ISRAELIS SOON TO BE ELIGIBLE FOR E-2 TREATY INVESTOR VISA PERMITTING ENTRY AND WORK IN THE US UPON INVESTING SUBSTANTIAL AMOUNT
By Alon Harnoy, Esq. and Leyna Sultan, Foreign Legal Intern
 
There has been a great deal of attention lately on changes to US immigration policy by the Trump administration.  What people are less aware of are important developments in the immigration policy between the United States and Israel that significantly reduce the requirements for Israelis to obtain a US Visa through investment.  Israeli citizens are on the verge of being granted access to the E-2 Treaty Investor Visa which would permit Israelis to enter and work in the US upon investing a substantial amount of capital in a US business, an amount that in some cases can be as low at $100,000.
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WHEN YOUR LAW FIRM’S ASSOCIATE IS MISIDENTIFIED – AND VILIFIED – BY THE PUBLIC
By Alon Harnoy, Esq. and Daniel S. Goldstein, Esq.

I am sure you have heard about the alleged incident involving Ivanka Trump and a Brooklyn based attorney named “Daniel Goldstein” that took place on Thursday, December 22, 2016 aboard a JetBlue flight heading from New York to Miami.  By coincidence, this seemingly random incident happened to cause quite a disturbance at Shiboleth LLP due to a wide spread case of mistaken identity.  This story involves our associate attorney also named Daniel Goldstein, and a large and raucous group of Ivanka Trump supporters coming to her “defense,” only they targeted the wrong Daniel Goldstein attorney in New York.

I am the Managing Partner of Shiboleth LLP, a firm that has employed Daniel S. Goldstein as a fine litigation attorney for the past six years.  I would like to begin by saying that we have the highest respect for Ivanka Trump and her family and we condemn the alleged behavior of Daniel Jennings Goldstein on that JetBlue flight, but we hope the following spinoff anecdote assists those of you in the future who are unfortunate enough to be misidentified by the public and the subject of wrongly-placed vilification and disdain on a national scale. Read more.
IMPORTANT CONSIDERATIONS IN CROSS-BORDER TRANSACTIONS
By Joshua Levin-Epstein, Esq.

Dealmakers involved in cross-border transactions should note that contractual provisions concerning dispute resolution procedures, forum selection clauses, and choice of law clauses---which are usually found at the very end of contracts are more important than their placement indicates; these clauses should not be treated as an afterthought! The consideration and negotiation of dispute resolution mechanisms in cross-border transactions is understandably far more challenging than in domestic transactions because issues of foreign judgment enforcement and judicial bias are inherent in cross-border transactions and will inevitably surface.  Due to the nature of cross-border transactions, the possibility of having to enforce a foreign judgment and judicial bias must be at forefront of dealmakers’ deliberations.  This article discusses the main issues in the deliberation of the type of dispute resolution procedures in cross-border transaction agreements. 
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CROWDFUNDING CHANGES HOPE TO JUMP-START INVESTMENTS
By Sasha Bau, Esq., Sabari Bagchi, Esq., and Adam Valko

The Jumpstart Our Business Startups (“JOBS”) Act was signed into law in early 2012 with bipartisan support, designed to encourage funding of small businesses and ease various securities regulations. Title III, which deals with equity crowdfunding in the startup community, received a lot of attention because it was the first time the government developed a specific avenue for business to raise money through crowdfunding. Prior to these crowdfunding rules, businesses and other issuers could raise funds through the private placement exemption in the Securities Act of 1933. However, this exemption permitted general solicitation only to accredited investors, or those who possessed significant wealth.  Read more.
PROTECTING THE BRAND: BASIC RULES FOR BUSINESSES
By Sasha Bau, Esq., and Danielle Comanducci, Esq.

A brand is often one of the most valuable assets of a business. A trademark is essentially a brand name: a word, phrase, symbol or design that identifies and distinguishes the source of the products of one business from those of competitors. A “service mark” is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. For the purposes of this article, we will refer to “trademarks” as meaning both “trademarks” and “service marks.” Having a unique and distinctive trademark is important because recognizable trademarks add to a brand’s value by uniquely identifying the source of a particular product or service. No matter how large or small the business, it is crucial for each business to take steps to protect and maintain its trademark rights because, without the proper protections, use and enforcement, the value of the trademark can be undercut, and sometimes the trademark and the ability to prevent other businesses from using a similar mark could be lost altogether. Read more.
UNDERSTANDING 501(C)(3) TAX EXEMPT STATUS: A GUIDE FOR NONPROFIT ORGANIZATIONS
By Oren Heiman, Esq., Sasha Bau, Esq., and Danielle Comanducci, Esq.

Starting a nonprofit organization can be a heartening way to help address an identified community need. However, there is no “one size fits all” approach to structuring a nonprofit organization and it is important to understand the various steps and legal issues involved in the process before proceeding forward. Many assume, in error, that all nonprofit organizations have the same tax benefits, such as federal tax exemption, tax deductibility of donations by donors, access to grant funds and other benefits. While many nonprofit organizations obtain federal tax exempt status, the term “nonprofit” and “tax exempt” are not synonymous. Becoming a nonprofit organization and becoming a “tax exempt” nonprofit organization are two separate and distinct processes, each involving different steps, timelines and considerations. Read more.
THE IMPORTANCE OF NEGOTIATING GOVERNING LAW AND JURISDICTION IN INTERNATIONAL TRANSACTIONS
By Sabari Bagchi, Daniel Friedman & Karen Shiboleth

When working on a cross-border transaction, it is easy to get lost in the nuts and bolts of the transaction itself and overlook the related but distinct issues of the governing law and jurisdiction provisions contained in the definitive deal documents. We have found that new dealmakers rarely think to negotiate the law governing the transaction and the appropriate jurisdiction in which to bring claims. However, both the governing law and jurisdiction clauses can impact which party will prevail in the event of a dispute between the parties to an international transaction. Read more.
TERM SHEETS: WHY SHOULD YOU USE THEM?
By Alon Harnoy, Sabari Bagchi & Daniel Friedman

When two or more parties express an interest in working together, through a partnership or joint venture, a Company seeking an investor or purchaser, or some other transaction, oftentimes their discussions result in an agreement on a few major business points.  At this stage the parties may believe that they have an agreement in principle, and are eager to begin drafting the definitive transaction documents without having worked out much of the “nuts and bolts” of the transaction. As parties delve deeper into the nuances and detailed considerations inherent in most transactions, they come to realize that there are many points that have not yet been discussed or even considered. Once drafting has begun, much time (and legal fees) can be expended on back-and-forth revisions to specific provisions concerning business points that have not been negotiated in advance.   This inefficiency is costly and frustrating to the parties involved and can be easily prevented. At Shiboleth, we have found that parties can save a significant amount of time and legal fees by agreeing upon a well thought out and negotiated term sheet prior to drafting any definitive agreements. Reaching an agreement on critical business and legal terms in advance provides an important and efficient framework for lawyers to follow in drafting or reviewing definitive documents, and in all cases provides a cost savings to the client. Read more.
ISSUANCE OF AMERICAN REAL-ESTATE BONDS IN THE ISRAELI STOCK MARKET
By Alon Harnoy, Moty Ben-Yona & Ben Zion Ferziger 

In the past few years, large debt issuances by American real-estate groups have become a familiar sight in the Tel Aviv stock exchange. American real-estate owners and developers have been flocking to the Israeli stock market, seeking funding for their overseas projects. Since 2008, when the first issuance of this recent wave took place, companies such as De-Lesser Group Limited, Extell Limited and others have issued Israeli bonds in a total amount exceeding $880M. The trend seems likely to continue, as more companies are expected to issue new series of bonds, expand existing series or examine the possibilities of other issuances in Israel. What market conditions caused the emergence of this phenomenon? And how can your real-estate business or client benefit from this trend?
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HOW TO TURN YOUR JUDGMENT INTO AN ACTUAL FINANCIAL RECOVERY
By Joshua Levin-Epstein, Esq.
Recently, our firm successfully represented a client in the enforcement of an order of the District Court, Tel Aviv (Jaffa) transferring money held in the United States to Israel.  Having literally litigated from one end of the earth to the other, the conversion of a foreign court order into an actual financial recovery here in the United States was a great outcome and a relief for our client. Not all litigants are so fortunate, however.   
For many litigants, the aggravation and expense of litigation continues even after the court’s award of a favorable money judgment.  Judgment debtors will go to great lengths to frustrate the monetization of the court’s award into a tangible financial recovery: Concealing assets in shell corporations, transferring money abroad, and secreting assets, are all typical maneuvers by judgment debtors to stymie your financial recovery.  This article provides a brief overview of the process of the enforcement of a money judgment. 
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SPECIAL CONSIDERATIONS FOR LANDLORDS IN A TENANT BANKRUPTCY (JANUARY 2015)
By Joshua Levin-Epstein, Esq.
While the commercial real estate market in the United States has stabilized and improved since the Great Recession, the tepid economic recovery necessitates that commercial landlords’ business planning must still contemplate the prospect of tenant bankruptcies. The recent corporate bankruptcies of retail companies with hundreds of now shuttered retail locations, such as Blockbuster, Brookstone Inc., Coldwater, Creek, Inc., Crumbs, Dots, and Sbarro serve as reminders of the challenges of operating commercial real estate businesses. Read more.
SPECIAL CONSIDERATIONS FOR JEWELRY BUSINESSES IN A RETAILER BANKRUPTCY: BEST PRACTICES ON PROTECTING JEWELRY BUSINESSES’ GOODS IN A CONSIGNMENT TRANSACTION (JANUARY 2015)
By Joshua Levin-Epstein, Esq.
While memorandum transactions inherently include a degree of risk, consignment vendors have the ability to lessen certain of the legal risks associated with memorandum transactions through proper documentation of the transaction. 
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AN ARTICLE BY JOSHUA LEVIN-EPSTEIN, HEAD OF BANKRUPTCY, WAS PUBLISHED BY THE N.Y. RESTAURANT ASSOCIATION
The article titled Negotiating Your Restaurant Lease: How to Avoid Costly Mistakes”, was published by the New York Restaurant Association on August 18, 2014.  Read more.
AVOIDING A COMMON PITFALL FOR RESTAURANTS ORGANIZED AS LLCS (JUNE 2014)
By Joshua Levin-Epstein, Esq.
Failing to adequately address the legal affairs of a restaurant can be as fatal as poor service and unappetizing food.  Yet, as the costs for opening a restaurant in New York continue to skyrocket, aspiring restaurateurs mistakenly consider legal representation an unaffordable luxury rather than a necessity. The purpose of this legal bulletin, then, is to educate the aspiring restaurateur on how best to avoid the common pitfalls associated with limited liability company operating agreements. 
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WHAT MUNICIPAL BOND INVESTORS SHOULD KNOW ABOUT THE DETROIT MUNICIPAL BANKRUPTCY (APRIL 2014)
By Joshua Levin-Epstein, Esq.
During the Great Recession, when 60 Minutes aired an interview with banking analyst Meredith Whitney her dire prediction of an impending municipal bond imbroglio of “hundreds of billions” of municipal defaults ignited a firestorm of controversy. While Whitney’s forecast never quite materialized, the recent filings of high-profile municipal bankruptcies such as Detroit, Michigan and Stockton, California, can indeed be a cautionary tale for bondholders’ investment in the $3.7 trillion U.S. municipal market.  Conservative, well-respected international publications, such as the Economist, have recently warned that the poor state of the United States’ public municipal finances threaten the safety of municipal bonds investments.  While municipal bankruptcies are rare, a discussion of the Detroit bankruptcy case, in particular, offers an instructive lesson about financial instruments widely considered  to be the safest fixed income investments in the United States.
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RAISING INVESTMENT CAPITAL ONLINE: PROPOSED RULES ON CROWDFUNDING (APRIL 2014)
By Sabari Bagchi, Esq. and Danielle Comanducci, Esq.
On October 23, 2013, the Securities and Exchange Commission (the "SEC") released proposed rules to implement the requirements of Title III of the Jumpstart Our Business Startups Act (the "JOBS Act") aimed at helping startups and small businesses raise investment capital and sell securities using the Internet. These rules set the terms for what is called “New Regulation Crowdfunding.” Crowdfunding is an evolving method to raise money using the Internet under which the general public, including non-accredited investors, would be allowed to invest limited amounts to purchase unregistered securities of small businesses.  Certain private companies would be permitted to raise investment capital online for a particular business or other venture, usually by seeking relatively small individual contributions from a large number of investors.  As the practice evolves, a more level playing field may emerge in which ordinary people may fundraise or invest, regardless of personal wealth or access to wealthy investors.
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THE YELLOWSTONE INJUNCTION (APRIL 2014)
By Robert A. Rosenberg, Esq.
Every commercial landlord and tenant should be intimately familiar with a Yellowstone injunction.  Not a playful reference to the National Park, a Yellowstone injunction is a New York Supreme Court proceeding initiated by a tenant after receiving notice to cure an alleged lease default.  Named after the landmark decision in First National Stores, Inc. v. Yellowstone Shopping Center, Inc., 21 N.Y.2d 630 (1968), this type of injunction serves to maintain the status quo while the tenant can challenge and/or cure the alleged default without forfeiting its valuable property interest in the lease. 
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UNDERSTANDING EMPLOYEE STOCK OPTION PLANS: TAX IMPLICATIONS & PRACTICAL CONSIDERATIONS (MAY 2013)

By Moty Ben Yona, Esq. and Meital Dror, Esq.
Employee Stock Option Plans have grown significantly in popularity over the past few years, and present an effective way for companies to compensate and attract employees. According to Information Technology Associates, 15% to 20% of public companies offer stock options to employees as a part of their compensation package, and over 10 million employees receive them. Employee option plans have been praised as innovative compensation planning that helps align the interests of employees with those of the shareholders. However, there are those who condemn them as schemes to enrich insiders and provide a mechanism for companies to avoid their tax responsibilities.

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SET THE RECORD STRAIGHT: WHY EMPLOYEE HANDBOOKS ARE A NECESSARY AND A VALUABLE TOOL (MAY 2013)
By Sasha Bau, Esq. and Danielle Comanducci, Esq.
An employee handbook, sometimes known as an "employee manual," is a document that sets out the employer’s policies, procedures, and describes the various legal obligations of the employer and the employee. By and large, the employee manual functions as an effective communication tool between the employee and the employer setting out the employer’s policies, procedures, working conditions, and behavioral expectations.
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COMING TO AMERICA (SEPTEMBER 2012)
By Alon Harnoy, Esq. Head of M&A and Meital Dror, Esq.
We frequently advise foreign clients on legal structures that will enable them to access the US market. Prior to mapping out legal structures, one should first understand the foreign company’s global and US strategy, so that legal structures can track strategic goals. The strategic analysis should examine what business the foreign company seeks to do in the US. For example, does it only seek to sell products made outside of the US? Does it wish to establish a physical presence for warehousing inventory, or for conducting marketing and sales activities? The analysis should also look at the company’s long term commercial strategy (e.g., does the company wants to establish relationships with strategic business partners?) and its long term finance strategy (e.g., does the company want to access the US capital markets for fund raisings)? If a foreign company merely wishes to sell foreign goods in the US, having a physical and legal presence is not required. The foreign company may be able to manage its needs by entering into a contractual relationship with a distributor and, if applicable, registering to do business in the relevant US State(s). In the event that registration to do business is not required, appropriate structuring could insure that the foreign company would not pay income taxes in the US nor have to file any tax returns with the US tax authorities.
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REMEDIES AWARDED IN BREACH OF CONTRACT ACTIONS IN THE US (SEPTEMBER 2012)
By Daniel Faizakoff, Esq. and Daniel Goldstein, Esq.
The term “damages” refers to the loss or injury sustained by a party as a result of a breach of contract or tortious act committed by another.  It also refers to the sum that will be awarded by a court to the injured party as the compensation or pecuniary remedy for such loss.  In a breach of contract action, pecuniary remedies can include compensatory damages, consequential damages, and liquidated damages.  In certain circumstances, lost profits and punitive damages may also be recovered.  This article serves to highlight the various contract damages and identify how they differ.
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WHAT EVERY INTERACTIVE ONLINE BUSINESS SHOULD KNOW ABOUT THE DIGITAL MILLENNIUM COPYRIGHT ACT AND ITS SAFE HARBOR PROTECTION (SEPTEMBER 2012)
By Sasha Bau, Esq. and Danielle Comanducci, Esq.
The growing number of internet-based businesses allowing for user initiated content, social networking and interactive online activities necessitates that individuals venturing into such business endeavors be familiar with key provisions of the Digital Millennium Copyright Act (“DMCA”). In recent years, DMCA has taken on an essential role in striking a balance between the rights of owners of copyrighted content in their quest to protect their materials from unauthorized use and the interest of the general public in gaining access to such copyrighted content.
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SELLING THE VENTURE-BACKED COMPANY (OCTOBER 2011)
Implications of Liquidation Preferences and Participating Preferred Stock on Distribution of Sale Proceeds by Alon Harnoy, Esq. and Moty Ben Yona, Esq.
The sale of a venture-backed company symbolizes the conclusion of a long journey. After conceiving a commercial idea, devising a business plan, building a management team, going through rounds of investment, creating an engine to produce revenue and profits and finding a willing buyer to take it all over, the founders can finally celebrate their epic triumph - or can they?  In the case of a company that has gone through one or more rounds of venture capital financing, an exit in the form of a sale does not necessarily produce home run returns for the founders and senior management of the company.  While such a scenario is possible, we have witnessed cases when this realization was only discovered during the pendency of an M&A transaction resulting in constituencies of selling shareholders reassessing their support for the deal.
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FIDUCIARY DUTIES IN CONNECTION WITH THE SALE OF A DELAWARE LIMITED LIABILITY COMPANY (OCTOBER 2011)
By Alon Harnoy, Esq. and Robert Rosenberg, Esq.
There is a common misconception that managers or managing members of a Delaware limited liability company do not owe the same fiduciary duties owed by directors of Delaware corporations.  An extension of this misconception is that in the context of an LLC that has several members and a manger, the manager is able to freely conduct a sale process and find a willing buyer for the LLC at a price that such manager believes is attractive.  The problem with this misconception is that absent the operating agreement of the LLC specifically eliminating fiduciary duties of the manager, the manager will be subject to such fiduciary duties, including so-called Revlon duties, requiring the manager to take steps in order to obtain the highest value reasonably available to the  members of the company. In this article we will address this issue by taking a look at the Delaware LLC, the scope of fiduciary duties owed by a manager of a Delaware LLC and certain specific duties that arise in the context of a sale of a Delaware LLC.
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THE FOREIGN ACCOUNT TAX COMPLIANCE ACT (FATCA) (OCTOBER 2011)
By Alon Harnoy, Esq. and Meital Dror, Esq.
The Foreign Account Tax Compliance Act of 2009 (FATCA), introduced by the United States Congress on October 27, 2009 and supported by President Obama and Treasury Secretary Timothy Geithner, is part of a larger initiative by the United States to combat tax evasion through the use of offshore intermediaries.  With an estimated annual loss of over $100 billion, FATCA imposes new tax reporting criteria aimed at locating currently undisclosed assets while discouraging further tax evasion.  While the main goal is to  promote the tax and fiscal interests of the United States, additional objectives include inhibiting money laundering and financial fraud.
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JUMPSTART THE STARTUP (APRIL 2010)
By Sasha Bau, Esq.
Turning a great idea into a successful startup is a task that requires not only the skills, business bravado and ample patience, but also sufficient funding and proper structuring. In this article we are providing a general overview of the legal aspects of forming and running a startup. Although the below review is not intended to replace advice of an attorney, accountant or a tax advisor, it should serve as a roadmap to the business set up process. 
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