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A: Hi everybody, its Amy Wan from Bootstrap Legal. I’m here with Scott Anderson today because we are going to talk about capital raisers and raising money. Scott is the perfect guy to talk to you guys about all of this, so, Scott thanks for joining me.

S: Yeah, thanks for having me.

A: So the reason why I wanted to do this session is because ever since I published my article on capital raisers, I’ve just been inundated with calls and questions and people coming up to me at events asking all these questions. I feel like there’s a lot of confusion out there in the industry and at some point I thought, they don’t want to hear it from me, but they should hear it from you. For those of you who don’t know, Scott has his own law firm now, but he was the former deputy chief counsel at FINRA–the financial regulatory authority–the agency that regulates broker-dealers. Before that, he has led complex criminal prosecutions in the New York State Attorney General’s office and New York Stock Exchange and FINRA, so he brings a very unique prosecutorial perspective. A couple of years ago, Scott would have probably been the one on the enforcement side against capital raisers. Did I do your background justice, Scott?

S: Yeah, they did a great job. Thank you very much.

A: I want to clarify what all the regulations and laws are for capital raisers in the real estate syndication business. Let’s start with defining transaction-based compensation. What is it?

S: Sure, So, you know, the biggest thing people have to be concerned about is whether their activities are going to be deemed to be acting as broker-dealer. A broker is any person it’s engaged in the business of effecting a transaction in the securities for the account of another–so when you think about that and you think about what it means, it essentially means that if you are getting paid for being involved in the securities transaction, then very likely you may be acting as an unregistered broker-dealer. We care about that because the SEC has been very clear both in speech as well as enforcement actions. If you follow SEC enforcement actions, every month or so, there’s another action on an unregistered-broker dealer case. They are very actively pursuing these cases because they believe its the best way to protect investors.

A: If people do not have a broker-dealer license, is there any way they can charge transactions to be as compensation?

S: Just to be clear, transaction-based compensation is if you bring a securities transaction to another party and you only get paid if that person invests or your pay is conditioned on or subject to the amount of money that individual invests– that’s transaction-based compensation. Another way to refer to it more commonly is just “commission.” So, if you are receiving transaction-based compensation by bringing a securities transaction to another party, the SEC has been very clear that they view that as a hallmark that you are engaged in an unregistered broker-dealer activity. So, to answer your question, the answer is ‘no’–if you’re engaging those transactions you cannot do that absent either being registered as a broker-dealer being an associated person of a broker-dealer.

A: Let’s talk about compensation really quickly because I think when people hear commissions, they think ‘cash.’ I have been hearing folks say that they’re giving a piece of the equity as the general partner, or giving part of an acquisition fee or asset management fee. Does that count as compensation?

S: If it’s tied to the Securities transaction, yes, and that’s the problem. And by the way, when the SEC investigates these things, they take a very close look at how compensation was determined, how it’s calculated, and how it was paid. They take a very deep dive and look into it to make an assessment as to whether the compensation that was paid does, in fact, constitute transaction-based compensation.

A: What if someone is helping to raise money but is not charging for it. They’re not getting paid at all. Is that okay?

S: Traditionally the SEC primarily focused on whether somebody was receiving transaction-based compensation. That was the most important criteria for determining kind of a client’s risk, whether they had the risk of an enforcement action, but the SEC has taken broader perspective. When you consider whether you may need to be registered as a broker-dealer or an associate of a registered person with a broker-dealer, the SEC looks at other criteria. In addition to that, for example, are you involved in the solicitation of a securities offering? Are you involved in negotiating a securities transaction? Are you involved in executing a securities transaction? Are you receiving customer funds or holding customer securities? There is more, but those are examples of things that SEC will look at in making its assessment as to whether you should be registered as a broker-dealer. They should consult securities counsel–they don’t have to call me, but they should consult somebody who has some knowledge in the area to get some advice because you know, there could be significant consequences if they do this incorrectly.

A: I want to talk to you about the issuer exemption because I think that people have been interpreting in a very creative and interesting way where they’re just adding capital raisers to the sponsor entity or GP. Do you have a reaction to that?

S: If you receive transaction-based compensation, the issuer exemption is not applicable. And by the way, bringing people into the sponsor, you know under the issuer exemption, their activity can’t just be related to raising capital. They have to have significant responsibilities after raising capital. So from my perspective, I would be at the troubled with respect to that setup.

A: What if their additional responsibility after raising capital is ‘investor relations’?

S: Look, it has to be real. I mean the person who is going into the sponsor really has to have other responsibilities and those responsibilities can’t be the solicitation of investors. It has to be broader than that for the issuer exemption to work and again, as I mentioned a moment ago, it seems the motivation would be lost apparently to even engage in this structure because they can not receive transaction-based compensation or else there’s no issuer exemption available.

A: In terms of alternatives, people are looking at the Finder’s Fee exemption. Can you explain to us the Finder’s Fee Exemption? 

S: A couple of decades ago, the Commission gave some no-action guidance which became known as the Finder’s Fee Exemption. Basically the Finder’s  Fee Exemption was literally just limited so that you introduce somebody to somebody else and you walk away and then you receive a Finder’s fee for that introduction and the introduction doesn’t include a discussion on the merits of the investment, it doesn’t include a recommendation, it doesn’t include involvement and negotiation, it doesn’t include involvement and helping fund the transaction. It was a very limited exemption limited solely to an introduction, which the SEC indicated in such circumstances would not require registration as a broker-dealer. 

The problem now is that since the guidance came out, the SEC has largely, through cases, backed away from that guidance, specifically articulating that if you receive transaction-based compensation on a single security transaction, that may be enough to require that you be registered as broker-dealer. Anyone who is considering relying on the Finder’s fee exemption– I urge them to consult securities counsel. And when you’re getting the opinion from counsel that you can do this, ask the lawyer to put it in writing it so it’s very clear what the opinion and advice is, and so that if there’s ever an issue later with that opinion and advice, it can be shared as a mechanism for defending yourself against an SEC investigation. 

But the Finder’s Fee exemption is very limited now and the SEC priority has made it very clear, even in a non-fraud situation, that unregistered broker-dealer cases are an SEC priority because they want people engaged in these activities to have a certain level of knowledge. They want individuals engaged in this business to be supervised by a supervisor–generally a Series 24 supervisor, a broker-dealer who makes sure they’re complying with certain rules, etc. And they also expect that people engaged in the business as broker-dealers are gate-keepers. They have a responsibility to protect investors. And that responsibility is supervised directly by FINRA, which is a self-regulatory organization. I believe that gives the SEC comfort knowing that people engaged in this type of activity are regulated directly by FINRA and their activities being reviewed on a regular basis. 

A: Fantastic. Is there anything else you wanna add for our listeners?

S: Yeah I would just say that we’re talking about an area that the SEC cares very much about, that the SEC is consistently bringing cases on. You should be consulting legal counsel and not kind of guessing or putting patchwork together with respect to how you believe you can conduct your business. You should get an opinion from legal counsel.

A; If people have been engaged in the activities that we’ve been discussing today, and say they’re going to promise to not do that anymore or back away from it, given that they’ve already done some of these activities in the past, what should they do?

S: Well, they should consult counsel. I mean, the first thing they should do is stop engaging in the activities if they believe that their activities are illegal. Speak to legal counsel, who may confirm that you should be a broker-dealer. There’s a tremendous amount of risk for you to go forward and not be broker-dealer. People should take pause and listen to that advice and act on that advice with respect to what they should do about their previous activity. That’s a longer discussion and I think it’s a conversation they should have with legal counsel.  

A: Fantastic. Scott, how can people find and follow you? 

S: My website is finlawyer.com. My phone number, my e-mail address is contained there. 

A: Fantastic. Awesome. Thank you so much for sharing your knowledge, Scott.

S: Yeah my pleasure. Nice seeing you 

A: You too. 

Over the past few years, a certain bubble has arisen in the real estate syndication industry that causes many of us securities attorneys to worry. A new breed of sponsors self-labelled as “capital raisers” has come into existence, and their practices of raising capital in conjunction with the sale of securities is looking increasingly more like multi-level marketing than the tightly-regulated activity it is required to be. In other words, many of the capital raising activities we’re seeing probably violate securities laws.

Over the past few months, I’ve seen or heard about the following suspect practices:

• — Capital raisers getting paid for raising capital from acquisition or asset management fees
• — Deals with over a dozen individuals in the sponsor team
• — “Deferred equity structures” where a capital raiser is rewarded with a slice of the management or sponsor entity depending on how much is raised
• — Capital raisers claiming to be “part of the General Partnership” when they’re not mentioned anywhere in the PPM or Investor Summary/Deck
• — Investors being presented with the same deal from multiple different people claiming to be part of the Sponsor
• — And more.

What’s a Broker Dealer?

The federal activity-based definition of “broker” in Section 3(a)(4) of the Securities Exchange Act of 1934 is straightforward:

BROKER. — (A) IN GENERAL. — The term “broker” means any person engaged in the business of effecting transactions in securities for the account of others.

The definition’s operative terms are “engaged in the business” and “effecting transactions” and both are broadly construed by the SEC.

Borrowing from a speech by David Blass, Chief Counsel of the SEC Division of Trading and Markets, (https://www.sec.gov/news/speech/2013-spch040513dwghtm):

The test for broker-dealer registration is broad and depends on various activities a person performs in one or more securities transactions.

Some examples of activities, or factors, that might require private fund adviser personnel to register as a broker-dealer include:

• — Marketing securities (shares or interests in a private fund) to investors,
• — Soliciting or negotiating securities transactions, or
• — Handling customer funds and securities.

The importance of each of these activities is heightened where there also is compensation that depends on the outcome or size of the securities transaction — in other words, transaction-based compensation, also referred to as a “salesman’s stake” in a securities transaction. The SEC and SEC staff have long viewed receipt of transaction-based compensation as a hallmark of being a broker. This makes sense to me as the broker regulatory structure is built, at least in large part, around managing the conflict of interest arising from a broker acting as a securities salesman, as compared to an investment adviser which traditionally acts as a fiduciary and which should not have that same type of conflict of interest.

When we talk about “compensation,” we mean more than a mere commission. The SEC has a broad view of compensation–it can be a commission, cash, equity, warrants, options, cryptocurrency, etc. The important factor is whether the compensation is “transaction-based” or based on the success of a transaction. For example, an algorithm defining the percentage allocation of a syndication GP or manager based off the amount of capital each sponsor member brings in would probably be considered transaction-based compensation. However, a scenario where John Doe will get 5% of a manager entity for a variety of duties, including capital raising, even if he is unable to raise a single dollar, is less likely to be considered transaction-based compensation. The operative question here is whether the compensation is dependent on a successful transaction. Only registered broker-dealers licensed with FINRA can be paid transaction-based compensation–and I have yet to come across a ‘capital raiser’ holding such licensure.

If It Walks Like a Duck

Despite the above, many individuals seem to have fostered their own interpretations, or designed fancy agreements or loopholes around the transaction-based compensation rule. I’ve seen this happen before in other industries. However, the answer is always the same—it doesn’t matter what you label the activity or how creative you try to be about it. It really comes down to what is actually happening—does the scheme look like transaction-based compensation or not? When the SEC looks at the situation, if it looks like transaction-based compensation is going on, that is probably what they will label the activity. In other words, ‘if it walks like a duck, quacks like a duck, and swims like a duck, it’s probably a duck.”

While there is no formula to say what is transaction-based compensation and what it not, generally I tell clients that if they are going to bring a business partner into the sponsor role, that person had better be a true sponsor. Conservatively, this means that they bring value or a unique skill set to the offering, have duties and responsibilities throughout the lifetime of the deal—not just during the capital raise—and those duties should include activities that don’t involve raising capital (or investor relations or anything else relating to investors). Additionally, it means that any compensation an individual receives should not be tied to how much capital they raised—whether that compensation is in cash or equity.

Other (Legal) Ways of Working With Capital Raisers

There are other ways to work with capital raisers. For example, once could start a fund of funds, or a sub-syndication that invests in a parent syndication. The capital raiser can raise capital for their own fund (and thus, become the “sponsor” of their own offering), which would then invest those proceeds in one or more other funds or offerings. In these scenarios, the fund generally charges the investor an administrative fee, carried interest, or other fees to compensate them for bringing the deal to investors and doing due diligence. It also helps smaller investors group money to be able to invest in deals that require high minimum investments. The downside of the fund of funds approach, though, is higher transactional costs (to create the sub-syndicate) and the additional burden of meeting possibility of needing to be a registered investment advisor, or RIA (or an exemption from RIA licensure).

I used to talk about other ways to folks could help others raise capital, such as specific types of consulting agreements that do not pay transaction-based compensation, but I’ve seen such an abuse of these methods lately that I’m less inclined to talk about them.

Why Haven’t People Talked About This Issue Before

While “capital raisers” have been around for a while, their arrangements looked far different from the multi-level marketing schemes we’re seeing today. Traditionally, capital raisers who joined a sponsor group would know exactly which deals of which they were a co-sponsor. The number of sponsors in an offering would be limited in number, and the capital raiser would get a small, fixed percentage of the sponsor’s share for fulfilment of all their duties, regardless of whether they succeeded in raising money for the offering.

Consequences of Non-Compliance

Violations of securities laws come with a number of consequences. I always explain to clients that they’re dealing with two different types of risk—regulatory risk and litigation risk.

Regulatory risk is in relation to risk that federal or state regulators (i.e., the SEC, FINRA, state securities agencies) come after you for violation of securities laws. The consequences range from rescission, fines and penalties, criminal charges, jail time, and being labeled a ‘bad actor.’ At the state level, some states have more draconian laws which allow the investor to require the capital raiser (if they are an unlicensed broker dealer) to repurchase all unlawfully sold securities.

While all of these are bad, I believe the most detrimental punishment for a real estate syndicator is the bad actor label, which means that that individual cannot be a director or officer of any company that is raising capital for a period of time (sometimes forever). Effectively, this means that if you are labeled as a bad actor, you cannot be part of the sponsor group for a real estate syndication (or any other private placement), and you are limited in your investments in real estate syndication (and other private placements).

Still, as scary as regulators seem, regulators are often civil servants mandated to uphold their agency’s mission. If you are cooperative, life will be easier.

That is not true, however, of the plaintiff’s bar. If your investors hire an attorney to sue you, the sponsor, you may be in for a world of hurt. Plaintiff-side attorneys sometimes work on a contingency (so are not motivated to settle for less than a large sum) and other times, bill by the hour (and thus are motivated to make the process long and painful). My plaintiff-side attorney friends often joke to me that they love it when sponsors get sued because they get to bill for 100 times the amount of money the sponsor would have spent to avoid the issue in the first place. Just remember—we live in the most litigious country in the world, and Americans love to sue.

You may be wondering why you haven’t heard of any sponsors getting sued over all this stuff. There are many answers. For one, I believe that ‘capital raiser’ problem has become big enough to attract attention from regulators—and that the axe hasn’t fallen yet (but will). Secondly, there are a lot of people running around who quite frankly have never talked to an attorney, and were trained by someone else who also hasn’t talked to an attorney. And third, people don’t tend to air their dirty laundry, so if they’re getting investigated by regulators or sued, they’re not going to advertise that fact. I can tell you though that I’ve gotten more concerned inquiries about capital raisers in the past few months than the past few years. And, I’ve gotten more calls from folks asking for referrals to a litigation attorney in the past few months than I have over the past few years.

Why This Is Important

This is important because of the ramifications that today’s non-compliance may have on future offerings. The rule of thumb in securities offerings is that you must disclose all material information that an investor would want to know when they invest—this includes any personal or business bankruptcies, litigation, criminal proceedings, and run-ins with regulatory authorities. Once you get a formal order or enforcement action by a regulatory authority or become embroiled in litigation on a past syndication deal, you must disclose that information in your future deals in writing. This may sound like nothing right now, but for clients who have been in this situation, it’s an uncomfortable and sometimes embarrassing feeling.

Many of you get into real estate syndication to provide for your families. If there is anything I can wish for my clients, it is for you and your families to avoid going through the stress and pain that regulatory action and litigation oftentimes bring. In some cases, the stress becomes too much and results in people losing their families. Please don’t let the reason you get into real estate syndication end up as the thing you lose.