Corporate Governance and Regulatory Compliance

Why You Need a Corporate Governance Attorney in NY

As any corporate governance attorney in NY can attest, the importance of corporate compliance has grown significantly in recent years, subjecting public companies to increased scrutiny and greater liability risks. Our corporate governance attorneys rely on best practices and practical strategies that are proven to help corporations establish effective corporate governance practices and maintain compliance in response to regulatory changes. With effective policies and procedures in place, companies can operate more efficiently and reduce the burden of responding to rising regulatory demands. 

Financial firms and professionals also face increased compliance burdens. Our financial services attorneys can help your company meet reporting and disclosure obligations under federal and state securities laws, comply with self-regulatory organizational requirements, and develop compliance program guardrails to ensure that your venture thrives while adhering to its regulatory obligations.

Our Corporate Governance Lawyers Provide Comprehensive Legal Counsel

Scarinci Hollenbeck’s Corporate Governance and Regulatory Compliance Practice provides comprehensive legal advice to businesses of all sizes. We routinely provide guidance regarding:

• Annual, periodic, and current reporting requirements
• Codes of conduct and ethics
• Compliance with the Sarbanes-Oxley Act, Dodd-Frank Act, and NYSE rules
• Corporate compliance programs (develop, document, amend & enforce)
• Corporate governance structures
• Executive benefit plans
• Fiduciary duties of board members and corporate officers
• Insider trading issues
• Internal investigations
• Mergers and acquisitions
• Proxy statements and other annual meeting documents
• Regulatory changes
• Shareholder rights
• Stock-based employee compensation plans
• Subsidiary governance policies
• Training for board members and executives

From our offices in New Jersey and New York City, we counsel companies headquartered locally, as well as those based in Delaware and across the country. Our corporate governance lawyers are well-versed in all applicable state and federal regulations impacting our clients, including Delaware General Corporation Law, the Delaware Limited Liability Company Act, and the Delaware Revised Limited Partnership Act.

Financing Transactions and Raising Private Capital

Every business owner wants to see their company grow in revenue and scope. There are myriad tools and strategies to accomplish this, such as raising private capital through debt, equity, or a mixture of both. Understanding how each available tactic works and how to mitigate the risks associated with them, such as SEC regulatory requirements, investor liability, and financial risk is crucial to a successful capital raise. 

At Scarinci Hollenbeck, our approach is to structure our clients’ capital raises to maximize benefits while mitigating risk in the short, medium, and long term. Whether working with a corporate governance attorney in NY or NJ, we work diligently to guide clients through the process as smoothly as possible.

One method of capturing market share and increasing your company’s profit margin is by issuing a private placement. Regardless of the size of your company, private placements allow you to access long-term, fixed-rate capital and diversify your financial portfolio. This approach helps you extend your reach beyond the typical investors available to you, further diversify your financial sources, and add financing capacity to your venture. There are many types of private placements and each presents different challenges and opportunities. For example, Crowdfunding under Regulation CF allows a company to receive investments from unaccredited investors without engaging in an initial public offering (IPO). However, there are lower limits as to how much capital can be raised as compared to a Regulation D or Regulation A/A+ raise.

Scarinci Hollenbeck also regularly handles credit and project financing, whereby a company can employ leverage to access the capital it needs to rise to the next level in its business. Depending on the client’s balance sheet, available assets, and corporate structure, our attorneys assist clients in taking a calculated risk in one area without causing significant risk to other aspects of their business and their bottom line.

144A Opinion Letters

Investors often find themselves in possession of restricted or controlled securities and want to gain market liquidity. To sell restricted securities, the seller must first obtain an exemption under SEC rules and regulations. This process is called a 144 exemption and allows for the public resale of restricted securities.

To sell restricted or controlled securities under Rule 144, there is a six-month to one-year holding period. There must be adequate information about the issuing company, there are certain limitations regarding commissions, and there are notice requirements for the sale within a 90-day window.

Scarinci Hollenbeck can prepare your 144 Opinion Letter and work with your transfer agent to gain access to your locked-away equity.

Broker-Dealer Formation and Continuing Membership Applications

Starting your own broker-dealer firm can be an exciting and potentially lucrative venture. However, obtaining FINRA’s approval is a challenge that should not be undertaken without an attorney’s guidance. Scarinci Hollenbeck’s legal team has the background and knowledge to ensure your broker-dealer formation runs smoothly and sets you up for a prosperous future.

Our financial services lawyers understand the difficulties and complications that broker-dealers face in all stages of their business, especially when dealing with FINRA. Our attorneys have the expertise to help your firm obtain approval from FINRA without delay by completing the FINRA membership application, establishing compliance controls, and writing supervisory procedures that follow SEC, FINRA, CFTC, U.S. Treasury, and National Futures Association (NFA) guidelines. 

We can also assist you in acquiring a Continuing Membership Application (CMA) if necessary. A CMA application under FINRA Rule 1017 is required in connection with a merger, acquisition, asset transfer, change of ownership and control, or a material change in business operations. Additionally, our experienced financial attorneys can help you set up and manage your corporate framework, tax structures, seed investments, and any ongoing capital issues.

Advising Registered Representatives and Principals

The financial services sector is one of the most heavily regulated industries in the United States. To successfully operate and grow your business, you need robust compliance procedures in place. While building the trust of your clients can take years, missteps can wipe it away in a moment.

As a registered representative, investment advisor, or principal of a financial firm, you should seek a law firm with a strong background in securities regulation, enforcement, and litigation to represent you in critical legal matters. The attorneys at Scarinci Hollenbeck have been advising registered representatives, investment advisors, and principals for over fifty years. One of our managing partners, Christopher Warren, was a successful participant in the financial services industry before he became an attorney and started representing financial services professionals.

With our combined financial industry experience, Scarinci Hollenbeck provides invaluable advice to financial services professionals and firms. Our skilled lawyers represent clients in the defense of operational, compliance, trading, and sales matters, as well as the defense of enforcement proceedings by the SEC, CFTC, state securities regulators, and FINRA. We also handle:

• Form U4 and U5 filings
• State “Blue Sky” registrations and investigations
• FINRA arbitrations, enforcement actions, investigations, and expungements
• Court proceedings for breach of contract actions and restrictive covenants
• Regulatory investigations by the SEC, CFTC, FINRA, and the U.S. Treasury Dept., including subpoenas and Wells Notices
• FINRA enforcement proceedings such as information requests including Rule 8210 responses, on-the-record (OTR) testimony, and Acceptance Waiver and Consent (AWC) negotiations

Our regulatory compliance attorneys have represented financial services professionals and principals in hundreds of proceedings in federal and state courts, SEC and FINRA enforcement matters, and FINRA arbitrations. With our guidance, you can start your operations without delay, avoid costly penalties, and position your financial services firm for long-term success.

Commodities Regulations

The U.S. Commodity Futures Trading Commission (CFTC) tightly regulates all commodity futures and options markets. Our attorneys represent clients in various civil and commodities regulation matters, including with the CFTC, National Futures Association (NFA), and commodities exchanges. 

Drawing on the experience of attorneys across the firm, Scarinci Hollenbeck’s commodities attorneys stand ready to assist our clients with any financial, trading, and operational challenges that may arise in the ever-evolving commodities industry. We are also equipped to represent clients across sectors, including metals and minerals; energy; and agriculture.

Broker-Dealer Transition Assistance, Contract Negotiation, and Litigation

Advisors and brokers often transition between broker-dealer firms. When this happens, broker-dealers may find themselves facing a challenging period unless they have the necessary professional guidance. Broker-dealer firm transitions may require large sums of capital to be transferred from the previous broker-dealer to the new one, a process that requires a highly skilled and seasoned legal professional to prepare and execute the proper documents.

Not only can our attorneys help make this transition smooth for you, but we can also litigate any employment or independent contractor disputes that may arise during the process. For example, our legal team can help with employment and partnership disputes, promissory note disputes, defamation accusations, as well as restrictive covenants such as non-compete, non-solicitation, and non-disparagement agreements. If necessary, we will seek emergency orders from a court to prevent these restrictive covenants from being breached.

Investment Advisor and Solicitor Formation and Compliance

Our attorneys assist both federal and state investment advisors and hedge fund managers to make sure they follow proper compliance guidelines. We help investment advisors and hedge fund managers form and register their firms, draft necessary legal documents, assist with compliance policies and procedures, train staff, and handle routine and complex litigation that may arise during the process.

When you work with Scarinci Hollenbeck, you get the benefit of our attorneys’ vast experience handling regulatory and compliance matters for the financial industry. You proceed confidently knowing that your firm is operating in compliance with applicable laws.

Money Services Businesses and Money Transmitter Businesses

Money Services Businesses (MSB) include money transmitters, check cashers, foreign exchange dealers, prepaid access sellers and providers, and issuers and redeemers of money orders and traveler’s checks. MSBs must be registered with the Financial Crimes Enforcement Network (FinCEN) of the U.S. Department of the Treasury and may have to be licensed in the states where they operate.

The attorneys at Scarinci Hollenbeck can help MSBs with the following matters:

• Completing the necessary licensing applications
• Consulting services regarding licensing laws
• Federal and state enforcement actions and regulations
• Office of Foreign Assets Control (OFAC) licensing issues
• Anti-Money Laundering (AML) and Bank Secrecy Act (BSA) compliance
• Corporate transactions
• Commercial Litigation

MSB rules vary by state. Each state has a different set of rules and regulations for MSBs, some of which are tedious, inconsistent, and challenging to understand. However, failing to properly understand and follow MSB rules can have consequences. A failure to comply could result in the revocation of your business license, or worse – criminal charges.

The best way to avoid these negative consequences is to obtain the assistance of an experienced financial services attorney who can help you set up your MSB business for success.