TOP CORPORATE AT TORNEYS
ANDREW KINGSTON
KINGSTON PETERSEN, PLLC | PRINCIPAL
Andrew Kingston is a principal
with Kingston Petersen,
PLLC. Andrew has acted as
EB-5 securities and corporate
counsel since 2009. He served
as general counsel to private
and publicly traded companies, and was a founding partner
of NNDKP, one of the largest law firms in southeastern
Europe. He taught corporate finance in emerging markets
at Cornell Law School and was law clerk to Harold M.
Fong, Jr., chief judge of the U.S. District Court in Hawaii.
He received his B.A. from University of Virginia and his
J.D. from Harvard Law School. He is a member of the
Washington State Bar.
WHAT TRENDS ARE YOU SEEING
IN THE EB-5 INDUSTRY?
This was the year the plaintiffs’ bar finally discovered EB-5.
Investor lawsuits have put further pressure on sponsors that
played fast and loose with their fiduciary duties and the
federal securities laws. However, plaintiffs’ lawyers are
often unable to distinguish legitimate projects that were
economically unsuccessful from fraudulent projects that
broke the law. They will get better at this. Meanwhile,
sponsors of legitimate projects are learning that a robust
investor communications program, both during and after
construction, can reduce investor misunderstanding, anger
and frustration — the breeding ground of lawsuits.
HOW ARE YOU HANDLING
THE ISSUE OF REDEPLOYMENT?
We generally handle redeployment as a matter to be decided
by super-majority investor consent, not by the NCE
managers. This reduces opportunities for self-dealing and
gives investors a say in what happens to their money. It also
protects the NCE managers, most of whom are not registered
investment advisers and therefore not licensed to make
redeployment decisions with other people’s money. Some
NCE operating agreements now allow individual investors to
decide how to redeploy their capital contributions, though
this is not yet a widespread practice.
JOR LAW
LEXCUITY PC | ATTORNEY
Jor Law is a corporate and
securities attorney with
Lexcuit y PC. Prior, he also
founde d the EB - 5 prac tic e
for Homeier Law PC, which
has represented clients on hundreds of EB-5 projects that
have raised billions of dollars. Law is always on the cutting
edge of alternative finance and trends that impact EB-5.
He worked on regional center deals and the loan model
before they were popular, and he focused on smaller, non-
regional center deals before they picked up interest again in
recent years. He was among the first to look at integrating
Opportunity Zone funds, crowdfunding and the blockchain
with EB-5 transactions.
WHAT TRENDS ARE YOU SEEING
IN THE EB-5 INDUSTRY?
EB-5 has been forced to diversify into more countries as
retrogression impacts the appetite of investors from certain
countries. Successful issuers are not just diversifying where
they market, but also how they market. They are
implementing crowdfunding techniques, investing the
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EB5 INVESTORS M AGAZINE
benefits of tokenization, and looking at alternative sources
of capital such as Opportunity Zone funds to supplement
their EB-5 capital raises.
HOW ARE YOU HANDLING
THE ISSUE OF REDEPLOYMENT?
Redeployment is contemplated both at the time of the
initial offering as well as at the time redeployment becomes
necessary. It's important to draft flexibility yet certainty
into the original documents to give EB-5 issuers clear
rights to redeploy while comforting investors as to how
their capital might be redeployed. The language should
cover existing EB-5 regulations but have the flexibility to
accommodate anticipated changes to EB-5 regulations.
Engaging appropriate third parties to assist with the
redeployment might be advisable for those who wish to
minimize liability.