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January 2012

Business Transactions Newsletter

Welcome to Gordon & Rees's Business Transactions Group Newsletter. On a periodic basis we will provide important information about the latest legal developments in the business world.


  1. Scott Austin Provides Model Florida LLC Operating Agreement in 2011/2012 Edition of West's Limited Liability Company Handbook

  2. California Creates Two New Types of Business Entities

  3. SEC Adopts Net Worth Standard for Accredited Investors Under Dodd-Frank Act

  4. Miami Herald Publishes Article by Miami Partners

  5. Other Presentations & Articles

  6. Successes and Awards

  7. About Gordon & Rees's Business Transactions Practice; Highlighted this Issue - Health Care and Sports, Media & Entertainment Groups

I.  Scott Austin Provides Model Florida LLC Operating Agreement in 2011/2012 Edition of West's Limited Liability Company Handbook

Scott Austin

Scott Austin

Miami Partner Scott Austin, recipient of a Florida Bar Award for his work on the development of limited liability company law in Florida, recently authored the model “Florida LLC Operating Agreement” that is included in the 2011-2012 edition of the Limited Liability Company Handbook published by West Publishing. Mr. Austin also provided the model Florida LLC Operating Agreement in the previous edition of the book.

The Limited Liability Company Handbook is part of the annual Securities Law Handbook Series that provides a complete summary and analysis of the "Check-the-Box" rules, guidance on the most important new forms of business organizations, state-by-state coverage of limited liability company regulations, and recommended forms for LLC articles and operating agreements. The Handbook also includes information about the tax status of LLCs, a comparison of LLCs and S and C corporations and partnerships, citations to all available LLC statutes, and a review of the emergence of the LLC as an alternative entity to the professional corporation.

To read the complete article, click here.

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II.   California Creates Two New Types of Business Entities


On October 9, 2011, California Governor Jerry Brown signed Senate Bill No. 201 and Assembly Bill No. 361, creating two new classes of corporations in California that give for-profit corporations the opportunity to embrace social, community and environmental ethos traditionally reserved for non-profit organizations: the flexible purpose corporation and the benefit corporation.   Both bills went into effect January 1, 2012.

To read summaries of these bills, click here.

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III. SEC Adopts Net Worth Standard for Accredited Investors Under Dodd-Frank Act


The Securities and Exchange Commission has amended its rules to exclude the value of a person’s home from net worth calculations used to determine whether an individual may invest in certain unregistered securities offerings. The changes were made to conform the SEC’s definition of an “accredited investor” to the requirements of the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act.

Under the amended rule, the value of an individual’s primary residence will not count as an asset when calculating net worth to determine “accredited investor” status. The amendments also clarify the treatment of borrowing secured by a primary residence for purposes of the net worth calculation. Under certain circumstances, they also permit individuals who qualified as accredited investors under the pre-Dodd-Frank Act definition of net worth to use that prior net worth standard for certain follow-on investments.

SEC rules permit certain private and limited offerings to be made without registration, and without requiring specified disclosures, if sales are made only to “accredited investors.” One way individuals may qualify as “accredited investors” is by having a net worth, alone or together with their spouse, of at least $1 million. The Dodd-Frank Act requires that the value of a person’s primary residence be excluded from the net worth calculation used to determine the person’s “accredited investor” status.

Under the amended net worth calculation, indebtedness secured by the person’s primary residence, up to the estimated fair market value of the primary residence, is not treated as a liability, unless the borrowing occurs in the 60 days preceding the purchase of securities in the exempt offering and is not in connection with the acquisition of the primary residence. In such cases, the debt secured by the primary residence must be treated as a liability in the net worth calculation. This is intended to prevent manipulation of the net worth standard, by eliminating the ability of individuals to artificially inflate net worth under the new definition by borrowing against home equity shortly before participating in an exempt securities offering. In addition, any indebtedness secured by a person’s primary residence in excess of the property’s estimated fair market value is treated as a liability under the new definition.

The amended net worth standard will take effect 60 days after publication in the Federal Register. Beginning in 2014, and every four years thereafter, the Dodd-Frank Act requires the Commission to review the “accredited investor” definition in its entirety and to engage in further rulemaking to the extent it deems appropriate.

SEC has now proposed or adopted more than three-quarters of the rules that the Dodd-Frank Act required the agency to write.

To read the rule, click here.

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IV. Miami Herald Publishes Article by Miami Partners

Robert Mayer

Robin Symon

Robert Mayer and Robin Taylor Symons Provide Workplace Tips for Getting Promoted

Robert Mayer and Robin Taylor Symons, partners in the Miami office, co-authored an article for the Business Monday section of the December 5 edition of the Miami Herald entitled "Strong Employee Traits Can Often Lead to Promotion."

"Stand-out employees can advance, even in this economy.  At some organizations, working your way up the corporate ladder is clear and objective; at others, the track is more opaque."  Mayer and Symons provided subjective and objective factors that are often taken into consideration with candidates competing against equally-talented peers for a limited number of opportunities.  Employees can distinguish themselves by consistent demonstration of these attributes:

  • They show up.
  • They anticipate.
  • They give their best work.
  • They treat everyone with respect.
  • They exceed expectations.
  • They make their enthusiasm known and have an elevator speech at the ready.
  • They develop their own franchises.

"Employees who want to advance commit to hard work, long hours, collegiality and professional development.  They have an excuse-free mindset, keep track of their successes and learn from their mistakes.  It is a lifestyle choice."

To read the complete article, click here.

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V.  Other Presentations and Articles


Carl Gebo and Cecily McLeodboth with the firm's Construction Group, will speak on "Teaming Agreements and Joint Ventures in Public Contracting" at the 3rd Annual National Small Business Contracting Summit in Orlando, Florida on January 25-26, 2012.  The Summit is co-hosted by the U.S. Women's Chamber of Commerce and the National Association of Small Business Contractors.  For more information or to register for the event, please click here.

Alonzo Llorensa partner with the Sports, Media and Entertainment Group, was a panelist at the National Minority Supplier Development Council's National Convention in Atlanta, Georgia on November 1, speaking on "Strategic Alliances, Joint Ventures and Acquisitions." 

Franchise partner Harold Kestenbaum hosted a quarterly Franchise Forum in the Long Island office on December 2.  The Forum features guest speakers and presents an opportunity for franchisors to discuss best practices, system standards, and sales efforts.  The next Forum will be held on March 30, 2012.

Brandon Carroll was recently a presenting panelist at Seattle University School of Law, discussing the real world application of Article 9 of the Uniform Commercial Code (RCW 62A) in commercial transactions and litigation.

Tax partner Carol Schaner was the featured speaker at a meeting in November of ProVisors, a networking organization of business professionals.  Ms. Schaner spoke on "What the Entrepreneurs are Doing:  Income, Gift and Estate Tax Planning, Asset Protection and Philanthropy." 

George Ng and William Pedranti, co-chairs of the firm's Life Sciences Group, were members of a panel addressing the topic "Best Practices for Dealing with Compliance Issues and Risks in Technology Business Transactions" at a recent San Diego chapter meeting of the Licensing Executives Society. 

Harold Kestenbaum and Roger Quinland, both partners with the Franchise Group, recently authored articles for publication.  Mr. Kestenbaum's article, "The State of Franchising in the U.S.," appeared on the website.  Mr. Quinland's article, "Six Questions an Entrepreneur Should Ask Before Franchising," appeared in the September/October issue of MBE Magazine.

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VI.  Successes and Awards


Mark Davis and Gabriel Garcia completed an internal merger for an agricultural client.  The transaction consisted of the merger into another of the client's affiliated entities of two Florida corporations previously acquired from a third party. 

Gordon Endow handled an intellectual property licensing transaction for a technology client.  The client holds a valuable patent in the rich media space and developed a suite of software and related intellectual property based on that patent.  The transaction entailed licensing of that technology to support the e-reader technology of a prominent provider of e-reader devices.

Mark Davis and Brandon Carroll assisted a Taiwanese manufacturer in the formation and organization of a new subsidiary in Washington State.  Natasha Chalmers negotiated the office lease for the new client, and the Seattle office will be providing employment counseling.

Mark Davis and Gabriel Garcia assisted a client in the food industry in negotiation and closing of a $20 million revolving line of credit with a money center bank. 

Lawrence Garcia, a partner with the Health Care Group, was presented with the Sacramento Black Chamber of Commerce's (SBCC) Chairman's Award at the organization's recent 26th Annual Installation and Business Awards Banquet. 

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Our Business Transactions Group provides full-service counsel to both public and privately-held U.S. and foreign clients, ranging from start-up entrepreneurs to Fortune 100 corporations.  Our services encompass entity formation, corporate finance, securities law compliance, mergers and acquisitions, domestic and international joint ventures, executive compensation and stock options, real estate, taxation, health care, franchise, sports and entertainment, intellectual property, and bankruptcy.   Click here to meet our lawyers.

Two important areas of our Business Transactions Group are Health Care and Sports, Entertainment and Media.  They are highlighted below:

Health Care

Gordon & Rees's Health Care attorneys have extensive transactional experience advising and representing a broad array of health care providers on regulatory issues and navigating licensure and certification requirements.  They advise health care providers on how to comply with numerous regulatory requirements, including the False Claims Act, Anti-Kickback Statute, Stark laws, licensing, certification, and third party reimbursement, including Medicare and Medi-Cal reimbursement regulations. 

They have also provided both legal and consulting support in several engagements in which health systems have sought to build, develop or restructure integrated delivery system strategies with key members of their medical staffs.  These strategies have been designed not only to respond to the demands of the marketplace, but also to improve clinical care delivery in the clients' service areas.  They have participated in the design of hospital physician contracting networks that seek to create "clinical integration" between the health system and participating physicians and medical group practices. 

In addition, they have significant experience participating in health care bond transactions, both tax-exempt and taxable, involving acute-care general hospitals, psychiatric hospitals, specialty hospitals, nursing homes, and life-care centers.  They have acted as bond counsel, underwriter's counsel, letter of credit bank counsel, bond insurer's counsel, and borrower's counsel. 

Sports, Media and Entertainment

The Sports, Media and Entertainment Law Practice at Gordon & Rees provides the full spectrum of specialty legal services required by the wide range of participants in these high-profile, global, multi-billion dollar industries.
Our clients include athletes, sports agents, actors, writers, producers, directors in the motion picture and television business, recording artists, record producers, songwriters in the music business and authors, on-air television hosts and radio station personalities as well as publicly-traded, multinational media and telecommunications entities. We also assist individual and institutional investors involved in the music and motion picture industries.
Our well-respected track record includes many pioneering transactions, such as the first commercial product endorsement agreement for a recording artist with the Jordan/Nike brand, as well as numerous published court decisions of our successful resolution of disputes involving the protection of the brand of an entertainer or athlete, such as the defense of actress Gabrielle Union in Siohvaughn Wade v. Gabrielle Union and the representation of basketball player Dwight Howard in Dwight Howard v. Royce Reed.

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Business Transactions

Business Transactions