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For developments including new services, practices, and professionals to better serve our clients as well as our contributions to the legal and business communities, check out our News & Events section.

22 Dec 2017
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A Resident’s Guide to Board Transparency

We have previously discussed the duties and obligations co-op and condo board members owe to shareholders and owners, but what information needs to be disclosed and how transparent should boards be? What information can shareholders and owners access and what is off limits? First and foremost, it is important for residents to know their rights.

Co-op shareholders have the right, pursuant to Section 624 of the New York Business Corporation Law (BCL), New York common law, and generally their proprietary lease, to inspect the corporate books and records. It has been held[1] that co-op shareholders have the same legal rights to documents as shareholders in other public and closely–held corporations doing business in the State of New York. Therefore, co-op shareholders have the intrinsic right to protect their largest investment – their property. So what information generally must be disclosed to these shareholders? Documents such as meeting minutes, profit and loss statements, shareholder list, and accounting and bank statements. When requesting the board’s books and records, shareholders typically need to submit an affidavit confirming that they have not attempted to sell their unit in the past five years to avoid potential conflict.

Under the Condominium Act Section 339-w,[2] condo owners have the right to examine the books of receipts and expenditures of the condo. The provision specifies that “[s]uch records and the vouchers authorizing the payments shall be available for examination by the unit owners at convenient hours of weekdays. A written report summarizing such receipts and expenditures shall be rendered by the board of managers to all unit owners at least once annually.”[3] Recently the courts have applied the rights of shareholders to condo owners, whereby condo owners, who are acting in good faith, may retrieve documents such as “monthly financial reports, building invoices, board meeting minutes and legal invoices”.[4]

However, there are limitations on shareholders’ and owners’ rights to inspect the books and records. Certain documents contain confidential information that should not automatically be disclosed. This problem often arises in regards to board meeting minutes. If a shareholder or unit owner requests access to minutes that contain confidential information, the board may be able to make redactions, particularly if the information is “embarrassing or prejudicial”.[5] On January 1, 2018, Section 727 of the BCL will be in effect, which expands the scope of board transparency. Section 727 states that every condominium or cooperative housing corporation is required to submit an annual report to the shareholders including information of all contracts made, entered into, or voted on by the board, and the relevant details of those contracts.[6] As statutes and common law evolve, it is important for boards to practice greater transparency so that they are in compliance with the law and avoid potential conflicts and litigation.


[1] Guzov, LLC. (May 4, 2017) “Guzov, LLC Protects Co-op Shareholders’ Right to Safeguard Investment through New York Supreme Court Ruling.” Available at: http://guzovllc.com/supreme-court-protects-co-op-shareholders-right-safeguard-investment/.

[2] Condominium Act Section 339-w. Available at: https://law.justia.com/codes/new-york/2010/rpp/article-9-b/339-w/. Accessed on Dec. 22, 2017.

[3] Ib.

[4] Odenthal, Mike. (Nov. 9, 2017) “How Transparent Should Boards Be” The Cooperator New York. Available at: https://cooperator.com/article/a-board-beholden/full#cut. Accessed on Dec. 22, 2017.

[5] Ib.

[6] BCL Section 727. Available at: https://www.nysenate.gov/legislation/laws/BSC/727. Accessed on Dec. 22, 2017.

22 Dec 2017
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Protecting Investors with Cybersecurity Measures

In September 2017, the Securities and Exchange Commission (SEC) implemented two initiatives to combat cybersecurity threats and secure the interests of retail investors; the Cyber Unit and the Retail Strategy Task Force. The Cyber Unit, collaborating with the Enforcement Division, targets misconduct on the market such as: market manipulation, hacking non-disclosed information, cyber intrusions and threats on trading platforms and investor accounts, and violations pertaining to blockchain technology and initial coin offerings.[1] The Retail Strategy Task Force specifically aims to protect the interests and welfare of retail investors by identifying market misconduct such as fraud. Stephanie Avakian, Co-Director of the SEC Enforcement Division explains that “[c]yber-related threats and misconduct are among the greatest risks facing investors and the securities industry.”[2] These two initiatives facilitate the SEC in detecting early signs of market misconduct and manipulation.

How can investors protect themselves? Investors should be familiar with the fundamentals of cybersecurity in order to further safeguard their information. In the age of the internet, investors often opt in to receiving information from their broker-dealers online. It is important to know how to respond to suspicious emails or phishing attempts to protect online investment accounts. For instance, if an investor receives an email from their broker regarding a compromise of their account information, before responding to the email or clicking on the provided link, investors should contact their brokers using the contact information on the broker’s website.

How can investors ensure their information is secure on their smart phones and tablets? Make sure that online investment accounts that can be accessed via smartphone applications are password protected and that all apps are up to date. Phones and tablets should be automatically secured by passwords or biometric safeguards, such as thumbprints. Add apps that will allow you to find your phone if it gets lost or stolen and to erase data from phones remotely. The SEC recommends turning off the automatic Wi-Fi setting, particularly in public areas. Instead investors should manually select which Wi-Fi network they want to connect to. If you need to use public Wi-Fi in a café or park, you should use SSL-secured sites only. Browsers such as Google Chrome will specify whether sites are  secure, not secure or dangerous. For additional security measures, you can also download apps created for phones and tablets to prevent and detect viruses or malware.

In case an investor’s online investment account has suspicious or unauthorized activity it is important to immediately notify the brokerage or investment firm. Investors typically have two options, either change the passwords associated with the account or close the account and transfer any assets to a new account.[3] Unauthorized access is typically a result of a data breach or identity theft. To prevent unauthorized access, investors should regularly monitor online investment accounts and credit reports.

“The cloud” allows smartphone, tablet and computer users to easily store and access their information on all devices. To protect sensitive information, such as account numbers and passwords, ensure your cloud provider uses verification and encryption methods or simply do not store those documents online.

Take the SEC’s five question quiz here to see if you are cyber-savvy.


[1] Securities and Exchange Commission. (Sept. 25, 2017) “SEC Announces Enforcement Initiatives to Combat Cyber-Based Threats and Protect Retail Investors.” SEC. Available at: https://www.sec.gov/news/press-release/2017-176. Accessed on Dec. 22, 2017.

[2] Ib.

[3] Securities and Exchange Commission. (Sept. 22, 2015) “Investor Alert: Identity Theft, Data Breachesyou’re your Investment Accounts.” Invester.gov. Available at: https://www.investor.gov/additional-resources/news-alerts/alerts-bulletins/investor-alert-identity-theft-data-breaches-your. Accessed on Dec. 22, 2017.

20 Dec 2017
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668 Feet High on the Upper West Side

A unique new development, by SJP Properties in collaboration with Mitsui Fudosan America, located at 200 Amsterdam Avenue on the Upper West Side will be the neighborhood’s tallest building reaching 668 feet, amounting to 55 stories. The site, which was formerly the Lincoln Square Synagogue, was purchased by SJP Properties in 2015 for $275 million. Earlier this year developers faced “stiff opposition from local residents”[1] as the neighborhood group, the Committee for Environmentally Sound Development, filed a zoning challenge with the Department of Building. The group argued that the developers’ plans did not comply with zoning codes as they purchased neighboring air rights and that the height of the building was inappropriate. SJP acquired roughly 100,000 square feet of adjacent land, which technically under zoning regulations permits the building to reach up to 70 stories.

After a halt in construction due to the zoning challenges, the DOB permitted SJP to continue its construction in September 2017. SJP had to re-file their proposal and address certain issues that were brought up by the Committee for Environmentally Sound Development, such as Open Space requirements. The developers, wanting to mend the tension in the neighborhood, stated:

“Following a thorough review and audit of our application for 200 Amsterdam, the New York City Department of Buildings has determined the zoning for the site is valid and that the building’s design complies with the zoning in all aspects … We look forward to delivering a world-class building, and working closely with the local neighborhood and community officials throughout the construction process.”[2]

So what is in store for the former synagogue? The development will be a luxury condo building and will be completed by 2020. Exteriors will be designed by Elkus Manfredi, a Boston firm that typically does commercial rather than residential work, and the interiors will be designed by CetraRuddy, a New York firm who is also designing the new Lincoln Square Synagogue. The exterior of the building will be made of mostly glass, creating an abundance of natural light for all 112 apartments. The building is conveniently located near transportation and will attract more buyers to the Upper West Side. Extell is also in the process of developing a skyscraper a couple of blocks away from 200 Amsterdam – the two projects may be in competition with one another as to which building will be the tallest on the Upper West Side.

Access visual renderings of the new designs here.

[1] Warerkar, Tanay. (May 16, 2017) “Upper West Side’s Tallest Proposed Tower faces Stiff Local Opposition.” Curbed New York. Available at: https://ny.curbed.com/2017/5/16/15649362/200-amsterdam-avenue-upper-west-side-challenge. Accessed on Dec. 20, 2017.

[2] Walker, Ameena. (Sept. 27, 2017) “Upper West Side’s Forthcoming Tallest Tower can Move Forward.” Curbed New York. Available at: https://ny.curbed.com/2017/9/27/16371704/upper-west-side-amsterdam-avenue-skyscraper-construction.  Accessed on Dec. 20, 2017.

15 Dec 2017
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Challenges and Opportunities Facing Investors and the SEC in 2018

Earlier this month, SEC Commissioner Kara M. Stein, discussed her views regarding the challenges and opportunities facing investors and investment managers in the current economic climate at the Investment Company Institute’s 2017 Securities Law Developments Conference. The purpose of the conference was to create space for dialogue between the SEC and investment advisers and managers regarding the most pressing matters impacting investors, particularly retail investors. “[I]nvestors need to have confidence in the safety and soundness of investment products … investor trust cannot be designed or manufactures. Trust must be earned – through diligence, through restraint, and through experience.”[1] With this in mind, Stein discussed issues impacting investors in today’s market: disclosures and investor trust.

Disclosure

How will disclosure change in 2018? Over the past thirty years the way investors submit their disclosure forms has become more efficient with technology. Forms can now be easily filed on EDGAR, the SEC’s online company filing database. However, there is always room for improvement. The SEC is committed to expanding their use of technology to help investors make quicker, efficient, and more informed decisions. “[W]e can envision a future where users query SEC data from their smartphones. Or, perhaps even through social media.”[2] Greater use of technology can revolutionize disclosures. If investors could access secure information, provided by the SEC, on their smartphones, tablets, and computers, then disclosures could be designed for each investor in a more comprehensive way. The SEC’s Investment Advisor Committee has also proposed to create summary shareholder reports to be sent to investors either by mail or e-mail. Providing these reports via e-mail will significantly reduce costs of printing and delivery.

Stein expressed her concerns regarding a heavier reliance on technology. For instance, there is a proposed rule, 30e-3, which would make shareholder reports accessible via e-delivery. As e-delivery has proven to be efficient, useful, and environmentally friendly, the issue here is that it would shift the burden onto investors, regardless of whether they opt in to use the e-delivery service. Although many will utilize the electronic access, not everyone will have access to the internet. The SEC must find a balance in 2018 between advancing their systems with technology and protecting the interests of investors.

Investor Trust

The securities market requires investor trust, particularly retail investors. Investment advisers and managers bare a great deal of responsibility – in June 2017, retirement investments made up $26 trillion. Regulating this area has proven to be difficult over the years, although lately, particularly for retirement funds, policies have been implemented to create greater transparency among broker-dealer and investors. Regulations around the globe have attempted to bridge the gap between investors and advisers by enforcing policies to be transparent with fees and expenses, prevent conflicts of interest and bias, and continue to provide high-quality advice. [3] These factors are paramount in fortifying investor trust. Stein suggests that when conflicts arise between investors and advisers, the advisers should settle the conflicts not by applying a one-size-fits-all standard, but by applying the standard that “is appropriate for the conduct in which the person is engaging”[4] – this needs to be the change for 2018.

[1] Stein, Kara M. (Dec. 7, 2017) “Address at Investment Compant Institute’s 2017 Securities Law Developments Conference.” Securities and Exchange Commission, Speeches. Available at: https://www.sec.gov/news/speech/stein-ici-securities-law-developments-conference-2017. Accessed on Dec. 15, 2017.

[2] Ib.

[3] See Guzov, LLC. “EU Regulation Impact Wall Street”. Available at: http://guzovllc.com/eu-regulations-impact-wall-street/.; Guzov, LLC. “The Fiduciary Rule: What does it apply to?” Available at: http://guzovllc.com/fiduciary-rule-apply/.

[4] Op. Cit. n1.

15 Dec 2017
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Holiday Do’s and Don’ts

December is the month of festivities and traditions. Various holidays such as Kwanzaa, Chanukah and Christmas all fall within December and residents in New York love decorating their homes to celebrate the holidays. However, what are the decorating do’s and don’ts and how can residence make sure their holiday décor is not hazardous?

As co-op and condo residents have a mixture of backgrounds, the board must ensure it establishes consistent, fair and safe practices. There needs to be a balance between celebrating the holidays and ensuring decorations do not offend any residents or become a nuisance or hazard. Although most co-ops and condos permit residents to celebrate the holidays by decorating their doors, some by-laws do prohibit decorating the outside of your apartment along with the common areas. Buildings typically allow residents to hang wreaths, dreidels and signs on their doors. As long as the board treats all residents’ religions and traditions equally, there is unlikely to be a problem, but be sure to check your building’s individual by-laws. Some residents may be permitted to hang decorations on their doors or terraces pending board approval. What about religious decorations on residents’ front doors? Many Jewish households place mezuzahs on their front doors as a sign of faith and not decoration. Courts have held that displaying mezuzahs is protected under the first amendment, regardless if a building does not permit any type of decorations.

For buildings that permit holiday décor in common areas, the rules should again be fair and inclusive of all faiths. To avoid tension, co-op and condo boards can ask interested residents to form a diverse committee to decorate and raise funding. Why shouldn’t a board use common funds for the holidays? Not all residents will want their monthly fees allocated to holiday decorations, particularly when they symbolize various religions. Independently raising funds will create greater transparency and avoid potential conflicts.

During the holidays residents tend to leave their tree lights on and keep the candles burning. To avoid holiday disasters it is important to follow basic safety procedures to prevent fires. The National Fire Prevention Agency (NFPA) reports that from 2011 to 2015 fire departments responded to around 200 fires starting from Christmas trees alone. Electrical issues caused 40% of the fires, candles 26%, and 24% of the trees were intentionally set on fire. During the same time period, fire departments responded to around 840 fires that were caused by other holiday decorations.[1]

For residents with real trees, make sure they are regularly watered and not near a radiator. For residents who opt for fake trees, it is important they are fire retardant. As a basic guideline, residents should not use real candles on trees and should always be home when the tree lights are on. Decorations with lights and candles in common areas of co-ops and condos should be regularly monitored and not left on throughout the night.

 

[1]National Fire Protection Association. “Winter Holiday Fires by the Numbers.” Available at: http://www.nfpa.org/Public-Education/By-topic/Seasonal-fires/Winter-holiday-safety/Holiday-fires-by-the-numbers. Accessed on Dec. 14, 2017.

13 Dec 2017
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Bushwick’s Repurposed Factory

In 2015, JLL, the real estate investment management company, secured $21 million from Santander Bank for ASH NYC, LLC’s project to convert the Dannenhoffer’s Opalescent Glassworks factory into a modern apartment complex in Bushwick, Brooklyn.[1] The glass factory was founded in 1888 by German immigrant John Dannenhoffer who was one of the first “pioneers in producing and manufacturing opalescent glass.”[2] Dannenhoffer’s son took over the family business, but after he passed away in the 1920’s the building was sold to other industrial manufacturers, such as Howard Lomazow’s Security Bag Company. [3] Today the factory is being re-developed by ASH NYC and JV Partner Martin Lomazow and is expected to be complete in 2018.

ASH NYC is re-developing the glass factory into a 77,000 square foot apartment building. The 63 units (including studio, one, two, three-bedrooms and penthouses) will be starting at $2,500 to $3,800 per month. How will this site attract New Yorkers? The building has been carefully curated to combine both luxury amenities and preserve and redevelop the brick walls and high ceiling beams. The expansion from the original brick on both sides of the building is designed with large windows creating optimal light exposure. Many of the units will also have outdoor spaces. Luxury amenities include state of the art appliances, community areas and work spaces, a fitness center, private study rooms, a rooftop pergola, sundeck and yard. The building will also be equipped with a tenant portal, virtual doorman and secure electronic key lock box.

The repurposed factory, located at 336 Himrod Street, is in a thriving neighborhood where developers have continued to maintain a balance between protecting the area’s rich history and creating modern residences. Residents have been attracted to the area’s culture, art and cuisine. The new development is close to a myriad of shops, eateries and gyms. Although the best way into the city is via the L train (which will be shut down for renovation in 2019) the Myrtle Avenue Line is also easily accessible.

ASHY NYC “[value] the extensive and unique history of the building and choose to highlight its original identity while adapting its functionality to serve today’s and tomorrow’s New Yorkers, cementing its futurity for centuries to come.”[4]

For images of the new space, click here.

[1] Real Estate Weekly. (July 1, 2015) “JLL Secures $21M Construction Finance for Bushwick Glassworks Redevelopment.” Real Estate Weekly. Available at: http://rew-online.com/2015/07/01/jll-secures-21m-construction-finance-for-bushwick-glassworks-redevelopment/. Accessed on Dec. 13, 2017.

[2] Glassworks History. Available at: http://glassworksbk.com/history.html. Accessed on Dec. 13, 2017.

[3] Ib.

[4] Ib.

08 Dec 2017
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Five More Minutes for the NYSE

In August, the New York Stock Exchange (NYSE) requested the U.S. Securities and Exchange Commission (SEC) to postpone what time public companies disclose their end-of-day news. The NYSE proposed that companies should only release this information at 4:05 p.m. Eastern Time, instead of the official closing at 4:00 p.m., in an effort to limit “price discrepancies and market confusion.”[1] How will five extra minutes realistically impact the market and reduce confusion amongst investors?

The proposal sets out to amend Section 202.6 of the NYSE Listed Company Manual. The purpose of the amendment is to ensure that the Designated Market Maker (DMM), which facilitates closing at 4:00 p.m., is more accurate. Order Imbalance Information is published by the NYSE until 4:00 p.m.; this overlap in time creates price discrepancies. Order Imbalance Information establishes “real-time order imbalance information and information indicating the price at which closing interest may be executed in full and the price at which Exchange Book and closing-only interest may be executed in full.”[2] Because this process is up until 4:00 p.m., the DMM closing process can only take information that is published before 4:00 p.m. The extra five minutes gives companies the time to publish more accurate information within the time it takes for the closing auction, which will make a significant impact on other exchanges that are still open after the NYSE closing auction. Without the five minutes, there are clear pricing discrepancies between the NYSE closing price and the trading price on other markets.

Why five minutes? Other times were previously proposed by the NYSE, such as ten and fifteen, but five minutes is typically the time it take to complete closing auctions at the end of the day. The NYSE’s proposal explains that the five minute “prohibition would mitigate the risk of market disruption and investor confusion associated with the occurrence of significant news-related price volatility on other markets during the brief period between the NYSE’s official closing time and the completion of the closing auction”.[3] In effect, this modification will create a fairer market for investors and market actors.

The SEC on December 4, 2017 approved the NYSE’s proposal and declared it complied with the standards of the Securities and Exchange Act. Public companies must now either wait until 4:05 p.m. to publish their end-of-day news or until closing auctions are finished, depending on which ends first. Are there any exceptions? Yes, if it is a “non-intentional disclosure in order to comply with Regulation [Fair Disclosure]”,[4] which stipulates that public companies publish material information to all investors at the same time.[5]

[1] Zanki, Tom. (Dec. 5, 2017) “SEC Approves NYSE Plan to Delay End-of-Day Material News.” Law360. Available at: https://www.law360.com/securities/articles/991538/sec-approves-nyse-plan-to-delay-end-of-day-material-news. Accessed on Dec. 8, 2017.

[2] Securities and Exchange Commission. (Aug. 29, 2017) Release No.34-81494; File No.SR-NYSE-2017-32. Available at: https://www.sec.gov/rules/sro/nyse/2017/34-81494.pdf. Accessed Dec. 8, 2017. p.6

[3] Rhodes, Adam. (Aug. 30, 2017) “NYSE Wants Cos. To Delay End-of-Day Material News.” Law360. Available at: https://www.law360.com/articles/959173/nyse-wants-cos-to-delay-end-of-day-material-news. Accessed on Dec. 8, 2017.

[4] Op. Cit. n1.

[5] Regulation FD. Available at: https://www.sec.gov/fast-answers/answers-regfdhtm.html.

08 Dec 2017
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When Your Board Needs a Quorum

In the by-laws for each co-op and condo, there will be provisions outlining the requirements for a quorum and in what instances a quorum is required. A quorum is mandatory at shareholder meetings or when the board is conducting business, except when otherwise provided by law. To meet the quorum standard, shareholders representing, in person or by proxy, a majority of the shares issued will need to attend the meeting. For condos, instead of shares, the by-laws will specify the percentage of common interest required to be present. The Business Corporation Law (BCL) § 608(a) sets out that “holders of a majority of the votes of shares entitled to vote thereat shall constitute a quorum at a meeting of shareholders for the transaction of any business.”[1]

Voting and Board Elections

For a shareholder vote, the shareholders who own a majority of the shares (or common interest in a condo) must hold and attend the meeting to form a quorum. Under BCL § 608(b), the building’s certificate of incorporation or by-laws can limit the quorum to one-third of the votes of shares or under § 616 increase the percentage of shares needed.

For board elections in co-ops and condos, there needs to be a quorum. BCL § 614(a) states that “Directors shall, except as otherwise required by this chapter or by the by-laws or certificate of incorporation as permitted by this chapter, be elected by a plurality of the votes cast at a meeting of shareholders by the holders of shares entitled to vote in the election.” For elections, co-op and condo boards must provide a notice to all shareholders and owners between sixty and ten days before the scheduled election.

What happens if a quorum is not present at a scheduled election? “Quite often in New York co-ops (and condos), … reports will be presented to shareholders. Why punish those who were nice enough to attend?”[2] Nonetheless, to hold the election itself, there must be a quorum present.

Revising the Building’s By-Laws

Every building’s by-laws differ in regards to the procedure of amending the provisions. Some corporations require either a shareholder or board of directors vote in the affirmative of two-thirds, seventy-five percent, or a super-majority to amend, alter, repeal or create new by-laws. If a quorum is not present at the meeting, the holders of a majority of the shares can adjourn the meeting to another date at which time the shareholders present at the original meeting are entitled to vote regardless of a quorum. Pursuant to BCL § 608(d) however, shareholders present have the option of adjourning a meeting even if a quorum is present.

When adopting a new resolution, generally all board members must be present. What happens when a board member cannot attend the meeting? BCL § 708 allows board members to either give written consent to adopt a resolution without the need of attendance or they can participate via conference telephone or others devices allowing everyone to hear each other at the same time, such as Skype and FaceTime.

[1] Emphasis added.

[2] Brucker, Andrew. (Dec. 2017) “Q&A: Quorum and Board Elections.” The Cooperator New York. Available at: https://cooperator.com/article/qa-quorum-and-board-elections. Accessed on Dec. 8, 2017.

05 Dec 2017
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Less SEC Enforcement Measures Against Private Equity Firms?

Under the new chairman, Jay Clayton, the U.S. Securities and Exchange Commission seems to have shifted its focus from regulating private equity firms and advisers to individual misconduct.[1] Over the past years, particularly under the term of Mary Jo White, the SEC strictly monitored private equity advisers, which ultimately resulted in these firms establishing new practices, hiring chief compliance officers, and ensuring transparency on fees for services and potential conflicts.

The rate of private equity investments has significantly increased over the past decade. In 2000, private equity advisers managed $700 billion, and in 2015 the figure jumped to $4.2 trillion.[2] However, private equity advisers were not under the Commission’s radar until the enactment of the Dodd-Frank Act in 2010, which required private equity advisers to register with the SEC. The SEC’s Division of Enforcement also expanded in 2010, adding an Asset Management Unit to monitor the activities of private equity advisers, and the SEC Office of Compliance Inspections and Examinations (OCIE) established the Private Funds Unit to provide periodic examinations to increase transparency and identify any problems.

By 2014, the OCIE detected a number of deficiencies within private equity firms, such as “allocation of expenses, hidden fees, and issues related to marketing and valuation”,[3] which led to a number of enforcement actions against private equity advisers. The SEC targeted the following issues:

  • Advisers that receive undisclosed fees and expenses;
  • Advisers that impermissibly shift and misallocate expenses; and
  • Advisers that fail to adequately disclose conflicts of interests, including conflicts arising from fee and expense issues.[4]

The increase of private equity investments prompted the implementation of regulations and enforcement actions during Mary Jo White’s term at the SEC. The Commission set out to ensure that private equity advisers complied with these regulations to protect the interests of investors. Actions were commenced against large firms, such as The Blackstone Group in 2015 for breaches of fiduciary duties resulting in a $39 million settlement. Enforcement actions such as these compelled private equity firms to implement stricter compliance measures.

Andrew Ceresney, former Director of the SEC Division of Enforcement, explains that “the increased transparency has fostered a healthy dialogue between investors and advisers on what sorts of fees are appropriate and who should receive those fees.”[5] The SEC’s actions have increased the standard of transparency and reporting to protect investors. This standard has now been adopted by private equity firms, which is why the SEC’s focus has shifted towards other pressing issues – monitoring the actions of individual wrongdoers and protecting retail investors.

[1] Horney, Benjamin. (Nov. 17, 2017) “Lack of SEC Enforcement Doesn’t Mean PE is Off the Hook.” Law360. Available at: https://www.law360.com/securities/articles/986504/lack-of-sec-enforcement-doesn-t-mean-pe-is-off-the-hook. Accessed on Dec. 1, 2017.

[2] Ceresney, Andrew. (May 12, 2006) “Securities Enforcement Forum West 2016 Keynote Address: Private Equity Enforcement.” Securities Enforcement Forum West. p.1.

[3] Ib. p.2.

[4] List quoted from ib. p.3.

[5] Ib. p.6.

01 Dec 2017
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Precarious Co-op Rules

Every co-op has a body of rules governing the building and the shareholders. These include the building’s by-laws, the proprietary lease and the house rules. However, in under some house rules, shareholders are expected to follow peculiar provisions such as only being able to move into their new unit from the hours of 9:00am to 4:00pm on all days except Sunday and holidays.

Locks on Doors

It is common to see a provision in the house rules regarding locks and security devices on the premises. Typically a shareholder cannot change the locks on the door providing access to the apartment unless they give duplicate keys for the locks or combination codes for other security devices to the co-op in case of an emergency or for repairs. Pursuant to New York State Multiple Dwelling Law, shareholders are permitted to install and maintain an additional lock (such as a deadbolt or chain lock) as long as it can be opened from the inside with a thumb-turn and outside with a key.[1]

For doors providing access to water valves and plumbing fixtures, shareholders typically must also provide a set of keys to the co-op in case of an emergency or for repairs. These requirements rarely cause tension, however, what if the house rules stipulate that the co-op must also have access to bedrooms locks? Although it seems evasive, the house rule actually abides by New York’s occupancy laws. All interior doors (including fire escapes) in an apartment must be easily accessible in an event such as a fire. For privacy, shareholders can install push locks that do not require a key to open from the inside. It is unlikely that a co-op board will go to each unit to examine the locks, however, it is important to follow these rules in case of an emergency or if the Department of Buildings conducts a fire safety investigation.

Restricting Construction on Religious Holidays

Co-ops will require that all construction in the building is in accordance with all Federal, State and City regulations and codes and usually to be conducted from 9:00am to 5:00pm on weekdays, except for holidays. However, can a co-op restrict construction on every holiday for all religions, even if they are not commonly observed among shareholders? Essentially, yes, as long as there are enough days in-between holidays to carry out the work. “Conceptually, rules restricting work are generally not in observance of any particular theological mandate but are ‘quality of life’ regulations in recognition that on certain days many residents may be home and … wish to be free of the noise, vibrations, dust and other disturbing byproducts of construction work.”[2] Co-op boards need to be clear when construction can and cannot occur and ensure that the rules do not discriminate against any particular faith.

Every building has different rules, but they are all meant to be in the best interest of the building and to maintain health and safety. It is important to review a building’s governing documents before purchasing a new apartment to ensure that your interests are compatible with the board’s. When conflicts arise between shareholders and the co-op board it is essential to communicate any concerns early on to avoid litigation.

[1] New York State Multiple Dwelling Law Section 51-c; Building Code Title 27, Subchapter 6 Means of Egress §[C26-604.4] 27-371 Doors. (2)b.

[2] Meisel, Elliot. (Aug. 2016) “Q&A: Can a co-op board restrict outside contractors from working on a religious holiday?” The Cooperator New York. Available at: https://cooperator.com/article/qa-losing-my-religion.  Accessed on Dec. 1, 2017.

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