Legislative Roundup: What Will Impact Trade Credit?

California Senate Bill No. 1235 (SB 1235) Does Not Directly Impact Trade Credit

The California Department of Business Oversight recently released regulations pertaining to the content and enforcement of SB 1235, which amends California's Financing Law (CFL) and sets forth disclosure requirements for "Commercial Financing Transactions."

SB 1235 was codified as California Finance Code Sections 22800–22805. Cal. Fin. Code § 22800 defines the types of transactions that are considered "Commercial Financing," and therefore subject to the consumer disclosures, said Jeffrey Love, Esq., partner at Gibbs Giden Locher Turner Senet & Wittbrodt LLP. The real crux of this issue addressing whether this law pertains to trade credit is the technical definition of 'Commercial Financing.' Per § 22800, 'Commercial Financing' is (1) closed-end transactions (e.g., standard commercial loans); (2) open-end credit plans; (3) general factoring; (4) sales-based financing (e.g., merchant cash advances); (5) lease financing; and (6) asset-based lending transactions. The definitions of all of the specific transaction types are set forth in § 22800.

"It is plainly apparent, based on these definitions, that typical trade credit transactions would not be considered 'closed-end transactions,' 'general factoring' or 'lease financing,'" Love said. "The definitions of the remaining three transaction types may seem potentially applicable under a very loose interpretation (e.g., definition of 'sales-based financing' uses the term 'advances' without specifying whether such 'advances' can be cash or goods)."

However, the required disclosures set forth in the regulations are instructive. For example, "the disclosure requirements for 'open-ended credit plans' necessitate the identification of the 'draw of [the] full Approved Credit Limit,' 'funding provided,' etc," Love explained. "These terms all indicate cash loans, rather than typical trade credit transactions. The same applies for 'sales-based financing' and 'asset-based lending.' Accordingly, SB 1235 does not appear to subject typical trade credit transactions to mandatory consumer disclosures."

Other states are considering similar legislation, including Connecticut, Maryland, Mississippi, Missouri, New Jersey and North Carolina. Similar legislation has already been passed in New York, Virginia and Utah.

Washington State House Bill (HB) 1534

If passed, this bill would raise the required bond amounts for contractor registration starting on July 1, 2024 from $12,000 to $30,000 for general contractors and from $6,000 to $15,000 for specialty contractors. It requires the Department of Labor and Industries to deny an application for registration when the applicant is a successor to a business entity with an unsatisfied final judgment against it.

"I think this is something that NACM members have been wanting for a long time and it looks like it is finally happening," said Jon Flora, president of NACM Business Credit Services (Burien, WA). "This is a big deal because the bond amount has now more than doubled."

According to the bill, the Contractor Registration Act requires general and specialty contractors to register with the Department of Labor and Industries (L&I). A general contractor works in more than one building trade or craft in a single job, project, or building permit, while a specialty contractor works in one trade or craft. To register as a general or specialty contractor, an applicant must submit an application, file a bond and proof of insurance, and pay a fee.

In 2019, as part of SB 5795, the Legislature required L&I to convene a work group to consider additional safeguards for consumers who engage contractors. It also required the work group to submit a report to the Legislature addressing whether bond amounts are sufficient and appropriate to protect consumers, workers and suppliers and meet tax obligations and the following:

• additional criteria for contractors would provide a greater level of protection; strategies to discourage the transfer of business to a different entity for the purpose of evading penalties or judgments should be implemented;
• any other registration requirements or options for consumer recovery should be changed to increase protections for consumers; and
• incentives to adopt industry best practices would increase consumer protections.

-Annacaroline Caruso, editor in chief