Even within the specialized Asset Protection legal community professional opinions vary on the use and effectiveness of Nevada and other states’ Domestic Asset Protection Trusts (DAPT’s). One thing all agree on. however, is the following:

For such a strategy to hold up—to even the weakest attacks—the formalities of the state’s trust laws must be met to the letter.

Since many Nevada DAPT’s have been created by attorneys in other practice areas who dabble in Asset Protection or by promoters with no on-going guidance or client contact available (often not even attorneys) I think it is inevitable that a large number of people who have purchased Nevada trusts are going to wake up one day, need to “use” their trust and find that the trust company appointed and required by the state laws of Nevada no longer exists or that they have moved. In this case the trust, lacking proper legal formalities under Nevada Law, would offer little or no protection at all.

The full article on the Nevada trust business and those leaving, including the oldest trust company in the state, is here:

Nevada’s Oldest Trust Company Calls it Quits After 107 Years in Business

I suspect that we will see many planners and clients caught unaware by theses changes. Even worse, we will also hear tales of trust companies collecting fees and continuing to manage trusts even with their legal status revoked.

As always, we are watching the development and defensibility of the DAPT in various jurisdictions and hope to use it when and if it ever becomes a viable alternative to to the proven results of International Asset Protection Trusts. We don’t feel the case law and the courts are there yet, especially given the current social and political climate that is so hostile to wealth and business owners.

Ike Devji, J.D. - "Asset Protection Is Like Net Worth Insurance"

Ike Devji, J.D. "Asset Protection is Like Net Worth Insurance")

I’ve been monitoring what appears to be the longest discussion string in LinkedIn history (up to 223 comments now) going on at the Private Equity and Venture Capital Group.

The discussion question is: What do you think about ‘up front’ fees..? (for funding a deal)

There has been very good information posted, there has been very bad information posted, smart ass comments and bullying here and there (yes, very professional), those postulating their own ‘expertise’ – “…this is how good I am, I’ve done these $20mm+ deals, and…” etc etc (never tout yourself as an expert, it diminishes your credibility – If you’re worth the recognition, others will do that for you), and I’ve even seen a few spamming in trying to sell their services/deals – astonishing…

A few thoughts on ‘brokers’ and other middle men/women requiring fees ‘up front’ – usually under the guise of due diligence work that needs to be done, we have to better position your business plan and pro-forma’s, along with all the assurances and window dressings of how they will get your deal funded – these are great sales people, and most are frauds.

You’ll never get to a closing, they will stall and stall and stall… for months – and you may never see the ‘up front’ fees you gave them again. If you think an alternative financing or equity funding program might be the right deal for you, at minimum, at least find out:

• Who these people really are
• Talk to several past success deal client references they ’should’ provide
• Who do they represent as potential investors on your behalf
• What are the sources of funds (don’t get sucked in to a money laundering or tax evasion racket)

See if the person and firm are even licensed in the U.S: do a FINRA broker check.

FSA (UK) – also provides alert lists of EU and other international players in the finance and equity funding game not registered or vetted.

Another growing dimension of these economic times, new groups and angel investors charging ‘up front’ fees just to hear your pitch – a good example of what’s going on with these guys see: VentureHype (a great resource for many VC, Angel, start-up and investing topics) – the article also links to a well done ‘rant’ by Jason Calacanis on these practices.

Bottom line 1: If you do not have the expertise and require consulting help to get your business plan, pro-forma’s, your perfect 7-slide ppt for your pitch, and everything else up to speed (and rehearsed many times) to be received as an attractive, fund-able opportunity – set a budget, hire a competent firm or person and pay them to help you accomplish this.

Consulting services to get this right the first time, has nothing to do with capital raise.

Bottom line 2: Assume any “up front ‘broker’ fees” to arrange funding are frauds. Period (I’ve been dealing with these kind of people for a long time).

$4mm in up front fee frauds have come across my desk the past many months, especially since the real financial crash began to fall in September, 2008. In some cases we have been able to get the “up front fees” back on behalf of clients, even those fee’s that were wired offshore before the ink on the check was dry. We continue to work on others (leveraging RICO is a wonderful thing).

I have participated as an advisor to investors and as a decision panel member riding shotgun over the due diligence drill on companies seeking funding… during the past 12 months, the several organizations, equity firms, angels, family offices and high net worth individuals I’ve worked with have funded more than $30mm in start-ups, acquisitions and expansions – not one dime of any ‘up front fee’ was involved.

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Greg George is Managing Partner of GTI Advisors; Threat Management Practice Group. A senior advisor to executives, business owners, private equity investors, M&A teams and transaction lawyers, Greg provides guidance on matters of enhanced due diligence research, threat analysis, security issues, actionable intelligence, fraud avoidance, and corporate espionage realities. For further information please visit http://gti-advisors.com or contact Greg directly: greg@gti-advisors.com

Employers Beware: The Department of Labor is Out to Get You

This is not a threat, it’s reality. The DOL’s focus has shifted from helping employers comply with the Fair Labor Standards Act (FLSA) to nailing those who do not.   

This is also not a secret. In fact, watch for public service announcements in multiple languages featuring the Secretary of Labor and celebrities urging employees to call their hotline if they believe they are being paid unfairly.  (See for yourselves at http://www.dol.gov/wecanhelp/psa.htm).

Aptly named the “We Can Help” campaign, this initiative was launched just one week after the DOL announced that it is abandoning its practice of publishing Opinion Letters, which historically have provided important guidance to employers. Reliance on DOL Opinion Letters has also served as a defense to liability for back-wages and other damages.

Instead, broader “Administrator Interpretations” will be issued that will not address the finer points of particular policies and practices, thereby requiring litigation to determine their application to the facts of each case.  

Then there’s the “Plan/Prevent/Protect” initiative, which proposes new regulations that will require employers to audit their pay practices, document how each employee’s exempt status and pay calculations are determined as well as the reasons why certain individuals are categorized as independent contractors and not employees.  Employers would need written plans and be required to track how they are implemented.

The failure to do all of this to the DOL’s satisfaction will be deemed noncompliance and result in sanctions and/or costly litigation.  The pending Employee Misclassification Prevention Act (H.R. 5107, S. 3254) seeks to impose similar obligations. 

If you think I’m trying to scare you, you’re right.

Most employers also don’t realize that once a violation is established in an FLSA lawsuit, the burden is on the employer to prove why double damages should not be awarded, and the employer will be liable for the employee’s legal fees.

Moreover, the owner of the company, or whoever was responsible for the decisions that led to the violation, will be held personally liable along with the company, regardless of laws that limit personal liability in other contexts.  Unlike cases brought under Title VII for discrimination, there are no administrative hoops to jump through before employees can go to court.  And remember, too, that wage and hour claims are not usually covered by insurance. 

Now more than ever, employers need to develop not just a plan for compliance, but a culture of compliance. Consider conducting an internal or external audit of your employee classifications and pay practices, and seek advice from an employment attorney. Wage and hour laws are complex and nuanced, and the DOL clearly is not interested in educating you. If that were the case, it would have created an employer “help desk.”  Instead, it beefed up its enforcement staff with 250 new investigators and got famous people to reach out to employees. 

Lest there be any misunderstanding, I do not mean to imply that the DOL should not be an advocate for employee rights or that employers should be able to shirk their obligations under the FLSA.  Just consider this a public service announcement for the other side.    

Rachel Weiss practices labor and employment law with the law firm of Gammage & Burnham in Phoenix.  If you have questions about wage and hour issues, you can reach her at (602) 256-4448 or rweiss@gblaw.com.