Money vs. Ethics in the Factoring Business
November 29, 2017

I have always abhorred the factoring industry’s scouring of court records for profit.  It’s a perversion of the intent of open court records.  These firms search for past factoring transactions as well as every personal injury suit that may have settled with a structure.  Combined with sophisticated skip-tracing tools, today’s legal databases allow factoring companies to compile massive lists of potential sellers.  It wouldn’t be such an issue if they just sent annoying junk mail like the mortgage and real estate companies who also scour public records.  Instead, they also bombard annuitants with unending phone calls, stalking on social media and even in-person sales visits.  Worse yet, the factoring industry uses these records to purposely target the poor and unsophisticated with endless temptations of “cash now”.  The Baltimore lead paint scandal targeting cognitively challenged inner city annuitants is my case in point.  Then there are the horrific number of cases where court records are used to coerce annuitants into multiple transactions until they are penniless and destitute.

Fifteen years in the factoring business has shown me that most of the egregious behavior can be directly tied to court record scraping.  It’s been an issue since I started in this business in 2002, however, the increased sophistication of online databases in recent years has compounded the scraping problem exponentially.  Today, these searches are cheap, easy and profitable. Curtailing online access could completely change the cost-benefit rationale.  The added work and complexity of using court runners would drive up costs, making scraping far less lucrative.  More importantly, it could drive the worst actors out of the business altogether: the small, scamming, castoffs of the big firms whose entire business model revolves around online record searches combined with unending, coercive sales calls.

Despite the recent reports of factoring industry shenanigans, the search engine companies still seem to turn a blind eye. I can’t say for certain which services the factoring industry uses since I don’t engage in court record scraping, but I can state that Westlaw has been a premier sponsor of NASP’s annual meeting for years. I reviewed the terms of service for some the larger legal search firms and found the following related to commercial use:

LexisNexis

You and your Authorized Users (defined below in Section 2.1) are granted a nonexclusive, nontransferable, limited right to access and use for research purposes the Online Services and Materials made available to you. 

Bloomberg

You may not use the Service for any illegal purpose, for the facilitation of the violation of any law or regulation, or in any manner inconsistent with the TOS. You agree to use the Service solely for your own noncommercial use and benefit, and not for resale or other transfer or disposition to, or use by or for the benefit of, any other person or entity. 

Westlaw

you will not use, intentionally or unintentionally any of the content, information, or services on this website in a manner contrary to or in violation of any applicable international, national, federal, state, or local law, rule, or regulation having the force of law.

… you will not reproduce, duplicate, copy, download, store, further transmit, disseminate, transfer, or otherwise exploit this website, or any portion hereof without Thomson Reuters’ prior written consent…

The above excerpts seem to suggest that these firms are concerned with the legal, non-commercial and ethical use of their services.  That said, the ones that do allow factoring industry access clearly don’t seem too concerned with enforcement.  Regarding legal use, the reality is that the information scraped from these databases is used to continually violate the Telephone Consumer Protection Act (TCPA) with incessant calls to annuitants.  Our survey of past clients confirmed the never-ending calls and the industry’s refusal to follow the law by not honoring do-not-call requests.  For some, it was so bad that they no longer answered their phones and couple even changed phone numbers, to no avail.  Rampant industry violation of the TCPA is also suggested by an ongoing potential class action suit against a large NASP-affiliated firm for their alleged failure to honor do-not-call requests.  When it comes to derivative works violations, I have also seen several Craigslist ads offering the contact information for thousands of annuitants, all likely gleaned from these court record services.

Court record scraping has been a longstanding issue that seems to be getting worse by the day as more factoring companies become increasingly aggressive and underhanded in their pursuit of unsuspecting annuitants.  Ideally, some regulations restricting the commercial use of court records would be more beneficial to annuitants, but I don’t see that happening.  However, anything that can be done to limit the ease of access can’t hurt.  The question becomes, how does one get these legal database firms to actually enforce their terms of service?

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