NYSBA Task Force on the Digital Economy (and the Real Economy)

The New York Law Journal ran a story on the NYSBA’s new Task Force on Emerging Digital Finance and Currency. The NYSBA Press Release is here. Joseph Bizub, my co-author, and I are members of the Task Force. We are writing about the impact of fintech on real estate investment. The Press Release reads:

The New York State Bar Association has launched a task force to make recommendations on how New York should regulate virtual currencies and digital assets and advise the association what the new technology can do for its operations.

“The rapid growth of the metaverse/Web3 and the digital economy present a confluence of issues for lawyers,” said President Sherry Levin Wallach. “At the same time, this technology has the power to significantly change the way we do business, bank, and interact both personally and professionally. It’s important that we are in front of the issues and able to engage productively in this quickly evolving space.”

The task force will work to educate NYSBA members and the legal community about the impact of the digital economy and the legal issues that are likely to arise in representation of clients. It will also evaluate legislative and regulatory proposals and explore how the metaverse and Web3 can benefit the legal profession and bar associations.

“We are already seeing the effects of this trillion-dollar industry in many areas of practice including entertainment, business, intellectual property, tax, criminal and environmental law and trusts and estates,” Levin Wallach said. “The Task Force on Emerging Digital Finance and Currency will ensure that the New York State Bar Association has a voice in this innovative and emerging field.”

Jacqueline J. Drohan, partner at Drohan Lee, and Dana V. Syracuse, co-chair of Perkins Coie’s Fintech Industry Group, will co-chair the task force. The vice chair will be Dr. Carlos Mauricio Sakata Mirandola, CMSquare, São Paulo, Brazil. Marc Beckman, founding partner of DMA United, New York, NY, and Nancy Chanin, who oversees business development at DMA United, will be consultants to the task force.

New York State Bar Association President-Elect Richard C. Lewis will be the task force’s liaison to the association’s Executive Committee. Joseph Bizub and Dina Khedr of Brooklyn Law School will be law student members of the task force.

The members of the task force include:

Alyssa Barreiro, head of fiduciary risk, BNY Mellon, Binghamton, NY

Joshua Lee Boehm, partner, Perkins Coie, Phoenix, AZ

Julie T. Houth, staff attorney, Robbins Geller Rudman & Dowd, San Diego, CA

Luca CM Melchionna, managing member, Melchionna, New York, NY

John W. R. Murray, partner, Foley Hoag, New York, NY

Jeffrey D. Neuburger, head of Blockchain group, Proskauer Rose; New York, NY

Rory J. Radding, partner, Mauriel Kapouytian Woods, New York, NY

David J. Reiss, professor of law and research director, Brooklyn Law School Center for Urban Business Entrepreneurship, New York, NY

Jason Schwartz, tax partner and co-head of Digital Assets and Blockchain Practice, Fried, Frank, Harris, Shriver & Jacobson, Washington, DC

Robyn T. Williams, associate, Devlin Law Firm, Cleveland, OH

Reiss on Legal Snares for Entrepreneurs

Inc.com quoted me in 6 Legal Snares All Entrepreneurs Should Be Ready to Dodge. It reads,

The last thing you want to do as an entrepreneur is pour through long dull documents written by lawyers for lawyers. But there’s a reason it’s called work and not fun. Miss taking care of this aspect of your business and you might find yourself being investigated by the federal government, on the hook for thousands in otherwise unnecessary costs, in a never- ending fight with others involved in the company, or stuck at the exact time you need to be moving.

I was speaking with David Reiss, a professor of law at the Brooklyn Law School and research director of its Center for Urban Business Entrepreneurship (CUBE). Entrepreneurs often lack the broad business experience that would help them avoid a number of traps on the way to growing a business, he said. Here are some of the most common.

Real estate contract snags

“You have a great idea but know nothing about the basics of being a small business person, so you sign the first lease [you’re offered],” he said. But a commercial property lease is a complex document that makes an apartment lease look like nothing in comparison. It typically is something to be negotiated, and getting help to understand the ramifications of various clauses is crucial. “Often there are pretty complicated rent increase provisions that entrepreneurs don’t get,” he said. The document as written might assign you a portion of the building’s increased operating expenses in addition to rent increases. Overly strong restrictions on the ability or reassign or sublease the lease’s obligations could mean an inability to move to a larger space when the business grows. “What are the use restrictions?” Reiss asked “What if the business morphs into something else? Does that violate the use limitations on the space? “

Pick the right corporate structure

You’ll likely have many choices of how to legally and financially structure the company. Some are an LLC, sole proprietorship, partnership, S-corp. , or C-corp. “They have different tax implications, different implications as you increase in size and revenues,” Reiss said. If you have the wrong structure in place, you might find yourself having to unwind it as the business expands. Not only might that be unnecessarily expensive, but you’ve potentially opened yourself to renegotiating some basic arrangements that could be troublesome.

Get a fitting partner agreement

If you need a reminder of how badly partnerships can go, look at Snapchat or Square. One day everything is fine. The next, former best friends are at each other’s throat. You have to consider how to allocate both profits and losses (some investors might like more of the latter).

“Some people are putting in time, some are putting in intellectual property, and some are putting in cash,” Reiss said. “People have different expectations for each of those contributions.” A thorough and well-constructed partner agreement provides a framework for addressing the important issues before everyone is at an impasse.

Have appropriate protection for intellectual property

All businesses have intellectual property. Getting protection on every aspect can burn through cash. For example, patents are great, but if you can’t lock down broad enough protection, competitors might be able to easily work around the walls you built, in which case you may have wasted money. Perhaps trade secrets might be more appropriate. Do you really need to trademark every single name and phrase? Maybe yes, maybe no. Talk to a professional to devise a useful strategy, keeping an eye on what you can afford and how much effort you might need to divert from getting business done.

Check insurance

You’ll need commercial general liability insurance and might also need property insurance. Might directors and officers liability insurance, also known as D&O, be advisable to protect principals in the company? Does your lease or contracts with clients demand particular levels of coverage?

Regulatory compliance

On one hand, anyone who says that regulations make it impossible to open a business is someone to be questioned. On the other, you can get badly tripped up in some common areas like taxes, handling inventory, or labor laws. “A little bit of planning can save you lots of headaches, money, and bandwidth,” Reiss said. “If you’re working 16 hours a day, you don’t want to be thinking about an investigation by the Department of Labor. You need someone to run through a checklist with you of the regulatory overlays on small businesses.”

Bringing lawyers, accountants, insurance brokers, and others in for reviews and discussions isn’t cheap, but it’s a lot less expensive than trying to solve problems after they’ve snared and tripped you.