EB5 Investors Magazine Volume 5, Issue 2 - Page 110

A CLOSER LOOK AT THE LAW not. Similarly, attorneys or accountants can be barred or suspended from appearing or practicing before the SEC if they committed misconduct in an EB-5 offering. Finally, participants in EB-5 offerings can even be subject to criminal sanctions, including fines and imprisonment, for “willful” violations of the securities laws, which generally requires knowledge of wrongfulness. As illustrated by Feng, whether EB-5 investments are securities and whether those receiving compensation in connection with EB-5 offering are acting as brokers, depends on the facts and circumstances. Variations in the fact may result in a different outcome. Given the potentially harsh sanctions for securities law violations, participants in EB-5 offerings would be wise to seek advice of counsel at all stages of an EB-5 offering and preferably before being contacted by securities regulators. Once regulators come knocking, the need for legal advice becomes even more acute given the potential consequences. Through careful planning and execution, participants in EB-5 offerings can be well-positioned to withstand regulatory scrutiny. 109 EB5 INVESTORS M AGAZINE RIKARD LUNDBERG Rikard Lundberg is a shareholder at Brownstein Hyatt Farber Schreck, where he serves as outside corporate counsel and advises clients on all aspects of federal and state securities laws. He represents private and public companies from various industries such as recreation, hospitality, media, alternative energy, gaming and consumer products in a broad range of transactions, including EB-5 transactions, public and private securities offerings, equity and debt financings, corporate contracting as well as general commercial and corporate matters. TOM KRYSA Tom Krysa is a shareholder in the Securities Litigation and Enforcement Practice Group at Brownstein Hyatt Farber Schreck LLP in Colorado, where he represents clients in securities litigation and enforcement matters. Prior, Krysa held various supervisory positions at SEC, overseeing litigating securities enforcement efforts in federal district courts and before administrative law judges. He also served as federal prosecutor for the U.S. Department of Justice Tax Division and clerked for the Honorable Stephen J. Swift, U.S. Tax Court Judge, in Washington, D.C..