Whether you are starting a small business or running an established company, it is vital to understand business laws and regulations. But that is easier said than done. My goal is to provide business-related legal services so that you can spend more time dealing with the actual business and less time with legal intricacies of operating your business. My services include:

Business formation

You have a new and innovative product or service and you are interested in forming a new business. You may have concerns about liability, taxes, investors and other considerations. As your small business lawyers, we will assist you in deciding whether your startup business should organize as a limited liability company (LLC), partnership, S corporation or C corporation. We will form the most appropriate business organization for your new business and register the business in all jurisdictions in which it will conduct business.

Mergers and acquisitions

If your business is fortunate to thrive and become a merger or acquisition target, we can represent you as the seller; or if you are on the other side and looking to acquire a business, we can assist with the due diligence in purchasing a business. We will review various approaches in purchasing a business through merger or acquisition. We will discuss with you various structures in purchasing the stock or purchasing the assets of an acquisition target. In either case, your business will need thoughtful and comprehensive representation in all aspects of a merger or acquisition.

Government contracting

Government contractors face numerous issues when contracting with the government. And with a hands-on approach and substantial experience, we will help you navigate those legal issues. We prepare teaming agreements, subcontracts and joint venture agreements and can handle a variety of other government contract matters. As government contract lawyers for your small business, we can assist you in applying for programs for HUBZones, service-disabled veteran-owned small businesses or women-owned businesses. If your company is facing debarment or suspension because of allegations of corruption or bribery, we can assist in your defense before the U.S. government or the World Bank.

Business transactions

Once you have an ongoing business, however organized, you will have a host of various commercial transactions. We prepare agreements with lenders, lessors, partners, customers, employees, and consultants. We provide business legal services for your company, preparing confidentiality agreements, nondisclosure agreements, licensing agreements, distribution, employment agreements, independent contractor agreements, lease agreements, and many others. We will help you understand what each part of these agreements require and make sure that these agreements provide protection to you and your business.

Corporate law

Once your startup business has been created, your company will have ongoing requirements to maintain its separate status. We will assist in guiding you on how to prepare corporate minutes or resolutions of the company to maintain the corporate form and other steps to protect the limited liability of your company. You will also have to make sure that your bylaws or operating agreement continues to reflect the needs of the business organization. We are available to assist you in addressing these issues. And once your company is ready to raise additional capital from investors, we can work with you to determine whether you are subject to securities laws or fall within one of the exemptions.

Business disputes

Few businesses are immune to business disputes. If your small business was well-advised, you have an agreement that will provide guideposts on how to resolve your business dispute. If you are unable to settle your dispute, you may have a dispute resolution mechanism such as mediation or arbitration in the agreement. An alternative dispute resolution mechanism such as arbitration or mediation generally can provide a relatively quick resolution of your business dispute. If not, then you may have to consider litigation. We handle business disputes, including pre-litigation matters, mediation, arbitration and litigation.

Anti-corruption compliance

Every company should have procedures and policies to minimize its exposure to allegations of corruption or bribery. An integrity compliance program (ICP) is essential for businesses doing work internationally for the United States government or work financed through one of the development banks. We can assist in reviewing or preparing an ICP to assure that is consistent with the anti-bribery and anti-corruption guidelines from the World Bank. If your company is facing debarment or suspension because of allegations of corruption or bribery, we can assist in your defense before the U.S. government or the World Bank.

Non-profit law

We work with organizations to obtain their tax exempt status under Section 501(c)(3) of the Internal Revenue Code. There have been recent changes to obtaining 501(c)(3) status and we have worked with organizations in submitting successful applications on the simplified track by filing a 1023-EZ and the more rigorous 1023 application for larger organizations. Nonprofits also face similar legal challenges to assure that they comply with business requirements and additional requirements to assure that they do not jeopardize their tax exempt status. As a law firm for nonprofits, we work with nonprofit organizations to guide them through these issues.

FAQ Small Business Attorney in DC

What is considered a small business?

Almost all our clients fall within the definition of small business/startup as determined by the Office of Advocacy of the U.S. Small Business Administration. Under this definition, a small business has fewer than 500 employees. Small businesses encompass about 99.9% of all business organizations in the United States.

Which industries do you serve as a small business attorney?

Most of our clients are service providers such as consulting companies, law firms, accounting and bookkeeping services, cybersecurity consultants, video production companies, and lobbyists, just to name a few. We also represent foreign and domestic manufacturers and software developers.

As a small business lawyer in DC, we represent some retail operations, such as bookstores and restaurants. We also represent numerous nonprofits with varying missions. Our government contractors clients hold various IDIQs (Indefinite Delivery, Indefinite quantity Contracts) and GSA schedules.

In which areas of the law does a small business or startup need legal assistance?

Most times, small businesses/startups need the services of outside general counsel. As outside general counsel for small businesses, we can handle most matters as a small business attorney that small businesses generally encounter. Usually, anything with the word agreement or contract is within our practice areas. This includes operating and shareholder agreements, which are used for small businesses and startups that are formalizing their relationships with their owners. Once a business is formed, then we prepare and review a host of other agreements, such as service agreements (which may be referred to as client agreements or consulting agreements), independent contractor agreements (which may be referred to as subcontracting agreements), employment agreements, teaming agreements, purchase and sale agreements, merger agreements, option agreements, license agreements, lease agreements, and the list goes on.

What factors should a small business and startup look for in retaining the services of a lawyer for small businesses?

With our extensive experience of working as a small business attorney in DC for decades now, background and experience should come right at the top of the list when looking for a small business lawyer. We think that accessibility and communication are essential for a successful relationship between an attorney and a client. Hourly rate is important but not as important as quality of service.

What kind of experience do you have in advising small businesses as an attorney?

Keith Rosten has not only legal experience but also business and practical experience that allows him to relate to the trials and tribulations of a small business owner. Keith has BigLaw experience before working for small and medium-sized businesses, first at his own law firm focused on small businesses and then with Berliner Corcoran & Rowe LLP.

Keith has substantial business experience. He received an MBA from the Tuck School at Dartmouth College. During his business studies, he worked on several group projects with small businesses, including a furniture manufacturer, a manufacturer of leak location precision equipment, real estate developer. After business school, Keith operated a successful real estate business in California and overcame numerous issues, such as asbestos abatement and underground storage tank remediation.

Keith worked as a legal adviser to a government contractor and was a legal adviser to a major initiative in Russia. Keith ran another small business, selling and marketing solar energy equipment. The business had an e-tailer component, hosted the largest solar energy forum online, and sold solar energy equipment to the government. Keith negotiated two GSA schedules for the business and obtained HUBZone certification for the business. Keith was also president of the Dartmouth Entrepreneurial Network – Washington, a networking organization for small businesses in the greater Washington, DC community.

Keith has also volunteered for Compass Pro Bono, working with local business professionals to conduct long-term consulting engagements for local nonprofits in fundraising, governance, and strategy.

With this breadth of legal and business experience, Keith is attuned to some of the challenges facing small businesses, which allows him to provide effective advice and guidance.

As a small business lawyer, do you take in-person meetings only?

Yes. We are located in downtown Washington DC and host many of our clients. For those clients who cannot come into our offices, we usually meet over Zoom or by telephone.

How do you charge for your services as a small business attorney?

We charge our clients based on hourly fees. We usually provide a budget of how much certain matters cost so that startups and small businesses know in advance the ballpark cost of the matter.

What if a client does not like our services?

Clients can terminate our services anytime if they don’t find it satisfactory.

Should my small business lawyer or startup lawyer be in the same state as me?

No, not always necessary and may depend on multiple factors. For example, though we are an expert small business lawyer in DC, we have also provided consultation to other cities’ clients.

Mergers Acquisitions and Investment by Foreign Entities Subject to CFIUS Reviews

CFIUS role in mergers and acquisitions expanding

If you are a foreign company and have loads of money to purchase a U.S. business, the U.S. has generally welcomed your foreign cash. But there are limits regarding the kinds of businesses foreign companies are allowed to acquire. This article provides an overview of The Committee on Foreign Investment in the United States (CFIUS) and its role in reviewing transactions in which a foreign company is buying an interest in a U.S. company.

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CFIUS was formally formed in 1975 and given broader authority in 1988. CFIUS is an interagency committee initially authorized to review any transaction proposed or pending after August 23, 1988, by or with any foreign person, which could result in control of a U.S. business by a foreign person.

The major mandate of CFIUS is to review the potential effect of transactions on the national security of the United States.

Although CFIUS was authorized to reject deals, it was not active—until recently. Up to 2018, CFIUS performed the role of reviewing direct foreign investment into the United States. In 2018, CFIUS’s authority was expanded under The Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA).

Under new authority, starting November 10, 2018, any transaction by or with any foreign person that could result in foreign control of specified U.S. critical technologies business, or any covered non-controlling investment by a foreign person in such a U.S. business is subject to mandatory notification to CFIUS.

Key terms in CFIUS

The range of transactions is quite broad as transactions mean not only mergers and acquisitions, but also joint ventures, leases, and other investments.

Foreign persons generally mean a foreign entity, including a partnership, corporation, trust, or other entity organized abroad. The term also includes foreign nationals and foreign governments.

The other key term in CFIUS is “control,” which is defined broadly as the power to directly or indirectly determine, direct or decide important matters affecting the U.S. business, no matter if such power is actually exercised.

Recent changes to CFIUS

The two major changes to CFIUS legislation are that non-controlling investments are now covered; and certain transaction require mandatory notice. And if you don’t submit the proper notice, there are substantial civil penalties that may be imposed.

Critical technologies

To give you an idea of what kinds of technologies are covered, you will not be surprised to learn that critical technologies include aircraft manufacturing and aircraft engine parts manufacturing. They include military armored vehicle and nuclear electric power generation.

Critical technologies also include other broad categories such as search, detection, navigation, guidance, aeronautical, and nautical system and instrument manufacturing, telephone apparatus manufacturing and electronic computer manufacturing. In other words, you have to look at the list very carefully because critical technologies includes a wide breadth of technologies.

Non-controlling investments covered

A significant change to CFIUS’ authority was for “non-controlling” investments. Until FIRRMA, CFIUS reviewed only investments that could result in foreign control of a U.S. business. Under this expanded mandate, CFIUS reviews certain non-controlling investments. This is a major change.

Non-controlling investment means a foreign person gets any of the following rights: access to any material nonpublic technical information in the possession of the pilot program U.S. business; membership or observation rights on the board of directors or the right to nominate an individual to the board of directors; or any involvement, other than by voting its shares, in substantive decisions regarding the use, development, acquisition or release of critical technology by the U.S. business.

Who must give notice to CFIUS

Mandatory notice

Mandatory notice may be the most significant change to CFIUS.

Under FIRRMA, any transaction by or with any foreign person that could result in foreign control of specified U.S. critical technologies, business, or any covered non-controlling investment by a foreign person in such a U.S. business, is subject to mandatory notification to CFIUS.

The mandatory declaration must be filed 45 days before closing of the transaction. Parties to a transaction subject to the mandatory notice requirement can also opt to file a joint voluntary notice instead of a declaration.

Failure to notify CFIUS can result in a civil penalty in an amount up to the value of the transaction in question. CFIUS has 30 days to consider mandatory declarations. During its consideration, CFIUS may request filing of a full notice by the parties, self-initiate CFIUS review or notify the parties of the completion of all actions.

Voluntary notice

An official CFIUS process begins when parties to a proposed or pending transaction jointly file a voluntary notice in accordance with the instructions that can be found on the CFIUS website.

For efficiency purposes, CFIUS strongly encourages parties to consult with CFIUS at least five business days before filing a notice by submitting a draft notice to CFIUS and allowing the Committee an opportunity to review the transaction and request additional information to be included in the actual notice.

Information required in the CFIUS notice includes a description of the transaction; the parties involved; and background on business activities etc. More information on contents of voluntary notice can be found in Section 800.402 of the Regulations Pertaining to Mergers, Acquisitions, and Takeovers by Foreign Persons.

After receiving the notice, the staff chairperson will make a determination on whether it satisfies requirements for completeness under the regulations. If it does, the chairperson circulates the notice to all CFIUS members. A review period of up to 45 days will begin on the next business day.

Factors in a CFIUS review

CFIUS members examine the covered transaction in order to identify and address, if necessary, any national security concerns that arise as a result of the transaction and whether foreign investment in critical technologies is interfering with U.S. technological superiority.

The Committee considers the following factors:

• Whether the US business has contracts with US government agencies possessing national security responsibilities;
• Whether the US business performs (or has previously performed) under any classified contracts;
• Whether the US business possesses or otherwise deals in critical technologies or products (i.e., commodities software or other technology controlled under US export laws etc.);
• Whether the transaction would result in foreign control over physical or virtual “critical infrastructure;” and
• Whether the US business has any offices or facilities in locations near sensitive government facilities.

Members of the Committee can request additional materials and information from the parties. The Committee may request follow-up information. The parties should respond within three business days.

In certain circumstances CFIUS can initiate a subsequent investigation, which must be completed within 45 days. The Committee can also refer a particular transaction to the President, who has 15 additional days to act. The President has the authority to suspend, prohibit or impose conditions on the deal.

The parties to the transaction may withdraw their notice at any time, upon approval by CFIUS. CFIUS tracks withdrawn transactions. The Committee may also reject voluntary notice if it is incomplete, if the parties do not respond to follow-up information request, if there is a material change in the transaction or material information contradicting information provided in the notice is discovered.

CFIUS decision

If CFIUS finds that the transaction does not present any national security or loss of technology risks, or that the law provides adequate authority to address these risks, CFIUS will notify the parties of completion of all actions with respect to the transaction. The parties receive notification from CFIUS and the transaction comes within a “safe harbor.”

CFIUS generally does not outright reject a transaction. If CFIUS finds that a covered transaction presents a national security or loss of technology risk, or that the law does not provide adequate authority to address these risks, then CFIUS may enter into an agreement with, or impose conditions on the parties to mitigate the risk. It can also refer the matter to the President.

CFIUS today

The number of transactions that have to comply with CIFIUS’s notice requirements has increased significantly in recent years and the trend is expected to continue. Part of the growth is attributed to the increase in volume of Chinese investments in the U.S. but the most significant part of it is due to a new mandatory notice requirement under FIRRMA.

If you have questions regarding how CFIUS applies to any particular transaction, you should contact a CFIUS attorney.