Maryland Merchant Cash Advance Prohibition Bill Put on Hold After State Abruptly Ended The Legislative Session
March 19, 2020
The State of Maryland decided to end their 2020 legislative session late last night rather than on the original April 6th deadline, due to COVID-19 concerns. Legislators managed to pass 650 bills in a “3-day sprint” but did not get to everything. Among the bills that did not even make it to the floor were SB913 and HB1478, the bills that called for an outright prohibition on a narrow definition of merchant cash advances.
But it’s not over. Legislative leaders plan to hold a special legislative session at the end of May which they may use to vote on the numerous bills they were not able to pass in time this week.
Senate President Bill Ferguson told the Baltimore Sun, “We want to give enough time for the public health crisis to move past.”
The bills were not exactly on the fast track as it was, having only gone through 1 committee hearing leading up to the deadline.
If the bills do not pass during the special legislative session in May, they might not be picked up again until the normal session resumes in Mid-January 2021.
Maryland Legislative Committee to Meet On Merchant Cash Advance Prohibition (Rescheduled to Wednesday)
March 2, 2020Legislators in the Maryland State House will meet today on Wednesday at 1pm EST to discuss HB-1478, a bill to make merchant cash advances illegal in the state. A similar meeting is taking place tomorrow in the State Senate. The House meeting was originally scheduled for Monday but was postponed.
All four of the House bill’s sponsors are republicans. Today’s committee is expected to discuss the potential small business effect of prohibition. A legislative note that circulated before hand cautions that:
Any small businesses that utilize merchant cash advances, as defined by the bill, may be impacted, as the bill no longer allows such transactions. The Office of Commissioner of Financial Regulation advises that small businesses are likely to engage in merchant cash advance transactions, as they accept credit card payments and those receivables are their greatest source of liquidity. As such, prohibiting the use of such transactions may remove a source of financing that has traditionally been available to small businesses in the State. Additionally, prohibiting the use of merchant cash advance transactions may also affect small business lenders in the State that engage in these types of activities.
The bill, as written, would outlaw credit and debit card split transactions if it passed.
This bill prohibits a buyer from arranging, facilitating, or consummating a “merchant cash
advance transaction” with a seller in the State. The bill defines “merchant cash advance
transaction” as an arrangement between a buyer and a seller in which the buyer agrees to
purchase an agreed-on percentage of future credit or debit card revenues that are due to a
seller for a predetermined purchase price.
Maryland State Legislators Want to Enact “Prohibition” on Merchant Cash Advances
February 21, 2020A Maryland State Senator and 4 State Delegates are calling for a prohibition on merchant cash advances through a bill introduced this month that aims to make it illegal to arrange, facilitate or consummate a merchant cash advance with a merchant in the state.
Maryland State Senate Bill 913 and House Bill 1478, literally headlined as Merchant Cash Advance Prohibition, defines a merchant cash advance as:
AN ARRANGEMENT BETWEEN A BUYER AND A SELLER IN WHICH THE BUYER AGREES TO PURCHASE AN AGREED–ON PERCENTAGE OF FUTURE CREDIT CARD REVENUES OR DEBIT CARD REVENUES THAT ARE DUE TO A SELLER FOR A PREDETERMINED PURCHASE PRICE
If all went to plan, the law would go into effect as early as October 1st of this year. Support at this early stage is bipartisan, with the Senate Bill sponsored by a Democrat and the House bill sponsored by 4 republicans. Hearings on the matter are being held on March 2nd and 3rd.
Louisiana Introduces Commercial Financing Disclosure Bill
March 3, 2024Louisiana is the latest state to introduce a commercial financing disclosure bill. SB 335 is a copy & paste of the law that recently passed in Florida.
Other states with pending legislation on the subject include Missouri, Kansas, Illinois, and Maryland.
You can read the Louisiana bill here.
New Commercial Financing Disclosure Bills Emerge in Several States
February 24, 2023Several states have resumed efforts to pass a commercial financing disclosure bill this year, following successes that have already taken place in other states. Below are three on the table so far:
- Illinois – Small Business Truth in Lending Bill
- Maryland – Consumer Credit Commercial Financing Transactions
- Connecticut – An Act Requiring Certain Financing Disclosures
The FTC Proposes to Ban Employment Non-Compete Clauses
February 6, 2023As also published in Leasing News
To welcome in the new year in its inimitable way, the Federal Trade Commission (“FTC”) proposed new rules that would ban employers from imposing non-compete on their employees. If passed, the new rule would provide that it is an “unfair method of competition for an employer to enter into or attempt to enter into a non-compete clause with an employee, to maintain a worker with a non-compete clause, or, under certain circumstances, to represent to a worker that the worker is subject to a non-compete clause.”
Per the FTC, a non-compete clause is a “contractual term between an employer and a worker that typically blocks the worker from working for a competing employer, or starting a competing business, within a certain geographic area and period of time after the worker’s employment ends.” As such, these clauses have historically been considered appropriate subjects for scrutiny under the nation’s antitrust laws such as the Sherman Act.
The prospective change in federal law was prompted by what the FTC calls “natural experiments” by virtue of new legislation in several states that limit or ban non-competes. Non-competes are either entirely or largely unenforceable as against public policy in California, North Dakota, the District of Columbia, and Oklahoma. Maine, Maryland, New Hampshire, Rhode Island, Washington and most recently, Colorado, have severe limitations on non-competes. The “experiments” in these states apparently prompted President Biden, in July of 2021, to issue his “Promoting Competition in the American Economy Order”, a broad Executive Order that purports to encourage innovation and competition in the American workplace. The Order asks the FTC to “curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” Here is what the Executive Order looks like:
https://www.whitehouse.gov/briefing-room/presidential-actions/2021/07/09/executive-order-on-promoting-competition-in-the-american-economy/
The FTC has sought public comments to the proposed rule. The comment period ends on March 6, 2023. Thereafter, the new law may take effect as soon as 180 days following the comment period. Instructions for sending comments are found in the Notice of Proposed Rulemaking.
https://www.ftc.gov/system/files/ftc_gov/pdf/p201000noncompetenprm.pdf
One of the upsides of a non-compete is that it helps protect trade secrets and IP, but this can be achieved through a confidentiality or non-disclosure provision. It also keeps former employees from taking your business model and creating a competitive business, which may be difficult to achieve otherwise. However, do you really want to retain an employee who wants to leave simply because he signed an agreement that says he or she cannot compete with you?
The downside of non-competes is that, to some, they violate public policy by restricting the mobility of workers. They are also limited in scope, and expensive to enforce.
What does it mean to you? The general consensus is that the new law will be challenged in court. If it is not, and it becomes law, not only will you no longer be able to legally use non-competes with your employees, but you will have to rescind existing non-competes and inform your employees that the clauses are no longer in effect.
Stay tuned for updates.
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Missouri Reintroduces its Commercial Financing Disclosure Bill
December 7, 2022
In a preview of what’s to come in 2023, Missouri State Senator Justin Brown (R) has reintroduced a commercial financing disclosure bill. SB 187, which is significantly less stringent than the law about to go into effect in California, nonetheless would require brokers to be licensed in the state.
“The act requires registration with the Division of Finance prior to engaging in business as a commercial financial broker,” the bill states. “Specifically, the act requires filing a registration form, submitting a fee of $100, and obtaining a surety bond in the amount of $10,000. A registration renewal is required every year…”
This bill was introduced last year but failed to advance. Other states that are expected to reintroduce similar bills this year include Connecticut and Maryland.
Thoughts on Inflation, a Recession, and Regulation From Someone Who’s Seen ‘This Movie’ Before
July 7, 2022
“I can tell you that in the US that originators are starting to adjust their underwriting policies,” said David Goldin, CEO of Capify and Head of Originations at Lender Capital Partners, “I don’t know about pricing. I haven’t heard that yet.”
Goldin, who has been a small business finance chief executive for 20 years, believes that the economy, inflation, and interest rates are front-and-center issues that the industry should be thinking about right now. In the UK, one region that Capify operates in, Goldin said that several small business finance executives there are already talking about raising margin and doing shorter term deals to prepare for the increased risk.
“Some originators are smart enough to be proactive and others are saying, ‘oh we’ll just watch it.’ So it’s either going to take trickling down through the economy globally or defaults to go up for these adjustment to happen,” he said.
During the Great Recession of ’08/’09, Goldin was right in the thick of it as the CEO of AmeriMerchant, one of the first MCA companies in the US. He explained that there’s a notable difference between now versus then.
“One of the things that didn’t exist back then, someone doing a second [position] was like unheard of in 2008,” he said. “Now, what is it now? first, 2nd, 3rd, 4th, 5th? 6, 7, 8, 9. It’s like a horse race. Ten horses in the race in some cases. […] You have to be careful, right? You have to make sure you’re covering your margin by charging enough and going shorter.”
But in a competitive environment where nobody wants to reveal their cards or risk losing business, not every funder is keen to start making changes right now. Goldin said that many funding companies will wait to see if their competitors start tightening up first especially if they’re driven by their ISOs and brokers. The downside of becoming more conservative is that brokers might just decide to take all of their business elsewhere.
But a looming recession isn’t all bad. “There are some positives,” he said. “The positives are the banks do tighten up. It’s just a question of when not if. So, you may get applicants that come to alternative financing that may have never taken or considered these types of products because they got bank financing.”
Complicating the landscape now, however, is that funding companies are wrangling with new state regulations. Goldin is aware of several originators that have temporarily paused business in Virginia, for example, where a disclosure requirement went into effect just last week. The soon-to-be implemented New York and California laws are also causing rumblings about funding suspensions respectively. In each of those states it was “sales-based financing” products that were specifically targeted, a trend that looks sure to continue as states like Maryland, Connecticut, and others are determined to reintroduce disclosure legislation next year.
“I think more and more originators will eventually get away from the MCA model,” Goldin said, “and go more towards the business loan model by partnering with a bank. I think you’re going to see more companies trying to implement bank programs to become full business loans and not deal with all the nuances of a state by state and MCA program.”
Goldin’s point of view, wisdom, and predictions are aggressively sobering. Only three months ago, industry sources were telling AltFinanceDaily that their outlook for 2022 was optimistic and that the end of covid-era government stimulus suggested that there would be growth for non-bank finance companies. Suddenly the tone has shifted, the stock market has plummeted, and interest rates are rising.
“I think if you resurveyed originators now, I think you’d get a different response than you did eight weeks ago or even four weeks ago,” Goldin said. “I can tell you right now that capital providers are asking their originators about how they’re making adjusments in this environment…”
Indeed, AltFinanceDaily did speak with several players just last week and did notice that the general sentiment had shifted to one of concern and caution.
“I think funders should be thinking about redundancy,” Goldin said. “More than ever the best time to raise capital is when you don’t need it. And I don’t know if [funding sources] will pull lines, yes if defaults go up, but they may not be as inclined to enter into new relationships in this environment.” Because of that, now might be the last best opportunity to secure additional credit sources even they’re not necessarily needed, he suggested.
With that, he said that funders should be thinking about tightening up the bottom of their credit profile, increasing their margins, doing shorter term deals, looking for more mature businesses, and working with businesses with higher credit scores.
“I think that those that don’t make credit adjustments, raise margin, and go shorter are going to have their you-know-what handed to them,” he said. “I’ve seen this movie too many times. It doesn’t have to be called a recession. […] It’s all about affordability to repay, and the more debt [the customers] have, and the more their margins are squeezed, or the more their sales go down. That’s when problems begin. You’re less likely to have a problem if you’re only out six months instead of eighteen months. I’ve used this saying a million times: ‘When the ships are too far out to sea and it’s a tidal wave, you can’t get them back.'”
