Corporate

Steps to Take Now to Avoid the EB-5 Dragnet

By Siyuan An, Les Gold, and Mark Hiraide

various currencies on the table

Photo credit: iStock.com/-goldy-

The Securities and Exchange Commission (SEC) is keeping an eagle eye on EB-5 projects these days, as evidenced by a dramatic increase in the number of fraud cases the agency has filed in federal courthouses across the country.  EB-5 refers to the type of visa the government issues to immigrants who invest large sums in U.S. commercial projects that create or maintain a minimum of 10 jobs.

After filing only one EB-5 fraud case in 2014 and two the year before, the SEC filed five EB-5 fraud cases in 2015 and another two so far this year.  MSK’s Corporate & Business Transactions attorneys, who practice in this area of law, are noticing that most of these cases accuse issuers of EB-5 offerings of defrauding foreign investors by making misrepresentations in securities offering documents.

Not only does MSK assist clients in preparing EB-5 offering documents,  we also defend issuers in SEC enforcement actions.  MSK attorneys are currently representing the defendant in two high-profile EB-5 fraud cases, filed in 2015 and 2016We also counsel our clients on how to best conduct their EB-5 offerings and operate their EB-5 projects to comply with the law and avoid the SEC’s heightened scrutiny. (more…)

Corporate & Business Transactions Tips for Startups

By Bryan Wasser

 

When venture capital (“VC”) firms or private equity (“PE”) firms invest in start-up companies their goal is to work with management to strengthen operations, accelerate growth, enhance profitability and position each portfolio company to become a market leader.  One of the most important advantages of a company being owned (or minority or majority-controlled) by such a VC or PE firm (referred to as a “portfolio company”) is the strength and focus of the directors of the portfolio company that are appointed by the VC or PE firm. However, senior management must stay focused as the day-to-day decisions will rest solely with them. To help senior management, we have put together the following set of principles that start-up companies can utilize to forge the strongest possible partnership between their management and the VC and PE firms that they partner with.

1. FREQUENT AND DETAILED COMMUNICATIONS ARE ESSENTIAL.
The most effective CEOs and CFOs are sophisticated communicators. They understand their role in managing the flow of information between the VC or PE firm and the other members of the management team. and can quickly communicate developments in the business to the VC or PE firm’s representatives. Investors expect their CEOs and CFOs to be straightforward and open about the challenges the portfolio company faces. what management is doing about those challenges and the likelihood of successful outcomes. (more…)