Practice Areas & Industries: Eversheds Sutherland (US) LLP


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Practice/Industry Group Overview

Eversheds Sutherland’s private equity team is adept at working on either side of a transaction, and is supported by strong corporate, tax and energy practices.

Eversheds Sutherland works both sides of the street in private equity, either as counsel for the issuer or as legal advisers to investors. We believe that knowing the concerns and ambitions of both sides enables us to serve each group better than by just concentrating on one or the other. Consequently, we advise issuer clients on the formation, organization, structuring, financing and operations of all types of private investment funds. We also advise large institutional clients on their investments in private equity funds, including negotiating side letters and structuring such investments to ensure favorable tax treatments for both U.S. and offshore investors.

The appeal of private equity is partially its relative freedom from regulation. We are thoroughly familiar with SEC exemptions and interpretive positions as to when operating companies cross the line and become investment companies, and we regularly advise clients on how to avoid that status. Commodities regulation issues can also affect private equity funds, and our attorneys regularly deal with the CFTC on novel and complex questions.

One of the biggest developments in this field is private equity platforms establishing both publicly traded vehicles and private funds. They do this to maximize assets under management and provide an investment mechanism for a broad spectrum of investors. We work with numerous sponsors to harmonize the investment strategies, co-investment opportunities and the related management and advisory arrangements needed to make this structure efficient and effective.

Why Eversheds Sutherland
Perspective. Our legal team is comfortable working on the issuer’s side with matters like fund structuring, formation and taxes or on the investor side on issues like side letters, offshore structures and tax issues for foreign investors.

Comprehensive practice. We advise clients on the formation, organization, structuring, financing and operations of all types of private investment funds, including mezzanine funds, private equity funds, venture capital funds and investment funds structured as REITs.

Strong on investment legislation. We have extensive knowledge of laws affecting private investments including the Securities Act of 1933, the Securities and Exchange Act of 1934, the Investment Company Act of 1940 and the Investment Advisers Act of 1940 as well as investment advisory agreements, federal and state tax matters, compliance and corporate governance. We continuously advise our clients on the Dodd-Frank Wall Street Reform and Consumer Protection Act as well as developments in implementing this legislation.

Smart on fund-related structure requirements. Many transactions often have specific fund-related structural requirements that necessitate complex multi-entity structuring, negotiation of earn-outs for prior owners, formation of blockers for tax purposes and similar types of private investing activity. We understand all the subtleties.

Regulatory experience. Many of our attorneys have experience as legal staff of federal agencies like the SEC, FINRA and the DOJ. This gives them insight into the concerns these regulatory bodies have and an understanding of the hot issues of the day.

Strong support from other practices. Our private equity clients are also served by our securities and general corporate practice, our tax practice and even our energy practice (for commodity investors).

Solid experience. Our attorneys have negotiated and structured limited partnership agreements including management fees with hurdle rates and high-water marks.

Nuts and Bolts

  • We have experience in formation of all types of funds including:
    • Private equity funds
    • Mutual funds
    • Hedge funds
    • Venture funds
    • Domestic and offshore structures
    • Timber funds
    • Real estate funds
    • LBO funds
    • Mezzanine funds
  • We represent private equity investors and funds (including venture capital and leveraged buyout funds) in all aspects of their businesses:
    • Fund formation
    • Evaluation of investment opportunities
    • Negotiation and documentation of investment transactions
    • Portfolio acquisitions and dispositions
    • Exits from investments
  • Our practice has intimate knowledge of methods and practices used by portfolio companies of private equity firms to raise or structure capital, including:
    • Senior debt
    • Mezzanine debt
    • Common equity
    • Preferred equity investments
  • Our attorneys have engaged in every type of growth strategy for such funds:
    • Leveraged buyouts
    • Management buyouts
    • Acquisitions
    • Unit divestitures
    • Roll-ups
    • Mergers
    • Dividend recaps
  • They are well-versed in the relevant Acts of Congress and the latest developments in their enforcement:
    • The Securities Act of 1933
    • The Securities and Exchange Act of 1934
    • The Investment Company Act of 1940
    • The Investment Advisers Act of 1940
    • The Dodd-Frank Wall Street Reform and Consumer Protection Act
    • The JOBS Act

Take Action
Eversheds Sutherland’s private equity practice attorneys lead their field in all facets of formation, operation and termination of private equity investments. Supported by our highly regarded securities and general corporate and tax and energy practices, they offer a unique breadth and depth of service to our clients.

Selected Experience

Sutherland represents private equity fund in a broad range of matters.
We represent a private equity fund in numerous acquisitions, management buyouts and other investments for successful middle market companies.

Sutherland helps create massive global timber fund.
Our attorneys provided counsel to a large forestland investment firm in the formation of a $300 million international timber fund.

Tech startup counseled by Sutherland in multimillion dollar private placement.
Sutherland attorneys are representing a flexible-display technology start-up company in a $9 million private placement.

Sutherland represents a building supply company that is a portfolio company of MSouth Equity Partners, LLC, in its acquisition of 6 similar businesses.
Sutherland represents a building supply company that is a portfolio company of MSouth Equity Partners, LLC, in its acquisition of six similar businesses.

Articles Authored by Lawyers at this office:

FINRA Is Ready to Lace-up and Focus on “Blocking and Tackling”: FINRA’s 2017 Priorities and Related Enforcement Actions
Peter J. Anderson,Eric A. Arnold,Bruce M. Bettigole,Patricia A. Gorham,Olga Greenberg,Clifford E. Kirsch,Michael B. Koffler,Susan S. Krawczyk,Neil S. Lang,S. Lawrence Polk,Brian L. Rubin,Amelia Toy Rudolph,Sarah Razaq Sallis,Holly H. Smith,W. Scott Sorrels,John H. Walsh, January 30, 2017
As the football season was winding down, on January 4, 2017, the Financial Industry Regulatory Authority (FINRA) published its 2017 Annual Regulatory and Examination Priorities Letter.1 According to FINRA President and CEO, Robert Cook, this year’s 11-page letter focuses on “core...

SBA Adopts Final Passive Business Rule Impacting BDCs with SBIC Subsidiaries
Cynthia R. Beyea,Steven B. Boehm,Terri G. Jordan,Cynthia M. Krus,Ingrid E. Messbauer,Lisa A. Morgan,Harry S. Pangas,Sara Sabour, January 24, 2017
On December 28, 2016, the Small Business Administration (SBA) released the final version of the Passive Business Rule (the New Rule) under § 107.720 of the small business investment company (SBIC) regulations.1 Among other provisions, the New Rule expands the permitted use of holding companies...

SEC Adopts Amendments to Regulation S-X Applicable to BDCs
Cynthia R. Beyea,Steven B. Boehm,Cynthia M. Krus,Lisa A. Morgan,Harry S. Pangas, December 14, 2016
On October 13, 2016, the Securities and Exchange Commission (SEC) issued a release adopting final rules to modernize and enhance the reporting and disclosure of information by registered investment companies (the Final Rules). Though the Final Rules primarily address the reporting and disclosure...

SEC Adopts Rules to Modernize Information Reported by Registered Investment Companies
Frederick R. Bellamy,Cynthia R. Beyea,Steven B. Boehm,James M. Cain,Cynthia M. Krus, December 09, 2016
On October 13, 2016, the Securities and Exchange Commission (the SEC) issued a release adopting final rules to modernize and enhance the reporting and disclosure of information by registered investment companies (the Final Rules).1 The Final Rules are part of the SEC’s initiative to enhance...

SEC Adopts Liquidity Risk Management Rules for Mutual Funds and Other Open-End Investment Companies
Frederick R. Bellamy,Cynthia R. Beyea,Thomas E. Bisset,Steven B. Boehm,James M. Cain, November 14, 2016
On October 13, 2016, the SEC approved new Rule 22e-4 under the Investment Company Act of 1940, as amended (the 1940 Act), which will require certain open-end investment companies other than money market funds, to adopt and implement written liquidity risk management programs.1 In addition, new Rule...

SEC Adopts Changes to Form ADV and Books and Records Rules
Eric A. Arnold,Clifford E. Kirsch,Michael B. Koffler,Susan S. Krawczyk,Holly H. Smith, September 19, 2016
On August 25, the Securities and Exchange Commission (the SEC) adopted amendments to Form ADV Part 1 that will require SEC-registered investment advisers to provide a significant amount of new information.1 The SEC adopted these amendments to Form ADV to improve the depth and quality of information...

ISDA Publishes Variation Margin Protocol
Brian Barrett,James M. Cain,Catherine M. Krupka,David T. McIndoe,Mark D. Sherrill, August 24, 2016
On August 16, 2016, the International Swaps and Derivatives Association, Inc. (ISDA) published the ISDA 2016 Variation Margin Protocol (VM Protocol). The VM Protocol is intended as a tool to help market participants that will be subject to regulatory variation margin requirements,1 and their...

Venture Global LNG Closes Additional $15 Million Funding Deal
, August 24, 2016
Venture Global LNG, Inc., announced that it has closed a fifth round of equity investment, raising additional capital of $15 million and bringing the total capital raised to date to over $280 million. The proceeds will fund Venture Global LNG’s proposed 10 million tonnes per annum (MTPA)...

Shell Delays FID for Lake Charles LNG Export Terminal
, July 29, 2016
Reuters reports that Shell has indefinitely delayed a final investment decision (FID) for its affiliate BG Group’s proposed Lake Charles LNG export terminal at Lake Charles, La. In February, Shell Canada, primary sponsor of LNG Canada, indefinitely postponed an FID on its proposed LNG export...

Questions Remain Regarding Impact of Brexit on Fund Managers
, July 27, 2016
Although the dust has somewhat settled following the historic “leave” vote on June 23, 2106, in which voters in the United Kingdom elected to leave the European Union, many questions remain. Of particular importance to fund managers based in the UK is the question of Brexit’s...

SEC Issues Guidance on Business Continuity Planning for Registered Investment Companies
Cynthia R. Beyea,Steven B. Boehm,Michael B. Koffler,Cynthia M. Krus,Lisa A. Morgan, July 15, 2016
On June 27, the staff of the Securities and Exchange Commission’s (Commission or SEC) Division of Investment Management (IM) issued a Guidance Update on business continuity planning for registered investment companies (funds).1 The Guidance Update provides the staff’s view on what funds...

Director of SEC’s Division of Enforcement Promises More Enforcement Actions against Private Equity Fund Advisers
, June 02, 2016
In a recent speech, Andrew Ceresney, the Director of the SEC’s Division of Enforcement, discussed his division’s focus on the private equity industry, reviewing eight recent enforcement actions that Enforcement’s Asset Management Unit has brought against private equity advisers,...

Major Companies Invest In Ride-Hailing Companies
, May 27, 2016
Two major car manufacturers have recently invested in ride-hailing companies, signaling their interest in and commitment to the mobility services market. Volkswagen AG is investing $300 million into Gett Inc., and Toyota Motor Corp. is investing in Uber Technologies Inc. Toyota’s partnership...

FINCEN Customer Due Diligence Rules Exclude Most Private Funds from Definition of Legal Entity Customers
, May 25, 2016
On May 5, 2016, the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) issued final rules (the “Final Rules”) on customer due diligence requirements for banks, broker-dealers, mutual funds, and futures commission merchants and introducing...

Changes to Trading Documentation Will be Necessary to Recognize Regulatory Stays of Termination Rights
, May 11, 2016
On May 3, 2016, the Federal Reserve Board released a proposed rule (Proposed Rule) which would “require U.S. global systemically important banking institutions (GSIBs) and the U.S. operations of foreign GSIBs to amend contracts for common financial transactions to prevent the immediate...

Venture Global LNG Closes Additional $55 Million Funding Deal
, May 06, 2016
Venture Global LNG, Inc. (Venture) announced the successful closing of its fourth round of equity investments to fund its proposed liquefaction and LNG export terminal on the Mississippi River in Plaquemines Parish, La. According to the press release, the “round also is notable for adding to...

FinCEN’s Long-Awaited Beneficial Owner Due Diligence AML Rule Could Be Finalized Soon
, May 03, 2016
Earlier this month, the Financial Crimes Enforcement Network (“FinCEN”), a bureau of the U.S. Department of the Treasury, submitted its long-awaited Final Rule on due diligence of beneficial owners of customer accounts to the White House Office of Management and Budget. This new...

U.S. Senators Introduce Legislation to Tighten Schedule 13D Reporting Requirements and Increase Oversight of Activist Hedge Funds
, April 04, 2016
Two U.S. Senators recently introduced legislation that would result in significant changes to Schedule 13D reporting requirements. According to the press release announcing the introduction of the legislation, the proposed changes are designed to enhance transparency, protect companies from...

SEC Issues Order To Solicit Comments On FINRA Capital Acquisition Broker Proposal And Determine Whether To Approve Or Disapprove The Proposal
, March 28, 2016
At the end of last year, the SEC issued a notice of a proposed FINRA rule change that would establish a separate rule set for broker-dealers that meet the definition of a “capital acquisition broker” and elect to be governed under such rule set. Last week, the SEC issued an order in...