The business lawyer’s big picture perspective
As a broader, more general appellation than securities lawyer,
the term business lawyer properly connotes an attorney whose
focus is on a business as such: a broad-based enterprise whose
activities will inevitably involve a variety of more narrowly-focused areas of the law, such as labor and employment law,
landlord-tenant law, intellectual property law, contract law,
transactional law, real estate law, and yes, securities laws. Unlike
attorneys who specialize in one specific area, and develop
narrow expertise in that one focus (including securities law),
business lawyers develop broader-based expertise, including
significant knowledge in many specific areas. So, while it is fair
to say that securities lawyers are a sub-set of business lawyers,
not all securities lawyers are business lawyers.
Because of their breadth of knowledge, business lawyers are
uniquely positioned to assist businesses (including, of course,
EB-5 businesses) with the big picture: how all of the pieces of a
particular business’s puzzle fit together to produce a successful
enterprise. Seen in this light, a given EB-5 fundraising project
is properly seen not as an end in itself, but instead as a means to
achieve a broader goal—a very important means, to be sure, but
still, just one step in the life of a business.
A good business lawyer will caution clients swept up in that
first blush of EB-5 possibilities (c’mon, you surely remember
that first time) that it is not magic money. EB-5 funding is available money, and it is low-cost money, but it cannot magically
transform a bad project into a good project; it simply cannot
transform lead into gold. If a business does not make sense without EB-5 money, it cannot be made to work simply by including
EB-5 money in the capital stack. That kind of perspective comes
less readily to attorneys whose sole focus is narrower–on only
disclosing information about a single fundraise.
Instead, the business attorney looks past the immediate
achievement of raising the money, to the results of spending the
money. That lawyer will ask how raising the money will get the
enterprise to its goals. Will the costs involved with financing, or
restrictions on the ability to deploy those funds, or the obligation to repay the money by a specific date handicap the business’s growth? Or, can all those issues be taken in stride? With
the perspective to see these issues, and the ability to frame the
questions, the business lawyer enables answers to be discovered.
sharing of profits and losses; and govern the departure and addition of participants. Many of those documents will be vital in
objectively demonstrating compliance with the EB-5 program’s
unique requirements.
Based on my personal 30 years of practice, I understand
how the business attorney can help negotiate, draft, or review
the many agreements needed to enable the EB-5 transaction to
actually take place.