EB5 Investors Magazine "Top 25 Awards Edition" Volume 8 Issue 1 - Page 52

TOP CORPORATE AT TORNEYS LOUIS TAUBMAN L ouis Taubman is a partner in the New York office of Hunter Taubman Fischer & Li. Taubman’s practice concentrates on securities law, corporate finance, corporate governance and compliance. Taubman represents issuers, broker dealers and investors in connection with private and public financing transactions, mergers and acquisitions, corporate governance, and SEC and FINRA compliance. Taubman’s experience with EB-5 has primarily focused on advising broker-dealers that are active in the space with regard to FINRA compliance and advising issuers of EB-5 investments with regard to compliance with U.S. securities law. WHAT TRENDS ARE YOU SEEING IN THE EB-5 INDUSTRY? Given the focus of my practice on securities law issues, my perspective may be a bit different than other practitioners who are more focused on issues of immigration law. From the securities law perspective, we continue to see FINRA focusing on compliance issues with regard to the sale of EB-5 focused JOHN TISHLER J ohn Tishler is a partner at global law firm Sheppard Mullin where he leads the firm’s EB-5 Project Finance team. Tishler’s practice includes corporate governance, capital markets, corporate finance, business transactions, mergers and acquisitions, and technology. Tishler’s clients include EB-5 fund managers, developers, regional centers and other EB-5 intermediaries. His projects have included nationally recognized hotels, mixed-use and residential developments. Tishler is a frequent writer and speaker on corporate governance and EB-5, and the co-editor and co-author of The EB-5 Handbook: A Guide for Investors and Developers (2014). He is a graduate of Cornell University and Yale Law School. WHAT TRENDS ARE YOU SEEING IN THE EB-5 INDUSTRY? The COVID-19 pandemic has significantly affected many existing EB-5 projects. The pandemic, combined with the extended time horizon for existing EB-5 funds, is requiring a multi-disciplinary approach to governance and dispute resolution. EB-5 fund managers are increasingly seeking our 52 EB5 INVESTORS MAGAZINE CORPORATE ATTORNEYS EB5 INVESTORS MAGAZINE products. In particular, an emphasis on making sure that each firm’s written supervisory procedures are reasonably tailored to the business it is conducting. We have also noted a focus on ensuring that the engagement of foreign finders by U.S. broker dealers complies with FINRA Rule 2040. HOW ARE YOU HANDLING THE ISSUE OF REDEPLOYMENT? My focus has been to assist issuers of EB-5 investment products to make sure that the potential for redeployment and the consequences thereof is adequately disclosed in any offering materials, such that investors are able to understand the issue and make an informed investment decision. We have also provided advice with regard to whether decisions surrounding redeployment constitute separate investment decisions that would require an exemption from the registration provisions of the Securities Act. The key is to make sure these issues are considered in advance so that proper disclosure and procedures can be put in place from the start. CORPORATE ATTORNEYS EB5 INVESTORS MAGAZINE advice as to their fiduciary and other duties and USCIS adjudication policy since the EB-5 funds were initially raised. We are exploring new EB-5 marketing plans that could allow companies to “test the waters” of EB-5 interest before incurring all the costs of the full suite of investment documents. The EB-5 visa remains an excellent product for investors worldwide and integrity measures will strengthen the product. HOW ARE YOU HANDLING THE ISSUE OF REDEPLOYMENT? Redeployment is a major event that requires navigation of important legal and governance issues, including securities laws, LLC/limited partnership law, fiduciary duties, project finance, tax and immigration matters. A successful redeployment requires balancing the interests of investors, intermediaries and developers in the face of regulatory uncertainty. Investors often object to redeployment plans and EB-5 funds are facing threats of lawsuits as they endeavor to redeploy within a commercially reasonable time. While there is innovation occurring in the marketplace, it remains challenging to find redeployment investments that meet the newly articulated USCIS guidance and the needs of investors, intermediaries and users of capital.