A CLOSER LOOK AT THE LAW
not. Similarly, attorneys or accountants can be barred or
suspended from appearing or practicing before the SEC if
they committed misconduct in an EB-5 offering.
Finally, participants in EB-5 offerings can even be subject
to criminal sanctions, including fines and imprisonment,
for “willful” violations of the securities laws, which
generally requires knowledge of wrongfulness.
As illustrated by Feng, whether EB-5 investments are
securities and whether those receiving compensation
in connection with EB-5 offering are acting as brokers,
depends on the facts and circumstances. Variations in
the fact may result in a different outcome.
Given the potentially harsh sanctions for securities
law violations, participants in EB-5 offerings would be
wise to seek advice of counsel at all stages of an
EB-5 offering and preferably before being contacted by
securities regulators. Once regulators come knocking,
the need for legal advice becomes even more acute
given the potential consequences. Through careful
planning and execution, participants in EB-5 offerings
can be well-positioned to withstand regulatory scrutiny.
109 EB5 INVESTORS M AGAZINE
RIKARD LUNDBERG
Rikard Lundberg is a shareholder at Brownstein
Hyatt Farber Schreck, where he serves as
outside corporate counsel and advises
clients on all aspects of federal and state
securities laws. He represents private and
public companies from various industries such as recreation,
hospitality, media, alternative energy, gaming and consumer
products in a broad range of transactions, including EB-5
transactions, public and private securities offerings, equity
and debt financings, corporate contracting as well as
general commercial and corporate matters.
TOM KRYSA
Tom Krysa is a shareholder in the Securities
Litigation and Enforcement Practice Group
at Brownstein Hyatt Farber Schreck LLP
in Colorado, where he represents clients
in securities litigation and enforcement
matters. Prior, Krysa held various supervisory positions at
SEC, overseeing litigating securities enforcement efforts in
federal district courts and before administrative law judges. He
also served as federal prosecutor for the U.S. Department of
Justice Tax Division and clerked for the Honorable Stephen J.
Swift, U.S. Tax Court Judge, in Washington, D.C..