Corporate Governance and Compliance – What’s the Difference?

Cash, collaboration and Canada — three words to remember this year when thinking about legal technology.

As an industry, legal technology has slowly grown from an obscure niche domain to a full-fledged market segment over the course of the last half decade. Legal professionals (lawyers, academics, non-legal administrators and in-house counsel) are warming (albeit gradually) to the inevitability of technology playing an increasingly prominent role in how legal services are offered and delivered. It also means that investors see a large upside and have begun viewing investments in legal technology as viable options for financial gain.

Cash

By September 2019, investment in legal technology companies had already exceeded $1.2 billion, already above the record-setting $1 billion set in 2018 and a whopping 415 per cent over the $233 million invested in 2017. For legal technology companies, the money is starting to trickle in.

Marked by a record $250 million investment in Clio led by TCV and JMI Equity in early September, and a $200 million investment of Houston-based Onit in January, 2019’s record-breaking year has shown that there is cash available to fuel legal technology companies to the next level. The Clio investment represents the largest venture capital investment of any legal technology company in Canada and surpasses the $50 million received by Kira system in late 2018. Legal technology companies and the “unicorn startup status” (a startup valued at over $1 billion) are no longer mutually exclusive.

The big question, however, is will this trend continue? Will legal technology continue to garner venture capital and private investment in 2020 and beyond? The simple answer is yes, as long as financial markets continue to go up. Investment is forever related to the economy and so any economic slowdown naturally results in an investment chill.

No surprises there. But what’s interesting about the legal sector is the realization by law firms that value-added legal technology is required to protect high levels of profitability and client satisfaction. The pendulum of legal technology development and adoption will never swing backwards. Instead, the question is how quickly it will continue to move forward. Because of this, I predict an upward trend in legal technology investment in the coming years.

Collaboration

Large law firms in particular are realizing the potential value of working with early stage startup companies. There could be any number of reasons, ranging from the inability of existing legal technology solutions to modernize, to trying to find a technology that solves a unique/distinct /niche pain point.

Regardless of the reasoning, law firms all over the world are developing incubators, programs and collaboration projects between themselves and early stage legal technology providers. In the U.K., legal tech incubator program Fuse, out of Allen & Overy and Mishcon de Reya’s MDR LAB, is based in the firm offices giving early stage technology companies the chance to collaborate directly with the law firms and their clients.

For an early stage technology company, the value of working directly with leading law firms grants easier access to the market and ensures your technology is developed with a more focused approach. Frequently iterating your product/service with direct law firm involvement ensures a faster feedback loop and a more focused early-stage product. For law firms, advantages range from having a solution tailored to a firm’s unique needs to the ability to invest as a shareholder of a new solution and purchase the technology at a far reduced price.

Canada

Hockey aside, the world is quickly discovering that Canada punches well above its weight when it comes to producing high quality legal technology companies.

Two companies, Kira Systems and Clio, proudly call Canada home, with ROSS Intelligence recently reopening an office to Toronto. With young companies like MinuteBox and Closing Folders having an increasingly large presence working with law firms outside Canada, as well as leading events like Fireside’s recent Legal Innovation Summit, the world is beginning to take notice.

Most notably, the city of Toronto is now recognized as a global centre for legal technology development. As the financial capital of Canada, with every major Canadian bank and law firm having its head office within a stone’s throw of Bay Street and King Street, combined with great law schools proximate to the University of Waterloo (known for its strong science and engineering departments), you have a perfect recipe for a strong legal innovation culture.

Perhaps there is no better evidence than the existence of the Legal Innovation Zone (LIZ), the world’s first legal technology incubator. Located in the heart of Toronto (only a few minutes walk from every major law firm), the LIZ has incubated well over a dozen companies in the past four years, helping them grow, develop and succeed. Based out of Ryerson University, early-stage companies are given the tools and mentorship they need.

Recognizing the value the LIZ can offer early stage legal technology companies, LIZ has gone global, launching an interactive program for legal technology companies worldwide.

The online interactive tools and virtual programs provide valuable lessons for founders beyond just building a lean canvas model. LIZ director Hersh Perlis proudly noted that the mission statement of the LIZ global program is to “help institute better legal services for all, not just in Canada.”

Legal technology is just beginning to emerge from the shadows and present itself to the world. More importantly, the world is starting to take notice. This is a testament to the lawyers, law firms, entrepreneurs, support staff and clients who all realize there has to be a better way to deliver legal services.

Rest assured that we are well on our way to that inflection point when legal technology really begins to spread its wings and take flight. And when that moment comes, there will be plenty of cash, collaboration and Canada to go around.

Sean Bernstein is a former Bay Street corporate lawyer turned legal technology entrepreneur and co-founder of MinuteBox Inc. He is actively involved in the integration of new technologies within the industry and exploring new processes given the changing legal landscape.

Editor’s note: This article was originally published in The Lawyer’s Daily on January 2, 2020.

Since the Corporate Transparency Act was officially enacted, legal experts and compliance officers have spent hours and hours combing through the legislation.

At the heart of the CTA’s mandate, federal legislators require all qualifying business entities to submit diligent beneficial ownership information (BOI) reports to the Department of Treasury’s Financial Crimes Enforcement Network (FinCEN). The purpose of the legislation is part of a broader effort to crack down on white-collar crime and promote greater corporate transparency.

Common FAQs About the CTA

While the enactment of the legislation was highly anticipated, many lingering questions about the reporting requirements confused business leaders. Therefore, FinCEN created a detailed FAQ page that guides legal professionals, in-house counsel, and compliance officers on how to prepare their respective BOI reports.

The most common FAQs relate to the legislation’s filing deadlines. FinCEN requires that any business entity created on or after January 1, 2024 must submit transparent BOI reports no later than 90 days following the receipt of the articles of incorporation. Some exceptions can be made but, generally speaking, most new entities must follow these requirements.

Businesses that were operational before January 1, 2024 are not required to submit their BOI reports until January 1, 2025. Regulators recognize that established corporations have multiple entities and subsidiaries operating under their corporate umbrella. As a result, gathering and documenting all BOI reporting data is a larger undertaking in these businesses.

Updated FinCEN FAQs on the CTA

Despite the detailed FAQ page, a significant amount of confusion remains regarding the status of the CTA. A lawsuit brought before federal court in Alabama, in which a federal judge ruled the CTA “unconstitutional” — a ruling currently under appeal — further compounded the confusing status of the legislation.

To help address ongoing questions about the CTA, FinCEN added new information to their FAQ page. These are a handful of the concerns addressed by FinCEN’s latest content update.

Reporting obligations for previously exempt entities

When the CTA was first enacted, some businesses in various industries were exempt from the BOI reporting requirements. Common exempt industries included sectors you would expect, such as:

• Government authorities
• Financial institutions
• Securities exchanges
• Venture capital funds
• Public utility companies
• Financial market utilities
• And more

In some cases, those exemptions have been challenged and previously exempt entities have lost their exemption status. In these situations, FinCEN requires these businesses to file their BOI reports by the end of 2024, based on specific conditions. General counsel or law firms representing these businesses can contact FinCEN to discuss these reporting conditions.

Businesses that received their articles of incorporation after January 1, 2024 that have lost their exemption status must act more quickly. These entities are required to submit BOI reports within 30 days upon losing their exemption status.

Guidance for S-Corporation compliance

S-Corporations have different business structures than the more common C-Corporations. However, under the CTA, S-Corporations have the same BOI reporting requirements as C-Corporations that must be filed with FinCEN.

Some exemptions do exist, though they’re primarily awarded to S-Corporations that have a significant presence in the United States, as well as those that meet certain financial thresholds. FinCEN advises legal and compliance officers of S-Corporations to contact the Department of Treasury for any questions about exemption statuses.

Homeowners Associations compliance clarification

Homeowners Associations make and enforce rules or by-laws regarding properties within their jurisdiction. Individuals who serve on the board of directors for Homeowners Associations may be classified as beneficial owners, requiring the organization to submit BOI reports to FinCEN.

Beneficial ownership through trusts

Individuals with significant control over trusts are, in most cases, exempt from BOI reporting requirements under the CTA. The exception to that rule lies in cases where those individuals maintain or control at least 25% controlling interest — the threshold requirement that classifies an individual as a beneficial owner — in another business entity through the trust.

Additionally, if the beneficial owner has access to a significant portion of the trust’s assets, they may be required to submit BOI reports documenting those instances. A detailed review of individual trusts must be conducted by FinCEN to determine if trustees qualify as beneficial owners, whose information must be disclosed to the authorities. FinCEN encourages any legal experts managing trusts to contact their department for additional clarity.

How to easily prepare BOI reporting data for FinCEN

FinCEN continues to update their FAQs with more content as new legal matters are addressed. Each individual entity should prepare to submit detailed BOI reports to FinCEN if that data is indeed required. Failure to comply with the reporting requirements will result in stiff financial penalties for the business and possible criminal charges against shareholders and stakeholders.

Newly formed and long-established businesses can simplify their reporting workflows using intuitive entity management software. These platforms provide easy-to-use templates so you can build structured organizational charts, cap tables, and shareholder ledgers in one centralized database.

The benefit of using entity management software for all beneficial ownership, stakeholder, and shareholder data is that the platform functions as a single source of truth. If there are any discrepancies in the BOI reports, compliance officers can simply refer to the platform for clarification. Once the data has been corresponded, make the appropriate updates to the BOI reports and submit them to FinCEN.

By storing all beneficial ownership, stakeholder, and shareholder data in a centralized entity management platform, most of the tediousness of generating those BOI reports is already complete. The data exists in structured minute book records within the platform. All your legal team has to do is pull out the appropriate records and generate PDF files to submit as your BOI reports. It’s a quick, easy, and painless workflow.

Ready to get out ahead of your entity’s BOI reporting requirements? Join the MinuteBox revolution today and build template organizational charts, cap tables, shareholder ledgers, and all entity management records all within one cloud-based secure platform.

An audit is a scary thing. The idea of government officials pouring over internal company records, micro-searching for financial incongruencies is enough to keep any business owner up at night. Fingers crossed it never happens to you. But sometimes it does…

According to the Canada Revenue Agency (CRA) website, during an audit, officers “closely examine books and records of small and medium-sized businesses to make sure they fulfill their obligations, apply tax laws correctly, and receive any amounts to which they are entitled.” An audit is a stressful process, often involving accountants, lawyers and frantic searches through old records. Ultimately, the goal of any audited party is to resolve the matter quickly and painlessly.

But quickly solving the problem requires corporate records to have been safely stored and updated accordingly. Naturally, the larger and busier a company, the easier it is to push these seemingly minute priorities down the list. Big mistake.

The CRA may ask to see the following records:

1. information available to the CRA (such as tax returns previously filed, credit bureau searches, or property database information);
2. your business records** (such as ledgers, journals, invoices, receipts, contracts, and bank statements);
3. your personal records (such as bank statements, mortgage documents, and credit card statements);
4. the personal or business records of other individuals or entities not being audited (for example, a spouse, family members, corporations, partnerships, or a trust); and
5. adjustments made by your bookkeeper or accountant to arrive at income for tax purposes.

Corporate record books, commonly referred to as “minute books,” contain pertinent information as it relates to the status and well-being of the company. More often than not, minute books are physical binders that sit idly on law firm shelves. The binders contain the articles of incorporation, amendments, by-laws, original copies of share certificates share certificates, corporate ledgers, and other nondescript records.

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The minute book should be updated as necessary, but at the very least once a year. What often happens, however, is that because minute books rarely need immediate updating, they are pervasively out of date.

Certain company resolutions can include the authorization to issue bonuses or dividends to employees or shareholders. For obvious reasons, this is of interest to the CRA. Dividends and income are taxed at different rates. So if an individual declares a dividend payment on their personal taxes, yet the resolution authorizing the corporate dividend payment is missing (because the minute book was not updated), the CRA may issue a tax reassessment.

The truth is that while law firms may charge a nominal amount to regularly update a company’s minute book, it costs thousands less than what a law firm will charge to overhaul and update a minute book in the case CRA audit. To avoid problems later on, here are a few important steps companies can take to alleviate the minute book concern before the Canada Revenue Agency comes calling:

• Make sure you know the location of your minute book. The vast majority of all corporate minute books are kept at the office of the company’s law firm. If it’s not there, try and locate it quickly.
• Ask your law firm whether the minute book is up to date. If necessary, remind them of recent transactions, issued dividends and other corporate matters.
• If possible, use a digital or virtual minute book. Minute books are kept in physical format for no other reason than that’s how they have been traditionally stored. A virtual minute book (whether a scanned version of a physical binder or a series of PDF documents stored on an external server) is equally as valid as the traditional physical minute book under Canadian law. Signatures need not be in pen and ink to be legally binding. New tools allow law firms to store and update minute books on the cloud, so clients can access their up-to-date records and share them instantly. Ensure your law firm uses these new solutions for your minute books.

The truth is that no one plans to be audited by the CRA. But that doesn’t mean you can’t be organized if and when the time comes. Taking a few small steps today with your minute book can bring a little sanity and clarity to an otherwise hectic ordeal.