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Going Public by Direct Listing

Photo courtesy Pedro Ponchio. Licensed under CC BY 2.0.

Felix Salmon argues, convincingly in my view, in favor of Spotify’s reported plan to go public by direct listing, not a traditional IPO. A little background, for those unfamiliar with the term: The usual way to go public is via an initial public offering of shares, where the company creates new shares in addition to the ones in existence, sells them to the public through an underwriter, and all old and new shares are thereafter publicly traded on an exchange. However, it’s not always the case that the company actually needs the new capital it ends up raising by selling new shares. Direct listing skips this step; instead, the company just flips a switch and becomes public. (Of course it’s more complicated than literally flipping a switch – you hire, well, me to help you through the process. But it’s certainly simpler than having to market and complete a new offering of stock as part of it.)

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Reading Statutory Language

Reading Statutory Language | Andrew Abramowitz, PLLCOne recent much-discussed political issue (at least until another one replaced it a few hours later) was that some of the Republican members of Congress admitted in interviews that they had not read the American Health Care Act of 2017 before voting to approve it. Democrats mocked this as further evidence of a rushed, irresponsible process. I’m not using this corporate and securities law blog to expound on my political views on the AHCA or anything else. (I do that about once every three months on my personal Facebook page.) However, on the general question of whether legislators should be expected to have read the full text of the bills they’re voting on, I’m with the “that’s a ridiculous waste of time” camp.

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The Merits of Angel Investing

Angel Investors | Andrew Abramowitz, PLLCThe Financial Samurai personal finance blog posted an argument against angel investing, based in part on the writer’s own experience with a seemingly successful investment that really wasn’t so great, upon reflection. Toward the end of the post, the author says that if you do angel investing, you should devote no more than 5-10% of your funds towards it, and don’t expect anything good to come of it. But who is really advocating for devoting half or more of your nest egg to illiquid, speculative investments, even if you have a lot of financial leeway? There are legitimate reasons for wealthy individuals to want to participate in angel investing, like the satisfaction of helping a founder with a promising idea to realize a dream. As long as these investors aren’t blowing their whole fortune on it, what is the harm?

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Small Law Firm Networks

Select Counsel network of law firms and attorneys with big law experienceMy law firm recently joined Select Counsel, a new and fast-growing network of law firms with profiles like mine: small firms founded by attorneys with significant sophisticated large law firm experience. The resulting network is not itself a law firm, but it provides a way for both lawyers in the network and interested clients to quickly locate highly qualified attorneys in appropriate jurisdictions and practice areas. The network has also established an active LinkedIn group enabling participating attorneys to run questions past other members.

Select Counsel | Andrew Abramowitz, PLLCWhen I am speaking to potential new clients, my pitch is pretty simple: I’m the same guy that would have handled your matter when I was with a big firm, but without the big firm infrastructure, I’m able to offer those same services at more reasonable rates and with more personal service. Fortunately, I’ve found that appeal works more often than not, and I’ve built a nice practice. Sometimes, however, potential clients will elect to go with a larger firm. Certainly, there are matters that are better handled by teams at large firms (multi-billion dollar merger, IPO underwritten by first-tier investment bank), but there are certain transactions that I’m capable of handling, where the potential client makes what seems to be the safer choice of a larger firm. (I don’t want to come off as too harsh about big firms, where there are many fine lawyers – and they’re a significant source of referrals for me!)

The Select Counsel arrangement has the potential to eliminate a lot of the queasiness that some potential clients have about small firms, in particular that their expertise is too narrow to handle anything but discrete projects. With the ability to quickly locate the right kind of attorney, it’s easy to quickly assemble a team to collaborate on a matter. Of course, even before this network started, I had assembled my own ad hoc go-to team of specialists (tax, etc.), and I continue to rely on them. But the ability to fill in any gaps through the network will allow me and others in the network to replicate the geographic and practice area scope of a big firm, benefitting both me and my clients.

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Will Lawyers be Replaced by Robots?

Will Lawyers be Replaced by Robots?The New York Times recently poured cold water on the notion that artificial intelligence is on the verge of replacing lawyers. A quote from the article correctly identifies the logical error that underlies the slippery slope-type theorizing:

“There is this popular view that if you can automate one piece of the work, the rest of the job is toast,” said Frank Levy, a labor economist at the Massachusetts Institute of Technology. “That’s just not true, or only rarely the case.”

This has been the story of the practice of law for at least the past 30 years or so and didn’t start with the recent advances in natural language processing for document review and similar developments. Over the years, new technologies have reduced or eliminated time-consuming aspects of the job without eliminating the job of attorney – computers replaced typewriters, automated redlining programs replaced hand redlining, email replaced physical delivery of paper, etc. While these developments have certainly affected employment in the industry overall, with sharp reductions in support staff such as legal secretaries, it hasn’t at all changed the basic arrangement that if you’re buying a company or bringing a lawsuit, you need to hire a law firm to look out for your interests, and there is a person at the law firm that needs to oversee the process. …

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What Do Law Students Need to Learn about Transactional Law?

What Do Law Students Need to Learn about Transactional Law? | Andrew Abramowitz, PLLCThe Wall Street Journal reported recently on the Transactional LawMeet, which is basically the equivalent of a moot court competition for law students, but for transactional law. The impetus for this sort of program is the sense that the law school curriculum has always been more focused on training litigators, while transactional attorneys have to learn most of their craft on the job after graduation. I think this overstates it a bit. My first year “Lawyering” class at NYU Law included a mock negotiation. (I totally botched it, as my counterpart could see my notepad, indicating the final number I was willing to accept in the negotiation.) Also, most law schools have classes in the substantive law that’s most relevant to transactional work, e.g., Contracts, Corporations, Securities Regulation and Secured Transactions.

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The Rise of Family Offices

The Rise of Family Offices | AA LegalThe Wall Street Journal recently profiled the increasing proliferation of “family offices,” investment firms set up by, and under the sole control of, very wealthy families. Family offices also provide services other than investment advice – accounting, legal, household management, etc. They have been around at least since one was set up by the Rockefeller family but have become commonplace in recent years. The staggering growth in wealth that has fed the growth of family offices is, of course, the subject of much political debate about causes and what if anything to do about it, but for purposes of this post I’ll steer clear of that minefield.

The Journal article cites privacy as one of the main rationales for using a family office, as the entity will typically not have to make public disclosures. However, assuming the alternative to a family office is investing one’s fortune with funds (hedge, private equity, venture capital), there wouldn’t be much of a privacy issue there, as a fund’s limited partners (investors) can expect to have their confidentiality respected. (Of course, there’s no reason why even the super-wealthy need to employ alternative investments like this. Warren Buffett has made a good case recently that because of funds’ fee structure, investors would be better off with simple index funds.)

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The Pitfalls of Being an OTC Public Company

Scott Sutherland Great Ideas, Inc.
Licensed under CC BY 2.0.

The SEC’s Division of Economic and Risk Analysis (DERA) recently issued a paper about over-the-counter stocks, i.e., stocks of publicly traded companies that are not listed on a national securities exchange like the New York Stock Exchange or Nasdaq. While the main subject of the paper is on the inadvisability of individual investors purchasing OTC stocks, my focus here, briefly addressed in the paper, is on whether the companies themselves should consider transactions that result in them having OTC stock. For example, companies that are not in a position to complete a traditional IPO may be able to go public via a backdoor method such as merger with a SPAC or a reverse merger.

For these companies, the usual plan is not to remain an OTC company forever, with thinly traded stock and low institutional ownership. Rather, the hope is that, with the capital usually raised concurrently with the transaction that made the company public, it can successfully execute its business plan such that it can meet the listing standards for admission on the NYSE or Nasdaq at a later date. However, this scenario rarely plays out in practice. Studies cited in the DERA paper find that, over a nine-year period, less than 9% of OTC companies became listed on an exchange, and even those that do have a poor average investment return.

Accordingly, any company planning to go public by alternative means has to consider the possibility of remaining in OTC status indefinitely. There are some advantages to being public. It may be easier to attract employees with equity compensation packages, since there is an easier path to eventually selling shares than would be the case with a private company. Also, public company stock can be used to acquire other companies (though a target company may be skeptical about receiving OTC stock). Finally, there are forms of financing like PIPEs that are available only to public companies (though the terms of those transactions are not necessarily any more company-favorable than investments that private companies can secure).

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Links to Some of My Greatest Hits

If you are a regular reader of my blog posts (Hi, Mom!), you’ve noted that I address several substantive topics of interest in corporate and securities law to my clients and other attorneys, along with “softer” topics about the business of law practice, dealing with clients, etc. The substantive posts are, by design, short and to-the-point, unlike a big firm’s detailed summary of the latest 500-page rule release from the SEC (because there’s no need to duplicate those law firm memos, which are freely available to all, and also, more importantly, because I don’t want to write long memos). But hopefully, these posts have some value to my readers.

I thought it would be helpful to list these posts (through January 2017) in one handy place for easy reference, with links, in reverse chronological order within each category:

Financing Transactions/Securities Offerings

SEC Disclosure Matters

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Right and Wrong Ways to Expedite Deal Negotiations

Use of Debt Financing by Law FirmsOf the many times that I’ve worked on a corporate deal – not a simple agreement, but a transaction of some complexity involving multiple documents and perhaps multiple parties – it is extremely rare that the transaction got done early, in advance of the target closing date set at the beginning of the process. This is not necessarily the fault of anyone involved, but it’s a matter of deal-making being a process with a lot of moving parts that takes time. This causes some frustration, usually among the principals more than the attorneys. Although there’s no magic bullet that will cause deals to get done instantaneously, the following are some tips that will expedite the process in a manner that doesn’t cause unnecessary stress and hard feelings:

  • Follow up, nicely. While job number one for you is ensuring that you are pushing out paper without much delay, once that’s done, if you’re waiting on something that’s in someone else’s hands, and it’s taken longer than expected, ping that person with a polite email, asking for an ETA.
  • Schedule check-in calls. Particularly if there is a large working group, it can be helpful to have periodic conference calls where the participants go through a closing checklist or otherwise get themselves on the same page. Having the call on the calendar has the side benefit of prodding people to attend to their to-do list before the call, to avoid having to admit on the call that the work is not done. But these calls shouldn’t be done too frequently, which causes frustration, with everyone thinking they’d rather be left alone to do the work.
  • Don’t showboat about off-hours work. Particularly when the transaction (inevitably) falls behind the unrealistic schedule, you’ll start to see behavior like someone emailing the group late at night or on a weekend, implying that they are sacrificing free time to work on this and wondering why everyone else isn’t as committed. Ultimately, it is unknowable what other people’s workload is and whether they’re doing as much as they can on your deal. Instead, treat everyone else as a professional, and if there are timing considerations, discuss them respectfully.
  • Don’t set fake deadlines. Deal principals will often announce that a deal needs to close by a particular date, without much explanation. If, as is often the case, it’s a BS deadline that was set to short-circuit the process and perhaps limit transaction costs, it will backfire when the deadline inevitably passes because of factors that may be outside anyone’s control. At that point, the deadline-setter has lost credibility.
  • Create a transaction timetable. In my experience, certain types of transactions (IPOs, for example) have a detailed weekly timetable, while others, like M&A, are less likely to have one, probably because they are too unpredictable. If it makes sense in a particular transaction, it’s good to try to impose a broad framework like this if it builds in buffer time and is more realistic than just “close by Friday.”

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