Legal Update

In recent years, consumers and investors have demonstrated an increased preference for socially conscious companies. The natural outgrowth of this trend has been the rise of socially conscious companies like Tom's, a shoe company that donates one pair of shoes to those in need for each pair it sells. On January 1, 2016, Indiana entered the fray as the 30^th state to enact a benefit corporation statute. Benefit corporations are for-profit corporations formed with the additional purpose of providing a general public benefit. Under the statute, a general public benefit is a benefit creating “material positive impact on society and the environment,” as a whole, through a corporation’s operations.[1] This ambiguous language provides flexibility to benefit corporations that have a variety of benefit interests.

As the New Year begins, we look ahead to new challenges and the opportunities they bring. 2015 quietly ushered in a new capital reserve rule for banks: a super capital charge for High Volatility Commercial Real Estate (HVCRE) loans. As the year closes, there are still many questions about this Rule and its effect.

The SEC adopted final rules, effective April 27, 2016, known as “Regulation Crowdfunding”, which greatly liberalize the manner by which companies privately raise money in small increments from a large number of investors, using the Internet. Regulation Crowdfunding also creates a regulatory framework for the intermediaries -- broker-dealers and funding portals --which will facilitate the online transactions.

The Indiana Court of Appeals recently re-affirmed that the “first in time” rule determines priority between a mortgage and a mechanic’s lien on the same commercial property. Wells Fargo Bank, N.A. v. Rieth-Riley Construction Co., Inc. However, the mechanic’s lien holder continues to have the right to sell and remove the improvement it constructed.

The SEC recently adopted final rules amending Regulation A to permit eligible private (i.e., non-SEC-reporting) companies to conduct public securities offerings of up to $50 million in a 12-month period without Securities Act registration. The amendment, known as "Regulation A+", was mandated by the Jumpstart Our Business Startups Act (the "JOBS Act") and takes effect on June 19, 2015. Its aim is to promote small company capital formation by increasing the maximum amount which may be raised under Regulation A (from $5 million to $50 million), and by streamlining reporting and disclosure requirements.