Private-Equity Firm Manaer Prevails in Federal District Court Against the Milstein Family

Private- equity firm manager Dean Barr, along with his attorneys at Carmody Torrance Sandak & Hennessey LLP, successfully defended claims brought against him by the Milstein Family, the founders of Burlington Coat Factory and investors in Mr. Barr’s firm. The Milsteins had invested several millions of dollars in the fund before its ultimate decline, and claimed that the risks associated with the investment were misrepresented to them. The Connecticut District Court disagreed, and ultimately found that the Milsteins were sophisticated investors, were aware of the risks related to their investment and dismissed the claims brought against Dean Barr. Mr. Barr has retained Pastore & Dailey to bring claims of his own in Connecticut State Court against the Milsteins as well as his former partners.

The full article can be read here:

https://m.greenwichtime.com/business/article/Greenwich-financiers-exonerated-in-dispute-with-12606578.php

Pastore & Dailey Successfully Represents Broker Dealer Regarding Errors in Filings

Pastore & Dailey successfully obtained a favorable stipulation and agreement with the Connecticut Department of Banking on behalf of a large national registered broker-dealer.  The Department of Banking conducted an investigation into the broker dealer and concluded that the broker-dealer has failed to file a timely U5, included misinformation on a U4, and failed to renew its registration for the calendar year. Following our successful representation, the broker dealer was able to amend its filings and receive a favorable stipulation and agreement with the Department of Banking.

Pastore & Dailey Successfully Counters Motion to Set Aside Judgement

In February 2016, Pastore & Dailey successfully secured a permanent injunction against Defendant Felder for infringement of Van De Velde’s “PRIMADONNA”  trademark via a default judgment. Van De Velde is a global retailer of luxury clothing with its headquarters in Belgium. The dispute, which occurred in the Southern District of Florida, resulted in the award of attorneys fees and costs to Van De Velde.

However, on September 29, 2017, more than a year after the judgment, Defendant Felder moved to set aside the default judgment. Pastore & Dailey countered Defendant’s motion as untimely. On March 12, 2018, the Southern District of Florida issued its decision on the motions denying Defendant’s motion to set aside the default judgment and reinforcing the award to Van De Velde. This victory was a collaborative effort between the attorneys at Pastore & Dailey.

Pastore & Dailey Client Gains National Recognition for Co-Working Venture

Pastore & Dailey Client, and former WeWork Executive, Frank Bistrian has gained national recognition by the Wall Street Journal for his new Co-Working venture Network Group LLC.

 

See Cat Zakrzewski, Former WeWork Executive Launches a Co-Working Company of His Own, Wall Street Journal (Feb. 22, 2018).

 

Pastore & Dailey Wins Suitability Arbitration for Investor

A Pastore & Dailey client recently prevailed in a FINRA Arbitration against a broker dealer firm regarding compliance failures and unsuitable investments solicited by the broker. The arbitration took place in Houston, Texas. Pastore & Dailey was co-counsel with a well known former general counsel of a large securities firm. Our client asserted claims arising from oil and gas master limited partnerships for breach of fiduciary duty, negligence, failure to supervise, unsuitability, misrepresentation, violation of the Florida Securities and Investor Protection Act, Fla. Stat. § 517.301, and breach of contract. Our client was ultimately awarded both damages and attorneys fees.

CBA Tax Section Federal Business Tax Report

There have been reported several incidents of practitioners being surprised by the new third party authentication procedure adopted by the IRS in October of 2017, effective January 3, and published in the IRM today at Section 21.1.3.3.

In response to several security compromises, IRS has revised its authentication process for third parties who contact the IRS on behalf of a taxpayer.

The former process included the requirement at the IRS ask for the taxpayer’s name and TIN and also the representative’s name and CAF number.

The new procedure, in addition to requesting the taxpayer’s name and TIN, calls for the agent to request the representative’s:

  1. Name
  2. CAF Number
  3. Social Security Number
  4. Date of Birth

Some practitioners are reporting that the new procedure is not being uniformly applied, and authentication requests for information such as the names, Social Security numbers and dates of birth of the representative’s children are being made, presumably to cross check that information with the representatives own tax returns.

The practitioner should have on file a current Form 2848 for the taxpayer that covers the tax periods and tax forms in question. Note that IRS will not accept versions of Form 2848 from before the October 2011 version. While the IRS will still provide assistance to third party representatives who file Forms 2848 from before October of 2011, the older form cannot be loaded into CAF.

Representatives of taxpayers using Form 8821, Tax Information Authorization, will, apparently, be subject to the same authentication requirements. Recall that Form 8821 does not empower the designee to represent the taxpayer before the IRS.

Suspension of Trading for Hong Kong Blockchain Firm

Last week, on January 8, 2018, the Securities and Exchange Commission (“SEC”) suspended trading of UBI Blockchain Internet, Ltd. (“UBI”) stock until January 22, 2018.[1] UBI, formerly JA Energy, is a Hong Kong-based technology firm focusing on the Blockchain technology underlying cryptocurrency.[2] Coincidently, one of the focuses of this over-the-counter traded company is on the application of the distributed ledger technology to trace food and drug products from the producer to the consumer.[3] According to UBI’s legal counsel, the motivation behind this innovation is to prevent counterfeit products.[4]

The erratic behavior of UBI shares caught the eyes of the SEC in early December as the company’s stock sky-rocketed in price. On December 1, 2017, shares of UBI were trading at $6.12, and just eighteen days later, the value had swiftly rose to $83.00 per share, and even selling as high as $115.00 per share.[5] The subsequent decline in value was just as precipitous. Within a week of its peak, the value of UBI stock had fallen to $29.00 per share and further down to $22.00 per share before the close of the 2017 year. The freeze on trading allows the SEC an opportunity to investigate the causes of the sudden and drastic changes in the firm’s stock activity.

The SEC is tasked with closely monitoring the trading activity of publicly traded companies. Spikes in value and in the volume of trades within the market, like those seen here with UBI, raise red flags for the SEC to act upon. Pursuant to Section 12(k) of the Securities Exchange Act of 1934, the SEC may temporarily suspend the trading in particular securities pending an investigation.[6] In the case of UBI, the commission cited two distinct justifications for its suspension: concerns with (1) the accuracy of assertions dating back to September 2017 regarding the company’s business operations; and (2) the unusual and unexplained market activity in the company’s Class A common stock since November 2017.[7] It remains to be seen whether the cause of the fluctuation was caused by SEC violations or by a frenzy as the market responded to UBI’s pharmaceutical application of the Blockchain technology.

_____________________________________________________________________________________________________________

[1] U.S. Securities and Exchange Commission, Securities Exchange Act od 1934: Release No. 82452,  https://www.sec.gov/litigation/suspensions/2018/34-82452.pdf (last visited January 14, 2018, 3:05 PM).

[2] Matt Robinson, Crypto Stock That Surged 900% in 2017 is Hit With SEC Halt, Bloomberg (Jan. 8, 2018, 10:39 AM), https://www.bloomberg.com/news/articles/2018-01-08/crypto-stock-that-surged-900-percent-in-2017-gets-sec-suspension.

[3] Cory Johnson, How One Mysterious Startup is Riding the Bitcoin Wave, Bloomberg (Dec. 27, 2017, 12:17 PM), https://www.bloomberg.com/news/articles/2017-12-27/bedwetting-to-blockchain-how-one-startup-rode-the-bitcoin-craze.

[4] Id.

[5] UBI Blockchain Internet Ltd., Marketwatch, https://www.marketwatch.com/investing/stock/ubia/charts (last visited January 14, 2018, 3:07 PM).

[6] See supra note 1.

[7] See supra note 1.

Partner John Hewitt to Co-Host Webinar

  • Do you have an effective Vendor Management Policy?
  • Do you have an effective Vendor Due Diligence Questionnaire?
  • How frequently do you receive vendor compliance audits?
  • Do you have an internal Cyber Management Structure?
  • Do you have a CISO?  Who does s/he report to?

All financial institutions rely on third-party service providers. This introduces cybersecurity risks through connected systems and insider threats. Regulators are placing heightened scrutiny on third-party risk management. As the FDIC says, “a bank can outsource a task, but it cannot outsource the responsibility.”

On Thursday, December 12, 2017, P&D Partner John “Jack” Hewitt will co-host a webinar on cybersecurity.  Join our panel of highly-experienced financial and security experts to explore:

Cyber risks created by third parties

What regulators expect from community banks

How to confront cyber risks within your vendor risk management strategy

The webinar, entitled “Third-Party Cyber Risk: From Compliance to Enterprise Risk Management” will focus on cyber risks connected with financial institutions’ reliance on third-party service providers and the relevant regulatory requirements.

This webinar will address the increasing cyber risks involved in the use of third party vendors by banks. It will assess some of the most recent vendor breaches including the Scottrade Bank’s breach.  This will include a detailed review of Vendor Management Policies that provide guidance to ensure the security of a firm’s network when being used by its Vendors.  It will address all the applicable risk elements including compliance risk, strategic risk, operational risk and others.

Discussions will include due diligence in vendor selection including the development of an effective DDQ, the review of vendor’s cybersecurity program, their use of sub-contractors and insurance coverage.  The discussion will review the analysis of all outsourced processes, procedures, and practices relevant to bank’s business to be monitored on a regular basis.  This will encompasses all system resources that are owned, operated, maintained, and controlled by vendors and all other system resources, both internally and externally, that interact with these systems.

The panel will review vendor contract provisions that address: internal vendor controls, vendor audits, receipt of copies of all Vendor compliance audits, confidentiality and security procedures, encryption of PII, regulatory compliance, cyber-insurance coverage, business continuity planning, subcontracting, encryption, incident reporting, non-disclosure agreements, data storage, document retention and delivery, breach notification responsibilities, vendor employee access limitations, vendor obligations upon contract termination and an exit strategy.

Included in this will be a discussion of the NYS DFS Cybersecurity Regulation, the DFS Third-Party Service Provider Requirement.

For additional information and to register click here.

New Disguised Sales Rules

On November 10, 2017, P&D Special Counsel Dan M. Smolnik gave a presentation before the Federal Tax Institute regarding the new changes to the Disguised Sales Rules.  The presentation also identified key points for entities to consider in light of these changes.

With new changes in the Disguised Sale Rules, partnerships, including LLCs treated as partnerships, will need to consider the following:

  1. Revisions to operating agreements to reflect suitable debt allocation mechanisms in light of the restriction to use only  of “partners’ share of the profits” method of debt allocation. Economic risk of loss and the other methods articulated in Reg Section 1.752-3(a)(3) are now explicitly excluded;
  2. Immediate review of agreement terms to assure that Deficit Restoration Obligation terms do not threaten to violate the ban on Bottom Dollar Guarantees. As DROs are required to access the PIP safe harbor (and, thereby, provide the partnership agreement the required substantial economic effect to be respected by IRS) it will take some care to prepare these terms now;
  3. Trial calculations of tax effects of anticipated contributions of appreciated capital property;
  4. Advisability of placing debt at the entity level instead of the asset level.