Minority Shareholder Protection – What Law Applies?
Many of my clients live in other states but own part of a company based here in New Jersey. That is often a recipe for mistreatment of minority shareholders – out of sight, out of mind. But an owner in such a situation has significant protections afforded to them under the law.
If you own shares in a New Jersey-based company but live out of state, New Jersey law protects you. As I have discussed for over 20 years now in this blog, the court can deem that a minority shareholder is oppressed and order – among other things – a buyout of the minority shareholder’s interest. It makes no difference where you live. But the law or even the jurisdiction that applies might not necessarily be based on where the company is physically located. For example, even if the company is based in one state, the shareholders’ agreement (or operating agreement) might require that any lawsuit be brought in another state. Even if that is the case, you still have the protections of New Jersey law.
Also, the fact that the company is located in New Jersey does not make it a New Jersey company. A company might have been created as a creature of one state but be physically located in another. For example, if your company is a Delaware LLC but operates in a state that has minority shareholder protections (like New Jersey), Delaware law likely still applies, and Delaware does not have a minority oppression statute.
So, when you are creating a company, it is critical where you incorporate and what law applies – especially if you are a minority owner. This is especially true since oppressed minority shareholder protections cannot be waived. In one instance, a client shared that in a new venture, his majority shareholder partner initially asked if he (the 20% minority owner) would waive the protections of the oppression statute when they were drafting a shareholders’ agreement. The client was not aware that those protections could not be waived. He was happy to see that his partner dropped that demand, only to insist that the company be a Delaware company operating in New Jersey. When I advised the client that when he agreed to this, he was agreeing to a set of laws that did not protect him, he believed he had been hoodwinked by his partner.
“That’s why he wanted to make it a Delaware corporation!”
The minority shareholder was still able to sue in New Jersey, under Delaware law, for breach of fiduciary duty, but the protections were nowhere near as broad, and the case was more difficult.
So, pay attention to where the company is being formed, and what that means to you, at the outset of your business relationship. The issue of where the company will operate does not necessarily determine all your rights. If the agreement was created years ago and cannot be changed now, ask an experienced shareholder dispute attorney what – and where – your rights are.
MAKING SMART TCPA MOVES: Rocket Mortgage Follows Up Its Redfin Purchase With STUNNING $9.4BB Take Over of Mr. Cooper
So multiple outlets are reporting that Rocket is set to absorb the nation’s largest mortgage servicer Mr. Cooper.
With Rocket having just recently acquired Redfin it looks like the company is poised to be an absolute behemoth in the mortgage industry.
Just like with Redfin, however, the TCPA is likely driving this initiative.
Yes, mortgage servicing can be profitable in its own right but it is MASSIVELY valuable to an originator to have a large servicing pool.
Why?
Who is more likely to NEED mortgage or refinance than folks who already have a mortgage product? And with trigger leads now widely available (probably illegal under FCRA but don’t tell the CRAs that) having a massive servicing book means you can LEGALLY call folks who just submitted an application elsewhere and convince them to stay.
This is because the DNC rules will soon allow Rocket to call all of the MILLIONS of Mr. Cooper customers it just acquired WITHOUT CONSENT.
Pretty slick, eh?
So with Redfin providing consent on the front end and with access to a massive pool of mortgage customers now bolted on to the backend Rocket can make ready use of the phones to bring customers into its ecosystem–and keep them there.
Pretty clever. And it was all brought to you by the TCPA.
People think of the statute as a profit killer. But leveraged correctly it can actually drive profits by building a moat around your customers and a barrier-to-entry for others in your vertical.
Smart money uses the law as a competitive advantage. Nicely done Rocket.
Seeking a Revenge Premium in Business Divorce: Resisting the Urge to Plunge Headfirst Into Quicksand
When longtime business partners in private companies go through a business divorce, emotions often run high. One or both of the partners may be seeking a “revenge premium” in the business divorce process based on their perceived mistreatment by the other partner during their time together. While the urge to extract a pound of flesh from a soon-to-be former partner during a business divorce is understandable, it is likely to be self-defeating. Seeking pay back from the other partner is likely to result in heightened conflicts, a longer time to complete the process, and more distractions for the business. By contrast, when partners keep their emotions in check, they can achieve mutually positive financial outcomes and increase the opportunity to preserve their business and personal relationships.
Introduction – The Costs of Pursuing a Revenge Premium
Securing a revenge premium from the other partner during a business divorce is not just difficult to obtain; the decision to go down this road virtually guarantees that both partners will be engaged in a more protracted, expensive process. These negative results include: (1) incurring substantial legal fees that may escalate rapidly into six figures (or more), (2) participating in multiple rounds of negotiations that do not produce a financial windfall, and (3) dealing with the negative reactions from other key stakeholders in the business, including employees, clients and other owners. In addition, the company’s performance and total value may decline precipitously in the midst of a contentious business divorce because management will be focusing on conflicts between the partners rather than prioritizing the company’s operations.
The lose-lose type of scenario described above is one that both partners should take pains to avoid. Pursuing a business strategy that is guaranteed to increase conflicts, expense and time away from a focus on the business is akin to voluntarily jumping into quicksand. The remainder of this post therefore focuses on strategies for business partners to consider in efforts to optimize the outcome of their business divorce.
Opt-In Strategies
When a business divorce takes place, the majority business owner may have become frustrated by the minority partner’s conduct and therefore insist that the minority partner accept a purchase price for the partner’s interest in the business that is less than its fair market value. That is what we refer to as a revenge premium. To head off the serious conflicts likely to ensue from the pursuit of a revenge premium, however, the majority owner may want to consider an entirely different strategy and approach to the business divorce.
Majority Owners: Paying a Peace Premium to Departing Minority Partners
Specifically, the majority owner is advised to consider paying a purchase price for the minority owner’s interest that is well above its fair market value (FMV), which we refer to as the “peace premium.” We are not suggesting that the majority owner deliver a huge windfall to the minority partner, but instead to consider a purchase price that is 20%-35% larger than the FMV of the minority interest. The majority owner’s initial reaction to this suggestion may be that making this “excess” payment is rewarding bad behavior by the minority partner in the past, but for the reasons set forth below, the majority owner may want to consider biting the bullet and paying the peace premium to the minority partner.
A prompt exit that results from the payment of the peace premium to the minority partner will save the majority owner both time and money because it will lessen the legal expense involved and remove a significant distraction for the owner in the operation of the business. When the minority partner’s exit from the business results in addition by subtraction, securing the benefits of this exit as promptly as possible is good for the company (and the majority owner).
If the business is on a positive trajectory, the longer the minority partner remains part of the company, the higher the price the majority owner will have to pay to purchase the minority interest. Stated another way, if the business is appreciating in value, all of that appreciation (or the lion’s share of it if there are other partners) will be going to the majority owner once the minority partner has been bought out.
To the extent that other owners and employees in the business learn that a peace premium was paid to the minority investor, this will serve as an incentive. It will show that the company is healthy, that the returns on exit from the business will be substantial, and that departing partners are treated fairly and with respect.
Finally, paying a peace premium to the departing minority partner should also engender some good will from that partner. This payment will tend to make the minority partner a continued positive spokesperson for the company, and it will help to maintain a good personal relationship between the partners themselves.
Minority Investors: Buying Into a Soft Exit From the Business
For minority partners, their approach may be to demand an exorbitant purchase price for their interest, which is paid to them promptly. If the minority partner has not secured a buy-sell agreement from the majority owner, however, the minority partner has no contractual basis to issue a buyout demand to the majority owner. Therefore, making a demand like this would be akin to seeking a revenge premium because the minority partner has no legal basis for it. Indeed, in response to demands of this nature from the minority partner, the majority owner may elect to remove the minority partner from all operational and management roles in the business. When this type of squeeze out is implemented, the minority partner will be left with no access to further compensation, distributions or dividends from the company, and the partner may have to wait for years for some type of liquidity event to take place to monetize the investment in the business.
While the minority partner who has no buy-sell agreement in place with the majority owner can resort to a litigation strategy in efforts to bring the owner to the bargaining table to secure a buyout, a more effective, less contentious approach should be considered. Specifically, the minority investor could propose a soft exit from the business that permits the investor’s interest to be purchased over time by the company and on terms that do not create a financial hardship for the business.
This type of structure might involve a combination of a cash payment that is paid to the minority partner over time, as well as a revenue share for some period of years. All of these terms are subject to negotiation, but a soft exit for the minority partner could look like this:
The minority partner accepts a purchase price of an amount that is below the FMV of the business, which is paid out over five years with 20% paid up front. This would not be a steep discount, but perhaps 10-20% below the FMV;
To balance the shortfall in the purchase price for the minority partner’s interest, the company also agrees to pay the minority partner a set percentage of the company’s revenues for three years; and
The minority partner and the company agree on a ceiling and a floor for the revenue share. In this regard, the company guarantees that the total amount of the future revenue share paid to the partner will not be less than a set amount, and the parties also agree that the amount of the revenue share will not exceed a capped total amount. Thus, the parties agree to a range of additional potential payments to be made to the minority partner after closing.
This type of soft (negotiated) exit from the business provides an opportunity for the minority partner to secure an exit from the company for a value that may meet the investor’s financial objectives, but without bankrupting the company.
A Third Path: An Exit Facilitated by Third Parties
Another path for business partners to consider when they need a business divorce is one facilitated by third parties. The agreements the partners entered into may require them to attend a pre-suit mediation, but even if a mediation is not required by contract, there is generally little downside to attending a mediation with a business mediator skilled in facilitating business divorces. This type of pre-suit process is non-binding, and it will permit the mediator to help the parties explore efforts to resolve their claims/differences in a creative manner, which will avoid the time, substantial expense, and inconvenience of engaging in litigation.
If a mediation is not successful, the partners may also consider submitting specific issues to arbitration. It is not unusual for the main conflict between partners in a business divorce to be the value of the business, and if they are at an impasse regarding valuation, they may end up in court over this issue. When litigation is the only option, that will result in a battle of the experts where both parties hire business valuation experts and present competing valuation reports to the judge or the jury for resolution. That approach will involve years of costly litigation, which will require the partners to incur the fees of both their legal counsel and valuation experts.
One alternative is to limit the partners’ dispute to the issue of valuation and submit that issue for resolution by a single arbitrator or arbitration panel. This type of arbitration is much faster than litigation as it can take place in a matter of a few months rather than over multiple years; the company’s value will be determined by experienced business lawyers or former judges selected by the parties; and the arbitrator’s determination will be final without any appeal. If the partners are confident in their determination of the company’s value, this may be a better, less costly option to consider when company valuation is the primary conflict between them.
Conclusion
Businesspeople are not immune to emotional reactions, and business divorces tend to magnify the feelings of the partners that caused them to separate. That is why it is common for business partners in this situation to pursue outcomes that seek to extract some type of revenge premium. But when partners ratchet down the emotions and engage in efforts to find pragmatic solutions — such as peace premiums, soft exits or the use of mediation or arbitration — they can save themselves from severe financial headaches and lasting emotional heartaches.
Partners who are able to control their emotions during a business divorce can achieve outcomes that produce an array of positive benefits, which extend beyond their own transaction. More specifically, partners who focus on securing a win-win outcome in their business divorce place themselves in position to secure reasonable value for themselves; they will maintain (and perhaps enhance) their professional reputations; they will protect the enduring value of the business; and they will preserve their personal relationships. Setting aside the urge to obtain vindication is not just an appeal to the better angels of business partners, it is a strategy that is designed to produce the best possible outcome for them and also for the business.
This focus on the continued success of the business also applies to the departing minority partner, who should care about the business even after the partner’s interest has transferred. First, the departing partner may have a revenue share that is directly tied to the future performance of the business. Second, even if the departing partner does not have a revenue share arrangement in place with the company, there is likely a payout of the purchase price, and the partner will not want to deal with a monetary default if things go south in the business. Finally, if the business does continue to flourish, the departing partner should be able to point to his or her role in the business with legitimate pride in having contributed to the company’s success.
Listen to this article
Important New Safe Harbors and Other Clarifying Changes to Delaware Corporate Law
The governor of the State of Delaware—consistent with his pledge to protect the “Delaware franchise”—recently signed into law amendments to Section 144 of the Delaware General Corporation Law (the DGCL) relating to certain acts or transactions involving directors, officers, controlling stockholders, and members of a control group, and Section 220 of the DGCL relating to stockholder demands for inspection of corporate books and records.
The amendments to Section 144 are intended to provide greater predictability and clarity to Delaware corporations considering acts or transactions that may implicate the fiduciary duties of directors, officers, controlling stockholders, and members of a control group. The amendments to Section 220 are intended to provide clarity and certain limits on stockholder inspection of books and records given the increasing growth in volume and scope of stockholder actions for inspection brought in the Delaware Court of Chancery.
Amendments to Section 144
The amendments to Section 144 provide safe harbor procedures for acts or transactions involving one or more directors, officers, controlling stockholders, and members of a control group that might, absent compliance with the safe harbor procedures, give rise to breach of fiduciary duty claims. The amendments to Section 144 also exculpate controlling stockholders and members of a control group from liability for duty of care violations.
The safe harbor provided by amended Section 144 is protection from equitable relief or an award of damages by reason of a claim based on a breach of fiduciary duty.
Safe Harbor for Acts or Transactions Solely Involving Directors or Officers
Acts and transactions involving one or more directors or officers or in which one or more directors or officers have an interest get the benefit of the safe harbor under amended Section 144(a) if:
The material facts as to the relationship or interest and the act or transaction are disclosed or known to all members of the board or a committee of the board and the act or transaction is authorized in good faith and without gross negligence by (i) the affirmative votes of a majority of the disinterested directors (see below) on the board (except where less than a majority of directors on the board are disinterested directors) or (ii) a majority of the disinterested directors on a committee (where less than a majority of the directors on the board are disinterested directors, the committee must consist of at least two disinterested directors), even though the disinterested directors constitute less than a quorum; or
The act or transaction is approved by an informed, uncoerced, affirmative vote of a majority of the votes cast by the disinterested stockholders (see below); or
The act or transaction is fair as to the corporation and its stockholders.
Safe Harbor for Acts or Transactions (Other Than Going Private Transactions)
Involving a Controlling Stockholder or Control Group. Acts or transactions between the corporation or one or more of the corporation’s subsidiaries on the one hand and a controlling stockholder (see below) or control group (see below) on the other hand and acts or transactions from which a controlling stockholder or control group receives a financial or other benefit not shared with the stockholders generally (each a Controlling Stockholder Transaction) get the benefit of the safe harbor under amended Section 144(b) if:
The material facts as to the Controlling Stockholder Transaction are disclosed or known to all members of a committee of the board (consisting of at least two disinterested directors) that has been expressly delegated by the board the authority to negotiate or oversee the negotiation of and reject the Controlling Stockholder Transaction and the Controlling Stockholder Transaction is approved or recommended for approval in good faith and without gross negligence by a majority of the disinterested directors then serving on the committee (Disinterested Committee Approval); or
The Controlling Stockholder Transaction is conditioned—by its terms (as in effect at the time it is submitted to stockholders for approval or ratification)—on approval or ratification by an informed, uncoerced, affirmative vote of a majority of the votes cast by the disinterested stockholders and such approval or ratification is obtained (Disinterested Stockholder Approval); or
The act or transaction is fair as to the corporation and its stockholders.
Safe Harbor for Going Private Transactions Involving a Controlling Stockholder or Control Group
A “going private transaction”—defined as a Rule 13e-3 transaction (for a corporation having a class of stock listed on a national securities exchange) or a Controlling Stockholder Transaction in which all of the capital stock held by disinterested stockholders is canceled, converted, purchased, or otherwise acquired or ceases to be outstanding (a Going Private Transaction)—gets the benefit of the safe harbor under amended Section 144(c) if:
The Going Private Transaction receives Disinterested Committee Approval and Disinterested Stockholder Approval; or
The act or transaction is fair as to the corporation and its stockholders.
Defining a “Controlling Stockholder,” “Control Group,” “Disinterested Director,” and “Disinterested Stockholder”
For purposes of applying the above safe harbor procedures, amended Section 144 defines the foregoing key terms as follows:
A “controlling stockholder” means a person that, together with affiliates and associates:
Owns or controls a majority in voting power of stock entitled to vote generally in the election of directors or in the election of directors having a majority in voting power of all directors; or
Has the right (by contract or otherwise) to cause the election of its nominees to the board and such nominees constitute a majority of all directors or a majority in voting power of all directors; or
Has the power functionally equivalent to that of a stockholder owning or controlling a majority in voting power of stock entitled to vote generally in the election of directors by virtue of ownership or control of at least 1/3 in voting power of stock entitled to vote generally in the election of directors or in the election of directors having a majority in voting power of all directors and power to exercise managerial authority over the corporation’s business and affairs.
A “control group” means two or more persons that are not controlling stockholders but by virtue of “an agreement, arrangement, or understanding” between or among them constitute a controlling stockholder.
A “disinterested director” means a director who is not party to the relevant act or transaction and does not have a material interest in, or a material relationship with a person that has a material interest in, the relevant act or transaction. Amended Section 144 also contains a rebuttable presumption as to the “disinterestedness” of directors satisfying the independence criteria of the national securities exchange (modified as provided in amended Section 144) on which a class of the corporation’s shares are listed.
A “disinterested stockholder” means a stockholder that does not have a material interest in the relevant act or transaction or a material relationship with either the relevant controlling stockholder or a member of the relevant control group or any other person with a material interest in the relevant act or transaction.
Defining a “Material Interest” and “Material Relationship”
Section 144 also defines the key terms “material interest” and “material relationship” as follows:
A “material interest” means an actual or potential benefit (including avoidance of a detriment), other than one devolving on the corporation or the stockholders generally, that (i) in the case of a director, would reasonably be expected to impair the objectivity of the director’s judgment when participating in the negotiation, approval, or authorization of the relevant act or transaction and, (ii) in the case of a stockholder or other person that is not a director or officer, would be material to the stockholder or other person.
A “material relationship” means a financial, employment, familial, professional, or other relationship that (i) in the case of a director, would reasonably be expected to impair the objectivity of the director’s judgment when participating in the negotiation, approval, or authorization of the relevant act or transaction and, (ii) in the case of a stockholder, would be material to such stockholder.
Amendments to Section 220
The amendments to Section 220 define the scope of books and records that a stockholder may demand to inspect and set forth conditions that must be satisfied for the stockholder to inspect a corporation’s books and records.
Scope of Books and Records That May Be Inspected by a Stockholder
Amended Section 220 generally defines the “books and records” of the corporation that a stockholder may inspect as the certificate of incorporation, bylaws, minutes of meetings (or consents in lieu of meetings) of stockholders (for the preceding three years) and the board or committees of the board, communications with stockholders generally (within the prior three years), materials provided to the board or committee in connection with action taken by the board or committee, annual financial statements (for the preceding three years), D&O questionnaires, and contracts made by the corporation with one or more current or prospective stockholders (or one or more beneficial owners of stock), in its or their capacity as such, entered into under Section 122(18) of the DGCL.
Where the corporation does not have any minutes or consents of stockholders (for the preceding three years) or the board or committee, annual financial statements (for the preceding three years), or, in the case of a corporation having a class of stock listed on a national securities exchange, D&O questionnaires, the Delaware Court of Chancery may order the corporation to produce the functional equivalent of these books and records if the stockholder has complied with the conditions to inspection set forth in Section 220(b) and only to the extent necessary and essential to fulfill the stockholder’s proper purpose.
In addition, the Delaware Court of Chancery may order the production of other specific records if and to the extent (i) the stockholder has complied with the conditions to inspection set forth in Section 220(b), (ii) the stockholder has demonstrated a compelling need for the inspection of the records to further such stockholder’s proper purpose, and (iii) the stockholder has demonstrated by clear and convincing evidence that the specific records are necessary and essential to further the proper purpose.
Conditions to Stockholder Inspection
Amended Section 220(b) requires a stockholder demanding inspection of the corporation’s books and records to:
Make its demand in good faith and for a proper purpose (e.g., a purpose reasonably related to the stockholder’s interest as a stockholder); and
Describe with reasonable particularity in its demand for inspection the stockholder’s proper purpose and the books and records sought to be inspected (which books and records must be specifically related to the stockholder’s proper purpose).
Amended Section 220(b) expressly permits the corporation to:
Impose reasonable restrictions on the confidentiality, distribution, and use of the books and records inspected;
Require that the stockholder agree to incorporate information contained in the books and records inspected by the stockholder by reference in any compliant filed by or at the direction of such stockholder relating to the subject matter of demand; and
Redact portions of the books and records not specifically related to the stockholder’s purpose.
Effective Date of the Amendments
The amendments to Section 144 and Section 220 became effective upon signature by the governor on 25 March 2025 and apply to acts and transactions occurring before, on, or after such date, except for actions or proceedings that are completed or pending, or any demands for inspection made, on or before 17 February 2025.
Australian Mandatory Merger Clearance: Regime Details starting to Emerge – Government publishes Draft Determination, ACCC publishes Draft Guidelines
On 28 March 2025, the Australian Government (the Government) published its draft Determination providing the beginnings of detail about the acquisitions that are the subject of mandatory notification, some of the exceptions to notifications, the position regarding supermarket acquisitions and the draft notification forms.
On the same day, the Australian Competition and Consumer Commission (ACCC) published its draft merger process guidelines, following on from its earlier analytical, and transition guidelines.
This Insight is part of a series of publications designed to guide clients through the upcoming Australian mandatory merger clearance regime, as the details becomes available.
In Brief
Whilst this Insight focuses on the key definitions in the Government’s draft Determination, We will shortly publish additional articles focusing on the ACCC’s draft guidelines. The determination:
Confirms or defines the types of acquisitions that are the subject of the regime.
Clarifies that the test for whether an acquisition is to be notified is based on the turnover of the acquirer and the target – and no other measure.
It then clarifies that the relevant measure of turnover of each of the acquirer and the target is the current Goods and Services Tax (GST) Turnover of the relevant entity and connected entities (being associated entities and controlled entities).
As a practical matter, this means the following for parties seeking to enter into negotiations for mergers and acquisitions (M&A), including considering the broader meaning of “acquisition”, at an early stage of the proposed acquisition or deal:
The acquirer needs to, for the purposes of ACCC Notification, consider the turnover of itself and the target;
The acquirer needs to calculate the GST turnover for the 12 months up to the date of the signing (and notionally at the commencement of negotiations) of both itself, including connected companies, plus, the GST turnover of the target (and its connected entities in the case of acquisitions of shares), to seek to calculate the AU$200 million or the AU$500 million threshold;
The above calculation will also be relevant to the calculation of the AU$50 million or AU$10 million threshold; and
The acquirer needs to consider the market value of, or consideration for, all the shares or assets the subject of the transaction for assessment of the AU$250 million transaction value threshold.
The same assessment in respect of serial or creeping acquisitions is set out below.
It provides detail about exceptions from notification under the regime, namely acquisitions:
Of land in certain circumstances;
By liquidators/administrators etc;
In the context of succession; and
Of financial securities, exchange traded derivatives, in money lending situations and in trust circumstances.
Mandatory notifications in the case of acquisitions by Coles or Woolworths.
The information requirements in Notification Forms – short and long-form.
In More Detail
As previously mentioned, the Government recently released the exposure draft of the Competition and Consumer (Notification of Acquisitions) Determination 2025 (Determination) and related draft explanatory memorandum.
Additionally, on 28 March 2025, the ACCC published its draft merger process guidelines, building on its earlier draft analytic guidelines and transition guidelines.
As clients are focused on what amounts to a notifiable acquisition and if a transaction is notifiable, and what information is required to be provided to the ACCC, this insight focuses on the Determination. We will shortly publish a follow-up insight focusing on the process of interaction with the ACCC both informally and once a formal application is made.
What is an Acquisition
The Determination confirms that acquisitions are mandatorily notifiable in the following circumstances:
The acquisition is of shares in the capital of a body corporate or assets;
The shares or assets are “connected with Australia”;
The acquisition satisfies the combined acquirer/target turnover test on the contract date or the accumulated acquired shares or assets turnover tests (set out in more detail below); and
The acquisition is not covered by the exceptions.
We elaborate on these issues below, apart from confirming that the term “assets” is very broad, including:
Any kind of property;
Any legal or equitable interests in tangible assets such as options for land, leases etc;
Any legal or equitable right that is not property or intangible assets such as intellectual property, goodwill etc;
Any interest in an asset of a partnership, or an interest in a partnership that is not an interest in an asset of the partnership; and
Interests in unit trusts and managed investment schemes.
What is an Acquisition That is “Connected to Australia”
An acquisition is notifiable if it meets the thresholds (below) and it is an acquisition of shares or assets connected with Australia. This means in relation to:
A share: the share is in the capital of a body corporate that carries on business in Australia or intends to carry on business in Australia; or
An asset that is an interest in an entity: the entity carries on business in Australia or intends to carry on business in Australia.
How the Turnover Tests are Assessed
General or Economy Wide Turnover
The general or economy wide turnover test for mandatory notification is as follows:
The acquirer or acquirer group and target have a combined Australian turnover of at least AU$200 million; and either
The Australian turnover of the target is at least AU$50 million (for each of at least two of the merger parties); or
The global transaction value is at least AU$250 million.
The Determination has clarified how the turnover is to be calculated:
In relation to the acquirer or target turnover test, if the sum of all of the following is AU$200million or more:
The current GST turnover of each of the principal party or acquirer, together with each connected entity of the principal party;
Where the target acquisition is in shares of a body corporate, the current GST turnover of the body corporate and each connected entity of the body corporate; and
Where the target is an asset, the current GST turnover of the target attributable to the asset,
AND
In relation to the target, the acquired shares or assets turnover test is the sum of all of the following is AU$50 million or more:
Where the acquisition is in shares in a body corporate, the current GST turnover of the body corporate together with the current GST turnover of each connected of the body corporate; and
Where the acquisition is of an asset, the current GST turnover of the target to the acquisition to the extent that is attributable to the asset.
In relation to the above:
Connected entity meaning an associated entity as per section 50AAA of the Corporations Act, and any entity controlled by the principal party as per section 50AA of the Corporations Act; and
Current GST turnover (which is well understood by business given it is used by business to report the value of their taxable and GST free supplies) has the same meaning as section 188-15 of A New Tax System (Goods and Services Tax) Act.
In relation to the assessment of the AU$250 million transaction value, an acquisition will meet this threshold if the greater of the following is AU$250 million or more:
The sum of all market values of all of the shares and assets being acquired as part of the contract or arrangement; or
The consideration received or receivable for all of the shares and assets being acquired as part of the contract or arrangement.
As a practical matter, this means the following for parties seeking to enter into negotiations for M&A, including considering the broader meaning of “acquisition”, at an early stage of the proposed acquisition or deal:
The acquirer needs to, for the purposes of ACCC Notification, consider the turnover of itself and the target;
The acquirer needs to calculate the GST turnover for the 12 months up to the date of the signing (and notionally at the commencement of negotiations) of both itself, including connected companies, plus, the GST turnover of the target (and its connected entities in the case of acquisitions of shares), to seek to calculate the AU$200 million threshold;
The above calculation will also be relevant to the calculation of the AU$50 million threshold; and
The acquirer needs to consider the market value of, or consideration for, all the shares or assets the subject of the transaction.
Very Large Corporate Group Turnover
The very large corporate group turnover test for mandatory notification is as follows:
The acquirer or acquirer group (i.e. the principal acquirer party and each connected entity) have a combined Australian current GST turnover of at least AU$500 million; and
The Australian current GST turnover of the target (the same approach to the assessment being the same as above) is at least AU$10 million (for each of at least two of the merger parties).
The Assessment of Serial or Creeping Acquisition
An acquisition satisfies the AU$50 million or AU$10 million threshold for accumulated acquired shares or assets turnover test for notification if:
The acquisition is of shares or assets; and
The principal acquirer or each connected entity have acquired other shares or assets in the three years ending the date of entering into the agreement or arrangement; and
Both the current acquisition (of shares or assets) and the previous acquisition, related directly or indirectly to the carrying on of a business involving the supply or acquisition of the same or substitutable or otherwise competitive with each other (disregarding geographic factors or limitations); and
The acquisition of the previous shares or assets and the current shares or assets, if treated as a single acquisition would satisfy the AU$50 million or AU$10 million acquired shares or assets turnover test; unless
The current GST turnover of the target of the current acquisition (and as relevant connected entities) is less than AU$2 million.
Exceptions to the Requirement Make a Mandatory Notification
In addition to the exception to the requirement to notify in respect of acquisition of partial shareholdings that was included in the amending Act, the Determination sets out that acquirers are not required to notify in the following circumstances:
Certain Land Acquisitions
Land acquisitions made for the purposes of developing residential premises; and
Acquisitions by businesses primarily for engaging in buying, selling or leasing land, where the acquisition is for a purpose other than operating a commercial business on land (i.e. the exemption is for property development or operating a property development business rather than operating a commercial business on the premises).
Liquidation, Administration or Receivership
An acquisition by a person in the person’s capacity as an administrator, receiver, and manager, or liquidator (within the meaning of the Corporations Act).
Financial Securities
An acquisition that results from a rights issue, a dividend reinvestment and underwriting of fundraising or buybacks, or an issue of securities (as per the Corporations Act).
Money Lending and Financial Accommodation
An acquisition of shares or assets that is a security interest taken or acquired in the ordinary course of business of the person’s business of the provision of financial accommodation (as long as the person whose property is subject to the security interest is not an associate of the acquirer).
Nominees and Other Trustees
An acquisition of an asset, that is an interest in securities, by a person as a bare trustee, if a beneficiary under the trust has a relevant interest in the securities.
Exchange-Traded Derivatives
An acquisition of an asset in the form of exchange-traded derivative and if at the time, the derivative confers an equitable interest in a share or assets, the acquisition of that equitable interest.
Notification Requirements for Coles and Woolworths
The Determination requires Coles and Woolworths (major supermarkets) and connected entities to make a notification for any acquisition of shares or assets that results in:
Coles or Woolworths acquiring in whole or in part, a supermarket business (a supermarket business as defined in section 5 of the Competition and Consumer (Industry Codes – Food and Grocery) Regulation 2024; or
Coles or Woolworths acquiring a legal or equitable interest in land (in whole or in part), either existing land that has a building with a gross lettable area of 700sqm or if it does not have an existing building, the land is 1,400sqm,
UNLESS
The acquisition is not the extension or renewal of a lease for land upon which Coles or Woolworths was already operating a supermarket on the land.
Notification Forms – Information and Documentary Requirements
The Determination sets out the requirements for each of Short-Form Notifications (for acquisitions that were unlikely to raise competition concerns) and Long-Form Notifications (for acquisitions that required greater consideration of their effect on competition).
The Determination sets out in more detail the requirements and form of each of these notification forms, but in brief, the following are required (identifying the additional requirements for long-form application):
Documents
The final or most recent version of the transaction documents (including sale and purchase agreements, heads of agreement, offer documents/letters of intent and any other agreements between the transaction parties related to the acquisition);
For each party, the most recent audited financial statements and income statements that relate to the supply of goods or services most relevant to the competition analysis; and
An organisational chart to show structure of ownerships of each party and connected entities.
In addition, for Long-Form Applications, documents from each of the parties prepared for or received by the Board, Board Committee, or equivalent (possibly Executive or senior leadership team), or the shareholders meeting within the three years prior to the date of the notification regarding:
The rationale for the acquisition, including the business case for the acquisition or divestment;
The assessment of acquisition including the valuation of the target; and
Industry reports, market reports etc provided to the Board or equivalent within the previous three years describing competitive conditions, competitors, market shares and business plans (unrelated to the acquisition).
Information
The party names, contact details and law firms representing the parties;
An overview of:
The goods or services supplied (or acquired) by the parties, including brands, most relevant to the acquisition;
The transaction or transaction structure;
The rationale for the acquisition;
The consideration for the acquisition; and
If relevant, any foreign filings relevant to the transaction.
Tables for each of the parties setting out:
Connected entities in each of the previous three years; and
Acquisitions made by the parties (including connected entities in each of the last three years);
Details of the competitive effects of the acquisition, including:
The relevant goods and services and the geographic areas in which they are supplied;
The other key suppliers of the goods/services;
The markets that are affected and estimate of market shares (by volume, capacity or turnover in each of the previous three years); and
The contact details of the five closest competitors, five largest customers, five customers closest to the median spend of customers.
Additional Requirements for Long-Form Applications
Details regarding barriers to entry including:
The costs of entry or the infrastructure required to supply the relevant goods or services and time required to put these in place, as well as the extent of these costs that are sunk or not recoverable;
Other barriers such as access to inputs, intellectual property issues, legal and regulatory requirements, customer switching costs and time required to “win” contracts, and overall revenues to achieve minimum viable scale; and
The entry of new competitors, as well as the exits in the previous three years.
The long-form application requires significant additional information for different types of transactions – horizontal and vertical acquisitions etc.
Other relevant information, particularly:
Identifying any goodwill protection provisions and the reasons that these provisions are necessary to protect the goodwill of the purchaser.
The Government has foreshadowed additional Determination, with the Determination itself having “placeholders” regarding waiver applications and the Acquisition Register – which unfortunately will now not be progressed until after the Federal election.
We are happy to provide additional details on any of the above issues.
We will also shortly publish additional Insights focusing on the ACCC’s Guidelines.
FinCEN Exempts U.S. Companies and U.S. Persons from Beneficial Ownership Reporting Requirements
An interim final rule issued by the Financial Crimes Enforcement Network (FinCEN), makes the following significant changes to beneficial ownership information reporting (BOIR) requirements:
defines a “reporting company” subject to BOIR requirements to mean only those entities previously defined as a “foreign reporting company” (created under the law of a foreign country and registered to do business in the United States, including registration with any Tribal jurisdiction, through filing a document with a secretary of state or similar office)
exempts domestic reporting companies from BOIR requirements
exempts foreign reporting companies from having to report the beneficial ownership information of any U.S. person who is a beneficial owner of such foreign reporting company
exempts U.S. persons from having to provide such beneficial ownership information to any foreign reporting company of which it is a beneficial owner
subject to certain exceptions, extends the deadlines applicable to beneficial ownership information reports required to be filed or updated by such foreign reporting companies.
Following the comment period, FinCEN intends to issue a final rule later this year.
The interim final rule follows recent announcements by FinCEN on February 27, 2025, and the U.S. Department of the Treasury on March 2, 2025, indicating that there would be a significant reduction in enforcement of BOIR requirements against U.S. citizens and domestic reporting companies. Additional information regarding these announcements can be found in our prior legal alert.
FinCEN’s full release is available here:
FinCEN Removes Beneficial Ownership Reporting Requirements for U.S. Companies and U.S. Persons, Sets New Deadlines for Foreign Companies
Immediate Release: 3.21.25
WASHINGTON –– Consistent with the U.S. Department of the Treasury’s March 2, 2025, announcement, the Financial Crimes Enforcement Network (FinCEN) is issuing an interim final rule that removes the requirement for U.S. companies and U.S. persons to report beneficial ownership information (BOI) to FinCEN under the Corporate Transparency Act.
In that interim final rule, FinCEN revises the definition of “reporting company” in its implementing regulations to mean only those entities that are formed under the law of a foreign country and that have registered to do business in any U.S. State or Tribal jurisdiction by the filing of a document with a secretary of state or similar office (formerly known as “foreign reporting companies”). FinCEN also exempts entities previously known as “domestic reporting companies” from BOI reporting requirements.
Thus, through this interim final rule, all entities created in the United States — including those previously known as “domestic reporting companies” — and their beneficial owners will be exempt from the requirement to report BOI to FinCEN. Foreign entities that meet the new definition of a “reporting company” and do not qualify for an exemption from the reporting requirements must report their BOI to FinCEN under new deadlines, detailed below. These foreign entities, however, will not be required to report any U.S. persons as beneficial owners, and U.S. persons will not be required to report BOI with respect to any such entity for which they are a beneficial owner.
Upon the publication of the interim final rule, the following deadlines apply for foreign entities that are reporting companies:
Reporting companies registered to do business in the United States before the date of publication of the IFR must file BOI reports no later than 30 days from that date.
Reporting companies registered to do business in the United States on or after the date of publication of the IFR have 30 calendar days to file an initial BOI report after receiving notice that their registration is effective.
FinCEN is accepting comments on this interim final rule and intends to finalize the rule this year.
European Council Greenlights First Step of Omnibus – The ‘Stop-the-clock’ Proposal
On 26 March 2025, the European Council approved its position, known as a “negotiating mandate”, on a key element of the European Commission’s proposal to streamline corporate sustainability requirements which are captured in an “Omnibus”. Specifically, they approved a delay to the current timetable of the Corporate Sustainability Reporting Directive (“CSRD”) and Corporate Sustainability Due Diligence Directive (“CSDDD”), as proposed in a “Stop-the-clock” Directive, with the substantive changes to reporting requirements to be proposed in a separate Directive.
Specifically, EU Member States at the European Council have supported the European Commission’s proposal to postpone:
by two years the application of the CSRD requirements for large companies that have not yet started reporting, as well as listed SMEs. The effect is that companies expecting to prepare the first report for the financial year 2025, would instead have to prepare the first report for the financial year 2027, and
by one year the transposition deadline and the first phase of the application (covering the largest companies) of the CSDDD. As a result, companies would phase in from July 2028 rather than July 2027.
The support from the European Council to streamline the corporate sustainability reporting requirements has generally been enthusiastic. For example, Adam Szłapka, Minister for the European Union of Poland, said of the Stop-the-clock Directive, that “today’s agreement is a first step on our decisive path to cut red tape and make the EU more competitive”.
Now that the European Council’s negotiating mandate has been approved, interinstitutional negotiations can be entered into. The European Parliament is scheduled to vote on 1 April 2025 on the Stop-the-clock Directive which is being presented to Members of the European Parliament (“MEPs”) on an urgent procedure, requiring a simple majority of MEPs present to approve it. The overall expectation is that this vote is likely to pass, however, how the separate Directive that will cover the changes to the substantive requirements will progress well be hotly debated.
For U.S. companies in particular where there is a movement under a proposed PROTECT USA Act to prevent various U.S. entities from complying with “foreign sustainability due diligence legislation”, should the Stop-the-clock Directive be approved it would at least provide a reprieve. This would allow companies time to recalibrate their approaches to sustainability in the currently fractured political landscape.
New SEC Guidance May Increase Use of Generally Solicited Rule 506(c) Offerings
Highlights
The SEC issued new guidance on how an issuer wishing to engage in general solicitation under Rule 506(c) may satisfy the rule’s accredited investor verification requirement
The guidance clarifies that in appropriate circumstances, a minimum investment amount coupled with the receipt of investor representations may constitute reasonable verification steps
Corporate issuers and private fund sponsors now have a clearer path to engage in broad outreach to prospective investors without imperiling an offering’s exemption from Securities Act registration
On March 12, 2025, the staff of the Securities and Exchange Commission (SEC) Division of Corporation Finance issued new guidance on the accredited investor verification steps an issuer must take in order to make an unregistered offering in reliance on Rule 506(c) under the Securities Act. The guidance indicates that issuers may fulfill the Rule 506(c) accredited investor verification requirement by imposing relatively high minimum investment requirements and obtaining related purchaser representations.
The SEC staff thus has opened a clearer path for issuers – including both operating companies and private funds – to engage in broad outreach to prospective investors without endangering an offering’s exemption from Securities Act registration.
Background
Section 4(a)(2) of the Securities Act exempts from registration “transactions by an issuer not involving any public offering.” Regulation D is a safe harbor under Section 4(a)(2), compliance with which ensures that an offering satisfies the statutory exemption. For most private issuers, the key traditional component of Regulation D has been Rule 506(b). That rule permits unregistered offerings of any size to accredited investors (and a limited number of non-accredited investors), on the condition that, among other things, the issuer refrains from “general solicitation” in connection with the offering.
In the JOBS Act of 2012, Congress directed the SEC to expand Regulation D to permit general solicitation in certain unregistered offerings. The SEC did that by adopting Rule 506(c). Rule 506(c) states that an issuer may use general solicitation when conducting an unregistered offering of any size, provided that all purchasers in the offering are accredited investors and the issuer takes “reasonable steps to verify” each purchaser’s accredited investor status.
Since the rule’s adoption in 2013, issuers have not engaged in Rule 506(c) offerings to the extent many observers had initially predicted, primarily because issuers have viewed the accredited investor verification requirement as unwieldy in practice. While Rule 506(c)(2)(ii) sets forth a list of “non-exclusive, non-mandatory” verification methods that are deemed sufficient, issuers generally have seen these as burdensome to use and uncomfortably intrusive for investors.
At the same time, issuers have been concerned that relying on the principles-based verification approach noted in the 2013 adopting release might not provide unambiguous grounds to conclude that Rule 506(c) has been satisfied, in part because the release makes clear that a mere representation by a prospective purchaser as to its accredited investor status generally would not fulfill the verification requirement.
Private issuers, including private fund sponsors, therefore have largely foregone the allure of general solicitation and continued their traditional reliance on Rule 506(b).
New SEC Guidance
The Division of Corporation Finance staff now has issued fresh guidance concerning what can constitute “reasonable steps to verify” a purchaser’s accredited investor status for purposes of Rule 506(c). The guidance, issued on March 12, takes the form of new Compliance and Disclosure Interpretations (CDI) 256.35 and 256.36, as well as a related no-action letter addressed to Latham & Watkins LLP. The staff’s initiative has the potential to revive the appeal of Rule 506(c).
Minimum Investment Amount Is a Relevant Verification Factor
CDI 256.35 advises that if an issuer does not take any of the non-exclusive, non-mandatory accredited investor verification steps outlined in Rule 506(c)(2)(ii), it can apply a reasonableness standard directly to the specific facts and circumstances of the offering and its investors. Reprising the principles expressed in the 2013 adopting release, the guidance notes that in determining what constitute reasonable verification steps, the issuer should consider factors such as the nature of the purchaser and the type of accredited investor it claims to be; the amount and type of information that the issuer has about the purchaser; and the nature and terms of the offering, including any minimum investment amount.
High Minimum Investment Amount Plus Purchaser Representations May Equal Reasonable Steps to Verify
CDI 256.36 and the no-action letter address in more detail the possible significance of a minimum investment amount in the accredited investor verification context. The guidance here advises that, depending on the facts and circumstances, an issuer may be able to conclude that it has taken reasonable steps to verify purchasers’ accredited investor status when the offering “requires a high minimum investment amount.” In amplification of that thought, the no-action letter states that an issuer generally could conclude that it has taken reasonable steps to verify a purchaser’s accredited investor status if:
the offering requires a minimum investment of $200,000 for a natural person or $1,000,000 for an entity
the issuer obtains written representations that:
the purchaser is an accredited investor
the purchaser’s minimum investment amount is not financed in whole or in part by any third party for the specific purpose of making the particular investment in the issuer
the issuer has no actual knowledge of any facts indicating that the foregoing purchaser representations are not true
The idea that a minimum investment amount can be a key factor in the analysis of reasonable verification steps is not completely new. As noted, the Rule 506(c) adopting release raised this concept in general terms. The new guidance, though, is more specific and thus may inspire more confidence on the part of issuers who decide to follow it. In particular, the staff’s position now essentially permits a form of “self-certification” of accredited investor status in Rule 506(c) offerings akin to the procedure on which issuers have long relied in traditional Rule 506(b) accredited investor offerings. This is a welcome development and should reduce uncertainty for issuers conducting or considering generally solicited offerings.
Takeaways
The SEC staff now may have reinvigorated the original promise of Rule 506(c). By providing a clear explanation of how minimum investment amounts and related investor representations may satisfy the accredited investor verification requirement, the guidance offers a means of using Rule 506(c) that is more straightforward and less intrusive than issuers previously have seen the rule to be. At least for well-established corporations and private fund sponsors (for which imposing significant minimum investment amounts is typically not a problem), new and fruitful forms of offering-related publicity now may become a practical option.
Of course, an issuer that decides to engage in general solicitation under Rule 506(c) must take care that its public statements are truthful, properly vetted, and consistent with its offering materials, in order to avoid anti-fraud issues under Rule 10b-5 or state law. In addition, where an offering also is being made outside the United States, the issuer must ensure that any public marketing done in reliance on Rule 506(c) does not conflict with relevant foreign regulations.
SEC Staff Clarifies Stance on Crypto Mining
On March 20, 2025, the U.S. Securities and Exchange Commission took a step towards clarifying its position on crypto mining activities. In a recent statement, the SEC’s Division of Corporation Finance provided non-binding guidance on the application of federal securities laws to proof-of-work (PoW) mining activities, stating that such activities are beyond the SEC’s purview. This move aims to offer greater clarity to the market amidst ongoing regulatory uncertainties surrounding crypto assets.
The statement addresses crypto asset mining on public, permissionless networks using the PoW consensus mechanism. PoW mining involves using computational resources to validate transactions and add new blocks to a blockchain network. Miners are rewarded with newly minted crypto assets for their efforts.
The Division of Corporation Finance concluded that PoW mining activities do not involve the offer and sale of securities under the Securities Act or the Exchange Act, although it qualified its conclusion with footnoted statements indicating that any specific determination remains reliant on the facts and circumstances of a particular arrangement.
The statement applies the Howey test to determine whether general mining activities constitute investment contracts. The test evaluates whether there is an investment of money in an enterprise with a reasonable expectation of profits derived from others’ efforts. The SEC found that PoW mining does not meet these criteria, as miners rely on their own efforts to earn rewards. The statement further explained that combining computational resources in mining pools does not change the nature of the activity, as miners in pools still rely on their own efforts to earn rewards, not on others’ efforts. Therefore, participants in these activities do not need to register such transactions with the SEC under the Securities Act or fall within its exemptions.
Lone Democrat Commissioner Caroline Crenshaw expressed concerns about the statement, cautioning against interpreting it as a “wholesale exemption for mining.” She emphasized that the statement employs arguably circular reasoning, is non-binding, and that the SEC will continue to evaluate mining activities on a case-by-case basis. Crenshaw compared the mining statement to a previous statement on meme coins, which she believed was also misinterpreted as a broad exemption.
As the crypto industry continues to evolve, regulatory clarity remains crucial for fostering innovation while protecting investors. Crypto enthusiasts may believe the SEC’s latest statement is a step in the right direction, but market participants should remain vigilant and stay informed about ongoing regulatory developments.
New Interim Rule Removes CTA Reporting Requirements for U.S. Companies and U.S. Persons
On March 21, 2025, the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”) issued an interim final rule to the U.S. Corporate Transparency Act (“CTA”) that eliminates beneficial ownership information (“BOI”) reporting requirements for domestic entities and U.S. persons. The immediate result of the interim final rule is that no U.S. entities are required to register or update any BOI reports, and no beneficial owners who are U.S. persons are required to provide BOI.
The prior rule applied to:
“domestic reporting companies”: entities created by a filing with a Secretary of State or any similar office, and
“foreign reporting companies”: entities formed under the law of a foreign country and registered to do business in any U.S. state or tribal jurisdiction by the filing of a document with a Secretary of State or similar office.
These companies were required to file a report with FinCEN identifying their beneficial owners—the persons who ultimately own or control the company—and provide similar identifying information about the persons who formed the entity, absent an applicable exemption.
FinCEN stated that the interim final rule is intended to minimize regulatory burdens on small businesses, a priority for the new federal administration. In the preamble to the interim final rule, FinCEN stated that most domestic reporting companies not covered by an exemption under the prior rule were small businesses and determined that exempting these domestic reporting companies would not negatively impact national security, intelligence, or law enforcement efforts. FinCEN concluded that much of the BOI that would otherwise have been reported under the prior rule is provided to financial institutions at the time an entity opens a bank account or is otherwise available to law enforcement.
Modifications Under the Interim Final Rule:
The interim final rule modifies the definition of “reporting company” to only include foreign reporting companies.
All domestic reporting companies and their beneficial owners are exempt from the CTA and are not required to file or update any BOI reports.
Non-exempt foreign reporting companies are still required to file BOI reports with FinCEN, but such reports are not required to include the BOI of any beneficial owner that is a “U.S. person”.
Foreign reporting companies that only have beneficial owners that are “U.S. persons” are not required to report beneficial owners.
The special rule for foreign pooled investment vehicles only requires disclosure of the individual exercising substantial control if that individual is not a U.S. person. If more than one individual exercises substantial control over a foreign pooled investment vehicle and at least one of those individuals is not a U.S. person, the entity is required to report BOI with respect to the non-U.S. person who has the greatest authority over the strategic management of the entity.
Both the prior rule and the interim final rule incorporate the definition of “United States person” from the Internal Revenue Code, which includes U.S. citizens as well as permanent residents and persons who meet the substantial presence test under the Internal Revenue Code. As a result, the exemptions for U.S. persons apparently also apply to those foreign nationals who fall under the Internal Revenue Code’s definition of United States person. FinCEN appears to use the terms “U.S. person” and “United States person” interchangeably.
Certain U.S. Persons Are Still Required to Report BOI
U.S. persons who are company applicants (i.e., those persons who directly file, and who are primarily responsible for filing, or directing or controlling the filing of, the foreign reporting company’s registration documents with a Secretary of State or similar office) remain obligated to provide their BOI to non-exempt foreign reporting companies.
Compliance Deadlines
The interim final rule is effective as of March 26, 2025. Existing foreign reporting companies are required to file their BOI reports by April 25, 2025. Foreign companies newly registered to do business in a U.S. state or tribal jurisdiction will have thirty days from the date they receive notice that the registration is effective to file a BOI report.
The interim final rule will be open to comments until May 27, 2025; however, the interim final rule will be in effect during the comment period. FinCEN indicated that it had good cause to implement the interim final rule immediately, given that domestic entities were facing a filing deadline of March 21, 2025 and there was not enough time to solicit public comment and implement a final rule before that deadline. FinCEN intends to issue a final rule before the end of the year.
The CTA remains subject to a number of legal challenges despite the issuance of the interim final rule.
We continue to closely monitor further developments with respect to the CTA.
Martine Seiden Agatston also contributed to this article.
Is Registration As A Foreign Corporation A Form Of Compelled Consent?
Not too long ago, I wrote about a bill that is currently pending in the Nevada legislature, AB 158. This bill would authorize Nevada courts to exercise general personal jurisdiction over entities on the sole basis that the entity:
is organized, registered or qualified to do business pursuant to the laws of this State;
expressly consents to the jurisdiction; or
has sufficient contact with Nevada such that the exercise of general personal jurisdiction does not offend traditional notions of fair play and substantial justice.
The first alternative is obviously grounded upon the U.S. Supreme Court’s decision in Mallory v. Norfolk Southern Ry. Co., 600 US 122 (2023). In the case, the Supreme Court in a 5-4 decision held that a Pennsylvania statute did not offend the Due Process clause of the United States Constitution. The Pennsylvania statute provided that a company’s registration as a foreign corporation” is deemed “a sufficient basis of jurisdiction to enable the tribunals of this Commonwealth to exercise general personal jurisdiction over” the corporation. 42 Pa. Cons. Stat. § 5301(a)(2)(i).
In a forthcoming article, Professor Jason Jarvis argues:
Involuntary consent is an oxymoron. Consent must be knowing and voluntary, and consent extracted by threat is coerced and invalid.
Professor Jarvis posits a case-by-case approach to consent whereby the “voluntariness of a corporation’s decision to do business in a state depends on the particular state and the particular corporation”.
The provisions of the California Civil Code concerning contracts and consent line up nicely with Professor Jarvis’ premise. Consent is “essential” to the formation of a contract, Cal. Civ. Code § 1550(2), and that consent must be “free”, Cal. Civ. Code § 1565(1). Consent is neither “real” nor “free” when obtained through: duress, menace, fraud, undue influence or mistake. Cal. Civ. Code § 1567.
Corporate Transparency Act Shakeup: Domestic Companies off the Hook, Foreign Entities Still Reporting
In a significant change to the Corporate Transparency Act (“CTA”), the Financial Crimes Enforcement Network (“FinCEN”) has announced that U.S.-based companies are no longer required to report beneficial ownership information (“BOI”).
This interim final rule, released on March 21, 2025, means that only foreign entities registered to do business in the United States will still need to meet the CTA’s reporting requirements.
Originally enacted to increase corporate transparency and fight financial crime, the CTA previously required both domestic and foreign companies to disclose their beneficial owners to FinCEN. However, domestic entities are no longer obligated to file BOI reports under the new rule. Instead, the focus has shifted to foreign companies doing business within the United States.
New Reporting Deadlines for Foreign Entities
For those foreign entities that still fall under the reporting requirements, FinCEN has outlined new deadlines based on the publication of the interim final rule. These deadlines are as follows:
Foreign entities registered before March 21, 2025: Must file their BOI reports within 30 calendar days from that date.
Foreign entities registering on or after March 21, 2025: Must file within 30 calendar days of receiving notice of their effective registration.
This update comes shortly after FinCEN’s February 27 announcement, in which the agency stated that it would not impose fines or penalties for failures to file or update BOI reports by the previous deadlines as it awaited the release of this interim final rule. It also aligns with the U.S. Department of the Treasury’s decision to suspend enforcement of the CTA.
What Qualifies as a Foreign Entity?
With reporting now limited to foreign entities, it’s essential to understand which businesses fall under this classification. According to FinCEN, foreign reporting companies are defined as entities—including corporations and limited liability companies—that are formed under the law of a foreign country and have registered to do business in the United States by filing a document with a secretary of state or any similar office. These entities are the only ones still subject to BOI reporting requirements under the revised rule.
Public Comment and Next Steps
As FinCEN continues to refine the regulation, the agency is actively seeking public feedback on the interim rule before finalizing it later this year. Companies impacted by the change are encouraged to participate in the comment process to ensure their perspectives are considered.