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EB5 INVESTORS MAGAZINE

Top 5 Litigation Attorneys

EB5 Investors Magazine is pleased to announce the Top 5 Litigation Attorneys. To be eligible, distinguished attorneys needed to perform litigation and related legal services for the EB-5 program.

For more information or to contact any of these professionals, we invite you to view their listings at www.EB5Investors.com/directories.

SCOTT M. ANDERSEN

Scott Andersen is principal at Andersen, P.C., a securities regulatory defense law firm. Andersen was formerly deputy regional chief counsel at FINRA, where he oversaw FINRA enforcement cases prosecuted in the Western United States. He has broad experience with regulatory investigations and enforcement actions as a former 19-year plus securities regulator. He has led complex criminal and civil prosecutions for the N.Y. State Attorney General's office’s Investor Protection Bureau, the NYSE and FINRA. He has represented EB-5 participants including a regional center, EB-5 issuer and a market intermediary in investigations conducted by the SEC and FINRA.

WHAT NEW TRENDS ARE YOU SEEING WHEN IT COMES TO EB-5 LITIGATION?

While 2020, with COVID, led to a slowing of EB-5 regulatory actions, this may also reflect an increased awareness by industry participants to the requirements of the securities laws. Notably, EB-5 matters were not expressly identified in the 2020 SEC Enforcement Annual Report, nor included as SEC or FINRA 2021 examination priorities. Yet regulators will continue to monitor EB-5 offerings to ensure compliance with all legal requirements. The SEC has sued a number of regional centers and others for fraud relating to an EB-5 capital raise, often for misappropriating investor funds. FINRA is also involved in monitoring broker-dealer compliance, including the new Reg BI, suitability, AML, advertising, due diligence and supervision.

WHAT HAS BEEN YOUR MOST IMPACTFUL LITIGATION CASE, AND WHY?

My practice focuses on representing clients in regulatory investigations before the SEC and FINRA. Yet the most impactful cases are those where compliance advice in advance has eliminated large risks of enforcement and litigation. Historically, EB-5 securities matters involved immigration, real estate and other professionals who have not had extensive experience with the requirements of the U.S. securities laws and made mistakes as a result. Addressing errors in advance to bring a securities offering into compliance with legal requirements is a win both for the client and the industry.

ROBERT V. CORNISH, JR.

Robert “Bob” Cornish is a securities litigation attorney serving EB-5 investors and market participants, who applies his front-line perspectives as a compliance officer and counsel for funds, broker-dealers and investment managers. Cornish has experience in litigating in state courts, federal courts and arbitration forums such as FINRA and AAA. In addition, Cornish is a certified mediator who can propose and navigate alternative paths to costly litigation. He is a graduate of Davidson College and the Cumberland School of Law of Samford University, a member of the EB-5 Securities Attorney Roundtable and is a frequent speaker and commentator on securities and litigation matters.

WHAT NEW TRENDS ARE YOU SEEING WHEN IT COMES TO EB-5 LITIGATION?

The pandemic has rocked the real estate and construction sectors over the past 12 months, causing concern for developers and investors alike. When compounded with recent disfavor expressed in U.S. immigration policy, investors who were once comfortable with the U.S. markets not only wish to limit their market exposure but forego immigration completely. On the other hand, loan payments based on commercial rent and other revenue flows have slowed or even ceased, thus placing developers and regional centers in classic “Hobson’s Choices” of either angering investors or creating default risks.  Litigation seems to be dealing with this dynamic more and more.

WHAT HAS BEEN YOUR MOST IMPACTFUL LITIGATION CASE, AND WHY?

Some of the first cases I ever worked on in a substantive manner involved the sale of toxic U.S. mortgage-backed securities by a large broker-dealer to what was perceived to be a financial backwater in its advisor network – its Hong Kong office. These cases enabled me for the first time to work with investors from abroad and learn more about how common business conduct abroad may not be appropriate for those dealing with entities subject to U.S. regulation. All parties to financial transactions in U.S. securities markets have very strong expectations of what the rule of law in the US provides.

MATTHEW GALATI

Matthew T. Galati is the principal of The Galati Law Firm. Galati has worked in the EB-5 space since early 2011, representing investors and regional centers. Beyond EB-5, Galati represents immigrants from all walks of life, including in family immigration, business startups, E-2 visas, and extraordinary ability cases. Galati’s litigation practice includes representing clients before federal courts, in adversarial agency practice, appellate proceedings and EOIR. Most notably, Galati served as counsel (pro hac vice) in the seminal EB-4 case Shalom Pentecostal Church v. Beers, 2013 WL 12322086 (D.N.J. Sept. 16, 2013) which resulted in the elimination of two USCIS regulations.

WHAT NEW TRENDS ARE YOU SEEING WHEN IT COMES TO EB-5 LITIGATION?

It was shocking to see the Immigrant Investor Program Office’s lack of productivity in 2019. Predictably, the agency became swamped with litigation which seemed to be the only way for a case to get attention. I think that initially, mandamus cases were easier to settle. However, now, the Department of Justice is taking a more sophisticated, more adversarial approach. We see this with motions to transfer cases and motions to dismiss in increasing frequency. Litigation is not premium processing. It takes a certain mindset to fight these battles and preserve through adversity. Innovation is also a must.

WHAT HAS BEEN YOUR MOST IMPACTFUL LITIGATION CASE, AND WHY?

Gutta v. Renaud, 2021 WL 533757, (N.D. Cal. 2021). This case involved a group of 22 plaintiffs with delayed I-526s. It was ambitious and aggressive – but it worked! The Court denied USCIS’ efforts to dismiss our case. The agency decided to settle after the decision. Accordingly, every plaintiff will have adjudication before June 30, which has been a major source of anxiety for investors. Beyond that, Gutta helps establish that USCIS’ highly questionable processing times, in and of themselves, cannot be a defense for delay. I am confident that this will be a strong precedent for future mandamus cases.

IRA KURZBAN

Ira Kurzban is the founder of the law firm Kurzban, Kurzban, Tetzeli & Pratt, P.A., of Miami, Florida. He is a past-national president of the American Immigration Lawyers Association and is a Fellow of the American Bar Association. He has litigated over 50 federal cases concerning the rights of aliens, including Jean v. Nelson, Commissioner v. Jean, and McNary v. Haitian Refugee Center, Inc., which he argued before the United States Supreme Court. Kurzban is an adjunct faculty member at the University of Miami School of Law. He is the author of Kurzban’s Immigration Law Sourcebook.

WHAT NEW TRENDS ARE YOU SEEING WHEN IT COMES TO EB-5 LITIGATION?

Due to the failure of the previous administration to adjudicate all benefits cases, including investor cases, the increase in the investment amounts, the downturn in construction generally, and some of the bad actors in the industry, we are seeing far more litigation than ever. Many investors are filing mandamus actions to seek adjudication of I-526s, I-829s and to obtain interviews at consulates so they can receive their conditional residence status before the current law expires. We are seeing more investors challenge illegal uses of their funds even where the SEC has not been involved. More lawyers are becoming litigators in light of the current situation.

WHAT HAS BEEN YOUR MOST IMPACTFUL LITIGATION CASE, AND WHY?

The two most important cases we have litigated over the past two decades are Chang v. U.S., 327 F.3d 911; Zhang v. U.S.C.I.S., 978 F.3d 1314. In Chang v. U.S., we challenged the government’s change in policies in regard to investors who already received their conditional residence status. The Court determined that the government could not retroactively change its policies to deprive a class of 200+ investors of their right to LPR status. The case was ultimately settled and all investors received their “green cards.” In Zhang, we recently successfully challenged the government the view that “cash” did not constitute an investment for immigration purposes if it was a loan that was not fully collateralized.

DAN LUNDY

Daniel B. Lundy is a partner at Klasko Immigration Law Partners and leads the firm’s EB-5 regional center and developer practice as well as leads the litigation team. He has been deeply involved in litigating USCIS denials of EB-5, and delays in adjudicating cases. He advises clients on EB-5 projects involved in civil litigation. Lundy has litigated more than 100 cases, including adjustment of status and waiver denials; I-526 and I-829 denials; H-1B, L-1, EB-1 and other immigration denials; denials of asylum before the U.S. District Courts, U.S. Courts of Appeals, and the U.S. Supreme Court.

WHAT NEW TRENDS ARE YOU SEEING WHEN IT COMES TO EB-5 LITIGATION?

Investors, tired of long and unpredictable processing times, have been filing more mandamus actions to compel USCIS to act quickly in adjudicating their cases. This has resulted in more resistance to mandamus by the government. The vast majority still settle, and mandamus is often the only way to get USCIS to act. USCIS is notorious for making policy changes without notice and applying them retroactively. Two issues currently being litigated are the changes to the redeployment policy and the so-called “value transfer exchange,” where an investor uses a third party to swap foreign currency for U.S. dollars.

WHAT HAS BEEN YOUR MOST IMPACTFUL LITIGATION CASE, AND WHY?

It’s hard to choose. We often get results for our clients through settlement, where there is no published decision. In terms of EB-5 decisions, Mirror Lave Village, LLC v. Wolf, 971 F.3d 373 (D.C. Cir. 2020). The court held that the investment was at risk even though the investors had a right to request their money back at a certain because there was no guaranty that they would ever get any money back. This reversed a USCIS policy that EB-5 investment agreements can never provide an opportunity for investors to ask for their money back.

EB5Investors.com Staff

EB5Investors.com Staff

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