Andrew Abramowitz, PLLC

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Over the holidays, I finally got around to reading Bad Blood, the story of the rise and fall of the blood testing startup Theranos and its founder, Elizabeth Holmes, written by the Wall Street Journal investigative reporter, John Carreyrou, who broke the story that led to the company’s downfall. I cannot recommend the book more highly. However, you’re not here for book reviews, so let’s move on. One of the reasons that Theranos was…
The SEC recently brought an enforcement action against a fund investing in digital assets for a failure to register a sale of securities under Section 5 of the Securities Act. The fund had filed a Form D with the SEC that, in itself, offers no clue as to what went wrong. The form reports the sale of fund interests under the exemption provided by Rule 506(b) of Regulation D. This is the common exemption used…
Rule 506(c), the provision arising out of the JOBS Act that enables companies to raise capital using general solicitation and advertising while still being exempt from SEC registration requirements, has always had the potential to revolutionize the capital raising process. With the ability of companies to connect easily with potential investors anywhere via the internet and social media, one could imagine a world where this supplants private placements under Rule 506(b), in which the investor…
In a recent transaction that I worked on – obviously, I can’t give too much detail to protect client confidentiality – I noticed a weird dynamic. In a typical negotiation, when the lawyers from each side are speaking without the principals present, there is some degree of emotional detachment from the ultimate outcome, even though each attorney knows his or her role is to represent the client’s interest. Lawyers will say, for example, that it’s…
As a general matter, the complexity of the documentation used for private company capital raising transactions is correlated with the amount raised. If a company is raising, say, $5 million or more from an institutional investor like a venture capital fund, the deal documents will often be based on the model legal documents prepared by the National Venture Capital Association (NVCA). While the standardization, easy availability and wide acceptance of these forms have been helpful…
Carolyn Elefant, writing in Above the Law, takes to task those solo lawyers who, to use her phrase, “play the solo card” by using their firm’s smallness as an excuse for sub-standard service. I don’t know enough to weigh in on the specific case that triggered her piece, a solo attorney who tried to excuse a late filing by citing Microsoft Word technical issues. There certainly have been large firms that have tried to make…
In early 2015, I wrote about SAFE instruments, which I then had heard about but not yet seen in my practice, with a gently mocking but grudgingly intrigued tone, which likely resulted from the trend having originated on the West Coast. (As a native New Yorker, I have been trained to roll my eyes at each new development from California and then promptly forget about that when I incorporate it into my life.) With over…
Jason Zweig, writing in the Wall Street Journal, discusses efforts to make securities disclosure more understandable to the typical investor. He quotes the Nobel-laureate behavioral economist Richard Thaler as saying that “nobody reads” the dense disclosure mandated by the SEC. This is clearly a bit of hyperbole, but I think we can all agree that a majority of investors don’t read a prospectus cover to cover before making their investment decision. The question is…
When I am assisting a client on a matter, and the help of a legal specialist is needed (tax, above all else, but many other areas as well), the client will often be reluctant to loop in the other attorneys and will urge me to handle it. While I’d like to think that this is a reflection of the client’s respect for my abilities, I’m sure it’s in part based on a fear that bringing…
The SEC has greatly expanded the number of public companies that can take advantage of the “scaled disclosure” provisions of Regulation S-K. Under these rules, smaller reporting companies have less onerous requirements that apply to their periodic filings. For example, smaller reporting companies do not need to include the lengthy Compensation Discussion and Analysis disclosure that larger companies do. Following the SEC’s recent action, the definition of “smaller reporting company” includes registrants with a public…