Tag Archives: Reiss

Reiss on Legal Snares for Entrepreneurs

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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.

Reiss on Easing Credit

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Law360 quoted me in With Lessons Learned, FHFA Lets Mortgage Giants Ease Credit (behind a paywall). It reads in part,

The Federal Housing Finance Agency’s plan to boost mortgage lending by allowing Fannie Mae and Freddie Mac to purchase loans with 3 percent down payments may stir housing bubble memories, but experts say better underwriting standards and other protections should prevent the worst subprime lending practices from returning.

FHFA Director Mel Watt on Monday said that his agency would lower the down payment requirement for borrowers to receive the government-sponsored enterprises’ support in a bid to get more first-time and lower-income borrowers access to mortgage credit and into their own homes.

However, unlike the experience of the housing bubble years — where subprime lenders engaged in shoddy and in some cases fraudulent underwriting practices and borrowers took on more home than they could afford — the lower down payment requirements would be accompanied by tighter underwriting and risk-sharing standards, Watt said.

“Through these revised guidelines, we believe that the enterprises will be able to responsibly serve a targeted segment of creditworthy borrowers with lower down payment mortgages by taking into account ‘compensating factors,’” Watt said at the Mortgage Bankers Association’s annual meeting in Las Vegas, according to prepared remarks.

*     *     *

The realities of the modern mortgage market, and the new rules that are overseeing it, should prevent the lower down payment requirements from leading to Fannie Mae, Freddie Mac, and by extension taxpayers taking on undue risk, Brooklyn Law School professor David Reiss said.

Tighter underwriting requirements such as the Consumer Financial Protection Bureau’s qualified mortgage standard and ability to repay rules have made it less likely that people are taking on loans that they cannot afford, he said.

Prior to the crisis, many subprime mortgages had the toxic mix of low credit scores, low down payments and low documentation of the ability to repay, Reiss said.

“If you don’t have too many of those characteristics, there is evidence that loans are sustainable” even with a lower down payment, he said.

The FHFA is also pushing for private actors to take on more mortgage credit risk as a way to shrink Fannie Mae and Freddie Mac. There is a very good chance that private mortgage insurers could step in to take on the additional risks to the system from lower down payments, rather than taxpayers, Platt said.

“You’ll need a mortgage insurer to agree to those lower down payment requirements because they’re going to have to bear the risk of that loss,” he said.

The 97 percent loan-to-value ratio that the FHFA will allow for Fannie Mae and Freddie Mac backing is not significantly higher than the 95 percent that is currently in place, Platt said.

Having the additional risk fall to insurers could mean that the system can handle that additional risk, particularly with the FHFA looking to increase capital requirements for mortgage insurers, Reiss said.

“It could be that the whole system is capitalized enough to take this risk,” he said.

Reiss on Catching FIRREA

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Inside ABS & MBS quoted me in Experts: New AG Likely to Continue Aggressive Use of FIRREA Against Industry, Individual Executives Targeted (behind a paywall). It reads in part,

Mortgage industry executives should be aware and expect continued – and perhaps even more muscular – use of a 1989 federal law by government prosecutors to pursue mortgage-related claims. At the direction of Attorney General Eric Holder, the Department of Justice embraced the use of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (FIRREA) in MBS lawsuits. Despite Holder’s announcement late last month that he is stepping down after six years as AG, there is little reason to expect that President Obama’s new attorney general will surrender use of such a “potent statute” that has employed a lower burden of proof and long statute of limitations to exact large tribute from the mortgage industry, according to Marjorie Peerce of the Ballard Spahr law firm.

*     *    *

Brooklyn Law School Professor David Reiss agrees. He added that throughout President Obama’s term, the White House at the highest level has set an agenda for corporate accountability so it’s likely that one of the chief mandates of Holder’s successor will be the continuation of the DOJ’s vigorous use of tools such as FIRREA.

During a speech last month prior to announcing his resignation, Holder called for making the FIRREA statute even stronger, with whistleblower bounties raised to induce more testimony. However, Reiss noted it’s unlikely the White House would be keen to encourage lawmakers to take another look at FIRREA given that Congress next year will likely be in Republican hands.

However, Reiss called attention to a part of Holder’s speech where the AG expressed frustration with the DOJ’s inability to hold financial services executives criminally liable for alleged misconduct. Holder suggested several ways for the DOJ to do so, including extending the “responsible corporate officer doctrine” to the financial services industry.

Under this doctrine, an individual may be prosecuted criminally under the Food, Drug and Cosmetic Act even absent culpable intent or knowledge of wrongdoing if the executive was in a position to prevent the wrongdoing and failed to do so.

“Focusing on individual culpability could be a new charge of the new attorney general,” said Reiss. “Given the events of the last 10 years, [a significant number of] people think that fewer individuals were held accountable for the financial crisis than should have been, so I think the Department of Justice may have heard that message as well.”

Reiss on Saving Thousands on Your Mortgage!

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MainStreet.com quoted me in You Can Save Thousands on Your Mortgage By Taking This Tiny Step.  It reads in part,

Homeowners can save thousands of dollars when they work with counselor to get their mortgages modified and decrease their odds of defaulting again.

A new study for NeighborWorks America by the Urban Institute determined that homeowners were able to avoid spending millions of dollars annually because of the National Foreclosure Mitigation Counseling (NFMC) program. Homeowners working with NFMC program counselors are nearly three times more likely to obtain a mortgage modification and are nearly twice as likely to get their mortgage back on track without a modification.

After working with counselors, homeowners are 60% less likely to re-default after curing a serious delinquency and able to complete short sales faster than homeowners who don’t work with counselors.

The research is based on analysis of nearly 240,000 homeowners with outcomes observed through June 2013. More than 1.8 million homeowners have been helped by the NFMC program, administered by NeighborWorks America since it began in March 2008.

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Since buying a home is something that most people only do once or twice in their lives, there is no question that homeowners whose mortgages are in default or at risk of default should look for assistance as soon as possible, said David Reiss, professor of law at Brooklyn Law School in New York.

“Losing their home is something that most never do at all, so to think that going it alone is the best strategy is a mistake,” he said. “Foreclosure counselors know the range of options available to borrowers and may have access to more direct lines of communication with lenders. They also will have a better sense of when to complain to regulators about bad behavior by lenders.”

Reiss in Newsday on Stimulus Program

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Newsday quoted me in State Faults Venture Capital Firm (registration required for full access).  The story reads in part,

New York State officials say Canrock Ventures, a venture capital firm in Brookville, failed to notify them of potential conflicts of interest when it invested taxpayer money in local technology startups.

An official with Empire State Development, the state’s primary business-aid agency, said under the terms of a written agreement with the state, Canrock should have convened a “valuation committee” to review its proposed investments of federal funds in four computer software startups.

The four businesses were co-founded by a Canrock partner, and the venture firm holds sizable stakes in them. The official requested anonymity.

Mark Fasciano, the Canrock partner, said yesterday that he disclosed all of Canrock’s holdings and his roles in the companies to the state at the start of the investment process.

*     *      *

Canrock’s 2013 contract with New York State, obtained by Newsday under the state Freedom of Information Law, stipulates that conflicts of interest are to be weighed by a valuation committee.

The Empire State Development official said the committee is composed of two state representatives and a Canrock representative, and can only been convened by the venture firm, not New York State.

“They [Canrock] have to disclose potential conflicts of interest to the valuation committee,” the official said last month. “They did not meet that requirement.”

*     *      *

Valuation committees were also included in the state contracts of six other venture firms investing Innovate NY money. None of the six called valuation committee meetings to handle conflicts of interest “because no conflicts had arisen,” an Empire State Development spokesman said.

Some experts questioned whether the valuation committees were effective.

David Reiss, a law professor and research director for Brooklyn Law School’s Center for Urban Business Entrepreneurship, said, “a self-reporting system,” such as the valuation committees, would only deter fraud if the probability of getting caught is high and the consequences are grave.

 “The likelihood of getting caught here sounds pretty low,” he said.

Reiss on C-Span on Evolving Cities

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C-Span has posted the footage from the Brooklyn Book Festival panel that I moderated:

Planning and Protesting: Cities Evolve!
With the city constantly evolving, each major project has its supporters and protesters. Authors Gregory Smithsimon and Benjamin Shepard (The Beach Beneath The Streets – Contesting New York City’s Public Spaces) and Daniel Campo (The Accidental Playground: Brooklyn Waterfront Narratives of the Undesigned and Unplanned) and Peter Linebaugh (Stop, Thief! The Commons, Enclosures, and Resistance) discuss how public space is shaped through policy, perspective and protests, how to agree to disagree, and the dynamics of shaping a city’s growth and change. Moderator David Reiss, Professor, Brooklyn Law School.

BLS Dean Nick Allard makes a cameo appearance at the beginning . . ..

Reiss on NYC Development Rules

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Law 360 quoted me in Looser Rules Pave Way For NYC Affordable Housing Projects (behind a paywall). It opens,

The commissioner of New York City’s Department of Housing Preservation and Development detailed Wednesday how the agency will streamline the development process for affordable housing projects, allowing developers faced with new mandatory inclusionary zoning rules to breathe easier.

Since Mayor Bill de Blasio announced his ambitious plan to create or preserve 200,000 units of affordable housing in the city over the next 10 years, developers and their attorneys have been cautiously optimistic.

Many have seen the positive side of residential projects being allowed in places where they would not have been previously, thanks to planned zoning changes. But with those zoning changes comes a mandate to build an affordable component with any new development, and the administration has been adamant that there will be few — if any — new monetary incentives.

So when HPD Commissioner Vicki Been told attendees at a Citizens Budget Commission event Wednesday that sweeping changes are coming to the way the agency does business that will cut a lot of red tape and speed up the process, many developers and their attorneys were pleased.

“It was great to hear,” said John Kelly, an affordable housing expert and partner at Nixon Peabody LLP. “I think it’s the right first step, and it’s necessary if they’re really going to carry out the plan they want to do.”

Included in that first step will be significant changes to the two elements of the development process that experts say create the biggest bottlenecks: design review and clearance.

The design and architecture review will likely be completely overhauled, Been told the attendants at Wednesday’s meeting, and the HPD will shift to the self-certification system backed up by random audits that has seen success elsewhere in city government, including at the Department of Buildings.

These changes are expected to cut down on the waiting time that many developers often suffer through as they try to get a project off the ground, adding unnecessary costs and — perhaps most importantly for Been’s purposes — dissuading some from seeking out affordable housing opportunities.

HPD staff will still have a hand in reviewing projects, but the changes — which Been said will be explained in more detail soon — are expected to be significant.

“It’s exciting to start to see specifics of the plan, we’ve all been kind of waiting for that,” said Jennifer Dickson, senior planning and development specialist at Herrick Feinstein LLP.

But she noted that the process, even with the proposed tweaks, is extremely complex. As the city attempts to make affordable housing development more attractive and expand inclusionary zoning districts, a growing number of architects and developers with little experience in this arena will be joining the fray.

“I think they will be looking to the city agencies to continue to guide them,” Dickson said.

The specific extent to which HPD officials will remain involved in the process is one of many questions that remain unanswered. Another is exactly how the agency will ensure compliance with a new self-certification process, outside of random audits.

“The risk of self-certification is: What if people don’t certify well? There’s always a balance of government regulation between reducing red tape on one hand, and assuring people live up to the appropriate standards on the other,” said David Reiss, a real estate professor at Brooklyn Law School.