At Least One Firm is Leaving New York before Disclosure Law Lands

April 29, 2021
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HobokenNew York MCA firms are in the dark. In January, the governor delayed implementation of the APR disclosure bill until 2022. But the bill leaves it to the Department of Financial Services (DFS) to finalize how it will all work and not everyone is confident the outcome will be positive for business in New York State.

For example, Greenwich Capital, a small business funding company, has decided to move from Manhattan to Hoboken, NJ in preparation for the law. They anticipate that the cost of compliance will be high enough to warrant a trip on the PATH starting now rather than when it may be too late to contemplate later.

“There’s a lot of ambiguity, and our five-year lease was up,” Rich Gipstein, General Counsel at Greenwich Capital, said. “We’ll be moving to Hoboken for the time being and see what’s going on with this law. But in the meantime, it’s a lot cheaper for us.”

Based on vague wording language like double-dipping, Gipstein said there is no clear way to tell who or what the law aims to regulate. At least for his firm, it’s better to sit this one out.

“I think there’s quite a lot left open, and it’s intended to be broad,” Gipstein said. “There won’t necessarily be much time to know what the law means until it’s effective. I think there will probably be some lead time, but likely not quite enough for most businesses in the industry to adapt.”

Fall AlbanyFor example: when does a deal become a “specific offer” and come under the purview of the law? In an industry where deals are won through cold calling, social media blitzes, and emails, when would it become necessary to disclose an APR? In a DM on LinkedIn? Rich said it is unclear what a “provider” is, whether it be funders, brokers, or ISOs. In the bill, a provider is required to make commercial financing disclosure clear and let a recipient know at the time of the “specific offer” the all-inclusive rates of a product. Without clarity, it’s hard to predict what the cost of compliance will be.

“I think, from my reading of it and from my understanding of New York’s position, it would seem that they are trying to regulate both funders and brokers under the same regulation,” Gipstein said. “I think it’s possible that the legislature intentionally left some things vague for DFS to fill in. The law basically says, ‘there’ll be regulations that will make this make sense.'”

Gipstein said it’s common for politicians to leave it to the regulators to finish the job, after all, the DFS has its nose to the grindstone in the day-to-day. But when a law affects an entire industry like this, Gipstein said it is uncommon for changes to be left until the last moment.

“It’s more than just disclosure requirements; this is not similar to what California did,” Gipstein said. “The law also dictates how to calculate the projected sales volume. You’re required to either use the historical method, in which you must always use the same number of months leading up to the deal, or you can opt-out and use your own projection. But if you use your own projection, that opens you up to disclose the results of all your deals to the government… It’s almost like an annual audit.”

The historic method doesn’t really work, Rich said when the industry comprises atypical merchants who wouldn’t be looking for funding if traditional methods could predict their sales volume. When it comes to self-declaring and letting the government poke around: Gipstein said the way a funder evaluates deals is proprietary. It’s what sets them apart; it’s the value proposition.

APRGreenwich Capital isn’t alone in their assessment. The Small Business Finance Association (SBFA), a trade group comprised of similar financial companies, has also been vocal about the law’s perceived shortcomings.

“You have a group of companies that are pushing these types of disclosures, for no reason other than their own self-interest,” said Steve Denis, executive director of the SBFA, back in October. “We’re fine with disclosure, we are all for transparency, but it needs to be done in a way that we believe is meaningful to small business owners.”

Denis had further said that those firms taking credit for writing the laws are the same companies that will end up suffering under the strict tolerance of an APR rule.

“The companies pushing this, the trade associations pushing it, they like to take credit for writing the bill in California and writing the bill in New York: I don’t even think they’ve read it,” Denis said at the time. “It’s going to subject their own members to potentially millions if not hundreds of millions of dollars in potential liability [fines.]”

When the DFS finalizes the terms, it will likely make dealing with disclosure too costly to remain in New York State, Gipstein said.

Gipstein said we’ll have to wait and see if NY-based brokers will have to go through extra compliance even if their funders or merchants are out of state. The worst-fear scenario is a possibility that after New Years’ 2022, out-of-state funders will stop working with NY brokers entirely, just because they live in NY. Merchants in the state, subject to the law, may find commercial finance a barren marketplace.

“We’ve got a lot of different things to manage as we grow, and one of the things we don’t want to do is create is a large compliance department,” Gipstein said. “It’s just cheaper for us, after doing a cost-benefit analysis, to move to a different state. We’re probably not going to be a New York funder by 2022.”

BFS Capital is Now Nuula

April 29, 2021
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BFS Capital Website“The reimagined future of BFS starts now, and today I’m proud to announce that BFS Capital has become Nuula,” wrote BFS Capital CEO Mark Ruddock on LinkedIn. In a lengthy post, he explained that the company has shifted its “philosophy from solely selling loans acquired primarily from brokers, to providing a more holistic, customer-centric mobile app that entrepreneurs would find useful each and every day.”

“Nuula is a mobile application that gives small business owners instant access to critical business metrics anytime, anywhere.

It allows real-time monitoring of cash flow, personal and business credit activity, and social ratings and reviews. Small business owners know immediately if there’s an issue with their cash, credit, or reputation that requires action.

But this is just the beginning.”

“With regards to our legacy business, our team will continue to support our existing customers and partners as we transition all our services to Nuula,” he added. “Our existing customers will be the first to be offered a chance to experience Nuula. And over the next few weeks, our existing working capital customers will be able to unlock additional capital from the first of our Nuula ecosystem partners, with exciting incentives and in a way that is as seamless as possible. We expect to make that announcement soon.”

You can read the full post here.

nuula

Shopify Capital Q1 SMB Funding Soars

April 28, 2021
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shopify glyphShopify Capital posted monster figures on Wednesday, originating $308.6 million total in MCA and loans. Across the US, Canada, and the UK, Shopify saw a 90% increase from Q1 last year.

In total, Shopify Capital originated $794 million in 2020, and with a blistering first quarter, it may be on track to originate over a billion dollars this year.

“Shopify’s momentum continued into 2021 as digital commerce tailwinds remained strong and merchants took advantage of the range of capabilities offered by our platform,” Shopify CFO Amy Shapero said in an earnings statement. “We are focused on building a commerce operating system that will help shape the future of retail. Our merchant-first business model positions us to capture the massive opportunity presented by the growth of digital commerce, benefiting both our merchants and Shopify.”

Overall, total revenue for Q1 was $988.6 million, a 110% increase year over year. Nearly a third of the posted revenue was small business lending and MCA funding.

The Death of A Thousand Financial Companies

April 28, 2021
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Unfortunately, Deleting Your Business May Not Be An Option One Can Risk.

This story appeared in deBanked’s Mar/Apr 2021 magazine issue. SUBSCRIBE FREE

Grim ReaperIn March 2021, deBanked revealed that 7.5% of DailyFunder’s user base that had existed in March 2020, was lost during the pandemic. DailyFunder, of course, is the most widely used forum for small business finance brokers and the statistic offered one of the most compelling insights into the damage inflicted on the industry.

A loss was defined as a user whose email address ceased to exist. It was either deleted or the domain name was not renewed. It was a startling revelation. And yet, in a sign of optimism, DailyFunder added more new users in that 12 month time frame than were lost.

But is anything ever truly deleted in the digital age? And how did it come to pass that the owners of these companies believed deletion to be a preferable outcome to transference? Surely as a thousand brokerages closed, there would have been an eager buyer to scoop them up, even if the sales price was for pennies?

And so I arrived at a theory, that companies that simply wound up and disappeared rather than sold themselves off, probably left behind a digital footprint that still drew in prospective customers, a path that ultimately led nowhere. A competitor might rejoice at that outcome but it’s not exactly a net gain because that customer may have decided to go somewhere else or nowhere else instead. Someone else’s loss wasn’t their win. Even the customer was a net loser. That could be resolved, of course, if the competition simply acquired the expired domain names of their fallen competitors, something that could be reasonably achieved for the price of ten bucks through any domain name registrar.

THEORETICALLY ONE COULD ACQUIRE THE WEB TRAFFIC OF 410 FAILED BROKERS FOR ROUGHLY $4,000

Outside of the small business finance industry, such tactics are commonplace. One can simply go on Godaddy’s domain auctions to see the never-ending revolving door of expiring domains which are often ranked and priced on the basis of how much traffic they stand to generate, mainly because of the past owners’ efforts.

According to WhoIsHostingThis, 70% of all web domains fail to be renewed 1 year after they’re purchased. “[41% of these expired domains] go on to be snapped up and registered by other users to potentially benefit and profit from,” they say. And there is nothing controversial about this. This is simply a standard of the world wide web. Your fallen online business is recycled as someone else’s marketing tool.

Applying that math to the small business finance industry at hand, that would mean that of 1,000 brokerage failures, 41% of the expired domain names are going to be acquired by someone else or they already have been. And if the expired domain only costs $10 (and they’re not all this cheap), then theoretically one could acquire the web traffic of 410 failed brokers for roughly $4,000.

WHOA.

The realization led me to conduct a controlled experiment, one in which I would try to prove this theory for a deBanked story.

I bought roughly twenty expired domains, intentionally leaning toward older ones, domains that had been expired for 2-10 years rather than recent casualties of the pandemic. Once completed, I jotted down my hypothesis, that these domain names probably produced some level of prospective customer traffic.

When my experiment concluded, I became alarmed, even sick, over what the results taught me. Deletion, I learned, is an outcome that no business, let alone a financial services company, can afford to surrender themselves to.

Here’s why:

Among the first steps taken was to create a “catch-all” email account on each domain so that if a former owner of a domain came along and tried to contact me, I would get it no matter which address they tried and that I would be able to tell them that I had acquired it accordingly and even tell them my theory!

No marketing or anything was done for any of the domains. I simply acquired them and let them sit stagnant. I did not resurrect whatever their old websites were. And yet, I received thousands and thousands of emails, none from what I could tell were from former owners.

It’s important to state that I did not use these accounts to actually do anything, but that these vulnerabilities came to light by virtue of monitoring the inbound emails these domains accrued.

Some domain names still had control of social media accounts like business facebook pages and twitter accounts. Someone could not only acquire your old domain, but use it to resurrect and use dormant social media accounts, including being able to view all past private correspondence on them. Yikes.

☠️☠️☠️

Some domain names were still attached to active bank accounts, credit card accounts, or financial services. Correspondence regarding these accounts was still being transmitted to them. When you delete a domain, you need to make sure its access is revoked from every account you have, especially bank accounts. Some received NSF notices or were being subject to debt collection efforts.

Every domain name was subscribed to newsletters or communities or some service in which one could use to learn personal information or business information about the previous owner.

hackersUnknown but likely is that some of these domains may have been the “lost password” email address of record for other accounts online, a particularly troubling thought.

As the litany of stroke-inducing vulnerabilities piled up, then came live correspondence. Lenders wanted to know where to send a still-owed commission, a borrower was reaching out for customer service, old business partners were trying to rekindle past relationships.

Presumably such domains could give someone access to portals or databases where previous customer data was held. This implies that not only is the old domain owner at risk but that business vendors that had not disabled access to their systems for the defunct users could also be at risk from nefarious actors now in control of email addresses belonging to former customers.

A nefarious actor could surely dream up still more ways to carry out compromising acts. I disabled incoming email altogether for the domains pretty soon into my aforementioned discoveries so that emails to those domains would simply bounce back and indicate to the sender that there’s nobody there anymore.

SOME DOMAIN NAMES STILL HAD CONTROL OF SOCIAL MEDIA ACCOUNTS AND BANK ACCOUNTS

And my original hypothesis had been blown to smithereens. These domains generated no material web traffic of note, except for probing “bots” instead of human users. What I thought might be a hidden source of web traffic, a clever insight on internet marketing 101, instead turned out to be a glimpse into a business’s worst nightmare.

No matter how much one’s business has failed, control over the domain name should be preserved at all cost, that is unless, all of the above vulnerabilities are addressed first and completely.

Originally, the costs of this journalistic experiment were to be recouped by simply reselling the domains onto the public market for fair market value. Instead, they were simply cancelled, cast back in the sea anonymously, where anyone else could buy them and do whatever they want with them. I, however, made no effort to alert anyone’s attention to them.

The publication of this story was delayed as I, the journalist, had to weigh the merits of disclosing my findings. But as the data says, 41% of expired domains are going to get snapped up anyway. And true to form, I was actually outbid by other unknown buyers by some of the original domain names I had hoped to acquire for my experiment. A financial service company’s domain and all the vulnerabilities with it, were sold to bidders willing to pay $30, $40, or $50+ versus my $10-$20 or so budget. That seems a terrifyingly small cost. And I highly doubt they were journalists.

Perhaps those domains are generating web traffic, but if they’re not, one has to ponder why someone would want to acquire the lapsed domains of so many dead financial service companies. And post-pandemic, there are too many to count.

If the death of a thousand companies has taught me anything, it’s that even business failure needs a well thought-out security plan. Otherwise one risks death by a thousand cuts.

View the magazine issue this story appeared in here

Yellowstone Capital, FTC Lawsuit Results in Settlement

April 22, 2021
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yellowstone capital doorsThe lawsuit filed by the FTC against Yellowstone Capital et al has resulted in a settlement. The defendants agreed to pay $9,837,000 for the matter to be resolved.

As part of it, the defendants did not admit or deny the allegations of the complaint. They also agreed to have the FTC monitor their compliance with the agreement for varying but long periods of time.

Aside from the cost, the FTC made its point in two areas, the requirement that the defendants comply with a specific system of customer disclosure and that they not debit or cause withdrawals to be made from any customer’s bank account without the customer’s express informed consent. On the former, they must (roughly speaking) disclose clearly and conspicuously the amount and timing of any fees, the specific amount a customer will receive at the time of funding, and the total amount customers will repay.

The announcement coincides with the Supreme Court decision that revoked the agency’s presumed authority to obtain restitution or disgorgement under Section 13(b), the basis that the FTC brought against Yellowstone Capital in August 2020.

The FTC signed and filed the agreement less than 24 hours before the SCOTUS decision.

The full details of the settlement can be downloaded here.

President of Fora Financial on New Credit Facility

April 19, 2021
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deBanked Jan/Feb 2016 Cover Fora FinancialAndrew Gutman spent six years at Fora Financial, the hot non-bank financing company that deBanked profiled in 2016. Gutman worked his way up to CFO before taking over day-to-day operations as president in February 2020. In that role he began working with a team to build an aggressive growth plan for the coming year of 2020. A couple of weeks later, the world shut down.

“Covid was really a kick in the pants,” Gutman said. “How we were doing at the time, our strategic plans were out the door, our growth plan shuttered.”

Flash forward to April 2021, Fora announced a new $100 million credit facility: Not just back on track but finally ready to pursue the plans from a year ago.

“The first months were rough; after the pandemic started, we lost our securitization facility,” Gutman said. “But we kept going, originating aggressively. By around June or July, we started to feel competitive again and rebounded; we started bringing people back– hiring back staff that was furloughed.”

Gutman said the firm was able to change the winds, and by December they were not far off from where they were in 2019. Now set up finally for the aggressive growth plan they had laid out before Covid, Gutman said that though the pandemic threw everything to the wind, Fora still had the capital to back up a good book of business when everything else failed.

Gregory J. Nowak, Partner at Troutman Pepper, Has Passed Away

April 13, 2021
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Gregory NowakGregory J. Nowak, a partner at Troutman Pepper, passed away suddenly on April 11th at the age of 61.

The firm’s website introduced Nowak as a veteran attorney that was “sought after for advice on complex securities law matters, particularly on issues arising out of the Investment Company Act of 1940; the Investment Advisers Act of 1940; federal and state securities laws and regulations; broker dealer, FINRA, CFTC and NFA regulatory matters; and corporate and M&A transactions.”

That perfectly sums up the context in which I first encountered Nowak in 2017 when he spoke at a small event put on by the Alternative Finance Bar Association where I was the only non-lawyer in the entire audience. One might expect a presentation on the finer minutiae of securities law of which he gave, to be a mundane, easily forgotten experience for a financial journalist such as myself, but his energetic delivery and fluid command of the subject matter translated complex securities questions into a folksy debate wherein one could feel confident in resolving the Howey Test over the dinner table just as easily as they could in the courtroom.

In fact, I approached him afterwards to thank him on his presentation and even followed up later over email, asking if I might have the honor to list him as a recommended securities attorney on the deBanked website. That was four years ago and as fate would have it, he remained the only recommended attorney that deBanked formally listed under the securities category, despite my coming to know very many accomplished and competent attorneys in the same field of law.

Nowak was one of the earliest public voices in the world of merchant cash advance participations and syndication where the securities question was a consideration some weren’t even sure applied as the industry created new products and investing structures at a furious pace.

He spoke at deBanked’s first major conference in 2018 on the subject of “Syndication and Raising Capital,” and he continued to generate recognition of the need for securities legal support in the burgeoning industry.

He was a co-author of an article published with a colleague at Pepper Hamilton LLP (now Troutman Pepper) that he had given permission to be reprinted on deBanked in December 2018, titled MCA Participations and Securities Law: Recognizing and Managing a Looming Threat. It was read by more than 1,500 people on the deBanked website that first day alone.

Nowak was highly sought out on merchant cash advance issues. “Most judges want to see consistency of treatment and that includes your vocabulary,” Nowak said in an interview with deBanked in April 2019. “The word ‘loan’ should be banned from their email and Word files.”

Although our relationship was one of professional acquaintances, I often told those seeking advice about MCA syndication that they should “probably call Greg Nowak about that.”

In “Does Your Merchant Cash Advance Company Pass The Scrutiny Test?,” Nowak explained that funders that decide for business purposes to solicit money from investors, have to be careful not to run afoul of SEC rules. He said that he recommended funders treat these fundraising efforts as if they are issuing securities and follow the rules accordingly. Otherwise they risk being the subject of an enforcement action where the SEC alleges they are raising money using unregulated securities.

“You need to be very careful here because these rules are unforgiving. You can’t ignore them,” Nowak said.


His obituary ran in the Philadelphia Inquirer this morning.

California’s Business Loan & MCA Disclosure Law Is Nearing Finality

April 13, 2021
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Senator Glazer CaliforniaNearly three years after California became the first state to pass a business loan and merchant cash advance disclosure law (SB 1235), the actual disclosure rules themselves are finally nearing completion. The public has until April 26th to submit any comments on the amended portions of the proposed rules.

The 52-page document is the result of years of negotiations between various parties that all have a stake in its implementation. Among the finer details are the characteristics of the fonts permitted in the disclosures, what column a certain disclosure can be placed in, and the aspect ratio of the columns themselves.

But that’s the easy part. Here’s the hard part, according to a brief published in Manatt’s newsletter yesterday.

“The modified regulations continue to require use of the annual percentage rate (APR) metric, rather than annualized cost of capital (ACC), to disclose the total cost of financing as an annualized rate. This appears to be a final decision, which will make it difficult if not impossible for many commercial finance companies to comply given the significant challenges of calculating APR on products with substantial variance in the amounts and timing of payments or remittances.”

Manatt highlights other issues, including that all the necessary disclosures be provided “whenever a payment amount, rate, or price is quoted based on information provided by the proposed recipient of financing…”

This requirement, the firm says, is not even required under Federal Regulation Z for consumer loans.

“Many companies will not be able to comply with this requirement absent radical changes to their California application and underwriting procedures, as it is common today for companies to have preliminary discussions with applicants about potentially available financing terms before full underwriting has been completed.”

Manatt’s newsletter on the issue can be found here.

Any interested person may submit written comments regarding SB 1235’s modifications by written communication addressed as follows:

Commissioner of Financial Protection and Innovation
Attn: Sandra Sandoval, Regulations Coordinator
300 South Spring Street, 15th Floor
Los Angeles, CA 90013

Written comments may also be sent by electronic mail to regulations@dfpi.ca.gov with a copy to jesse.mattson@dfpi.ca.gov and charles.carriere@dfpi.ca.gov.

The last day to submit comments is April 26, 2021