Legal Briefs
OnDeck Directors Sued in Class Action For Allegedly Withholding “Material Information” From Shareholders To Make Enova Deal Happen
September 8, 2020
An OnDeck shareholder is asking the Delaware Court of Chancery to halt the sale of the company to Enova until OnDeck discloses allegedly material information that would appear to put the landmark deal in an entirely new light.
On September 4, Conrad Doaty filed a class action lawsuit against Noah Breslow, Daniel S. Henson, Chandra Dhandapani, Bruce P. Nolop, Manolo Sánchez, Jane J. Thompson, Ronald F. Verni, and Neil E. Wolfson for breaching their fiduciary duties owed to the public shareholders of OnDeck.
According to Doaty, the Enova offer of $90 million ($82 million stock, $8 million in cash) was not even the best bid that OnDeck received but he alleges that OnDeck’s directors and executives took it because they were individually offered “exorbitant personal compensation” including “millions of dollars in severance packages, accelerated stock options, performance awards, golden parachutes and other deal devices to sweeten the offer.”
Doaty makes reference to other bids for OnDeck with specifics including two all-cash offers, one that valued OnDeck at between $100 million and $125 million and one that valued it at between $80 million and $110 million. He says that no explanation for their rejection was disclosed.
Doaty also alleges that OnDeck relied on two sets of financial projections to evaluate a sale of the company, one for all prospective bidders (that projected a quick economic recovery) and another set that was used only for Enova (that projected a slow economic recovery). Doaty’s point is that Enova’s valuation was based on less optimistic data and that OnDeck did not publicly disclose to shareholders the more optimistic version that all the other prospective buyers of the company got to see.
“Most significantly, is that it is not pressing time to sell,” Doaty says. “The company was not facing imminent financial collapse or financial ruin.” He continues by pointing out that the company had $150 million of cash on hand and that it had successfully navigated workouts with its creditors over issues caused by the pandemic.
“Yet as a result of the frantic and unreasonable timing of the sale, the consideration offered for OnDeck is woefully inadequate.”
In addition to “exorbitant personal compensation” promised to the Board members, Doaty argues that a cheap price benefits parties who sat on both sides of the transaction, namely Dimensional Fund Advisors LP, BlackRock, Inc., and Renaissance Technologies, LLC, all of whom are said to hold greater than 5% beneficial ownership interest in both OnDeck and Enova. None of them are named as defendants.
“…even if the exchange ratio is unfair,” Doaty argues, “those institutional investors will still benefit from seeing their positions in Enova benefitted. Non-insider stockholders, on the other hand, will not be parties to the benefit.”
The law firm representing the plaintiff in Delaware is Cooch and Taylor, P.A.
Case ID #: 2020-0763 in the Delaware Court of Chancery.
You can download the full complaint here.
As an aside, deBanked mused two days prior to the filing of this lawsuit that the sales price of OnDeck was so low that early OnDeck shareholders stand to recover less of their investment as a result of this deal than investors in a rival company that was placed in a court-ordered receivership by the SEC.
Sketchy Virginia SBA Loan Brokers Indicted
August 26, 2020Ronald A. Smith and Terri Beth Miller, owners of Virginia-based Business Development Group (BDG), an SBA loan brokerage, were indicted this month over an advance-fee scheme in which many customers are alleged to have paid money to obtain SBA loans but did not in fact get them.
As part of the scheme, defendants are alleged to have made many false and misleading representations to prospective borrowers including that:
- BDG was a large, multi-state company
- BDG was headquartered at the Trump Building in New York City and had an additional business in Las Vegas
- BDG has assisted certain named companies in obtaining SBA loans
- BDG was a business established in 2005 or earlier
- BDG was affiliated with the SBA
- BDG had relationships with banks across the nation that allowed it to facilitate the loan approval process with SBA lenders in a customer’s area by utilizing a “Lender Linker” made up of the most preferred SBA lenders in the country
- BDG had a program that included a “Powerful Online Grant Writer Interface Service” that was directly connected to the federal government and “handled everything from A to Z in Finding, Writing, Submitting and Securing Grants”
- BDG offered a money back guarantee
- BDG won the 2016 Best of Manhattan Business Award for Business Development Software and Services
BDG was really just an internet-based business whose goal was to obtain money through fraudulent pretenses and promises, prosecutors contend.
A copy of the grand jury indictment can be obtained here.
CEO Of Online Lender Arrested For PPP Fraud
August 19, 2020
Sheng-wen Cheng, aka Justin Cheng, the CEO of Celeri Network, was arrested on Tuesday by the FBI. Celeri offers business loans, merchant cash advances, SBA loans, and student loans.
Cheng applied for over $7 million in PPP funds, federal agents allege, on the basis that Celeri Network and other companies he owns had 200 employees. In reality he only had 14 employees, they say.
Cheng succeeded in obtaining $2.8M in PPP funds but rather than use them for their intended lawful purpose, he bought a $40,000 Rolex watch, paid $80,000 towards a S560X4 Mercedes-Maybach, rented a $17,000/month condo apartment, bought $50,000 worth of furniture, and spent $37,000 while shopping at Louis Vuitton, Chanel, Burberry, Gucci, Christian Louboutin, and Yves Saint Laurent.
He also withdrew $360,000 in cash and/or cashiers checks and transferred $881,000 to accounts in Taiwan, UK, South Korea, and Singapore.
This, of course, is all according to the FBI. Statements made to Law360 indicate that Cheng maintains his innocence.
A press release published by Celeri late last year said that the company had raised $2.5M in seed funding that valued the company at $11M.
Fintech Companies Settle “True Lender” Lawsuit With Colorado Attorney General
August 19, 2020
Avant, Marlette Funding, and several banks consented to a settlement with the Colorado Attorney General earlier this month to close the books on litigation that has gone on for more than three years.
The lawsuits alleged that Avant and Marlette, who enjoyed bank partnerships, were themselves not covered by federal bank preemption and that they had violated the Uniform Consumer Credit Code of the state by among other things, charging excessive costs to consumers.
After a lengthy battle, Avant, Marlette, WebBank, and Cross River Bank entered into a joint settlement agreement with the Colorado Attorney General that prohibits the fintech companies from charging more than 36% APR in the State of Colorado, along with requiring that the fintech companies maintain a state lending license and engage in a long list of new and redundant measures of compliance.
Did Sealed Case Get Leaked on Bloomberg News Site?
August 4, 2020
A series of Bloomberg News stories in 2018 appear to have put a handful of companies in the cross-hairs of regulators, recent legal filings indicate, and Bloomberg is enjoying unusual status in the saga.
One example is the copy of a federal lawsuit brought by the SEC that appeared on Bloomberglaw.com on Monday, July 27th. A summary of the lawsuit and the full 58-page complaint were broadcast through the Bloomberg-branded website in Google News and were quickly picked up by industry observers who pointed out that the complaint referenced an ongoing undercover investigation by law enforcement agencies.
It was an unusual reveal.
Except when deBanked tried to authenticate the documents by attempting to retrieve an original copy through the court system, we were unsuccessful because the entire case was sealed.
The case and an identical copy of the complaint, which Bloomberg had been circulating all week, were finally unsealed on Friday, July 31st. The case number was the only thing different.
The odd sequence of events suggests that Bloomberg Law may have inadvertently blown the lid on a case almost a week before anyone was supposed to know about it, including the defendants. Over the weekend, one defendant was upset that he had not been able to access the docket until the evening of July 31st. That was 4 days after the world had already gotten a glimpse of it.
FTC Commissioner Rohit Chopra on Merchant Cash Advances
August 3, 2020
Following recent lawsuits filed by the FTC, Commissioner Rohit Chopra made the following statements earlier today in an announcement about merchant cash advances:
As the Commission proceeds into litigation in these matters and further studies this market, I hope that we will uncover additional information about business practices in this opaque industry. In particular, we should closely scrutinize the marketing claim that these payday-style products are “flexible,” with payments contingent on the credit card receivables of a small business. In reality, this structure may be a sham, since many of these products require fixed daily payments, and lenders can file “confessions of judgment” upon any slowdown in payments, with no notice or due process for borrowers.
This raises serious questions as to whether these “merchant cash advance” products are actually closed-end installment loans, subject to federal and state protections including anti-discrimination laws, such as the Equal Credit Opportunity Act, and usury caps. The stakes are high for millions of small businesses.
New York State Legislators Resume Push of Commercial Finance Disclosure Bill
July 17, 2020
A bill (A10118A / S5470B) intended to create uniform disclosures for comparison purposes while also placing control of the commercial finance industry under the purview of the superintendent of the New York Department of Financial Services, is moving forward.
The March 2020 initiative was picked back up this week by members of the Assembly where it passed the banking committee and codes committee on a unanimous and bipartisan basis.
“When enacted, this bill will become the strongest commercial lending disclosure law in the country that covers all commercial financing products,” wrote Ryan Metcalf, Head of US Regulatory Affairs and Social Impact at Funding Circle, on LinkedIn. “It includes strong provisions that ensures enforcement and eliminates loopholes that will prevent gaming & abuse, & requires APR to be disclosed for all products.”
Metcalf further wrote that they and the Responsible Business Lending Coalition (RBLC) have been working diligently with NY state legislators for the last year or so to craft this bill. Among RBLC’s membership is Fundera, Nav, Lendistry, LendingClub and about 4 dozen other companies.
How Should A Merchant Cash Advance Be Structured, What is Syndication, and More?
June 29, 2020A recent roundtable hosted by Pepper Hamilton partner Gregory J. Nowak examined some broad questions about merchant cash advances including:
- What is a merchant cash advance?
- How should a merchant cash advance transaction be structured?
- What are the key features for enforceability?
- Could a merchant cash advance transaction be a security?
- What is participation? is it a security? If yes, what does that mean?
- What is syndication?
- What’s the role of FINRA?
They published the presentation on jdsupra.com and it can be viewed here:
