February 2019 Update
Start-up Financing; Private Placements
A discussion of Simple Agreements for Future Equity (SAFEs) has been added to chap 4. See §4.25A. See also §17.3.
The form of Stock Purchase Agreement in chap 5 has been amended to include a more lengthy representation and warranty concerning the status of the stock as qualified small business stock under IRC §1202. See §5A.22.
In SEC v Schooler (9th Cir, Sept. 26, 2018, No. 16-55167) 2018 US App Lexis 27449, the Ninth Circuit ruled that a series of offerings of general partnership interests made over a period of more than 30 years were integrated, even though they were not made at the same time; the offerings therefore failed to qualify for a Securities Act exemption. See §6.11.
In July 2018, the SEC adopted an amendment to Rule 701 increasing the dollar threshold that triggers the disclosure requirement from $5 million to $10 million. See Securities Act Release No. 33–10520 (July 18, 2018). See §6.26.
Issuers filing a notice on Form D with the commissioner in lieu of a Notice of Transaction may file by mail or electronically either through the California Department of Business Oversight’s DOCQNET (Document Quality Network) at https://docqnet.dbo.ca.gov or through the North American Securities Administrators Association, Inc. (NASAA) online electronic filing depository (EFD) (see §6.43). Cal Comm’r Corps Release No. 120-C (rev May 18, 2018); 10 Cal Code Regs §260.102.14(a)(2). See §§6.35, 19.74.
Fries v Northern Oil & Gas, Inc. (SD NY 2018) 285 F Supp 3d 706 is a good example of a court’s unwillingness to impose Rule 10b–5 liability for omissions of material facts that are not necessary to make the statements made, in the light of the circumstances under which they were made, not misleading. See §6A.2.
Smaller Reporting Companies
Paragraph (d) of Item 303 (17 CFR §229.303)(d)) provides that a smaller reporting company, as defined by §229.10(f)(1), may provide the information required in paragraph (a)(3)(iv) of Item 303 for the last 2 most recent fiscal years of the registrant if it provides financial information on net sales and revenues and on income from continuing operations for only 2 years. A smaller reporting company is not required to provide the information required by paragraph (a)(5) of Item 303. See §§6A.28, 6A.30.
Regulation S-K, Items 301–302 (17 CFR §§229.301–229.302) guide the drafter to include designated financial information for each of the last 5 fiscal years (or for the life of the company and its predecessors, if less) and, if applicable, any additional fiscal years necessary to assure that the information is not misleading. However, if the company qualifies as a smaller reporting company, as defined in 17 CFR §229.10(f)(1), the company is not required to provide the information required by this item. A smaller reporting company is defined in Item 10(f)(1) of Regulation S-K (17 CFR §229.10(f)(1)) to mean an issuer that is not an investment company, an asset-backed issuer (as defined in 17 CFR §229.1101), or a majority-owned subsidiary of a parent that is not a smaller reporting company and that
Had a public float of less than $75 million as of the last business day of its most recently completed second fiscal quarter, computed by multiplying the aggregate worldwide number of shares of its voting and nonvoting common equity held by nonaffiliates by the price at which the common equity was last sold, or the average of the bid and asked prices of common equity, in the principal market for the common equity; or
In the case of an initial registration statement under the Securities Act or Exchange Act for shares of its common equity, had a public float of less than $75 million as of a date within 30 days of the date of the filing of the registration statement, computed by multiplying the aggregate worldwide number of such shares held by nonaffiliates before the registration plus, in the case of a Securities Act registration statement, the number of such shares included in the registration statement by the estimated public offering price of the shares; or
In the case of an issuer whose public float as calculated under paragraph (i) or (ii) of this definition was zero, had annual revenues of less than $50 million during the most recently completed fiscal year for which audited financial statements are available. 17 CFR §229.10(f)(1).
Whether or not an issuer is a smaller reporting company is determined on an annual basis. 17 CFR §229.10(f)(2). Additional exceptions to this disclosure requirement are provided for emerging growth companies, as defined in Rule 405 of the Securities Act of 1933 or Rule 12b–2 of the Securities Exchange Act of 1934. See §6A.40.
In June 2018, the SEC revised the definition of “smaller reporting company” to include companies with a public float of greater than $75 million but less than $250 million. This amendment increased the number of companies that benefit from the scaled disclosure accommodations available to SRCs. The amendment did not, however, change the threshold to qualify as an “accelerated filer” as defined in Exchange Act Rule 12b–2 (17 CFR §240.12b–2). Consequently, a company with $75 million or more of public float that qualifies as a smaller reporting company will be subject to the requirements that apply to an “accelerated filer” as long as its public float is greater than $75 million, including the accelerated deadlines for filing periodic reports and the requirements that it provide the auditor’s attestation of management’s assessment of the effectiveness of internal controls over financial reporting required by §404(b) of the Sarbanes-Oxley Act (15 USC §7262), its Internet address and disclosure regarding the availability of its filings required by Items 101(e)(3) and (4) of Regulation S-K (17 CFR §§229.101(e)(3) and (4)), and the disclosure required by Item 1B of Form 10-K about unresolved staff comments on its periodic or current reports. On August 10, 2018, the SEC published a helpful guide for smaller reporting companies, titled A Small Entity Compliance Guide for Issuers, available at https://www.sec.gov/corpfin/amendments-smaller-reporting-company-definition. See §17.14.
Lending Transactions; Usury Issues
If the London Interbank Offered Rate (LIBOR), rather than the bank’s reference rate, is the index rate used by the bank, ensure there are provisions that address the phase-out of LIBOR expected to occur by 2021. The promissory note or loan agreement should address how interest will be calculated when LIBOR is no longer available and how the transition to an alternate rate will be achieved. See §8.16.
If the person nominally making the loan does not have its own money at risk because another unlicensed person has committed to buy the loan, in some circumstances the other person may be treated as the “lender” for usury and other purposes. See Consumer Fin. Protection Bureau v CashCall, Inc. (CD Cal, Aug. 31, 2016, No. CV 15-7522-JFW (RAOx)) 2016 US Dist Lexis 130584. See §8.16.
In addition to potential usury issues for a lender, the interest rate on a loan, if too high, can be unconscionable under the standard tests for unconscionability. See De La Torre, et al. v CashCall, Inc. (2018) 5 C5th 966. In that case, the California Supreme Court held that the interest rate on certain consumer loans can render loans unconscionable under Fin C §22302. A loan found to be unconscionable is a violation of the California Financing Law (Fin C §§22000–22780) and is subject to the remedies specified in the California Financing Law. In addition, a violation of the California Financing Law could trigger a claim under California’s Unfair Competition Law (Bus & P C §§17200–17210) as was claimed in CashCall. See §8.16.
Even though foreign parties to a contract may voluntarily choose California law for the resolution of their disputes and a party to the contract cannot later claim forum non conveniens, a court has the statutory authority to decline to exercise its jurisdiction in circumstances where California has no public interest in burdening its courts in an action that lacks any identifiable connection to the state. See Quanta Computer Inc. v Japan Communications Inc. (2018) 21 CA5th 438, 444. See §8.86.
A comprehensive chart of the California usury law exemptions has been added to chap 8. See §8.89.
Because CGL policies typically do not provide coverage for professional negligence claims, they often contain exclusions for loss resulting from the rendering of or failure to render professional services. Energy Ins. Mut. Ltd. v Ace Am. Ins. Co. (2017) 14 CA5th 281, 292. See §11.14.
If an insurer has denied coverage or breached its duties, it may not be able to rely on a consent condition as a coverage defense. See, e.g., Teleflex Med. Inc. v National Union Fire Ins. Co. (9th Cir 2017) 851 F3d 976, 986 (“when a primary insurer wrongfully denies coverage, unreasonably delays processing a claim, or refuses to defend an action against the insured as required by the policy, the insured is entitled to make a reasonable settlement of the claim in good faith and then sue for reimbursement, even though the policy prohibits settlements without the consent of the insurer” (citations omitted)). See §11.21.
A liability policy is presumed to include a duty to defend unless the carrier can introduce undisputed evidence that there is no potential for coverage. Street Surfing, LLC v Great Am. E&S Ins. Co. (2014) 752 F3d 853, 857. However, the facts known or alleged must “fairly apprise” the insurer that the suit is or could be one on a covered claim; there is no duty to defend if the potential for liability is “tenuous and farfetched.” All Green Elec., Inc. v Security Nat’l Ins. Co. (2018) 22 CA5th 407, 416 (no duty to defend; no allegations or extrinsic facts that could give rise to liability). See §11.41.
In Pulte Home Corp. v American Safety Indem. Co. (2017) 14 CA5th 1086, 1113, the court ruled that the existence of a duty to defend turns on facts known by insurer at the inception of the third party lawsuit. See §11.41.
A detailed discussion of cyberinsurance has been added to chap 11. See §11.58.
Ransomware is a type of malicious software that infects and locks down access to a computer to deny the owner’s use until a ransom is paid. Ransomware typically infects the host computer through phishing e-mails and exploits unpatched security vulnerabilities in software. See https://www.us-cert.gov/sites/default/files/publications/Ransomware_Executive_One-Pager_and_Technical_Document-FINAL.pdf. In 2017, Microsoft estimated that the “Wanna Cry” ransomware variant was found in over 150 countries and infected over 300,000 computers across 100,000 businesses in multiple industries including retail, manufacturing, transportation, healthcare, and finance. See https://enterprise.microsoft.com/en-us/articles/industries/health/wannacry-ransomware-attack-lessons-learned. See §13.1.
In In re Facebook Internet Tracking Litig. (ND Cal 2017) 263 F Supp 3d 836, the court dismissed class action litigation accusing Facebook of tracking its users’ Internet activity. Plaintiffs alleged that Facebook’s cookies allowed it to identify users and correlate their identities with their browsing activity even when they were logged out of Facebook. The court held that Title II of the Electronic Communications Privacy Act of 1986 (18 USC §§2701–2712), known as the Stored Communications Act (SCA), did not apply to Facebook’s cookies because they are information in local storage on a user’s computer, rather than information that is temporarily stored “‘incident to [the] transmission’ of a communication.” 263 F Supp 3d at 845. In addition, the court held that personal computers are not “facilities” under the SCA through which an electronic communications service is provided. 263 F Supp 3d at 845. See §13.11.
The National Institute of Standards and Technology (NIST) has provided guidance on security and privacy controls for devices connected to the Internet (the so-called Internet of Things) in both the public and private sectors. It has listed technical and procedural safeguards designed to protect individuals, organizations, and systems when creating or operating “smart” devices. See https://csrc.nist.gov/csrc/media/publications/sp/800-53/rev-5/draft/documents/sp800-53r5-draft.pdf. Due to the lapse in government funding, csrc.nist.gov and all associated online activities will be unavailable until further notice. See §13.14A.
If a patent holder exercises control over a transferee corporation with the result that there is no effective transfer of all substantial rights in the patent, the requirements of IRC §1235 are not met, even if the documents describing the transfer formally assign all substantial rights. “The key inquiry remains whether, as a practical matter, the transferor shifted all substantial rights to the recipient.” Cooper v Comm'r (9th Cir 2017) 877 F3d 1086, 1092 (taxpayer did not transfer all substantial rights to patents to corporation because taxpayer retained right to retrieve ownership of patent at will). See §3.8.
Practitioners should note that as a result of the 2017 Tax Cuts and Jobs Act, research and experimental costs paid or incurred in tax years beginning in 2022 may no longer be deducted as current expenses and must instead be amortized over a 5-year period. There is an exception for research and experimental costs attributable to foreign research (within the meaning of IRC §41(d)(4)(F)), which must be amortized over a 15-year period. See §15.14.
The 2017 Tax Cuts and Jobs Act added a provision, under IRC §83(i), that allows a qualified employee to elect to defer the inclusion in income of the amount of income attributable to qualified stock transferred by the employer to the employee. Specifically, if qualified stock is transferred to a qualified employee and the employee timely makes an IRC §83(i) election with respect to the stock, then the income with respect to the stock is included in the employee’s income in the tax year that includes the earliest of the following (rather than included in income when required by IRC §83(a)):
The first date the qualified stock becomes transferable (including, solely for this purpose, becoming transferable to the employer);
The date the employee first becomes an excluded employee (defined below);
The first date on which any stock of the corporation that issued the qualified stock becomes readily tradable in an established securities market;
The date that is 5 years after the first date the employee’s rights in the stock are transferable or aren’t subject to a substantial risk of forfeiture, whichever occurs earlier; or
The date on which the employee revokes (at the time and in the manner that the IRS provides) the IRC §83(i) election with respect to the stock.
See IRC §83(i)(1)(B)(i)–(v). See §§15.18, 15.20.
A form for making the IRC §83(i) election has been added to chap 15. See §15.42A
On June 21, 2018, the United States Supreme Court issued its decision in South Dakota v Wayfair, Inc. (2018) 585 US ___, 138 S Ct 2080. Under Wayfair, a retailer may have a substantial nexus with California without having a physical presence in the state. The California Department of Tax and Fee Administration (CDTFA) since inadvertently posted a notice on its website containing new tax collection rules for retailers, with collection threshholds similar to those adopted in South Dakota. The draft CDTFA notice indicated that, effective August 1, 2018, retailers whose cumulative sales of tangible personal property for delivery in California exceed $100,000, or who engage in 200 or more separate transaction sales of tangible personal property for delivery in California, are required to collect California use tax. See draft notice (no longer posted at the CDTFA website) located here: http://src.bna.com/Alh. Although the CDTFA subsequently indicated that posting of the draft document was inadvertent, practitioners should be on the alert for official CDTFA guidance in response to Wayfair shortly. See §16.35.
Reporting Obligations; Going Public Transactions
Effective September 10, 2018 (per SEC Release No. 33–10513), financial statements for the earliest of the 3 years before an acquisition may be omitted if the net revenues of the acquired business in the most recent fiscal year are less than $100 million. This threshold was raised from $50 million. In recent years, the SEC has also begun to grant waivers more liberally for target company financial statements that are difficult or impossible to obtain. See §17.5.
A detailed discussion of direct listings, a technique that Spotify Technology S.A. used to go public on April 3, 2018, has been added to chap 18. See §18.5A.
The 2018 voting guidelines of Institutional Investor Services Inc. (ISS), the influential proxy advisory company, provide that ISS will recommend a vote “against” or a “withhold from non-independent directors” when
Independent directors comprise 50 percent or less of the board;
The nonindependent director serves on the audit, compensation, or nominating committee;
The company lacks an audit, compensation, or nominating committee so that the full board functions as that committee; or
The company lacks a formal nominating committee, even if the board attests that the independent directors fulfill the functions of such a committee.
See the ISS United States Proxy Voting Guidelines at https://www.issgovernance.com/file/policy/active/americas/US-Voting-Guidelines.pdf at 9. Glass, Lewis & Co. (Glass Lewis) has similar voting guidelines. See the 2018 U.S. proxy voting guidelines of Glass Lewis at http://www.glasslewis.com/wp-content/uploads/2018/01/2018_Guidelines_UNITED_STATES.pdf. See §18.42.
The Economic Growth, Regulatory Relief, and Consumer Protection Act (Pub L 115–174, 132 Stat 1296), which became law on May 24, 2018, directs the SEC to amend Regulation A (1) to allow reporting companies to offer securities in accordance with Regulation A and (2) to allow reporting companies utilizing Tier 2 offerings to satisfy Regulation A’s periodic reporting obligations by complying with their reporting obligations under Exchange Act §13 or §15(d). See §§19.12, 19.32.
The requirements for financial statements of businesses acquired or to be acquired are in Rule 3–05 and Art 11 of Regulation S-X (17 CFR §210.3–05). In September 2018, the SEC stated that financial statements for the earliest of the 3 years before an acquisition may be omitted if the net revenues of the acquired business in the most recent fiscal year are less than $100 million. Securities Act Release No. 33–10513 (June 28, 2018). In recent years, the SEC has also begun to grant waivers more liberally for target company financial statements that are difficult or impossible to obtain. See §20.13.