v. Interim Settlement Funding Corp., 789 N.E.2d at 220 ("the agreements provided [the consumer] with a disincentive to settle her case"). The consumer in that case "sold" approximately 20% of her ultimate settlement of $100,000 for $7000. What she got in return was the wherewithal to hold out for a settlement of $100,000, which had a value to her of (at least $50,400). It is not clear how the plaintiff in Rancman was disincentivized from settling at an amount that was objectively reasonable. It is more logical to assume that th
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