Category Archives: Attorneys

Introducing the Startup Superhero Video Series! – This Week Featuring Scott Alderton on “Positioning Your Company For Financing”

Stubbs Alderton & Markiles and the Preccelerator Program are proud to announce the launch of their Startup Superhero Video Series – featuring SA&M Attorneys, Preccelerator Mentors, and entrepreneurs on topics specific to entrepreneurship and lessons learned throughout the journey.

This week we’re featuring SA&M Managing Partner Scott Alderton as he chats about “How to Position Your Company for Financing.”  Scott is the Co-Chair of the Venture Capital & Emerging Growth practice at Stubbs Alderton, General Partner of SAM CREATV Ventures, and a thought leader in the startup financing space.

 

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Transcript

Heidi: Tell me a little bit about your practice and experience and what you love most about working with emerging growth companies?

Scott: Sure, I have been doing this for a long time. My practice is broad-ranging. Early on in my career, I was more of a corporate & securities lawyer doing traditional SEC type of work with larger companies. As this thing called the “Internet” began to develop in the ’90s, it looked like it was interesting, I transitioned my practice to being more of a technology and venture capital lawyer. I really like working with companies all along their evolutionary path, but I really like working with early-stage companies. They have diverse, wide-ranging needs, they typically don’t have the resources that large companies have. I feel like I can play a vital role as an advisor even more-so than a lawyer. The lawyering part is the easy job to me, the advising part is really the fun part.

Heidi: Let’s talk a little bit about emerging growth companies and how they approach financing. What are some of the things an early stage company should be thinking about when they are going for funding. If they are really early, how do they attract investors?

Scott: I think it’s really a couple of things. The first thing that every company needs to do is to decide what its vision is and what kind of company it’s going to be. Venture capital is not right for every company and there’s lots of different ways to fund your businesses. The overwhelming majority of businesses do not get funded with venture capital. Venture capital is a way of financing a business through its growth stage. When it has a proven product, when it’s found its market and when it now needs to scale and grow. That’s when venture capital comes in and helps a company do that, but to get to that point is challenging. First you need to decide; am I a company that is going to require venture capital and am I company that is going to address a large scaling market, be disruptive, grow to be very large? That’s a venture fundable business.  Through the early stage, the second thing you need to figure out is  – how am I going to get to the point where professional investors are going to be interested in me? Professional investors are not going to be interested in every company like I said they are going to be interested in companies where they can apply their capital, grow and scale the business.

Heidi: As far as some of the tips that you would give to them, for them to actually attract investors – where do they look for them? Are warm introductions the best thing? What are some of the tactics?

Scott: First of all, don’t look too early. Understand that if you are really going out and seeking traditional, professional investment that you are going to have to have some metrics. You’re going to have to have at least a MVP of a product, you’re going to find a market where that product is being accepted. You are growing and scaling a business in that market. Whether its users or customers – whatever it is – you have to get to that stage first. How do you get to that stage? Well, you get to that stage by raising money from friends and family, from people who know you. From people that are going to invest in you, because you’re the entrepreneur. They believe in you. Relatives, friends, strategic business partners. A second way to look at that is for people who ultimately will be interested in your product, even though you have no metrics or proof of your product today. They will invest in you because they want your product to hit the market. Might be a strategic investment. Figure out a way – come hook or crook-  to raise that initial capital to where you can develop your product. Find a market place and the other doors will open.

Heidi: From a legal and business stand-point, how do they best position themselves?

Scott: Early stage companies by necessity cut corners, right? You don’t have resources. You’re boot strapping. You’re making promises that you can’t fully document. You can’t always afford lawyers or professional advisers and that’s fine. Do not second guess any of that. You got to where you are, but when you reach that point where you are now ready to go out and find professional capital, it’s important to look internally first. That you look at yourself, do the same kind of diligence with yourself that an investor is going to do on you. That way there are no surprises. Figure out capital issues and fix them. Figure out your employment issues and fix them. Figure out your commercial contracts that you have done on a whim and fix them. So that investors don’t look at you and think good concept, but I am not going to take all this risk.

Heidi: There’s another topic that startups tend to think a lot about but aren’t typically fully  educated on – how should they approach valuation and dilution?

Scott: I think that people get hung up on valuation because they have some number set in their mind or they have some experience that they talk about with other entrepreneurs. They think they either have to hang on to a certain percentage of their business or it’s not appropriate to give a certain amount at a certain round. You have to come into a financial transaction with an open mind and understand not just what you’re selling and what you have to give up for that. Also, where you are going and where that money is going to take you? I see entrepreneurs being penny wise and a pound foolish all the time. They think they don’t want to be significantly diluted. They end up throwing a wrench in the negotiation  or they loose a financing deal because they want to hang on to a few points of equity. In reality that money is going to take them so far that they are going to be vast and more valuable. Its a simple proposition of – there’s a pie and you want a piece of that pie. It’s much better to own a smaller piece of a gigantic pie than it is to own a big piece of a small pie.

Heidi: Appreciate you for being here and I’m sure we will have you back for other topics some time soon.

Scott: Thanks, looking forward to it.

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To learn more about our Venture Capital & Emerging Growth Practice, contact Scott Alderton at salderton@stubbsalderton.com.

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Major Legal Pitfalls for Startups – The Case for Hiring a Lawyer before you “Start Up” – Part 2

 

In this two part series, Kelly Laffey discusses the legal pitfalls that startups can avoid when forming their company. Kelly counsels clients on issues related to corporate governance, mergers and acquisitions matters, and securities regulation and compliance. She also assists with financing for large private corporations, and entity formation and succession planning for professional services firms. Kelly provides general business counseling on a variety of up-and-coming regulatory issues for small and emerging companies that offer commercial services, allowing them to explore new business opportunities in various states. Drawing on her diverse work experience in the entertainment arena, including time spent with talent agencies, and music and television production companies, Kelly also assists on matters related to licensing, marketing, and exploitation of intellectual property rights.

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In Part 1 of this series, I described some typical legal problems that startup companies face when they try to go it alone in the early stages of their business related to choice of entity form and jurisdiction and common issues that arise with respect to division of equity.  In this part 2, I discuss issues related to securities laws and intellectual property and finally offer some words of advice regarding how to manage the costs of hiring an attorney early on.

Compliance with Securities Laws

Any issuance of securities, meaning stock, LLC interests, options, warrants, convertible notes, convertible securities (or SAFEs) and more, will be subject to federal and state securities laws.  Startup companies often need to find an exemption to the registration requirements of federal securities laws until they are ready to go public.  Securities law is a large and complex subject that really requires a good corporate attorney to help explain those obligations relevant to a particular company in a particular given circumstance.  Failure to comply with securities laws can result in a huge financial burden on the company, the founders and recipients of equity, including employees and investors, when fines are imposed or the recipients are forced to pay a much higher price for the equity than what was intended.  An experienced securities practitioner can help you find the right exemption and implement the right process to avoid fines and adverse consequences.

Protecting Your Intellectual Property and Employment Issues

It is critical to have proper employment documentation in place and such documentation should properly protect the company’s intellectual property.  Typical employment agreements include “at-will” offer letters, independent contractor agreements, consultant or advisor agreements and stock incentive award documents.  Employment laws vary from state to state so depending on what state you’re in, you may need to include specific provisions to comply with applicable state law. One of the most important employment documents which every employee (including co-founders) should sign is a proprietary or confidential information and inventions assignment agreement.  This document ensures the company’s confidential information will remain confidential and that any ideas, work product or deliverables created by the company’s employees while working for the company will be owned by the company.  These agreements generally prevent key employees who have developed significant intellectual property for the company from claiming rights in such intellectual property in the event that they leave.

Trying To Do It Yourself

For the reasons stated above and many more, one of the biggest mistakes a company can make is trying to do the legal formation work on their own or with an inexperienced legal service provider.  All of the mistakes described above are correctable but correcting them takes time and can incur greater cost than getting professional advice from the beginning.  Many firms have very reasonable startup packages for early stage companies that include both forming the company properly and providing a suite of documents covering most, if not all, of the above issues for the company’s use, for a very reasonable flat fee.  These packages are designed to get the company started and provide you with the basic forms of agreements you need to be protected.  Once these are put in place, the company is unlikely to incur significant legal costs until it raises capital or undergoes another significant event.  While a startup package fee may still seem like a significant amount of money to spend in a company’s early stages, the value is immeasurable over the life and success of the business.

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For more information about Startup Formation and other emerging growth issues, contact Kelly Laffey at klaffey@stubbsalderton.com.

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Major Legal Pitfalls for Startups – The Case for Hiring a Lawyer before you “Start Up” – Part 1

 

In this two part series, Kelly Laffey discusses the legal pitfalls that startups can avoid when forming their company. Kelly counsels clients on issues related to corporate governance, mergers and acquisitions matters, and securities regulation and compliance. She also assists with financing for large private corporations, and entity formation and succession planning for professional services firms. Kelly provides general business counseling on a variety of up-and-coming regulatory issues for small and emerging companies that offer commercial services, allowing them to explore new business opportunities in various states. Drawing on her diverse work experience in the entertainment arena, including time spent with talent agencies, and music and television production companies, Kelly also assists on matters related to licensing, marketing, and exploitation of intellectual property rights.

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In my practice as a corporate attorney, I work primarily with startup and emerging growth companies.  This article may read similar to an advertisement for legal services and there may be some truth to that.  My ultimate goal as an attorney, however, is to save startup companies time and money (and stress) in the long run by doing things right from the start which will allow the company to put more resources to work on growing the business rather than fixing mistakes that could have easily been avoided.

Attorneys are often brought it in to work with clients who have done a significant amount of the formation and organization work themselves or through an online legal service provider at a low cost.  While it is certainly understandable that a very early stage company does not want to incur more legal cost than it has to, what seem like very minor issues to founder can lead to a lot of unnecessary clean-up work and time spent determining the best way to fix those issues including if and how to disclose them to potential investors, strategic partners or others that are critical to the business.

The unfortunate fact is that errors in company formation usually come to light when a company is about to engage in its first major financing or strategic transaction and potential investors or strategic partners start doing their “due diligence” on the company, i.e., looking into its formation documents, the founder agreements, employment agreements, etc.  This is often a critical time for the company as the founders have begun conversations with potential investors or a strategic partner, built momentum and are usually geared to start scaling the business. When the problem areas are identified and those activities are put on hold, it can cause a panic at the company, requiring lawyers to address the errors on a tight timeline in order to minimize the damage and not lose momentum. The result is typically a very high legal bill for a financing or strategic transaction.

In this two-part series, I describe some common legal issues encountered by startups that are not properly considered without legal counsel and which, when thoughtfully discussed with legal counsel prior to forming the company, should spare the company from legal expenses for corrective measures.

Choosing the right entity AND the right jurisdiction for you.

One of the first decisions a new company has to make is what legal entity form to take.  There are without a doubt dozens of articles that say you should be a C-corp for these reasons or you should be an LLC for those reasons.  Maybe you’ve read or know something about S-corps and you think that sounds like a good idea.  The reality is that the right entity form for your company is very specific to the facts and circumstances of your company.  Factors we consider include, among others: How many founders are there? How many employees will the company have? Will the company raise money from VCs or angels (and if so, does it expect to do so right away or will that be much further in the future of the company)? What is the anticipated size of the business? In what industry does the business operate? What might make the most sense now might not serve as the best form later and the form of entity can generally be changed later if necessary.  These are all factors a good lawyer or tax advisor can talk through with a new business and provide guidance regarding which options to select based on the company’s business plans.

The less often thought about issue is where to form the company.  As a lawyer practicing in what’s been termed “Silicon Beach,” most of our clients are based in California and so many assume they should organize or incorporate in California.  For some companies, being formed in California is perfectly fine, however, California can also be problematic for a number of reasons.  Many outside investors do not like to invest in California entities because California does not have the established corporate jurisprudence that Delaware has and so there is an element of unpredictability in California.  Companies will often be advised to incorporate in Delaware because Delaware corporate law is seen as both business and investor friendly.  However, if a company incorporates in Delaware, it has to engage a registered agent located in Delaware and so for some companies, it does not always make sense to pay the registered agent fees. Other factors to consider when choosing a jurisdiction are filing fees, franchise taxes and required annual filings. These are all considerations a corporate lawyer can help startups navigate.

Division of Ownership; Dilution and Vesting.

This can be an awkward conversation amongst founders but it is an important conversation to have early on in the life of the business.  How much of the company should each founder own? What is each founder bringing to the company in terms of skills, resources and service and how do we value what each founder adds? How much dilution are the founders willing to endure and from which sources, i.e., outside investors, an employee option or stock pool, venture debt transactions, etc.? Should the equity be subject to vesting and continued service to the company?

I’ve often encountered very early stage clients who have 2 to 3 initial founders and they have already diluted themselves by giving away equity such that together, they own less than half of the company.  Founders are so passionate and focused on developing the idea and growing the business, they don’t necessarily have good insight when it comes to managing the cap table.  Further, I’ve seen companies provide equity grants to service providers or intended partners of the business without subjecting the grants to vesting or continued service to the company over time.  We typically recommend that all service-related equity vest over a certain number of years to ensure the company is getting the intended value in exchange for that equity.

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For more information about Startup Formation and other emerging growth issues, contact Kelly Laffey at klaffey@stubbsalderton.com.  Stay tuned for Part II of the Startup Pitfalls Series on Monday, October 16th.

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SAM Attorney Caroline Cherkassky to be Featured Speaker at Plugin South LA’s Digital & Beyond in LA – October 12, 2017

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SAM Partner Michael Sherman Representing Danny Wimmer in Litigation Battle

Danny WimmerStubbs Alderton & Markiles Partner Michael Sherman is lead counsel to Danny Wimmer Presents in a legal battle against his former law firm disputing their 14.3 percent membership claim to his company DWP. Danny Wimmer Presents is a music festival production and promotion company that is headquartered in Los Angeles.

To read the full article on Pollstar click here.

Stubbs Alderton & Markiles attorneys representing Danny Wimmer Presents are Michael A. Sherman and David Harris.

Michael ShermanMichael Sherman  is an accomplished trial lawyer in high-stakes, “bet-the-company” litigation, and has represented both large and early-stage companies as well as entrepreneurs in all facets of business and complex commercial litigation. He has evenly split his litigation practice on both the plaintiff and defense side of cases, has first-chaired numerous trials in complex matters in industries as varied as energy, securities, healthcare, environmental, consumer products, technology, project development/finance, advertising, real estate and apparel, and is highly skilled in class actions and unfair competition law.

For more information on our Business Litigation Practice, contact Michael A. Sherman at msherman@stubbsalderton.com.

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SAM Partner Kevin DeBré Speaking at FirstFridays @ UCLA TDG “Secrets of Startup Success”

Stubbs Alderton & Markiles’ Partner Kevin DeBré will be featured as a speaker at
UCLA FirstFridays on “Secrets of Startup Success.”
The event will be Friday, August 4th at  10889 Wilshire Blvd., Suite 820-20.

ABOUT UCLA TDG FirstFridays
UCLA Technology Development Group (TDG) hosts a monthly educational series and mixer called UCLA TDG FirstFridays.

The continental breakfast event will occur on the first Friday of every month from 9:00-10:30 in our conference room Suite 820-20, 10889 Wilshire Blvd.

The purpose of the event is to provide an opportunity for the campus and local communities to come and meet with our staff and interns, to hear a brief presentation on a variety of topics relevant to intellectual property and entrepreneurship at UCLA and to ask questions and network.

About Kevin DeBré
Kevin represents entrepreneurs and startup companies in building successful businesses. He is a corporate and intellectual property attorney and a partner at Stubbs Alderton and Markiles, LLP, a full-service, Los Angeles-based business law firm representing many of Southern California’s most promising emerging growth technology companies. Kevin structures and negotiates equity and debt investment transactions, technology development deals and commercialization agreements and ventures for monetizing intellectual property assets. Prior to Stubbs Alderton, Kevin was a partner in leading international law firms, including Brobeck Phleger & Harrison, LLP, where he headed the firm’s technology transactions practice in Southern California. Kevin is a registered patent attorney and worked as an engineer before law school. He served as a judicial law clerk for Hon. John G. Davies, United States District Court for the Central District of California and received his J.D. degree from Hastings College of the Law and his B.S. degree from the University of California, Davis.

We encourage you to attend!

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Is a Pension Plan the Right Potential Investor For Your Company?

Pension Plan There are more than $25 trillion dollars in U.S. pension plan assets as of December 31, 2016.[1]  To a company (for purposes of this article the entity seeking pension plan investment is referred to as the “Company”) seeking investment capital, pension plans may be important potential investors.  This blog article identifies two important considerations when seeking pension plan investment:  1.  Will the assets of the Company be considered “plan assets”? and 2. Will an investment in the Company result in an income tax liability for the investing plan?

PLAN ASSETS:    The first hurdle is whether the Company’s assets will be considered “plan assets” and what are the implications if the Company’s assets are regarded as plan asset?  The general rule is in general that a portion of the Company’s assets will be treated as plan assets in percentage that pension plan investment bears to all investment.[2]  As having the Company’s assets treated as plan assets turns the Company’s management into plan fiduciaries, plan asset treatment is to be avoided.  To avoid a portion of its assets being treated as plan assets of the investing plans, the Company must meet one of the exceptions listed in the plan asset regulation.[3]

  1.  Debt. The plan asset regulation applies to equity and equity-participating debt instruments.  Straight debt is not subject to the plan asset regulation.[4]  Convertible debt is only treated as equity on conversion unless the conversion feature is more than an incidental feature of the debt instrument[5].   Relying on the determination that the conversion right in a debt instrument is “incidental” would be risky.
  2. Publicly offered security. The plan asset regulation exempts a class of security that is sold to the public under a registration statement effective under the Securities Act of 1933[6] and that is registered under Section 12(b) or 12(g) of the 1934 Act within 120 days after the end of the fiscal year in which the registration statement was declared effective.[7]  To avoid manipulation of this exception, a publicly offered security must have a minimum investment of $10,000 or less and be held by 100 or more investors independent of the Company.[8]
  3. Operating company. The plan asset regulation exempts equity securities issued by an “operating company”.  The plan asset regulation gives no helpful guidance on what would constitute an “operating company.”[9]  Instead, the plan asset regulation offers two safe harbors, for a venture capital operating company[10] and for a real estate operating company[11].   A venture capital operating company is a company 50% or more of whose assets are securities of companies in which the company obtains and actually exercises management rights.[12]  A real estate operating company is a company 50% or more of whose assets consist of real estate that the company manages and develops.[13]  Real estate that is net leased on a long term basis is not considered “managed” for purposes of qualifying for the real estate operating company safe harbor.[14]  On the other hand, where the Company has the obligation to maintain and operate the real estate and hires a manager on a short term basis, the Company may still be a real estate operating company.[15]
  4. No significant participation. Probably the most relied on exception from the plan asset rules is the no significant participation exception, meaning that at all times pension plans hold less than 25% of the value of any class of equity interest in the Company.[16]  Investment in the Company’s securities by the Company’s sponsor or managers is ignored.  The effect of that computational rule is to make it harder to meet the test for not significant participation.  If the Company raises $1,000,000 in capital, $200,000 from a pension plan and $200,000 from management, the pension plan’s investment will be 25% (200,000/800,000), with the investment by management being excluded from the calculation.  On the other hand, if a manager were to invest through his IRA or 401K, that investment would be included in the aggregate pension plan investment in the Company.[17
  5. Tax implications of plan asset treatment. If the assets of the Company are treated as pension plan assets—because none of the exemptions in the plan assets regulation has been met—the managers of the Company will be deemed fiduciaries[18] of the plan assets under management. Use of the plan assets to benefit the Company’s managers would be susceptible of being treated as a prohibited transaction, with the Company’s managers potentially liable for a 15% penalty excise tax imposed on the investment.[19]  That tax rate jumps to 100% of the amount involved if the transaction is not reversed by the time the IRS issues a notice of deficiency to the fiduciaries with respect to the prohibited transactions.[20]
  6. ERISA Fiduciary implications of plan assets treatment. Section 406 of the Employee Retirement Income Security Act of 1974 (“ERISA”)[21] creates a civil cause of action against plan fiduciaries and in appropriate cases against non-fiduciaries who are “parties in interest.”[22] If a plan suffers an economic loss in a transaction that involved a prohibited transaction, the fiduciaries can expect to be required to personally restore those losses.  With that understanding, no entrepreneur should want pension plan investors without assurance that the entrepreneur will not be a fiduciary to the pension plan investors, meaning management of the Company should be motivated to avoid plan asset treatment.

UNRELATED BUSINESS INCOME.  Another issue for pension plan investors, completely apart from the prohibited transactions discussed above, is the determination of whether an investment in a Company will generate unrelated business income (“UBI”)[23] for the pension plan or exempt organization investor.  As noted above, an operating company is not subject to plan asset treatment, but an operating company may well generate unrelated business income.[24]  Income from a business that an exempt organization or pension plan operates or invests in is treated as UBI.  UBI less allowable deductions results in unrelated business taxable income, upon which the unrelated business income tax is imposed[25].

Income from dividends, interest, royalties, rents and capital gains are excluded from UBI[26].  Rents of personal property and rents based on the income or profits of any person are includible in UBI.[27]   A portion of dividends, interest, royalties, rents and capital gains derived from debt-financed property will be included in UBI.[28]

The allocation of net profits to an investing pension plan by a limited liability company (“LLC”) or other partnership that itself conducts an operating business will be treated as UBI to the investing Plan.[29]  A plan really has three choices when considering an investment, (a) avoid an investment in an active business through a pass-through entity like an LLC, (b) invest in an active business through a pass-through entity and pay the tax on the UBI, or (c) form a wholly-owned C corporation to hold the interest in the operating LLC (generally known as a blocker corporation).  Where a sponsor is promoting an investing in an operating business through a pass-through entity, the sponsor itself may form the blocker corporation through which plans, exempt organizations and foreign taxpayers may invest.

As a general rule, the purchase of an interest in an investment that would otherwise be exempt from UBI, for instance because it generates royalties, dividend, interest or rents, by incurring debt or buying subject to debt will cause a portion of the income to be taxed as UBI.[30]  The determination that an investment constitutes “debt financed property” that will cause a portion[31] of the income from the investment to be UBI can be made at the investing plan level and at the investment level.  For example, if a plan borrows to buy a corporate bond, a portion of the interest from that bond will debt-financed property.  In addition, if a plan invests in an LLC that borrowed to acquire an asset, the debt-financed character of a portion of the income will be passed through to investing plans.

Section 514 provides a limited exception from acquisition indebtedness treatment for mortgage debt secured by real property owned by a “qualified organization”.  The term “qualified organization” includes (a) a charitable educational organization, (b) a pension trust, (c) a corporation formed to hold real estate for a pension plan or charitable educational organization, and (d) a church retirement income account.[32]  If a partnership or LLC will acquire real estate subject to mortgage debt, as is typical, the sponsor may make the investment more attractive to potential pension plan investors by satisfying the requirements for partnerships to avoid debt financed income for investing plans in the LLC’s operating agreement or the limited partnership’s limited partnership agreement.[33]

Pension Plan Michael Shaff joined the firm in 2011 as Of Counsel. He is chairperson of the Tax Practice Group.Michael specializes in all aspects of federal income taxation. Mr. Shaff has served as a trial attorney with the office of the Chief Counsel of the Internal Revenue Service for three years. Mr. Shaff is certified by the Board of Legal Specialization of the State Bar of California as a specialist in tax law. Mr. Shaff is a past chair of the Tax Section of the Orange County Bar Association.  He is co-author of the “Real Estate Investment Trusts Handbook” published annually by West Group. Michael received his A.B. at Columbia College in 1976, his J.D. from New York University School of Law in 1979 and his LL.M. in taxation from New York University School of Law in 1986. He is admitted to practice law in the States of California, New York and Massachusetts and is a member of the Orange County Bar Association.

For more information about our Tax & Estate Planning practice, contact Michael Shaff at mshaff@stubbalderton.com 
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[1]   https://www.ici.org/research/stats/retirement/ret_16_q4
[2]   29 C.F.R. §2510-3.101(a)(2)(second sentence); the first sentence of subsection (a)(2) establishes the “general rule” that a pension plan’s assets consist of its investment but not the underlying assets of the entity.  The second sentence relegates that rule to being an exception.
[3]  29 C.F.R. §2510.3-101 will be referred to as the “plan asset regulation” in this article.
[4]  29 C.F. R. §2510-3.101(b)(1).
[5]  29 C.F.R. §2510-3.101(j)(example 1).
[6]  As Regulation D is an exemption from registration pursuant to Section 5 of the Securities Act of 1933, securities offered pursuant to Rule 504 or 506 would not satisfy this part of the plan asset regulation.
[7]  29 C.F.R. §2510-3.101(b)(2).
[8]  29 C.F.R. §2510-3.101(b)(3) and (4).
[9]  29 C.F.R. §2510-3.101(c)(1): “An ‘operating company’ is an entity that is primarily engaged, directly or through a majority owned subsidiary or subsidiaries, in the production or sale of a product or service other than the investment of capital.”
[10]  29 C.F.R. §2510.3-101(d).
[11]  29 C.F.R. §2510.3-101(e).
[12]  29 C.F.R. §2510.3-101(d)(3).|
[13]  29 C.F.R. §2510.3-101(e).
[14]  29 C.F.R. §2510.3-101(j)(example 7).
[15]  29 C.F.R. §2510.3-101(j)(example 8).
[16]  29 C.F.R. §2510.3-101(f).
[17]  29 C.F.R. §2510.3-101(f)(1).
[18]  26 U.S.C. §4975(e)(3).
[19]  26 U.S.C. §4975(a)).
[20]  26 U.S.C. §4975(f)(2).
[21]  29 U.S.C. §1106
[22]  Harris Trust Savings v. Salomon Smith Barney Inc., 530 U.S. 238 (2000).  Salomon Smith Barney acted as broker for a pension plan’s fiduciary, executing trades that constituted self-dealing prohibited transactions.  (Id.)  The Supreme Court found that although not a fiduciary, Salomon Smith Barney was a party in interest and therefore could be sued for the plan’s actual damages, effectively making the defendant the insurer of every transaction that the fiduciaries engaged in.
[23]  Internal Revenue Code (I.R.C.), 26 U.S.C. §511-514.
[24]  I.R.C. §512(a).
[25]  Id.
[26]  I.R.C. §512(b).
[27]  I.R.C. §512(b)(3).
[28]  I.R.C. §511(a)(1).
[29]  I.R.C. §512(c)(1).
[30]  I.R.C. §514(a).
[31]  In short, the ratio that average acquisition indebtedness bears to the average basis of the debt financed property will determine the portion of the income from the debt financed property that will be UBI.  As the amount of debt and the adjusted basis of the debt-financed property change, the portion of the income treated as UBI will change. I.R.C. §514(a).
[32]  I.R.C. §514(c)(9)(C).  The exemption for these organizations may reflect Congress’s determination that pension plans and certain educational institutions often invest in leveraged real estate.
[33]  I.R.C. §514(c)(9)(E).

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The Los Angeles Increase in Minimum Wage and Who It Affects

Is Your Company Subject to the Minimum Wage Ordinance Taking Effect July 1, 2017?

The Office of Wage Standards increases the Los Angeles City and Los Angeles County minimum wage rates under the Minimum Wage Enforcement Ordinances.  If your minimum wage employees are on a bi-weekly pay schedule, starting the next pay period, they may be entitled to wage increases.  If the employees actually perform their work within Los Angeles City or Los Angeles County boundaries and they are not public employees, then the new minimum wage law (starting July 1, 2017) affects minimum wage employees’ pay rate in accordance with either the “small business” category (25 employees or fewer) or the “regular business” category (26 employees or greater).

For businesses that operate within the City of Los Angeles or the County of Los Angeles and are subject to either ordinance, pay rates for their employees increase next month.  The increase takes place this July 1, 2017 from $10.00 to $10.50 per hour for companies with 25 or less employees, and from $10.50 to $12.00 per hour for companies with 26 or more employees.

The City and County of Los Angeles only count the employees that work within the City and County boundaries—not outside—because an employee is defined as those “employees that work within the geographical boundaries,” so those employees outside the geographical boundaries do not help those employees within boundaries get the higher increase because they are not considered employees for purposes of this City or County Ordinance.

If you are unsure if your company or employer is subject to the small business category or regular business category, complete a MW2-MWO worksheet located at www.wagesla.lacity.org to find out.

To see if your company is within the boundaries governed by the City or County Ordinances, visit www.neighborhoodinfo.lacity.org.

For more information on wage and hour legal issues, including litigation, please contact Ryan C. C. Duckett at rduckett@stubbsalderton.com or Jeffrey F. Gersh at jgersh@stubbsalderton.com, or call (818) 444-4500.

Nothing herein shall be constituted as legal advice.

 

About Stubbs Alderton & Markiles, LLP

Stubbs Alderton & Markiles, LLP is a business law firm with robust corporate, public securities, mergers and acquisitions, entertainment, intellectual property, brand protection and business litigation practice groups focusing on the representation of, among others, venture backed emerging growth companies, middle market public companies, large technology companies, entertainment and digital media companies, investors, venture capital funds, investment bankers and underwriters. The firm’s clients represent the full spectrum of Southern California business with a concentration in the technology, entertainment, videogame, apparel and medical device sectors. Our mission is to provide technically excellent legal services in a consistent, highly-responsive and service-oriented manner with an entrepreneurial and practical business perspective. These principles are the hallmarks of our Firm.

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SAM Clients Kravitz, Inc. and Kravitz Back Office Solutions Acquired by Ascensus

Kravitz (Los Angeles, CA – June 19, 2017)  Stubbs Alderton & Markiles, LLP announced that its clients, Kravitz and Kravitz Back Office Solutions, have been acquired by Ascensus. Kravitz is a retirement administration firm and Cash Balance specialist focused on bringing its clients the latest in the design, administration, and management of corporate retirement plans.  Kravitz Back Office Solutions delivers private-label actuarial services to third-party administrators across the country to help them grow and succeed with Cash Balance plans.

Stubbs Alderton & Markiles’ attorneys representing Kravitz in the transaction included Scott GalerNick Feldman and Kelly Laffey.

For the full press release, click here.

About Stubbs Alderton & Markiles, LLP
Stubbs Alderton & Markiles, LLP is a business law firm with robust corporate, public securities, mergers and acquisitions, entertainment, intellectual property, brand protection and business litigation practice groups focusing on the representation of, among others, venture backed emerging growth companies, middle market public companies, large technology companies, entertainment and digital media companies, investors, venture capital funds, investment bankers and underwriters. The firm’s clients represent the full spectrum of Southern California business with a concentration in the technology, entertainment, videogame, apparel and medical device sectors. Our mission is to provide technically excellent legal services in a consistent, highly-responsive and service-oriented manner with an entrepreneurial and practical business perspective. These principles are the hallmarks of our Firm. Visit www.stubbsalderton.com 

For more information about our Mergers & Acquisitions practice, contact Scott Galer at sgaler@stubbalderton.com 

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SAM Partner Kevin DeBré Moderating Panel on “Innovation in Large Corporations/Scouting for Opportunities” at USC

Stubbs Alderton & Markiles’ Partner Kevin DeBré will be featured as a moderator at USC Viterbi School of Engineering on “Innovation in Large Corporations/Scouting for Opportunities” at their Technology Scouting Workshop. The event will be Tuesday, June 20th at the Marina del Rey Marriot from 8AM-5PM.

Technology Scouting Workshop
June 20, 2017
Marina del Rey Marriot
4100 Admiralty Way, Marina Del Rey, CA 90292

To register for the event click here.

To find out more about Stubbs Alderton & Markiles’ Intellectual Property & Technology Transactions practice contact Kevin DeBré at kdebre@stubbsalderton.com

Kevin D. DKevin DeBré eBré is the chair of the Firm’s Intellectual Property & Technology Transactions Practice Group.  Kevin advises entrepreneurs and companies that use intellectual property to build their businesses.  Kevin has particular expertise in structuring and negotiating technology commercialization and patent licenses, strategic alliances, research and development collaborations, trademark licensing and brand merchandising agreements and manufacturing, distribution and marketing arrangements.  He also counsels clients on compliance with data security and privacy laws and regulations.

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