The number of companies that have entered into the merchant cash advance business has grown rapidly over the past year, since it can provide an additional source of income beyond payment transaction fees. An industry that seemed all but dead in 2008 has re-emerged and may be stronger than ever.

With traditional lending institutions still cautious about lending, especially to startups and emerging businesses, merchant cash advance (MCA) businesses have helped fill the void in providing much needed capital to businesses shut out from the traditional lending institutions.

But merchant service providers such as independent sales organizations (ISOs), which may offer cash advances or partner with providers, should proceed with caution. Many legal issues and uncertainties are involved in offering cash advances.

The most important legal concern for MCA businesses is structuring the transaction as a sale rather than a loan.

By structuring the transaction as a sale, rather than as a loan, the MCA business can avoid having to apply for the commercial lending licenses. In addition, the state usury laws may be inapplicable. Therefore, it is imperative that businesses thinking of offering cash advances to seek advice from a knowledgeable attorney.

A majority of the litigation concerning cash advances has come out of California. The most prominent is Richard B. Clark, et al. v. AdvanceMe, Inc. under which AdvanceMe agreed to a settlement payment of $23.4 million and forfeited the right to pursue further payments from the plaintiff merchants. The litigation in California should make MCA businesses especially cautious when conducting business in California. .

Drawing the line on the length of the contract is also a concern. With the increased interest in the MCA industry and the entry of new participants, businesses offering MCA services have to find ways to differentiate themselves from the competition. Obviously, pricing is a major form of differentiation. Another not so obvious form of differentiation is the sheer length and complexity of the merchant contract. A merchant may well choose a deal with a 4 page contract over one with 16 pages. Be mindful about finding the right balance between being legally protected and not scarring off business with a lengthy document.  

States can impose harsh penalties on businesses that offer commercial loans without lender licenses or that charge usurious interest rates. However, there are few cases that address the issue of what constitutes a sale as opposed to a loan in the MCA context. Therefore, it is important that your MCA business adheres to the best practices discussed above so that if a court decides a case that is harmful to the MCA industry as a whole, you will avoid the attention of state attorney generals.

Andrew Hayner is an attorney with Jaffe, Raitt, Heuer & Weiss, P.C.