If Broker Dealers Can't Raise Money For Most EB-5 Deals, Do You Need Them?
Panelists: ROBERT CORNISH, JOHN TISHLER, JOHN LEO,
Moderator: KURT REUSS
Kurt Reuss: John, as a broker dealer in EB5, what about the argument that you probably donít have the ability to raise money for an offering right now.
John Leo: I would agree. Last year, we probably brought 30 investors into deals but to get these deals done you really have to go through China. Thatís simply how this business is currently designed.
Kurt Reuss: What is the role of a broker dealer and how do they provide compliance? And where in the process does that compliance sometimes fall apart? Are there situations where an issuer doesnít get the compliance or coverage that they thought they were going to get and that theyíre paying for?
John Leo: Certainly, I guess there are a number of ways to frame it. If you hire an immigration attorney, theyíll do their job as an immigration attorney. If you hire a securities attorney, theyíll draft the documents. The fact is we reject more than half the deals we see. Probably 9 out of 10 of the deals we see in this space, we reject. If you can recall the recent issue of fraud in Seattle, we would not have done that deal.
One person controlling every aspect of a deal, thatís a pass, a complete pass. The fact that a dealís getting done, that it has a securities attorney and an immigration attorney doesnít necessarily mean itís a good deal or a bad deal. It might mean that no one has really dug into the transaction from the investorís perspective. Ultimately, thatís the job of a broker dealer. As a service provider, you never want to be associated with a fraud or a failure in any business and EB5 is a small business so certainly, you wouldnít want to be associated with that.
We would require an administrator; someone in the middle. Our job is typically not done when the transactions close and there are generally lots of transactions. But if there is only one person who controls the regional center, and heís both the issuer and the developer, then thatís a recipe for disaster. Not just in this business but really in any type of financial transaction.
Kurt Reuss: How do you deal with an issuer who wants to raise money in China but youíre forced to deal with agents who control the marketing materials? They control the discussion more so than normal private placement business would allow. How do you help an issuer in that situation?
John Leo: I do see the industry moving further upstream. We were recently engaged by two agents to represent them. Ultimately the money controls the transaction so I do see agents and they look at this recent fraud transaction. They raised over $200 million, those assets are frozen so maybe more than half, 70%, even 80% of their compensation is now frozen. If they were getting points on the back end, theyíre out. Theyíre not getting that money.
When they take a hit financially, theyíre quick to change their view on compliance. But I think that applies to everybodyóthe investor, the issuer, the agents. I do see the business changing in that our client is currently the issuer but ultimately our client will likely be the issuer and the agent raising the money.
In terms of value added, we push to get these things done but ultimately there are certain transactions and certain aspects of transactions that donít go in the direction they really should. Iíve seen a transaction where the issuer was taking money out of escrow prior to hitting their minimum. Essentially, they were taking money, compensation, without actually selling anything. And that was a PPM that came to us through a securities attorney who reviewed it and signed off on it. There were other issues in the transaction, which we addressed.
We look at it from the point of view that we have the most liability. In the event thereís a fraud or thereís a problem, the first stop is the broker dealer. The SEC and FINRA are both going to send us a request list, or weíre going to be required to go to an ďOn The RecordĒ (OTR) interview. The SEC or FINRA is going to show up at our office so we have the most liability and the most to lose, in my opinion.
Itís pretty simple; one transaction can take down a broker dealer. Iíve seen broker dealers taken down for all different types of reasons but a $20, $30 million fraud, if weíre in the middle of it and we didnít do our job, then thatís a big problem. I think given the liability that we potentially have in a deal, you bet weíll push to get things done and weíll push the management to add a fund administrator. If they are the developer, as well as the issuer, well thatís a clear conflict of interest; we wouldnít do the deal. We would require someone in the middle for the draw downs that are required. We would require someone else on the bank account.
Honestly, in most of the deals, the issuers donít want to do them, so we donít do the deals. But if theyíre getting the deals done elsewhere, it hurts the entire industry. As a service provider, whether an economist, a business plan writer, or what have you, itís important that those weaknesses are pointed out as opposed to getting on board. If youíre a good securities attorney or a good immigration attorney, itís almost guaranteed; you bring credibility but to someone who may not deserve it. Thatís how I look at it, anyway. I donít want to lose credibility and I think taking that approach as a group, we can certainly vet bad transactions by not providing a service.
Kurt Reuss: Bob, do you have any thoughts?
Bob Cornish: Yeah, clearly the very nature of EB5 products makes marketing material issues more difficult to handle from the broker dealer standpoint and the issuer standpoint. Some things within the EB5 industry havenít yet caught up. One thing in particular that we havenít discussed is the use of audited performance.
A lot of the work I do is with institutional money management firms. For the most part, these firms, in order to represent past performance in marketing materials, they will engage in whatís called a GIPS audit. Thatís the Global Investment Performance Standards which is a convention thatís accepted worldwide and utilized to measure the performance of portfolios or an investment management firm.
You get to say whatís part of one strategy, whatís part of another, how do you measure things, how do you measure fees? Are you measuring performance growth of fees, net of fees, all that kind of thing? That sort of auditing, which is usually done by a GIPS auditor, is used by the institutional investment community to protect themselves in the event of issues regarding their marketing material. But as we said, the inconsistency of marketing material from a PPM is something you really, really need to be aware of.
This post originally appeared on EB-5 Diligence. Reprinted with permission.
Robert Cornish focuses on litigation, arbitration, regulatory and compliance matters for broker/dealers, investment advisers, hedge funds, commodity firms, institutional investors and family offices in the U.S. and abroad. He represents clients on FINRA and NFA arbitrations and court proceedings. He also represents securities and commodities registrants in connection with enforcement and disciplinary proceedings before FINRA, NFA, CFTC, SEC and state securities regulators. Having previously served as in-house counsel with prominent investment firms, Mr. Cornish provides valuable insight and counseling for clients with complex business management and marketing matters in the investment arena.
John D. Tishler is a partner in the Corporate Practice Group in the firm's Del Mar Heights office and is the Co-Chair of the firm's Capital Market/Public Companies team.
John C. Leo focuses on the day to day management of Primary, which includes compliance and risk management, in addition to the origination and execution of investment banking transactions. John Leo acquired Primary Capital in July 2007. Prior to acquiring Primary, Mr. Leo was the founder, Chairman and majority owner of American Union Securities, Inc. (AUS), which focused on investment banking, mergers and acquisitions in China. Mr. Leo sold his ownership in AUS in March 2007 to expand his focus beyond China. Prior to starting AUS, Mr. Leo founded Venture Capital Partners LLC, a private merchant banking, securities trading, and consulting firm which provided business and financial advisory services to late-stage private companies and small to mid-sized public companies. These services included advising on the structure of equity and debt financing, financial modeling, valuation analysis, drafting business plans, establishing strategic relationships, providing introductions to institutional investors and research analysts, and assisting in the selection of board members. From 1996 through 2001, Mr. Leo worked as a market maker trading Pink Sheet, Over-The-Counter and NASDAQ-listed securities as well as IPOs. He was a registered securities principal and OTC trader with AM Capital and M.H. Meyerson. At these firms, Mr. Leo was responsible for executing orders for non-market makers as well as position trading for the firmsí proprietary accounts. While at M.H. Meyerson, between 1997 and 2001, Mr. Leo managed a profitable trading list of three hundred securities. Mr. Leo traded long and short positions, used technical analysis and hedging techniques, along with short-term charting trends to make investment decisions. In addition to Mr. Leoís hands-on experience structuring financial transactions and trading securities, he also has expertise in managing compliance issues and corporate governance, having served as a board member of seven public companies as well as the positions of CFO and Corporate Secretary. Mr. Leo maintains the following FINRA registrations: Series 7, 24, 55, 63, 79, and 99.
Kurt Reuss from Primary Capital.